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Dilemma
Dilemma A classical dilemma At 10.00 am one Thursday morning, Polly was admitted to the Accident & Emergency (A&E) department with deep lacerations to the wrist, sustaining extensive damage to tendons and nerves. The paramedics gave the triage nurse a letter which was addressed to a senior orthopaedic surgeon. The triage nurse took a history from the patient, and began to build a relationship with her. Polly then told the triage nurse that she had been having an affair with the surgeon and had tried to kill herself following a meeting the night before, when the surgeon had expressed a desire to end the relationship. The consultant surgeon on call for trauma that day was the surgeon involved in the relationship. Polly asked that he be bleeped and informed of her attendance. The patient needed referral to the trauma surgeon for repair to tendons, etc. Where do your priorities lie in terms of confidentiality? Who needs to be involved in this case and who needs to be excluded? There was some pressure to inform the Dean of the Medical School.
Legal reply This situation gives rise to the issues confidentiality and privacy in respect of two people: the patient Polly and the consultant orthopaedic surgeon w h o m we'll call 'Mr X'.
Polly Clearly all nursing staff owe a d u t y of care to respect the confidentiality of information provided b y Polly. Since the passing of the Suicide Act 1961 it is no longer a criminal offence for a person to attempt to commit suicide. The police would have no responsibility therefore to investigate the circumstances leading to Polly's wrist lacerations unless they suspected that there was a criminal offence b y another person. There would appear to be no justification for the facts and alleged cause of her suicide attempt to be m a d e k n o w n to anyone else within the hospital context. If relatives visit her, again the reason for her attempt on her life should be left to Polly to disclose to them if she so wishes. Those persons who are on duty and whose services are required to care for Polly could be
9 1999 H a r c o u r t Brace & C o m p a n y Ltd
s u m m o n e d to assist her, but there would be no justification to tell them that it was Mr X whose conduct had led to the suicide attempt. Since Polly is h a p p y for Mr X to be notified of her admission, there seems no reason w h y Mr X should not be so notified. It m a y however be held inappropriate for Mr X to be involved in Polly's physical care and therefore if it is necessary to have consultant input, it would appear to be professionally preferable for another consultant to be called in.
Consultant orthopaedic surgeon Mr X To what extent is a d u t y of confidentiality owed to him, so that his reputation is not harmed b y revelations about his affair with Polly and its consequences? Does he have any right of privacy? At present there is no law on privacy. H o w e v e r the H u m a n Rights Act 1998 which is due to come into force in 2000 will enable alleged breaches of the Articles of the Convention on H u m a n Rights by public authorities to be brought before the courts of this country instead of a person seeking redress in Strasbourg.
Accident and Emergency Nursing(1999)
7, 179-181
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Dilemma
The plaintiff and first defendant were close friends who freely discussed matters of a personal and private nature on the express basis that what the plaintiff told the first defendant was secret and disclosed in confidence. The first defendant passed on to the second and third defendants, who were the editor and publisher of a newspaper, details of the plaintiff's sexual conduct, including details of the plaintiff's lesbian relationship with a woman who had been killed by her husband. The plaintiff brought an action against the defendants claiming damages on the grounds that the information was confidential and was knowingly published by the newspaper in breach of the duty of confidence owed by the first defendant to the plaintiff. In an action by the defendants to strike out the claim as disclosing no reasonable cause of action, the defendants failed and appealed to the Chancery Division. They lost on the grounds that although the courts would not enforce a duty of confidence relating to matters which had a grossly immoral tendency, information relating to sexual conduct could be the subject of a legally enforceable duty of confidence if it would be unconscionable for a person who had received information on the expressbasisthat it was confidential subsequently to reveal that information to another.
Article 8 of the Convention states that: Everyone has the right to respect for his private and family life, his home and his correspondence. This will enable a person to bring proceedings if their privacy has been invaded, unless any of th~ recognised exceptions exist. It m a y be that if any person involved in Polly's care gossips about the circumstances of her suicide attempt, then Mr X could argue that his privacy has been invaded. It may be, too, that if there is aLnyagreement between Polly and Mr X that their relationship will be kept secret, breach of that confidence could give rise to proceedings. This was similar to the situation in the case of Stephens v. Avery 1 the facts of which are shown in Box 1. It is highly unlikely that Mr X could use such an action against Polly, since if he is married, then he is already in the wrong and would be unlikely to want to receive the publicity that such a case would attract. Should M r X's conduct be reported and if so to w h o m ? If Mr X was married, then it could be argued that his relationship with Polly was unacceptable. It is queried whether the Dean of the Medical School should be inforffned. This would be inappropriate since Mr X is no longer a medical student, and even if the Dean were responsible for postgraduate education, this would not normally include the duty to audit personal conduct. It
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would be possible to inform the General Medical Council (GMC), but this would only apply if the doctor was conducting a personal relationship with Polly at the same time as being her doctor. From the facts, this would appear to be unlikely. At the present time for a doctor to have an adulterous relationship with another person who is not his or her patient is not grounds for action by the GMC. Reporting the situation to the GMC would therefore appear to be unwarranted.
