Confidentiality in Health Care - Literature review Example

Confidentiality in Health Care: A Critical Analysis and Synthesis of an Ethics in Profession and Legal Issue In the annual meeting and exposition of the American Public Health Association, the importance and the congruence of inclusion of both human rights norms and ethical standards in public health work was highlighted. In history, the protection and promotion of human rights were embodied in the universal declaration of human rights by the United Nations. The human rights include those on the health and well-being of populations to which many states have been making commitments and efforts in order to promote and protect. In doing so, the health care ethics and human rights compliment each other in making efforts for improving public health (Gruskin and Dickens, 2006). In health care system, there is a need to maintain confidentiality of a patient by a legal requirement. However sometimes, nurses and professionals in the health care system may be placed in the circumstances in which dilemmas might arise between the need to maintain a patient’s confidentiality and the need to disclose information. According to Beech (2007), the nurses and health care professionals should be familiar with their professional code of conduct and keep up to date with any changes in the law with an understanding to justify to override their responsibilities of maintaining confidentiality. Nursing has been recognized to be a profession. Nicoll (1922) found that the word profession was first used in the mid-fifteenth century and was defined as a learned vocation. Later the term profession was defined as a controlling occupation with a status of superiority and precedence within a division of work (Friedson, 1977). Desired characteristics of a profession are (1) a unique body of knowledge; (2) altruistic service; (3) a code of ethics regulating practice; (4) lengthy socialization; and (5) autonomy of practice (Richman, 1987; Maloney, 1986 and Friedson, 1983). Beech (2007) states that “professionalism” on the other hand is often viewed as a process which certain occupations advance through, with the end state being a profession. The term professionalism was defined by Johnson (1972 p. 32) as: “... a successful ideology and as such has entered the political vocabulary of a wide range of occupational groups who compete for status and income... What must be borne in mind is that the ideology is espoused, either wholly or piecemeal, by occupational groups who have not achieved and are unlikely to achieve control over their own occupations.” Nursing has been striving as a profession in the health care. Professions in health care services are demanded to balance between keeping their professional conducts up to the standards and difficulties attendant to their role. During the 20th century, the number of professions and its members has been increasing. This implies that there is an ever growing need for professionals to make many more decisions in the society. The power has been shifted from individuals and political representatives to those professionals. With such important role they place in the society, the importance of professional ethics was highlighted by Rutty (1989) as: “professionals not only purport to choose the best means for the given ends of their clients and the public; they help define the ends themselves: the lawyer and accountant shape our ideas of security; the physician, of health; the priest, of salvation” (p. 9). Professional ethics are so important to individuals and it is seen as a central part of their life. Thus they need to practice a work ethic so that they could professionally function in an imperfect society. Without a valid professional ethics, individual practitioner could not develop their moral which is critical for carrying out professional duties in a work place (Rutty, 1989). It is found that the nursing is at its disadvantage in regard to professionalism because it is difficult to find an exact meaning or description of nursing including its activities (McKenna, 1993). However others view nursing which (1) involves practical activity and communicative interaction which constitutes central essence of nursing profession; (2) includes the scientific framework that underpins nursing practice; (3) involves helping others to maximize their function within varying states of health; (4) mainly constitutes a unique “caring” aspect (Sarvimaki, 1988; Smith, 1981; Hall, 1980; Raya 1990 and Van Maanen, 1990). The nursing profession has been on debate saying a science and an art with science meaning an intellectual activity relating to knowledge and art as skilful practice. “Ethics' most often refers to a domain of inquiry, a discipline, in which matters of right and wrong, good and evil, virtue and vice, are systematically examined. 'Morality', by contrast, is most often used to refer not to a discipline but to patterns of thought and action that are actually operative in everyday life. In this sense, morality is what the discipline of ethics is about.”(Goodpaster, 1992, p. 111). Therefore, nurses including health care providing professionals must uphold their morality with discipline of ethics while they are providing their professional services to clients. Nurses are required to keep the confidentiality of patients if they are to behave ethically. “Confidentiality” in health care is defined as a legal obligation that is derived from statutory and case law as well as forming part of the duty of care to a patient. This requirement is included in the nursing professional codes of conduct which is also spelled out in the NHS employment contracts. Those who breach the contractual agreement is subjected to disciplinary procedures and punishment (Beech, 2007). According to Department of Health (2003), health care professionals must be dutiful for confidentiality when one person discloses information to another in circumstances. They are reasonably expected that the information will be held in confidence. For example, a patient disclosing information to a clinician, he or she is expected to keep disclosed information confidential. In the health care system, confidentiality is crucial to everyone who is involved in providing health care. Patients have placed trusts in professionals and practitioners of health care service providers and they are expected that their information will be kept confidential. The information should not be misused without any consent of patient. Otherwise, patients will be deterred from seeking the professional health care services and treatment with a fear that their information will be used without authorization or consent. The NMC placed an importance of trust by patients who disclosed their private and personal information in exchange for seeking treatment and health care services. They have their basic human right to believe that the professionals in the health care service system will use their information given to a registrant in confidence is intentionally used for the purposes of medical and health care services. The information must not be disclosed to a third party for any use. However, the health care professionals faced an ethical dilemma in keeping the information of confidentiality and disclosing information in certain circumstances. For example, in a scenario, a young man arrives at accident and emergency with facial injuries. He tells the nurse that the injuries were incurred during a violent fight with another person, and that the other person was lying on the ground not moving when the patient left the scene. The patient says that he wishes her to treat his injuries and respect the confidentiality of what he has just told her. Clearly, there is a risk of serious harm occurring to the third party if she does nothing, so, professionally, she is ethically