When staff are witnesses in child protection cases, do they need a subpoena to protect them against possible action for breach of confidentiality?
While this dilemma specifically applies to health visitors, the same principles apply to all healthcare practitioners. A subpoena is a court order requiring the attendance of a person to give evidence, sometimes accompanied by a request to bring specified documents.
The basic principle is that the confidentiality of information provided by or about the patient must be respected. The principle derives from the Data Protection Act 1998, an implied duty in the contract of employment, the trust relationship between patient and practitioner and the code of conduct of the NMC. The confidentiality of patient information is the basic presumption that applies in all situations. However, there are exceptions and this dilemma raises the issue of when it is necessary to obtain some authority to give out information that would be in breach of the duty of confidentiality.
The NMC’s code of conduct recognises there are exceptions to the duty of confidentiality and paragraph 5.4 refers specifically to child protection issues. It states that: ‘Where there is an issue of child protection, you must act at all times in accordance with national and local policies.’
The Children Act 1989, as amended by subsequent legislation, sets the framework for child protection. Its basic principle is that the child’s welfare is of paramount consideration. This means that where an issue of child protection arises, no health practitioner could refuse to give evidence to a court. If, therefore, a health visitor is involved in a child protection case she or he knows they have a professional duty to give evidence to the court and could not rely on duty of confidentiality. This duty would apply whether or not they have been subpoenaed to attend. Every NHS trust and PCT that deals with children should have a child protection policy and it is the duty of the practitioner to be familiar with, and follow, this policy.
Bridgit Dimond, MA, LLB, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd