setting the scene i: from common law to statute law

SETTING THE SCENE I: FROM COMMON LAW TOSTATUTE LAW

Rob Hale

This is an account of the talk that I gave at the BCP conference on confiden-tiality. It is personal and, at times, journalistic, and concerns itself with muchthat is political.

My own experience started some eight years ago at the Portman Clinic –an NHS psychotherapy clinic for people who have committed criminal orsexually deviant acts and are troubled by it. Paedophilia, for example, is acommon reason for being referred. Not surprisingly, issues of confidential-ity are crucial for such patients – most would like the assurance of absoluteconfidentiality. The extent to which we could (or should) provide suchassurances was unclear to us. We therefore decided to consult two lawyerswho gave us largely dramatically opposed opinions. This was the firstlesson – that the law is not always clear and that it is subject to interpre-tation. The second is that there was often room for manoeuvre within thelaw, and hence the need for the professions to take an active (or proactive)role.

In this consultation we were made aware of the crucial difference between(i) statute law which is laid down by Act of Parliament, an infringement ofwhich has specified punishment attached, and (ii) common law in which anindividual (patient) who has a grievance against a professional asks a courtto decide whether that professional has discharged his/her professional duty.Such a judgment would largely take into account the opinions of othermembers of that profession. The result would be that, if successful, thecomplainant would be awarded damages and the professional might bereported to his/her professional registration body.

The sanction of a professional body would be to deny the professional theright to work (being struck off or suspended from a register). An employ-ing authority equally may decide that an employee has contravened its codeof practice and terminate employment. Both registration authorities andemploying authorities will have codes of practice. These are not law but mayeffectively have the force of a law by virtue of the powers conferred on a

British Journal of Psychotherapy 20(2), 2003© The author 135

ROB HALE is a Consultant Psychiatrist in Psychotherapy. Address for correspon-dence: The Portman Clinic, 8 Fitzjohns Avenue, London NW3 5NA.

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registration authority by act of parliament (e.g. the General MedicalCouncil). Codes of practice go beyond what is legal to what is ethical.

Shortly after the consultation with lawyers at the Portman Clinic I wasasked to join the working party at the Royal College of Psychiatrists,revising the College guidelines on confidentiality. The group was chaired byProfessor Roy McClelland and had a representative from the Departmentof Health. The group met for two years (I have four box files of drafts) andthe report was published in 2001.

The starting point for consideration of confidentiality must be the Hippo-cratic Oath. There are various versions but one runs thus:

All that may come to my knowledge in the exercise of my profession or in dailycommerce with man, which ought not to be spread abroad, I will keep secretand will never reveal.

It has been pointed out by Gwen Adshead that when a patient comes to usthey give us their consent for treatment, and therefore any disclosure to athird party of confidential material must equally be with their consent. Thecircumstances where this may occur are threefold: firstly, when one is usingdata from the patient for the purpose of audit research; secondly, when wewish to publish a paper containing clinical material; and, thirdly, when thepatient has disclosed to us information which indicates likely harm to a thirdparty (or possibly to the patient themselves). In each of these circumstances,the starting point is that the patient’s consent for disclosure should besought; various lawyers were of the opinion that it is hard to see how it couldbe justified to override the patient’s wishes with regard to research or publi-cation, although this is a matter of debate within the professions.

If, however, there is a danger to a third party and the patient does notconsent to disclosure, there are three ways in which their wishes may beoverridden. Firstly, an Act of Parliament determines that under specifiedcircumstances disclosure should take place. Should a clinician not disclose,he/she would be liable to punishment under the terms of that Act. Anexample would be doctors being required to disclose notifiable diseases tothe appropriate authority. This, then, is an example of statute law.

Secondly, a court (and only a court, and only certain courts) may order aclinician to disclose information. If the clinician decides not to disclose,he/she will be in contempt of court and will be liable to the appropriatepunishment by that court.

Thirdly, a clinician may decide that his/her duty to protect the public over-rides his/her duty of confidentiality to the individual patient. The crucialwords here are ‘may’ and ‘decide’. This is ‘common law’ and in common lawthere is no absolute requirement on an individual to disclose information.It is, therefore, the responsibility of the clinician to decide which of thecompeting duties is the greater, and to justify the reasons for this decision,to inform the patient of this decision and to record it in the notes. The Royal

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College of Psychiatrists’ Guidelines (CR85) sets out recommendations forhow this process should take place: it stresses the importance of discussingsuch decisions with a colleague and of disclosing only the minimum infor-mation necessary and to the appropriate authority.

Again, I would stress that this is a matter of clinical judgement, that theopinions of professionals may vary and that guidelines are only guidelinesand are not absolute. It is, however, the situation that we are most likely toencounter as psychotherapists.

This, then, is my understanding of the exercise of the law in matters ofconfidentiality and the relevance of guidelines as well as the opinions of ourpeers.

It has, however, become increasingly clear that matters of public percep-tion of risk, the containment of dangerousness and governmental politicalprocesses have a considerable influence on our actions in relation to confi-dentiality. As Carine Minne pointed out, it was with the policy of dischar-ging large numbers of patients from long-stay psychiatric hospitals tofacilities within the community in the 1980s that public anxiety started torise. Hospitals provided asylum for the patient and protection for the publicfrom these ‘dangerous’ people. Although there is evidence that the numberof homicides by mentally ill people has not increased as a result of Care inthe Community, there has been increasing pressure by the media andpressure groups to provide a risk-free society. One result was the intro-duction of the Care Programme Approach which is a systematized way ofapportioning responsibilities between professionals in the care of the seriously mentally ill. Often such people have been detained under theMental Health Act against their will. Decisions have therefore (necessarily)been made for them. Patients’ autonomy is always at risk of being eroded,as is their right to confidentiality, and many of us have had the experiencethat we were being obstructive to other professionals if we stood up for therestriction of information.

The Government then responded to further pressure by setting up Multi-Agency Public Protection Panels. There is a statutory duty on the police andprobation service to establish these panels with a strong encouragement forhealth, social services and housing to take part. The purpose is to judge therisk posed by an individual who has been before a court or in hospital, andto ensure proper cooperation between agencies. Central to the functioningof the panels is the exchange of information. The purpose is to reduce therisk to the public and to coordinate the care of the ‘patient’. Obviously theseare laudable aims but the cost is to the maintenance of confidential relation-ships. The forensic psychiatrist David James has drawn up a mock consentform based on the guidelines for MAPPs:

I understand that anything I reveal to the doctor and any conclusions that he/shemay come to based on the information I provide, will be written in a report andthat (1) This report will be made available to those agencies that attend the

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Multi-Agency Public Protection Panel, specifically the police, probation, socialservices, child protection and housing. Members of the public may also bepresent as observers at meetings at which the report may be discussed. (2) Thereport may be used to make decisions about me that adversely affect myfreedom, such as surveillance and the application of forms of legal restrainingorder. (3) Any such discussions about me will be held in secret and may be heldwithout my knowledge and I have no right to attend, no right to legal represen-tation and no right of appeal. (4) The report, once released to the agencies inquestion, may be circulated within or between other agencies in a manner whichis not subject to the control of the author. (5) The report is being prepared notfor my direct benefit, nor for any other therapeutic purpose but in the interestsof the public protection apparatus.

Whilst this was prepared slightly ‘tongue in cheek’, it is one interpretationof the guidelines and one which would reassure few patients. Consider alsothe fact that the Criminal Justice Bill currently before Parliament increasesthe obligation on health and social services to take part.

Let us turn to the Mental Health Act or, more specifically, its revisioncurrently being undertaken by Government. Part of the proposed bill dealswith what has been termed ‘dangerous severe personality disorder’; the mostcontentious part of this is the proposal that it will be possible to detainsomeone who has not committed an offence but is deemed to be dangerous.The section of the bill on confidentiality (in its first form) stated:

New legislation will include a new statutory duty covering the disclosure ofinformation and patients suffering from mental disorder between health andsocial services agencies, for example, housing and criminal justice agencieswhere this can be justified . . . Such information will of course be keptconfidential by the receiving agencies.

Those of us who work in the public health sector will know how easilyconfidentiality can be broken (even with care and the best of intentions).The American Psychiatric Association has produced guidelines for itsmembers who are psychotherapists. With regard to the vulnerability ofrecords, they state:

Psychiatric treatment, especially psychotherapy, involves sensitive personalinformation about the patient and other people in the patient’s life. The patientreveals this information to the psychiatrist in the faith and trust that it will beused to advance the treatment and that no information from that treatment willbe revealed to any other person without informed consent of the disclosure.

Later, the document continues:

The fact that now it is technically feasible to computerize medical records andtransmit them electronically presents a greatly increased vulnerability tounauthorized access that may compromise confidentiality and could signifi-cantly harm the patient. There is no consensus that any security system existsthat absolutely protects electronic records in databanks from human error ormalice . . . Although the same risk pertains to paper records, access to elec-tronic records may be easier to accomplish and more difficult to detect.Recording psychotherapy content or process in electronic systems beyond thedirect control of the practitioner would place the patient’s private thoughts

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and acts at such grave risk of unauthorized disclosure as to make treatmentimpossible.

Whilst I may be representing a particular view, it does seem to me that confi-dentiality is under increasing pressure, and it has been said to me by a lawyerin the past that ‘we have a public duty to protect the individual’s right toconfidentiality’. It is my observation that when an individual becomesdepressed there is an increased propensity for them to doubt the intentionsof their carers – hence all the more reason to ensure maximum confiden-tiality. As we are increasingly being forced into being agents of social controland out of our therapeutic roles, it becomes increasingly difficult to makesuch judgements.

We live in a risk-averse society both reflected and, in part, created by themedia. Public protection from perceived dangerousness makes much betterpress than the infringement of an individual’s right to confidentiality.Governments are not immune to pressure from the media and their mosteffective response is to direct a professional’s actions by the use of statutelaw. An example is the clause in the Mental Health Act quoted above. Nolonger are we able to exercise our professional judgement in this mostprivate and intimate space – the consulting room – and, being governed bycommon law, have our actions judged by our peers. Instead the Governmentdecrees how we should act. It is this movement from common law to statutelaw which I find most frightening.

Realizing the danger inherent in the proposed Mental Health Act, a groupof us from the BCP confidentiality committee met with some members ofthe Upper House in Parliament. They were sympathetic to our concerns andtold us of similar worries elsewhere in proposed legislation. Together wemapped out a possible plan of action to counter these proposals. Meanwhile,in discussions between the Royal College of Psychiatrists and the BCP onone hand, and the Home Office on the other, we let it be known that thissmall, unofficial planning group existed. Some months later we were calledagain to the Home Office. We were told that the bill was being ‘re-revised’.The proposal concerning confidentiality had been changed from ‘there willbe a statutory duty covering disclosure’ to ‘there will be a statutory duty toconsider whether to disclose’. A small change in wording, but the functionof the clinician’s judgment is preserved. Perhaps we will never know if ourpolitical pressure was responsible for the change.

What have I learned over the past years? That matters of confidentialityare at the centre of our work. That governments are susceptible to media-induced public pressure. That proposed changes in the law can catch us bysurprise, that we need to be ahead of the game, determining as far aspossible how we can work effectively and responsibly. Finally, that govern-ments do respond to pressure from us as professionals for many reasons, notleast of which is that many of them are our potential patients.

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setting the scene i: from common law to statute law

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