obliged and legally protected in reporting the incident to the police. Her concern for the third party would override her duty of confidentiality to the patient, although she should try to obtain the patient's consent to the disclosure (Beech, 2007). There are clear provisions on confidentiality and disclosure of information clearly set out in some act of parliament. Some of them are (1) Human Fertilisation and Embryology Act 1990; (2) the Abortion Regulations 1991 (under the Abortion Act 1967) and (3) the NHS (Venereal Disease) Regulations 1974. Article 8 of the Human Rights Act 1998 is often cited because it contains provisions about privacy of home and family life. In health care system, the most influential Act that governs confidentiality is known as “Data Protection Act 1998” (Beech, 2007). On March 1, 2000, the Data Protection Act was came into existence which replaced previous legislation. The act covers all social services and health records. It can be applicable to all accessible public records including electronic and manually held data. The act requires that all data are processed fairly, legally and accurately, and that information is held for no longer than necessary. It imposes restrictions on the transfer of data and unnecessary reprocessing of data, as well as requiring organisations to restrict unauthorized access. In addition, the act gives individuals a right to access any personal information held about them. Patients, therefore, arc allowed to read their health records if they so wish and to do so they should apply to the relevant trust's data controller. On the other hand, the Freedom of Information Act 2000 provides a general right of access to information held by public authorities. The two acts work separately and the Freedom of Information Act 2000 is largely concerned with recorded information, such as statistics. Personal information is exempt from this act and is covered by the Data Protection Act 1998 (Beech, 2007). Health care professionals may face complex issues relating to confidentiality. When they are faced with the complex issues, they are likely to have tensions between fulfilling the requirement of patient confidentiality and facilitating the patient care. They face difficulties because there were conflicting obligations within their ethical code of conduct. Difficulties may arise where practitioners are faced with conflicting obligations within their ethical code. This code provides that each registered nurse, midwife or health visitor must report to an appropriate person in the care environment, circumstances that could jeopardise safe standards of practice or circumstances in which safe and appropriate care for patients cannot be provided (McHale 2000). There was a case with “whistle blowing” in the health care services. Grahame Pink was well known for his brave to blow the whistle on what he regarded as poor standards of care for older people in a hospital in Stockport. Pink disclosed information on how patients were poorly treated in the hospital in the press conference. Relatives of the patients claimed that even though the names of the patients were withheld, it was obviously traceable the names of the patients. On the ground that Pink breached the confidentiality of information of patients, he was dismissed eventually. Later he reached a settlement with the hospital on appeal to an industrial tribunal for unfair dismissal (Beech, 2007). The Public Interest Disclosure Act 1998 was issued after the Grahame Pink case, in order to clarify confidentiality issues. The act provides further guidance on whistleblowing in the health care system. This act also safeguards any employee from victimization if he or she needs to raise legitimate concerns with his or her employer. However legislation is seen as limited and employees are rarely reinstated as a consequence of a finding of unfair dismissal. Thus going public is seen as the last option to be considered. In certain circumstances, it may be necessary to bleach a patient’s confidentiality for the sake of public interest. The case of W v Egdell was well known in the health care professionals. In this case, the patient was detained in a secure hospital following convictions for killing five people and wounding several others. He made an application to a mental health tribunal to be transferred to a regional unit. An independent psychiatrist, Dr Egdell, was asked by W’s legal advisers to provide a confidential expert opinion that they hoped would show that W was no longer a danger to the public. However, Dr Egdell was of the opinion that W was still dangerous. On receipt of Dr Egdell’s report, Ws application for transfer was withdrawn. Dr Egdell, in the knowledge that his opinion would not be included in the patient’s notes, sent a copy to the medical director of the hospital and to the Home Office. Later, the patient brought an action for breach of confidence. The Court of Appeal held that the breach was justified in the public interest, on grounds of protecting the public from dangerous criminal acts. However, the court said that such risk must be “real, immediate and serious” (Beech, 2007). Professionals in the health care system are expected to face conflicts occasionally because law appears conflicting and circumstances dictate differing courses of action. To avoid such problems, all health care professionals should be fully informed about their codes of professional conduct. They must be kept with up to date with changes in the law or professional guidance. Professional discretion may determine whether the duty of confidentiality should prevail over requests for disclosure or whether there is justification for overriding this duty. Whatever the decision, the practitioner remains personally and professionally responsible for his or her actions (Beech, 2007). Clements (2004) stated that in response to concerns about the inadequate value the NHS and other statutory bodies were placing on the issue of confidentiality, a review was commissioned with the aim of ensuring that confidentiality was not being compromised. The review chaired by Dame Fiona Caldicott made recommendations which included the appointment of a senior person in each NHS organisation to be responsible for safeguarding the confidentiality of patient information. This person is known as the Caldicott Guardian. The Caldicott review proposed six general principles that health and social care organisations should adopt when reviewing their use of client information. (1) Justify the purpose. (2) Do not use personally identifiable information unless it is absolutely necessary. (3) Use the minimum personally identifiable information. (4) Access to personally identifiable information should be on a strict need-to-know basis. (5) Everyone should be aware of their responsibilities. (6) Understand and comply with the law. Conclusion It is found that in every profession, professionals are expected to perform their duty ethically. In the discussion above, in the health care services, the professionals are faced with dilemma between carrying out their professional duties and keeping the confidentiality of information on patients. There are provisions in some acts which clearly state the requirements of keeping confidentiality of patients’ information. Remedies are to update all healthcare professionals with most relevant and up-to-date information on confidentiality of patient information and their professional code of conducts. Thus, to be a professional in every profession, upholding moral and ethical code of conducts are important. References: Beech, Maureen. (2007). Confidentiality in health care: conflicting legal and ethical issues. By: Nursing Standard, 1/31/2007, Vol. 21 Issue 21, p42-46, Clements L (2004) Community Care and the Law. Third edition. 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