Conviction and Fine for Allowing the Secret Patient's Data - Case Study Example

Sam attended for an appointment with his local GP at the Elms Medical Practice, Luton. Sam is a 60 year old stout gentleman who smokes and has a heart condition. Sam had previously been prescribed statins to control his blood cholesterol level. He had recently been feeling a little dizzy and had been suffering from heart palpitations. Sam informed his GP, Dr Smith, that he was concerned about his blood pressure and that he knew it was high because he had measured it at home on his own blood pressure monitor. Dr Smith tested Sam’s blood pressure and verified that Sam was indeed showing signs of severe hypertension. Sam informed Dr Smith that he had heard about a wonder drug called “BPLow” and that he wanted to be prescribed this medication. Dr Smith, realising that BPLow was a drug that the local Primary Care Trust had put on a list as being “only for use in the case of exceptional personal or clinical need”, at first refused to prescribe the drug. This made Sam very angry and caused an argument. Sam banged his fist on the table and shouted at Dr Smith. “Why can’t you people just do your job and just give people like me what they need? If you don’t write me a prescription, I am going to complain to the Ombudsman about you!”. Dr Smith ignored Sam. He turned his back on him and started washing his hands in the wash basin and humming “Que Sera Sera…” Sam decided that he was not going to leave the Dr’s room until he got what he wanted. Sam noticed an open medical file on Dr Smith’s desk with the name of “Gigi”typed on it. Gigi was a television soap celebrity and was well known as the actress who played the barmaid in “Coronotion Street”. I’ll show him, he thought, and Sam slipped the file under his coat. After five minutes of getting nowhere, Dr Smith a busy GP who lived on his nerves, became rather agitated and picked up a tray of urine samples that were ready for despatch to the local hospital pathology laboratory. “I am going to go and see the medical secretaries…. when I get back, I expect you to be gone!”. As Dr Smith walked towards the office door he tripped, dropping the tray of samples and spilling human fluid all over Sam’s hair and clothing. Sam was incensed and disgusted and stood up to face Dr Smith. “I’m going to deck you for that!” he said. The Dr, realising Sam’s size, quickly calmed things down by saying, “Oh, I am so sorry…. I did not mean to do that. I will pay for your dry cleaning and here, let me prescribe you some BPLow to help you with your condition.” Sam calmed down and left the surgery with his prescription. Before he left the surgery, Sam read through Gigi’s file and placed it on the receptionist’s desk when she was not looking. On the way home, Sam felt unwell. He sat down on a park bench for a rest, but collapsed. A passer-by telephoned for an ambulance. Sam was rushed to the Stockwood Hospital, but on arrival was left on a trolley bed in the hospital hallway for six hours before being attended to by a hospital Doctor. Sam has since returned home to find that he has been removed from his local GP’s patient list. He has also received a letter from the local Primary Care Trust stating that he will not be allowed any further BPLow medication because it is “only for use in the case of exceptional personal or clinical need”. Sam wants to know what can be done about this and about Dr Smith. Sam also wants to complain about his treatment on his arrival at the hospital. Sam informs you that he has since sold a story to the Daily Snoop about the sexually transmitted disease suffered by Gigi, the “Coronotion Street” soap star. He has told you that he gained the information from reading Gigi’s medical file at the Elms surgery. Introduction To advise Sam it is necessary consider whether the doctor was entitled to refuse to prescribe the medication. It has been stated that Dr Smith prescribed it after threats were made. It is not clear whether Sam collapsed as a result of taking it or high blood pressure. If the medicine caused him to collapse the doctor might be held responsible because he gave him the medication. It will be necessary to discuss what charges the doctor might face, if Sam collapsed as a result of taking the tablets. In advising Sam with regard to his removal from the list it is necessary to examine the regulations regarding the removal of patients. This will involve looking at the circumstances when the court will consider that the doctor is justified in removing the patient. It should then be possible to determine whether his removal was justified. In relation to the information disclosed to the newspaper it is necessary to consider whether the newspaper might be forced to reveal his identity. This will involve examining case law to determine whether his identity can be protected. To advise Dr Smith with regard to the confidentiality of patients records it will be necessary to examine the law in relation to the storage of such information. This will involve looking at case law, and the storage of electronic information as well as information in files. Part of this will include determining whether the doctor has a duty to ensure that the medical notes of other patients should be filed before a consultation with a subsequent patient is carried out. Refusal to prescribe specific medication In determining whether a doctor has the right to refuse to prescribe it is necessary to consider case law. Although there is a general respect for patient autonomy, the court have refused to allow patients to insist on treatment especially if the doctor considers the treatment could have an adverse effect. This was endorsed in R (on