The General Medical Council has issued definitive guidance on doctors' duties when they fear a child in their care is suffering from abuse.
The GMC's 2012 Guidance on Child Protection came into effect on 3 September 2012 after a two-year working group - chaired by a senior family court Judge, the Right Honourable Lord Justice Thorpe - listened to evidence given by child protection experts.
This guidance is provided at a time when domestic abuse is very much in the headlines with the conviction of George Appleton giving rise to "Clare's Law", whereby (on a trial basis) people living in certain areas of England and Wales are able to find out from police if their partner has a history of domestic violence.
Whilst this may be simple in the case of an adult capable of making his/her own decisions and seeking to find out about their partner, it is not so easy in the case of a vulnerable child. The child may be too young to speak up, too traumatised/fearful, or may not even want to speak up.
Further complications arise when doctors, who have a duty to maintain patient confidentiality, have to disclose sensitive and very delicate information about a patient who he/she suspects is suffering abuse.
All children and young people are entitled to protection from abuse and neglect. Doctors registered with the GMC have a duty under Good Medical Practice "to protect and promote the health and well-being of children and young people". The GMC's new guidance states that this duty places an obligation on all doctors to act on any concerns they have about a child or a young person's safety.
In JD v East Berkshire Community Health Trust & Ors  UKHL 23 it was held that when doctors suspect that "something does not feel quite right." they "must be able to act single-mindedly in the best interests of the child." without fear of claims being made against them by a distressed parent should their fears be unfounded.
The GMC offers reassurance in that doctors choosing to follow the new guidance by disclosing confidential information in these circumstances will be able to justify their actions should a subsequent complaint be made to the GMC.
Is this reassurance sufficient enough to encourage doctors to raise such concerns when they are also aware of how stressful, complex and lengthy GMC fitness to practise investigations can be? In addition, what is public opinion on doctors having "carte blanche" to raise any concerns they may have about potential child abuse or neglect?
A recent Netmums survey, commissioned by the GMC, found the following:
- an overwhelming 99% said that doctors should take steps to find out whether a child was at risk if they thought that their parents were taking illegal drugs or abusing alcohol
- of these, 66% felt that doctors should raise child protection concerns with parents and
- 63% felt that further advice should be sought from a senior colleague before doing so
- 94% of parents surveyed also believe that doctors have a duty to find out if a child is at risk of abuse or neglect
- 86% said that doctors should take action if they suspected a child was being neglected or abused but had no proof
- of these 55% felt that doctors should raise child protection concerns with parents
- 55% felt that doctors should talk to the child
It would appear, therefore, that a significant proportion of parents believe that child protection issues outweigh a doctors' duty of confidentiality.
The GMC's new guidance supports this view and states that children, young people and their families have a right to receive confidential medical care and advice but that this must not prevent doctors from sharing information if this is necessary to protect children and young people from abuse or neglect.
Whilst patient confidentiality is at the heart of the relationship between doctor and patient, the new guidance published by the GMC states that confidentiality "is not an absolute duty" and that confidential information can be shared if any of the following apply:
- the doctor must do so by law or in response to a court order
- the person to whom the information relates has given their consent to the doctor to share the information (or a parent has given this consent on behalf of their child without the capacity to provide it)
- it is justified in the public interest; if the benefits to the child or young person in sharing the information outweigh the public and the individual's interest in keeping the information confidential
With this in mind, what must doctors do if they have concerns about a child or young person's welfare?
Firstly, doctors must inform an appropriate body, such as children's services for the local authority, the NSPCC or the police promptly, unless doing so would increase the risks to the child or young person. In these circumstances, doctors must discuss their concerns with the child or young person or with their parents and must keep in contact with the child or young person and regularly review the decision not to share the information immediately.
In order to share such information, doctors do not need to "be certain" that the child or young person is at risk of significant harm as the GMC believes that the possible consequences of not sharing the information will most often outweigh any harm that sharing the concerns might cause.
What information should doctors disclose in these circumstances?
- the identities of the child or young person, their parents and any person who may be a risk to them
- the reasons for the doctor's concerns, including information about the child's health and relevant information about their parents or carers
Doctors should always ask for consent to disclose their concerns unless doing so would put the child or young person at increased risk of harm, or where delay to obtain consent would increase the risk of harm to the child or young person.
Doctors must ask the child or young person for consent to disclose the information if he/she has the capacity to give it. If not, the person with parental responsibility will need to be asked for consent to release the information.
Doctors must tell the individual whose confidential information is going to be disclosed:
- what information will be disclosed
- who the doctor will be disclosing the information to
- how the information will be used
- where the individual can go for advice and support
Whilst the guidance published by the GMC makes it clear that doctors ought to disclose confidential information about their patients if they suspect that they are children or young people at risk of neglect or abuse, what happens when the child or young person or their parent refuses to give consent to disclosure of this information?
In these circumstances, doctors should consider the reasons why the individual does not want the information to be shared and balance the possible consequences of not disclosing it against the harm that sharing the information may cause. The GMC's stance makes it very clear that if a child or young person is at risk of, or is suffering abuse or neglect, it will more often than not be in their best interests for doctors to share the information in accordance with the new guidance.
If doctors choose to disclose confidential information, they must explain their decision to do so to all of whom the confidential information relates, unless of course such an action would put the child or young person in question at increased risk. Doctors must also record the reasons why the decision was made.
Whilst the new guidance may result in doctors having to balance patient confidentiality with the need to disclose confidential information, a common sense approach seems to be a workable solution for doctors providing care and treatment to such patients.
In summary, doctors with valid reasons for raising concerns in the interests of a child or young person with or without the consent of the individuals involved, should not be at risk of fitness to practise proceedings being brought against them, providing the benefits to the child or young person in doing so outweigh the duties of confidentiality, and they have recorded the reasons for their decisions.
However, it still remains to be seen if doctors will be forced to face full fitness to practise investigations for the disclosure of confidential information - either without consent or where consent is refused - particularly as the GMC has a duty to review all complaints received and to investigate any allegations of impaired fitness to practise.
If you are a doctor facing a difficult decision relating to the disclosure of confidential information, or if you face an investigation into your fitness to practise, contact:
www.shoosmiths.co.uk and follow us on twitter @Shoosmiths