Analysis Of The Crucial Role Of Confidentiality In Nursing

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Introduction

In this essay I will explore the role of confidentiality within nursing and the idea of maintaining confidentiality from a nursing perspective in healthcare and how it can affect different disciplines within nursing.

The Royal College of Nursing (2016) refers to confidentiality as the ‘” The principle which underpins the trust of all patients/clients and healthcare workers”. This helps outline how important confidentiality is to nursing and is from a nurse’s perspective.

Maintaining confidentiality from a nurse’s perspective

Professional accountability

According to the Farlex Partner Medical dictionary the definition of confidentiality within healthcare is “The legally protected right afforded to (and duty required of) specifically designated health care professionals not to disclose information discerned or communicated during consultation with a patient.”

It is clear that maintaining confidentiality is an essential part of a nurse’s job, in order to enable nurse’s and midwives fulfil their duty as designated health care professionals (hereafter referred to as HCP’s) the Nursing and Midwifery Council (hereafter referred to as the NMC) has a code of conduct with specific parts focussing on confidentiality allowing nurse’s to be held professionally accountable if the correct standard of confidentiality is not met.

The first section of the NMC code of conduct is “Prioritise People”. Within this section person centred care is explored and set out as well as clear references to confidentiality made throughout. The code of the NMC clearly states that Nurse’s should “respect and uphold people’s human rights”. The European Convention of Human rights (Referred to as EUCHR here after) has set out eighteen articles which define all European citizens’ rights. Article 18 of this bill is all individuals have a “right to respect private and family life” (ECHR, found at Amnesty International UK).

This right to a private life results in all individuals having autonomy over who is aware of any form of their personal information which includes health records. This part of the EUCHR is key to nurses due to its clear relationship with confidentiality in healthcare. Any nurse who breaches patient confidentiality by sharing patient details, health records or other information is directly abusing their patients’ human rights, not only does this breech the NMC code of conduct but it also does not conform to the four pillars of medical ethics: Autonomy, Justice, Beneficence and Non-Maleficence (Beauchamp and Childness)

When a nurse chooses to share a patient’s information without their express permission or in exceptional circumstances e.g. a safeguarding issue. They are choosing to act with maleficence or the desire to commit harm. Patients information being kept confidential can protect vulnerable individuals particularly in cases where there may be an issue with capacity or the individual has been detained under the mental health act. For example, if a nurse informs a relative or a friend of an individual’s health status without express consent from that patient or is overhead discussing details of an individual’s health status with another colleague this is breeching confidentiality.

Another way that a nurse may breach confidentiality is by leaving a patients’ notes or health records in an area where they can be easily found e.g. a nurse’s station or on screen during another patient’s clinic appointment. These are offences that a nurse can be held professionally accountable for and can therefore result in a fitness to practise trial and may lead to a nurse being struck off the nursing register. In 2015 a nurse from Chester was suspended for exposing a patient’s illness to their children without the patients consent, this was particularly challenging for the patient as he had deliberately hidden his mental illness from his children for nine years (Chester Standard). This clearly demonstrates how important professional accountability is as it allows nurses who aren’t fit to practise to be identified and held accountable for their mistakes.

Ethics

Within nursing it has been recognised that occasionally there are exceptional cases where a patient right to confidentiality should be denied in order to both protect the patient and to protect those around them. In all four disciplines of nursing: Adult, Learning Disability, Child and Mental Health there are circumstances where the safeguarding of the patient overrides the need for confidentiality, this is particularly difficult in mental health, child and learning disability nursing where capacity can also be an issue.

All patients are entitled to confidentiality whatever their age however children under the age of sixteen do not hold capacity and therefore any decisions made about their care and treatment are made by their parents or those that hold parental responsibility, however children are granted ascent within their care, where their preferences will be considered when regarding treatment and confidentiality e.g. not to inform an estranged parent of their current health status. It is worth noting that at sixteen patients hold capacity with some restrictions and full capacity is only assumed at age eighteen.

In the context of children’s nursing “Safeguarding is the action taken to promote the welfare of children and protect them from harm” (NSPCC learning). It is therefore part of a nurse’s moral duty to protect children from harm even if that breaks their code of confidentiality. Nurses have a moral obligation to report cases where there is a safeguarding issue to their colleague who has a designated role as laid out by the piece of legislation “Working together to safeguard children” (Department of Education). This includes cases where are child is being harmed as well as situation where a child is at a potential risk of being harmed. Therefore, any child who makes an admission to a nurse e.g. witnessing or being domestically abused has their right to confidentiality withheld in order to protect them.

