Muzzling doctors in the name of confidentiality
BMJ 2009; 339 doi: https://doi.org/10.1136/bmj.b4173 (Published 12 October 2009) Cite this as: BMJ 2009;339:b4173
All rapid responses
Rapid responses are electronic comments to the editor. They enable our users to debate issues raised in articles published on bmj.com. A rapid response is first posted online. If you need the URL (web address) of an individual response, simply click on the response headline and copy the URL from the browser window. A proportion of responses will, after editing, be published online and in the print journal as letters, which are indexed in PubMed. Rapid responses are not indexed in PubMed and they are not journal articles. The BMJ reserves the right to remove responses which are being wilfully misrepresented as published articles or when it is brought to our attention that a response spreads misinformation.
From March 2022, the word limit for rapid responses will be 600 words not including references and author details. We will no longer post responses that exceed this limit.
The word limit for letters selected from posted responses remains 300 words.
Muzzling doctors in the name of confidentiality
We agree with Jack Gilliat that the GMC’s recent guidance on
responding to criticism in the press is deeply worrying (1), and we thank
the BMJ for drawing sympathetic editorial attention (2) to his letter.
Over the past year we have been helping Kamran Abbasi, editor of the
Journal of the Royal Society of Medicine, to finalise a series of articles
describing the circumstances that led doctors in Stoke on Trent to remain
under unjustified suspicion and repeated investigation of alleged research
misconduct for eleven years before the GMC finally ruled that they had no
case to answer (3).
One of the articles prepared for the JRSM series documents for the
first time the key role played by journalists in generating and sustaining
this ‘non-scandal’. The many investigations that the Stoke clinicians
endured might have been avoided had they initiated actions for libel
against the newspapers that first ran with some of the more florid and
inaccurate versions of the story.
The tactic of saying nothing can sometimes be counterproductive, and
suing for libel can sometimes deliver justice. After an NHS report had
criticised one orthopaedic surgeon’s role in managing a brain injured
patient who died after being flown 200 miles to another hospital because
no neuro-surgical intensive care bed could be found for the patient in the
southeast, the Daily Mirror dubbed him “Doctor Dolittle.” The subsequent
trial resulted in the then fourth largest libel award in British legal
history – £625,000. (4) Far from discouraging libel actions, the GMC,
employers, and the defence societies should consider whether their current
reluctance to support libel suits fulfils their duty of care to clinicians
and researchers.
Iain Chalmers, Coordinator, James Lind Initiative
Edmund Hey, Retired paediatrician.
References
1. Gilliat J. Muzzling doctors in the name of confidentiality. BMJ
2009;339:877.
2. Delamothe T. When things go wrong. BMJ 2009;339:b4226.
3. Gornall J. Three doctors and a GMC prosecution. BMJ 2008;337:a907.
4. Parker G. Consultant wins £625,000 damages from newspaper.
Financial Times. 24 February, 1996.
Competing interests:
None declared
Competing interests: No competing interests
I am not concerned about breach of confidentiality of my medical
records: I used my Medicare card only about two dozen times in it's whole
existence; had two elective surgeries with long-term excellent result (my
trusted GP picked the best surgeons for me: one was English, the other
Chinese); never been on the Pill and HRT and any other medication; my
blood pressure and cholesterol are normal; I am 74 years old and have more
energy than when I was 26, with two young children, a husband and a career
to build up; and the only supplement I take is very large doses of sodium
ascorbate powder. I think that my medical records should be made public.
Competing interests:
None declared
Competing interests: No competing interests
Confidentiality, along with the decent aim of not scattering private
information, is also a long-invoked smokescreen for medical secrecy. It
suits NHS doctors very nicely to keep their daily clinical unaccountably
under the wrap of patient confidentiality.
Imperiously warning of the dangers of the press to both
confidentiality and ‘public confidence in the profession’, the GMC’s
Keegan ignores recent serial medical disasters being disclosed by patients
and the press — not by the medical profession or the GMC [1,2].
Patients have much to thank the media for in relation to cleaning up
the NHS. Unfortunately, in the absence of potent in-house clinical
accountability, and in the absence of any mechanism to pick up and stop
elementary clinical errors on a daily basis, patients (and the GMC) will
be relying on the noisy, sometimes inaccurate and embarrassing press for
the foreseeable future [3]. Without the media, clinical standards in the
caring NHS would be even patchier than they are right now.
