HCAs and patient confidentiality
Patients have the right to confidentiality from all healthcare professionals, including HCAs, reports Adrian O’Dowd
Patient confidentiality is a fundamental part of health care that should be at the heart of everything that HCAs and all NHS staff do.
The concept of confidentiality is enshrined in law, NHS codes and contracts of employment. It is guaranteed by both common law - the decisions of the courts - and statute law, which is passed by Parliament. It is also an underlying part of professional practice that protects human rights, as spelled out in the European Convention of Human Rights.
The common law of confidentiality says that people have a right to expect that information given to a healthcare professional is only used for the reason it was given but also that it will not be disclosed without permission.
People have the right to control access to their own personal health information, which means healthcare professionals cannot discuss matters relating to patients outside the clinical setting, nor discuss a case in public where they could be overheard, nor leave records unattended where they may be read by others.
Martine Tune, NMC professional adviser (nursing), who is lead officer on patient confidentiality and the nurses and midwives’ code of conduct, says: ‘A patient wants to walk into a healthcare setting and know that any information they give to the person they are dealing with when receiving a service about their health is for the purposes of that service being delivered and not for any other purpose.
‘That is so they can have trust and confidence in the people who are giving them the service. A patient should be certain that, whatever their issues are, they won’t be shared with anybody else unnecessarily. That’s a basic right of every patient.’
All healthcare professionals are bound by the common duty law of confidence.
Ms Tune says: ‘Anyone entering health, social care or any other aspect of professional practice knows this duty is absolute and there are a range of bodies that regulate and have explicit responsibility for ensuring that confidentiality is in place.
‘Bodies like the new Care Quality Commission and PCTs have got responsibilities to make sure confidentiality is in place in their organisations.’
HCAs need to be aware of legislation that relate to confidentiality. These include: the Data Protection Act 1998, which governs the processing of information; the Human Fertilisation and Embryology Act 1990, which regulates reproductive technology services and bans the disclosure of information concerning donors and people receiving treatment; the Mental Capacity Act 2005, which provides a legal framework to empower and protect those who may lack capacity to make decisions. Ms Tune points out many support workers are also covered by NHS codes of practice.
‘There is a code of practice on confidentiality and it is regarded as an authoritative source of information,’ she says. ‘Healthcare support workers are also covered by their contract of employment. I don’t know of any contract that does not include a confidentiality clause.’
Disclosure, or giving information, is only considered lawful and ethical if the individual has given full and explicit consent to it being passed on, whether verbally or in writing.
‘Disclosure of information is for the purposes of services and for the protection of that person to ensure they receive the service or care that they need,’ Ms Tune explains.
Consent to disclosure of information can also be implied - when it is assumed the person in the care of a healthcare professional understands that information may be shared within the healthcare team - required by law or be justified by reason of ‘the public interest’.
The latter enables staff to disclose information to prevent, or to support detection, investigation and punishment of serious crime and/or to prevent abuse or serious harm to others, in cases such as rape, child abuse, or murder.
The Police and Criminal Evidence Act (1984) allows healthcare professionals to pass on information to the police if they believe that someone may be seriously harmed or death may occur if the police are not informed.
No one should have to make these decisions by themselves and it is always advisable to gain advice and support before making decisions of this nature.
Ms Tune advises HCAs to consult nurses or other professionals if they have concerns.
While the NMC’s code of conduct does not apply to HCAs, Ms Tune hopes HCAs look at it and try to follow the spirit of the code.
‘I would like to think that in the workplace, registered and unregistered nurses discuss these things because they are working in a team.’