Conclusion There would appear to be no justification to report the incident to senior management or any professional registration body of either Polly or Mr X. The reasons for Polly's suicide attempt should not have wider disclosure than is necessary for her care and treatment. However hospitals being what they are, there can be no doubt, that whatever the law, most interested staff will know of the circumstances of Polly's suicide attempt within minutes of her admission. There is clearly justification for senior management to enforce a culture of confidentiality and privacy through the disciplinary machinery. References 1. Stephens V. Avery and others [1998]2 All ER 477 Bridgit Dimond, Barrister at Law, Emeritus Professor, University of Glamorgan, UK
9 1999 Harcourt Brace & Company Ltd
Dilemma
Nursing Reply
The Personal Perspective
In this dilemma you have a duty of care towards Polly and her significant others that should not be clouded by your knowledge of her personal circumstances. When Polly arrives in the A&E department you know the following:
9 Polly is upset because her partner has suggested that they end their affair. On arrival in A&E she wants her partner contacted. Her partner may be her designated next of kin, in which case he may need to be informed of her arrival in the department. If possible she may be able to telephone her partner and talk to him herself, in this way a degree of privacy can be maintained between Polly and her partner. In summary, Polly is inviting the surgeon to be involved in her case as a 'significant other'. This is an accepted part of the patient's care in the A&E department.
9 Polly has sustained deep lacerations to one of her wrists and has extensive damage to tendons and nerves 9 Polly has asked that a surgeon w h o m she has been having an affair with be bleeped 9 She has suggested that she had tried to kill herself because the surgeon had suggested, the night before, that they end their affair. 9 There is a letter addressed to the senior orthopaedic surgeon the surgeon on call is the person with whom Polly has been having an affair. 1. The question about priorities in terms of confidentiality is the same as it would be for any other patient. Your priorities fall into three categories: clinical, personal and professional. 2. People should be involved as detailed below. 3. The Dean of the Medical School does not need to be informed.
The Clinical Perspective 9 Polly requires referral to a senior surgeon for further intervention for her damaged wrist 9 She has admitted that she has tried to kill herself, so she may require a psychiatric assessment
9 1999 H a r c o u r t Brace & Company Ltd
The Professional Perspective 9 It has been established that PoUy needs to be
referred to an orthopaedic surgeon. However you have established that there is a personal relationship between the patient and the doctor. Therefore you need to contact an alternative senior doctor who can see Polly. In this way professional objectivity is maintained, as would be the aim for any other person, who arrived in A&E, and for w h o m it had been established that they were personally involved in a relationship with a member of staff who could make intervention decisions, i.e. a doctor.
My thanks to everyone who has helped shape the response to this dilemma. Dr Lynn Sbaih, Lecturer, School of Nursing, Midwifery and Health Visiting, University of Manchester, UK
Accident and Emergency Nursing (1999)
7, 179-181
181
Legal reply This situation gives rise to the issues confidentiality and privacy in respect of two people: the patient Polly and the consultant orthopaedic surgeon w h o m we'll call 'Mr X'.
Polly Clearly all nursing staff owe a d u t y of care to respect the confidentiality of information provided b y Polly. Since the passing of the Suicide Act 1961 it is no longer a criminal offence for a person to attempt to commit suicide. The police would have no responsibility therefore to investigate the circumstances leading to Polly's wrist lacerations unless they suspected that there was a criminal offence b y another person. There would appear to be no justification for the facts and alleged cause of her suicide attempt to be m a d e k n o w n to anyone else within the hospital context. If relatives visit her, again the reason for her attempt on her life should be left to Polly to disclose to them if she so wishes. Those persons who are on duty and whose services are required to care for Polly could be
9 1999 H a r c o u r t Brace & C o m p a n y Ltd
s u m m o n e d to assist her, but there would be no justification to tell them that it was Mr X whose conduct had led to the suicide attempt. Since Polly is h a p p y for Mr X to be notified of her admission, there seems no reason w h y Mr X should not be so notified. It m a y however be held inappropriate for Mr X to be involved in Polly's physical care and therefore if it is necessary to have consultant input, it would appear to be professionally preferable for another consultant to be called in.
Consultant orthopaedic surgeon Mr X To what extent is a d u t y of confidentiality owed to him, so that his reputation is not harmed b y revelations about his affair with Polly and its consequences? Does he have any right of privacy? At present there is no law on privacy. H o w e v e r the H u m a n Rights Act 1998 which is due to come into force in 2000 will enable alleged breaches of the Articles of the Convention on H u m a n Rights by public authorities to be brought before the courts of this country instead of a person seeking redress in Strasbourg.
