Recent articles in the press regarding doctors and confidentiality agreements have raised some interesting issues regarding the tension that doctors face between protecting their legal position and potentially compromising their professional ethical obligations. The professional conduct obligations imposed upon doctors is contained within the General Medical Council’s (“GMC”) “Good Medical Practice” guidance. This post will take a look at the issues involved by investigating the obligations that doctors are subject to under the GMC’s guidance and how this guidance may potentially conflict with the terms of the doctor’s contract of employment or any compromise agreement arising from their employment, specifically with relation to the duty of confidentiality contained within such documents.
The professional conduct obligations of doctors
As stated above, the professional conduct obligations of doctors are contained within the GMC’s “Good Medical Practice” guidelines. There is no obligation for doctors to obtain membership of the GMC but in practice most doctors are members. The GMC’s remit is to maintain a register of doctors practicing medicine in the UK, set out standards of medical practice, regulate medical education in the UK, and deal with professional complaints about doctors. The second issue is the one that we will be dealing with today – the standards of medical practice for doctors.
The main guidance that the GMC provides for its members is the “Good Medical Practice” guidelines. Under these guidelines a number of duties are specified for doctors registered with the GMC, including the duties of:
- Making the care of [the doctor’s] patient [their] first concern
- Protecting and promoting the health of patients and the public
- Being honest and open and acting with integrity, including acting without delay if [the doctor] has good reason to believe that [they] or a colleague may be putting patients at risk
These guidelines are relatively similar to those that solicitors operate under by virtue of the Solicitors Code of Conduct 2012.
How the employment obligations of doctors may conflict with GMC guidelines
A confidentiality clause is “boilerplate” in a contract of employment i.e. virtually every contract of employment contains such a clause. The wording of such a clause usually reads something like this:[blockquote align=”center”]Without prejudice to his common law duties, the Employee shall not, except in the proper course of his duties as authorised or required by law or as authorised by the Company, either during the Appointment or at any time after termination of the Appointment (howsoever arising): use any Confidential Information; or make or use any Copies; or disclose any Confidential Information to any person, company or other organisation whatsoever.[/blockquote]
Further, upon termination of the contract of employment compromise agreements are often utilised to limit or exclude any claim that the former employee may have had against the employer. Compromise agreements normally include confidentiality clauses similar to the above, including the obligation to maintain confidentiality regarding the existence of and reasons for the compromise agreement.
The terms of the confidentiality clauses both within the contract of employment and any compromise agreement may breach the doctor’s duties relating to his professional conduct listed above. For example, if a doctor was aware that a specific department in his hospital was sub-standard and potentially a danger to the health of patients then he would, technically, be subject to a duty under his contract of employment (or confidentiality agreement) to maintain confidentiality regarding this. However, he would also be endangering the health of patients and potentially acting dishonestly. This is an important consideration for doctors – do they breach the terms of their contract of employment (or compromise agreement) or, on the other hand, potentially harm their patients?
If a doctor is worried about the welfare of his patients but is concerned about breaching his contract of employment or compromise agreement then he has 3 options:
- Do nothing
- Resign from his employment
- Make his concerns known to an appropriate person
Doing nothing clearly risks breaching the doctor’s obligations under the GMC’s guidance. Resigning from his employment would also not free the doctor from the confidentiality clauses under his contract or any compromise agreement. It may also risk breaching his professional conduct obligations if by resigning he harms the welfare of his patients, either directly or indirectly (i.e. by not highlighting failures within his Trust). The preferable course of action in such circumstances if doctor should register his concerns with his NHS Trust or GP practice. This is known as a “qualifying disclosure”. If the doctor feels uncomfortable about registering his concerns with management for any reason, he is able to disclose his concerns externally to appropriate persons, including solicitors (among a limited group of others). Once the doctor has registered his concerns externally or internally with the appropriate person he has made a “protected disclosure” and is protected from any detriment or dismissal that is caused by his protected disclosure, should the information be imparted in good faith and providing that the doctor has the reasonable belief that the information is substantially true. Should he be dismissed from his employment for the primary reason that he has made such a protected disclosure then he would be treated as automatically dismissed under the Employment Rights Act 1996.