William G. Pickering 17.10.09
References:
1. Gilliat J. Muzzling doctors in the name of confidentiality. BMJ
2009;339:b4173
2. Pickering WG. An independent medical inspectorate. In: Gladstone
D, ed. Regulating doctors. London: Institute for the Study of Civil
Society, 2000: 47-63. (www.civitas.org.uk)
3. Pickering WG. Systematic clinical accountability is required. BMJ
2003;327:1109 (8 November), doi:10.1136/bmj.327.7423.1109
Competing interests:
None declared
Competing interests: No competing interests
Rather than suggesting I read his online response "carefully", it would have been far better if Jack Gilliat unequivocally acknowledged and apologised for providing the incorrect url initially. So is it surprising that his own error led to some confusion?
I can now confirm that I have read the relevant GMC Supplement and it only convinces me that the view I originally took about Gilliat's criticism is correct. I believe, Gilliat's primary argument that a patient should forfeit his/her right to confidentiality (once disclosed publicly) is flawed because in a strict legal sense,the patient is not bound by the confidentiality laws or not a party to any confidentiality-led legal contract with their treating doctors.Is Gilliat seriously contending that both the law and GMC should allow doctors get engaged in a free for all in the press where a patient makes unpalatable allegations, rather than following the due process of law? Has Gilliat forgotten about the existence of medical defence insurers who could get engaged professionally in such circumstances rather than promoting a doctor-patient boxing match in the newspapers? If Gilliat seriously wishes to challenge this issue, he may well have to seek a change of legislation without limiting himself to bashing the GMC.
Finally,if Gilliat cares to read the full GMC Guidance on confidentiality, he might see that in some instances, doctors can properly disclose material without express consent including in situations similar what he describes. Hence,Gilliat's assertion "The only response should be limited 'to an explanation...duty of confidentiality' "[emphasis mine],suggests he has misunderstood the GMC Guidance and the exclusion clauses available thereunder.
Competing interests:
see text & previous responses.
Competing interests: No competing interests
When it comes to being criticised in the media, the GMC acknowledges
that doctors are in a difficult position. We accept that there can be a
public interest in doctors responding to press criticism, i.e. if
criticism has or might seriously undermine confidence in the individual
doctor, a health service or the profession. But the contention that
patients forfeit their privacy rights when they criticise a doctor is
unhelpful. Doctors should seek legal advice about the redress available to
them, rather than engaging in public disputes with their patients through
the pages of the press. Public confidence in the profession could be
seriously harmed by such behaviour, particularly if it involves breaches
of confidentiality, which is central to the trust between all doctors and
patients.
Michael Keegan, Policy Adviser, GMC.
Competing interests:
None declared
Competing interests: No competing interests
To Jay Ilangaratne
If you read my original on line article carefully, you will see that
the GMC's supplement's full name is given; it is readily available on the
GMC website and, contrary to your assertion of approximately fifty pages,
the separate supplement comprises only six paragraphs within one page.
You appear to have confused the Supplement for the full Confidentiality
Guidelines 2009. The British Medical Journal hard print version of my
online letter gives the correct webpage reference.
You state that "If the GMC has in any sense violated the fundamental
legal rights of doctors, then it is up to Dr Gilliat and/or any other
interested party to seek a remedy through appropriate legal channels".
However, the whole point of my letter was to explain why this was a wrong
approach.
Jack Gilliat MBA, MBBS, MRCP, MRCOG, DipObs
Consultant Physician
Competing interests:
None declared
Competing interests: No competing interests
This is an edited version of Dr Gilliat's recent online response to an item which originally appeared in 2007.I responded to Dr Gilliat's last week[1]. If Dr Gilliat wishes to maintain his criticism of the GMC as it appears now in the edited version, I think it is only fair that he cites the exact page and paragraph/s in the GMC's Guidance, as there are some fifty odd pages in that document. He should not expect us to trawl through so many pages to find the short sentence which he cites to attack the GMC, based on a hypothetical scenario. I reiterate, I really cannot see anything so oppressive as Dr Gilliat leads us to believe.If the GMC has in any sense violated the fundamental legal rights of doctors, then it is upto Dr Gilliat and/or any other interested party to seek a remedy through appropriate legal channels.