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Other issues with ethics and confidentiality within children’s nursing can also be linked to parental authority; a mother automatically has parental authority at birth (this continues until eighteen unless otherwise stated) but a father does not. A child’s father must be named on the birth certificate or be married to the child mother in order to be considered to have parental authority over a child. This causes issues within tumultuous relationships as well as civil partnerships as nurses may have to consider both the rights of the parents and the right of the patient to confidentiality if they have specifically requested it (see ascent).

On some occasions confidentiality from the patient is also a clear issue. On occasion healthcare professionals and family members have decided to withhold information from patients in order to uphold beneficence. For example, at times it has been deemed appropriate to withhold a terminal diagnosis from an individual whose has been deemed to not have capacity and whose family and clinical team feel that it is in the best interest of the patient to suppress this information. In a clinical situation you can argue that this is acting with beneficence even though it asks the question whose right is it to make the decision to conceal information from the patient? And therefore, take away both their right to autonomy and a confidential relationship with an HCP when information is shared with close family.

However, a patient’s right to confidentiality in all situations has caused ethical issues with unborn children. In 2019 a woman threatened to sue the NHS for not disclosing her father Huntington’s disease diagnosis to her during her pregnancy despite his wish to not inform her of his diagnosis even after his death. As Huntington’s disease is inherited her unborn daughter has a 50% chance of inheriting the disease if the woman herself is a carrier. Cases like this create an ethical debate about whether confidentiality should be broken against a patient wishes. This case relates itself to Mental Health nursing as at the time his wishes were made the patient in question was detained under the Metal Health Act 2007(BBC News). This generates a discussion about whether or not it is always ethical to respect a patient’s confidentiality or whether on occasion a nurse should decide not to. In this particular case capacity may have also been an issue due to the patients being detained, this is a clear example of how ethics and the law can often overlap within healthcare, particularly in the case of confidentiality.

Ethics and laws

Hendrick (2010) stated that it is important to recognise that “Issues that are ethically sensitive are also usually legally problematic”. This is notably clear in issues surrounding confidentiality, autonomy and capacity particularly when these issues are intertwined within nursing.

One of the biggest ethical issues combining the law and nursing was the case of Gillick v. West Norfolk and Wisbech AHA and the DHSS (1985) which led to the creation of the Fraser guidelines. This case recognised that on occasion an adolescent is competent to make decisions about their own care without needing to disclose this information to their parents granting them capacity and them a right to confidentiality before their sixteenth birthday the legal age to have partial capacity and a right to confidentiality. Gillick competence was developed to allow adolescents to obtain contraception under the legal age of consent.

These patients must be able to demonstrate understanding of contraceptive advice and the clinician present must be of the view that: Without contraception the patient’s mental health will suffer, they are likely to take part in sexual intercourse anyway, they cannot be persuaded to inform their parents and/or it is within the best interests of the patient to give contraceptive advice. In these situations, the patient is deemed to have’ Gillick competence’ and under the Fraser guidelines can be given contraception without the need for permission from a person with parental authority.

In 2004 the Department of Health issued a set of guidelines which stated that the Fraser guidelines which once were only used to deem whether contraception could be given could now be used to determine whether an individual under the age of sixteen could receive treatment for a sexually transmitted disease or terminate a pregnancy all without the need to inform those with parental responsibility. The Fraser guidelines were designed to only be used in exceptional cases where there were issues surrounding contraception however in healthcare today they are increasing being used in a wider context with applications now being used in a range of scenarios including emergency medicine to determine whether an individual understand their treatment.

This creates an issue within ethics and the law as requires an answer to the question; Who owns the health information of a patient? And therefore, who does confidentiality apply to? A child or an individual who does not have capacity may be able to consent to some procedures e.g. a tonsillectomy but may not be able to give consent for others e.g. a brain surgery. This increased lack of clarity over capacity causes there to be a change in who is privy to confidential information about the patient. This can create ethical issues as individuals may have information shared about them without their consent due to there being a confusion about their capacity and therefore what information should be disclosed and to whom.

Law

One of the key pieces of legislation relating to confidentiality from a nurse’s point of view is the Mental Health Capacity Act 2005. Part of this legislation relates to the power of attorney. The definition of power of attorney is someone that can “Make financial, medical and property decisions for you”. The power of attorney allows those appointed to make decisions on behalf of a patient if they are over the age of eighteen. This allows nurses to share information with an appointed person usually someone who has a close relationship with the patient without fear of breaking confidentiality laws. Power of attorney also covers individuals who do not have the capacity to make decisions about their own care e.g. those in the advanced stages of dementia or those with mental health disorders or learning difficulties. In the past individuals have pursued court cases where the right to information has been granted to close family members without the need for power of attorney, these cases usually focused on a patient without capacity however these cases now fall under the Mental Health Capacity Act 2005.

