Mike's Cheeky Blog: I'm sorry, but 'muddled is muddled, however you look at it'

I've just swapped some e-mails with a doctor, and I pointed out that the current guidance on 'patient confidentiality' isn't clear enough - specifically, most clinicians seem to think that 'patients can forbid the future disclosure of clinical information' and if you believe that, you cannot address section 4(6) of the Mental Capacity Act. This doctor sent in his e-mail:

'So patient confidentiality has never been an absolute. Although breaching confidentiality has to be proportionate and clearly justifiable.'

I agree with him - but if you go to the RC(UK) website at:

https://www.resus.org.uk/dnacpr/decisions-relating-to-cpr-new-statement/

you will find a page, which includes this wording:

'For the present, we wish to emphasise the following points for attention when health professionals consider making an anticipatory decision about CPR for a person who does not have capacity to participate in the decision-making process:

1. In order to make a fully informed decision, where it is both practicable and appropriate, they must discuss the patient's situation and the decision with those close to the patient (subject to any confidentiality restrictions expressed if, and when, the patient had capacity).'

That phrase 'subject to any confidentiality restrictions expressed if, and when, the patient had capacity' would at the moment appear in a lot of guidance for clinicians - and it doesn't seem to me, to match 'patient confidentiality has never been an absolute'.

I've analysed this in my piece at:

http://www.bmj.com/content/348/bmj.g4094/rr/703333

This IS a serious issue, for decision-making at end-of-life, when patients often lose mental capacity - it DOES NEED a better resolution, than the 'fudges' I keep reading, at present.

The logic seems to lead to this - which ISN'T what clinicians write in their own guidance:

'What this amounts to, is that the current advice to clinicians - 'patient confidentiality must be respected' isn't necessarily correct.

What is true, is that a patient who has already made and expressed the decision which would otherwise need to be made during future incapacity, can insist on 'confidentiality' of his medical information: but the patient cannot insist on 'confidentiality' UNLESS HE MAKES AND EXPRESSES those 'future decisions'.'