the application of Burke) v General Medical Council [2005]1 in which it was stated A patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to his clinical needs. The court refused to allow the Human Rights Act 1998 to convert the requirement of ‘good practice’, when the doctor could clearly demonstrate that he was acting in the patients best interests. By contrast in Glass v United Kingdom [2004]2 the court stated that administering diamorphine to a child against the mother’s wishes was a violation of Article 8. However, in (A Hospital) v SW (represented by the official solicitor as a Litigation Friend) & A PCT (Interested Party) [2007]3 the court upheld the decision to withdraw life sustaining medication to a patient in a persistent vegetative state. Brazier (2006) argues that Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment, regardless of the nature of the treatment. In so far as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. The right of a patient to insist on certain treatment was addressed in 2004 by the National Institute of Clinical Excellence, where pregnant mothers were insisting on having a caesarean. In the Guidelines issued by NICE it stated that a maternal request ‘is not on its own an indication for CS’. The Guidelines stated that clinicians have a right to decline, whilst respecting the woman’s right to make the request. Those requesting should be referred for a second opinion were the doctor feels that the procedure is not in the mother’s best interests. Sam could rely on R (on the application of Rogers) v Swindon NHS Primary Care Trust [2006]4, in which the patient was insisting on being prescribed Herceptin. The applicant could not afford the full course. The court found that the Trust had supplied herceptin to some other patients, and were therefore wrong to refuse to supply the drug to the applicant. By contract in Portsmouth NHS Trust v Wyatt [2005]5 the court held that the doctors were right to withhold treatment, even though withholding the treatment would lead to death. The court felt that the child’s condition was ‘so bad’ that any treatment would be futile. Dr Smith should be allowed to refuse to prescribe BPLow, unless Sam can prove there is an ‘exceptional personal or clinical need’, and other forms of treatment should be considered. If Sam can show that other medication would not assist he might have grounds for insisting on BPLow. Collapse as a result of taking BPLow Although there is no mention that Sam had taken the medication before he collapsed, for completeness it is necessary to discuss the liability of Dr Smith if Sam had collapsed after taking BPLow. Sam would be able to claim for negligence if he collapsed as a result of taking it, although, contributory negligence would be likely, since Sam insisted on the medication. To bring a claim Sam would have to prove that Dr Smith had been negligent6. The standard of care for medical malpractices was established in Bolam v Freirn HMC [1957]7. This case saw the birth of the Bolam test, where ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ If Sam could prove that Dr Smith originally refused to prescribe the medication because he believed it might harm him, then he would be likely to succeed in a claim for negligence. However, there is nothing to suggest that Dr Smith had any good reason for refusing other than the fact that he did not believe there was ‘an exceptional personal or clinical need’. Removal from the list According to the National Health Service (General Medical Services) Regulations 1992 Schedule 2 s9 (1) A doctor may have any person removed from his list and shall notify the FHSA in writing that he wishes to have a person removed from his list… When determining whether removal is necessary the doctor should bear in mind the recommendation made by the British Medical Association 2009 that The removal of patients from general practitioners’ lists should continue to be an exceptional and rare event, and a last resort in an impaired doctor patient relationship. When trust has irretrievably broken down, it is in the patient’s interest to find a new GP. In 1999 the General Practitioners Committee issued guidance as to when removal might be applicable. It stated that unless the patient has moved to an address outside the practice’s area, removals will only be endorsed if there has been An irretrievable breakdown of all or part of the patient-practice relationship, usually between patient or doctor, or Violence or threatening behaviour by the patient in a special case. Since 2004 the GPC has accepted the right to remove a patient immediately if they have been violent or caused a doctor to fear for their safety. This also covers violence towards anyone else on the premises. In some cases a warning must be given before they are removed. However, where there has been violence or threats notice is not required. In Case No. E.2449/98-99 - Removal of patient from GP's list after complaint to Ombudsman, it was decided that the doctor had acted unreasonably. The patient had complained about his daughter’s treatment. The GP’s suggested that the patient register elsewhere. The patient complained to the ombudsman, and the GP had the patient removed. The Ombudsman stated that the GPC would not support the removal, as the patient had been reasonable, and no threats or violence had been made. Similarly in Case no. E.1771/01-02 GP list removal, the patient complained to the Ombudsman after the doctor wrote saying that her and her family were going to be removed because she had been demanding and aggressive. The Ombudsman upheld the patient’s complaint, stating that the decision had been made in the heat of the moment, and the doctor