Another one of the most crucial pieces of legislation particularly within children’s nursing is the Family Reform Act 1987, this act allows nurses to understand who legally they are able to disclose information to in a situation where a child is involved. This act clearly states which individuals in a child’s life have parental authority and responsibility e.g. an individual married to the mother at the time of the birth. These clear guidelines allow children’s nurses to not breech confidentiality by providing health information to the wrong people e.g. estranged fathers. It is also worth noting as mentioned previously that the Fraser guidelines, Gillick competence and ascent that children are entitled to may affect who this information is shared with. It is important to observe that on occasion confidentiality is sometimes broken in this case particularly with children in emergency situations however unless it is life threating this law is strictly adhered to in order to protect children particularly in safeguarding situations.

Confidentiality within a nurse’s role can also be overridden by a statutory duty to disclose. In a criminal justice case a nurse must disclose all relative information required by the police force. In this case confidentiality must be broken regardless of the patients wishes as these cases related directly to the law. As well as this is being relevant in certain criminal cases, under the Traffic Act 1991 if a nurse has any information about a road traffic accident a patient is involved in they must disclose it to the police. This obligation to divulge this information whether it is beneficial to the patient or not links closely with professional values of nurses, their professional accountability and the NMC code of conduct.

In May 2018 the EU brought in a new piece of legislation around the protection of data which allowed individuals to have more control over their data and how it is used. Within this legislation it was made illegal for individuals to access details without express consent, this meant for nurses that unless they were caring for a patient or had express permission to do so they were not allowed to access the documents of any other patients. This directly links in with the NMC code of conduct as not accessing other patients’ information e.g. friends or family, allows nurses to uphold confidentiality as well as maintain professional values and boundaries.

Law and accountability

It is important to recognise that within the UK the legislation around confidentiality and healthcare is closely intertwined with professional accountability. It is also worth noting that when confidentiality is broken and an individual is pursued for breaking both the law and the NMC code of conduct it is not always a purposeful breech of confidentiality. Confidentiality can be broken in a number of ways including the accidental sharing of information e.g. another individual overhearing a consultation with a patient.

Another issue which nurses need to consider is the breeching of confidentiality within social media. As the use of social media has been steadily increasing throughout the last decade new legislation and NMC guidelines have had to be put in place in order to protect the confidentiality of patients, nurses have been known to post pictures in their uniform performing inappropriate acts and post pictures of their patients without consent. This has created the need for the NMC and other medical bodies such as the General Medical Council to create policies around the use of social media and confidentiality within healthcare. These policies also allow individuals who break confidentiality to be not only to be held accountable by law but also within their professional body allowing individuals to be struck off or suspended for misconduct (for breaking confidentiality guidelines on social media).

In conclusion, confidentiality is a crucial part of nursing in order to protect both nurses and patients. If a nurse cannot maintain confidentiality they are not only exposing themselves to being struck off of the register but they are also putting their patients in a vulnerable position and therefore acting with maleficence and going against the key pillars of medical ethics. It is also worth noting that confidentiality also safeguards nurses and their families from inappropriate contact from patients, by both parties not disclosing or sharing personal information other than that which is necessary nurses cannot be contacted outside their work environment by patient or previous patients protecting their relatives.

However, the laws around confidentiality within nursing are changing very quickly due to the speed at which technology is changing. Recently major hospitals such as the National Hospital for Neurosurgery and Neurology switched all their patient records to be entirely electronic, however in the process of this confidential information about other patients was heard by visitors to the hospital suggesting that not only do electronic records present their own challenges to confidentiality as it is easier to access patients records regardless of whether they are your patient or not, but they can also cause a number of breeches to patient confidentiality when being launched within both general and specialist hospitals.

Without strict confidentiality laws nurses would be unable to keep their patients safe from those who wish to harm them in a variety of ways whether that be physically, sexually, psychologically or online. The right to confidentiality also protects patient right to have their private information kept safe and not spread to others without their consent and in some situations enabling them to make the best decision for themselves without having their relatives’ desires for their treatment be a harmful influence. All of these benefits as well as many others show just how key confidentiality laws are and how ethics, legal issues and professional accountability have an effect on confidentiality, and therefore how important confidentiality is to nursing and is from a nurse’s perspective.

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