References
[1]http://www.bmj.com/cgi/eletters/335/7632/1226-a#221992
Competing interests:
Have responded to the first (unedited)online version before.
Competing interests: No competing interests
As tempting as it is to set the record straight in the public domain,
can you trust
the media to report it correctly? Sub-editors of both tabloids and
broadsheets
are ruthless in removing apparently superfluous words. This can be
disastrous
for the carefully crafted statement. In Australia, these editors often
create witty
and succinct headlines, but their line may be very misleading. Finally,
do you
really what to be on TV or radio chat shows defending yourself live to
air? They
frequently take their leads from local papers or nationals.
Competing interests:
None declared
Competing interests: No competing interests
Author's Reply to Michael Keegan, Policy Advisor, GMC
Consider the hypothetical example of a woman persistently
refusing to retract an unwarranted, damning, very public
allegation that her GP had been incompetent for missing
cancer of the lung as the cause of her liver metastases
which had been discovered incidentally on abdominal
scanning, whereas the GP had very recently performed a CT
of lung which was normal.
The GP lives and works in a
small town. The doctor’s reputation and practice is at
stake. The press demands his response. But the GMC’s
supplementary confidentiality guidelines state he should
merely respond with “no comment for the reasons of patient
confidentiality” (or words to that effect) and should give
no other response whatsoever to defend himself as the GMC
considers the patient still has a right to
confidentiality, and any attempt at self defence could
impair “the public’s confidence in the profession” as you
phrased it!
This is an illogical approach. The suggested response
would be understood by the public as an admission of guilt
and could result in a wrecked career and a ruined doctor.
The GMC supplementary guideline’s advice that redress
should only be sought via legal means seems a pointless
afterthought given the many months or longer that it might
take to get to court – by which time the doctor’s position
may well have become irremediable (a destroyed reputation,
and perhaps no job or income – especially if he worked in
the private sector). Even if the case is settled prior to
court, the damage is done.
The irony of it all is that the medical status of this
patient would likely become exposed to public scrutiny
once the case reaches the law courts, anyway. Where, then,
is confidentiality? And, what if the doctor couldn’t
afford the high cost of pursuing legal redress in the
first place? Why should a doctor be forced into suing his
or her patient, anyway?
The point of my letter was not that patient’s
confidentiality should be discarded, but there should be
an appropriate balance with the doctor’s right of public
reply. The GMC must not unconditionally abrogate this
essential, natural right. In the above example, the GP’s
reply could be limited to explaining that lung imaging was
normal and the source of the primary cancer still needed
to be determined. The “loss” of confidentiality in issuing
such a statement would be so minimal as to be meaningless
under the circumstances. Contrary to your response, I did
not contend “that patients forfeit their privacy rights
when they criticise a doctor”, as this implies general
forfeiture; I merely argued the patient has surrendered
confidentiality (almost by definition) only in relation to
the particular aspect of their medical condition which the
patient has openly and willingly entered into the public
arena. Nor did I suggest “engaging in public disputes”.
That is why my letter stated the GMC’s supplementary
guideline would have been better off defining how best to
protect both parties’ interests. For example, the
guideline could protect a doctor’s right of reply by
defining certain parameters, such as recommending it;- 1)
contains the minimum factual information to correct
grossly misleading medical misinformation that would
otherwise damage a doctor’s reputation 2) cast no
unwarranted personal aspersions or comment on the patient
3) should be entertained only if the patient has been
provided with absolute evidences for the correct details,
but the patient still refuses to retract, and 4) should be
confined as much as possible to those medical aspects
already publicly divulged by the patient.
Rarely, patients can be vindictive, and not amenable to
logic or the facts of the situation. Doctors should not be
left as sitting ducks sacrificed to a blind, dogmatic
approach to patient confidentiality. A balanced, more
pragmatic approach would be far more likely to protect
both parties and “the public’s confidence in the
profession”. That is what my letter was about.
Dr Jack Gilliat MBA, MBBS, MRCP, MRCOG, DipObs
Consultant Physician
Competing interests:
None declared
Competing interests: No competing interests