should have given more consideration before removing her. The doctor said he had given her previous warnings; however, no warnings were recorded. The Ombudsman insisted on the patient being placed back on the list, and the introduction of recording warnings. According to Vass in the British Medical Journal (2002) the ombudsman Michael Buckley, recommended that patients should be given the opportunity to “rectify their behaviour” before a GP insists on their removal. In the GMC 3rd Ed report, 2001, it was recognised that a patient could be removed if they had displayed violence or threats or if they had stolen from the practice. In the above, it is likely that the GMC and the Ombudsman would uphold the removal as he made threats and acted in a manner that might cause the doctor to fear for his safety. Disclosure of the medical evidence to the press. Generally reporters can protect their sources under the rule of qualified privilege. However, when the disclosure relates to medical records, the courts have been persuaded that a duty to disclose exists. This happened in Ashworth security Hospital v Mirror Group Newspapers [2002]8 in which Lord Woolf stated that the disclosure of the intermediary was justified. This case involved the disclosure of information regarding the treatment of Ian Brady. Initially the newspaper argued that they did not have to disclose, as informers were protected from exposure. The courts disagreed, stating that the source had to be an employee. The newspaper said that could not identify the source but were forced to disclose the intermediary. The intermediary was then instructed to reveal his source. Fortunately for the informer this was not enforced as the matter was settled before the intermediary revealed their identity. Given that Sam took the notes, the Daily Snoop might be forced to reveal his identity. This could lead to him facing charges for taking the file. It might be possible for Gigi to bring an action against him for disclosing the information. Doctor patient confidentiality Regardless of whether the courts order the disclosure or not, Dr Smith is likely to face charges for failing to ensure that her medical notes could not be seen by anyone else. In Kaye v Robertson9 the plaintiff sought an injunction against the Sunday Sport after a journalist and a photographer managed to gain access to his hospital room. The hospital had been instructed to restrict access. The journalist and the photographer managed to gain entry, interviewed him and took pictures. Readers believed he had given his permission. The court of appeal agreed that this action amounted to ‘a monstrous invasion of his privacy’, but such invasion. This was confirmed in Wainwright v Home Office10 where the court stated that English law had never recognised a tort of privacy. These cases differ from the scenario, as the invasion was not caused by the carelessness of the person responsible for the files. In Attorney General v Guardian Newspapers Ltd (No 2)11 Lord Goff observed that ‘ a duty of confidence may arise… where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by’. Laws J agreed in Hellewell v Chief Constable of Derbyshire12 where he stated ‘I entertain no doubt that disclosure of a photograph may, in some circumstances, be actionable as a breach of confidence … If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right to privacy, although the name accorded to the cause of action would be breach of confidence.’ It could be argued that the doctor owed Gigi a duty of care to ensure confidentiality of her records and leaving the file where it could be picked up breached that duty. This could lead to charges for breach of the Data Protection Act 1998. Under s60 he could face a conviction and a fine for allowing the information to be disclosed. Gigi would also be able to bring an action for damage to her reputation. Conclusion Sam would probably not be able to do anything about being removed from the list, as the doctor should be able to rely on the threats made against him. In relation to the medication, Sam would have to prove that there is no alternative treatment for the court to determine that the doctor was wrong to refuse. This might be difficult as the courts have recognised that there is no right for a patient to be able to insist on a particular form of treatment. In relation to Dr Smith, he is likely to face charges for breach of confidentiality, which could lead to a fine as well as Gigi being awarded compensation for damage to her reputation. References http://www.bma.org.uk/employmentandcontracts/independent_contractors/providing_gp_services/GPremovallist.jsp http://www.ombudsman.org.uk/improving_services/selected_cases/HSC/ic0206/pt1-e1771.html Vass, A, Give Patients a second chance before striking them off says ombudsman, BMJ, 2002 http://www.ombudsman.org.uk/improving_services/selected_cases/HSC/ic9909/pt2-e2449.html GMC, third edition, May 2001 available at http://www.gmc-uk.org/standards/default.htm Brazier, M. (2006) 'Human(s) (as) Medicine(s)', First do no harm - law, ethics and healthcare , Ashgate, http://www.nice.org.uk/ Breach of Confidence (1981) (Law Com No 110) (Cmnd 8388) British Medical Association (1993) Medical Ethics Today: Its Practice and Philosophy. London: BMA. Department of Health (1996) Protection and Use of Patient Information. Guidance from the Department of Health. HSG 96/ 18& Lassi. 96/5. London: Department of Health. General Medical Council (1995) Confidentiality. Duties of a Doctor. London: General Medical Council. Mason & McCall Smith, Law and Medical Ethics, 5th Ed, 1999, Butterworths Toulson, R. G. & Phipps, C. M. (1996) Confidentiality. London: Sweet and Maxwell Read More