Confidentiality issues in child protection
Academic GPST1 and LLM student
E-mail:bhayhoe{at}gmail.com
Sir,
I was interested to read Dr Anna Wilson's helpful article on safeguarding children in your first issue of this journal. Given the vital role of health professionals in general, and GPs in particular, in recognition and referral of child abuse and neglect and the fact that GPs are acknowledged (British Medical Association 2004) to be uncomfortable in this role, a few points merit further expansion. Of particular importance is the issue of confidentiality supported by the GMC's requirement in its new 0–18 years guidance for children and young people (General Medical Council 2007) that doctors should have a clear understanding of child protection procedures and policies, especially where related to disclosure of information.
Clearly, where information is shared regarding suspected abuse, this will involve issues of confidentiality. With no statutory requirements to disclose information, it is up to professionals themselves, guided by professional bodies, to decide in each case when it is acceptable to disclose information.
The legislative framework for child protection provided by the Children Act 1989 is based upon a principal belief that the child's welfare is paramount, the so-called ‘paramountcy principle’ so that, ‘... the course to be followed will be that which is most in the interests of the child's welfare...’(J v C [1970] AC 668).
Children are generally entitled to expect that their confidence be respected and their views be taken into account as required by the United Nations Convention of the Rights of the Child 1989, so disclosure of information should always be discussed with children if possible. However, under the paramountcy principle, where a child's refusal to agree to disclosure of information seems to be contrary to his or her best interest, professionals may continue without consent having informed the child of this intention if possible.
The GMC guidance makes distinction between children who are competent to make decisions on matters regarding disclosure of information and those who are not. Those who are will include children under 16 who are assessed as having the ability to consent (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). The GMC advises that if a child with capacity to consent refuses to allow information to be shared or it is not practical to ask for consent, you should disclose information if this is ‘necessary to protect the child or young person, or someone else, from the risk of death or serious harm’. This would include risk of neglect or sexual, physical or emotional abuse.
Where the child does not have the capacity to consent to information being shared, the guidance advises that you nevertheless try to persuade the child to agree. If the child refuses, and you consider it in the child's best interests to do so, you may disclose information to appropriate authorities.
Sometimes breaching of confidentiality of people other than the abused, for example the child's relatives, will be necessary in the best interests of the child. Professionals may have responsibilities to both abused and suspected abuser, for example both may be registered with the same GP. In these situations, the paramountcy principle will mean that the best interests of the child will trump those of the parent or other adult with the overriding duty being to the best interests of the more vulnerable child. The BMA (British Medical Association 2004) assures doctors that both the law and the GMC will support the disclosure of information, where it is necessary to protect a child from a risk of harm.
The GMC states (General Medical Council 2000):
Disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to risk of death or serious harm ... (or) where a disclosure may assist in the prevention, detection or prosecution of a serious crime ... such as abuse of children.
It is interesting to note a common thread running through the GMC's new guidance on children and young people: wherever a doctor decides not to seek further advice or refer, they must be able to justify this and should document it in the notes. This strongly-worded advice, along with the assurance that concerns based on reasonable belief are justified, would perhaps imply an attempt to counter suggestions that doctors are afraid to raise concerns about child protection (BBC News website 2006) following the GMC's treatment of the eminent Paediatrician Professor Sir Roy Meadow (Meadow v General Medical Council [2006] EWCA Civ 1390).
Yours faithfully
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BBC News website. Paediatricians fear child abuse cases. 5 Jan 2006. Available from: news.bbc.co.uk/1/hi/health/4580092.stm.
British Medical Association. Doctors' responsibilities in child protection cases: guidance from the ethics department (2004) London: BMA.
Carter Y. Lessons from the past, learning for the future: safeguarding children in primary care. British Journal of General Practice (2007) 57:238–242.[Web of Science][Medline]
General Medical Council. Confidentiality: protecting and providing information (2000) London: GMC.
General Medical Council. 0–18 years: guidance for all doctors (2007) London: GMC.
United Nations Convention of the Rights of the Child. (1989) New York: United Nations.
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