Disclosure to the police

disclosure to the police

A practice manager was approached during a busy morning surgery by a police officer who was requesting information about a patient of the practice. The patient was currently being held in custody. The police officer told the practice manager that the patient had committed a serious crime, which had resulted in harm to another person, and they needed a copy of the patient’s clinical records.

The practice manager rightly asked the police officer whether he had consent from the patient authorising disclosure of her records. The officer explained that he had been unable to get consent and quoted section 29(3) of the Data Protection Act 1998 (DPA), stating that this waived the need for patient consent.

She rang us for advice.

Our advice

Our adviser explained to the practice manager that section 29(3) of the DPA meant that information could be disclosed, without a breach of the Act occurring, but it did not compel disclosure.

The adviser referred to the GMC's guidance on confidentiality particularly in relation to disclosures in the public interest. Paragraph 37 states that personal information can be disclosed in the public interest without consent, or if consent has been withheld, if the benefits to society outweigh the patient's interests in keeping the information confidential.

Due to the ethical duty of confidentiality owed to the patient, consent should be sought in the first instance, particularly as the patient was in custody and did not pose a threat to the public.

Our adviser suggested that the practice manager speak to the police officer again to establish why they could not get consent and why they specifically needed information from the clinical records. This would hopefully enable the practice to make an informed decision as to whether or not they could justify disclosure of the records.

The outcome

The police officer informed the practice manager that the patient was unable to consent as she lacked the mental capacity to do so due to what appeared to be a mental health problem. The Forensic Medical Examiner (FME) had assessed the patient and found that she was very distressed and appeared psychotic. The FME had requested the records so that he could establish what her medical and drug history was in order for him to provide her with appropriate care and treatment.

Based on this information, our adviser suggested that one of the GPs in the practice who was familiar with the patient speak directly to the FME to provide him with the appropriate information. If, after this conversation, it was felt that any medical records needed to be disclosed these should be only those that the GP felt were relevant and should be disclosed directly to the FME, rather than to the police officer.

The practice manager proceeded on this basis and the patient's GP spoke to the FME who was then in a position to provide appropriate treatment to the patient.

Learning points

  • It is not unusual for the police to request information about patients from their GP. Under normal circumstances it is important to ensure that you have the appropriate consent from the patient which specifies what disclosure can be made.
  • The police may quote section 29(3) of the Data Protection Act 1998 with the suggestion that due to this legislation, consent is not required. However, a doctor has an ethical duty of confidentiality and must be able to justify a decision to disclose information without the patient’s consent.
  • Even when a patient has been accused of committing a serious crime, if they are in police custody and therefore not a risk to the public, their consent should be sought if possible. If the patient refuses to consent the police may be able to get a court order compelling disclosure of certain information. Only that information which is specified in the court order should be disclosed.

Dr Kathryn Leask
Medico-legal adviser

This is a fictional case compiled from actual cases from our files.

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