Accident and Emergency Nursing(1999)
7, 179-181
179
Dilemma
The plaintiff and first defendant were close friends who freely discussed matters of a personal and private nature on the express basis that what the plaintiff told the first defendant was secret and disclosed in confidence. The first defendant passed on to the second and third defendants, who were the editor and publisher of a newspaper, details of the plaintiff's sexual conduct, including details of the plaintiff's lesbian relationship with a woman who had been killed by her husband. The plaintiff brought an action against the defendants claiming damages on the grounds that the information was confidential and was knowingly published by the newspaper in breach of the duty of confidence owed by the first defendant to the plaintiff. In an action by the defendants to strike out the claim as disclosing no reasonable cause of action, the defendants failed and appealed to the Chancery Division. They lost on the grounds that although the courts would not enforce a duty of confidence relating to matters which had a grossly immoral tendency, information relating to sexual conduct could be the subject of a legally enforceable duty of confidence if it would be unconscionable for a person who had received information on the expressbasisthat it was confidential subsequently to reveal that information to another.
Article 8 of the Convention states that: Everyone has the right to respect for his private and family life, his home and his correspondence. This will enable a person to bring proceedings if their privacy has been invaded, unless any of th~ recognised exceptions exist. It m a y be that if any person involved in Polly's care gossips about the circumstances of her suicide attempt, then Mr X could argue that his privacy has been invaded. It may be, too, that if there is aLnyagreement between Polly and Mr X that their relationship will be kept secret, breach of that confidence could give rise to proceedings. This was similar to the situation in the case of Stephens v. Avery 1 the facts of which are shown in Box 1. It is highly unlikely that Mr X could use such an action against Polly, since if he is married, then he is already in the wrong and would be unlikely to want to receive the publicity that such a case would attract. Should M r X's conduct be reported and if so to w h o m ? If Mr X was married, then it could be argued that his relationship with Polly was unacceptable. It is queried whether the Dean of the Medical School should be inforffned. This would be inappropriate since Mr X is no longer a medical student, and even if the Dean were responsible for postgraduate education, this would not normally include the duty to audit personal conduct. It
180
Accident and Emergency Nursing (1999)
7, 179-181
would be possible to inform the General Medical Council (GMC), but this would only apply if the doctor was conducting a personal relationship with Polly at the same time as being her doctor. From the facts, this would appear to be unlikely. At the present time for a doctor to have an adulterous relationship with another person who is not his or her patient is not grounds for action by the GMC. Reporting the situation to the GMC would therefore appear to be unwarranted.
Conclusion There would appear to be no justification to report the incident to senior management or any professional registration body of either Polly or Mr X. The reasons for Polly's suicide attempt should not have wider disclosure than is necessary for her care and treatment. However hospitals being what they are, there can be no doubt, that whatever the law, most interested staff will know of the circumstances of Polly's suicide attempt within minutes of her admission. There is clearly justification for senior management to enforce a culture of confidentiality and privacy through the disciplinary machinery. References 1. Stephens V. Avery and others [1998]2 All ER 477 Bridgit Dimond, Barrister at Law, Emeritus Professor, University of Glamorgan, UK
9 1999 Harcourt Brace & Company Ltd
Dilemma
Nursing Reply
The Personal Perspective
In this dilemma you have a duty of care towards Polly and her significant others that should not be clouded by your knowledge of her personal circumstances. When Polly arrives in the A&E department you know the following:
9 Polly is upset because her partner has suggested that they end their affair. On arrival in A&E she wants her partner contacted. Her partner may be her designated next of kin, in which case he may need to be informed of her arrival in the department. If possible she may be able to telephone her partner and talk to him herself, in this way a degree of privacy can be maintained between Polly and her partner. In summary, Polly is inviting the surgeon to be involved in her case as a 'significant other'. This is an accepted part of the patient's care in the A&E department.
9 Polly has sustained deep lacerations to one of her wrists and has extensive damage to tendons and nerves 9 Polly has asked that a surgeon w h o m she has been having an affair with be bleeped 9 She has suggested that she had tried to kill herself because the surgeon had suggested, the night before, that they end their affair. 9 There is a letter addressed to the senior orthopaedic surgeon the surgeon on call is the person with whom Polly has been having an affair. 1. The question about priorities in terms of confidentiality is the same as it would be for any other patient. Your priorities fall into three categories: clinical, personal and professional. 2. People should be involved as detailed below. 3. The Dean of the Medical School does not need to be informed.
The Clinical Perspective 9 Polly requires referral to a senior surgeon for further intervention for her damaged wrist 9 She has admitted that she has tried to kill herself, so she may require a psychiatric assessment
9 1999 H a r c o u r t Brace & Company Ltd
The Professional Perspective 9 It has been established that PoUy needs to be
referred to an orthopaedic surgeon. However you have established that there is a personal relationship between the patient and the doctor. Therefore you need to contact an alternative senior doctor who can see Polly. In this way professional objectivity is maintained, as would be the aim for any other person, who arrived in A&E, and for w h o m it had been established that they were personally involved in a relationship with a member of staff who could make intervention decisions, i.e. a doctor.
My thanks to everyone who has helped shape the response to this dilemma. Dr Lynn Sbaih, Lecturer, School of Nursing, Midwifery and Health Visiting, University of Manchester, UK
Accident and Emergency Nursing (1999)
7, 179-181
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