“What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.”

Patient confidentiality has always been a fundamental of medical ethics. The quote above references an early version of the oath you are likely to have sworn on graduating from medical school.  The World Medical Association Physician’s Pledge includes, “I WILL RESPECT the secrets that are confided in me, even after the patient has died.”

Today, the GMC emphasises the importance of patient confidentiality.  But it also acknowledges that sharing information is an essential part of the provision of safe and effective care. The duty of confidentiality is therefore not absolute, and there are a number of exceptions where disclosure of personal patient information does not amount to a breach of your duty of confidentiality. The difficulty for doctors in practice is knowing how to resolve the tension between patient confidentiality on the one hand, and safety on the other.  In this article we focus on specific issues that can be particularly relevant to SEMPRIS members.

The vulnerability of sportspeople

The sporting arena can pose a variety of health risks for professional sportspeople. The obvious risks include injuries such as broken bones.  But less obvious are the risks of becoming infected with a transmittable disease, such as HIV or hepatitis B or C.

If you work with or for a sports club and have responsibility for performing a medical prior to a player being signed, you might find that the prospective signing has tested positive for a transmittable disease. Alternatively, as part of ongoing health checks for players, you might be advised that a player has acquired one.

The risk of transmittable disease exists in other settings, of course. For example in a healthcare environment, there are needlestick injury protocols that require you to treat the injury as if a transmittable disease may have been transferred, with appropriate blood tests taken and post-exposure treatment instituted.

But what are the considerations for sports doctors? In our experience as medico-legal advisers, this is an area where the tension between patient confidentiality and the need to protect the health of others is particularly acute.

The confidentiality of the sportsperson carrying a transmittable disease is of course extremely important.  While excellent work has been done to reduce the historical stigma associated with them, the reality is that the sportsperson may feel great distress and shame at being affected. That person might also have significant fears about how disclosure might affect their relationship with their team-mates (and others), their sporting career and exposure to prurient interest from the press [1].

Regardless of whether those fears are well-founded, there is a risk that revealing that a sportsperson is suffering from a transmittable disease could have a devastating effect on their mental health. More generally, notifying others about a player’s transmittable disease risks eroding the whole team’s trust in you as a doctor, and might become a disincentive for players to be open and honest with you and other doctors.  Clearly this is to be avoided, as a secret transmittable disease is even more dangerous than a known one.

But balanced against that is the health and safety of others.  Blood-borne viruses pose particular risks in contact sports, where it is not uncommon for open wounds to develop suddenly yet not be noticed immediately in the distracting and adrenaline-filled arena of play.  A player with a transmittable disease unfortunately poses a potential risk to the health of fellow players, backroom staff (such as physiotherapists), opposition players, referees and allied healthcare staff on standby during matches.  As a sports doctor, you will owe a direct duty of care to at least some of those individuals, to protect them from infection.

Resolving the tension? 

For this reason, sports doctors in particular need to have at their fingertips the knowledge needed to properly manage situations where a player has a transmittable disease.

If you find that a player has a transmittable disease, it is imperative that you discuss this in confidence with the player as a matter of urgency.  You will need to explain the nature of the disease, and the implications for others who might be at risk of acquiring it.  The player may already have some insight if diagnosis and treatment was instigated by another healthcare practitioner, but you cannot assume that they know the implications from a sporting perspective.  It goes without saying that if you are the first to become aware of the diagnosis, you must promptly notify the player and refer them to the appropriate specialist for treatment.  The player should also be counselled on how they can protect others from infection and the practical measures they can take.

It is always preferable to obtain the player’s consent to agree to put in place measures to minimise the risk of transmission to others who might come into close contact with the player, such as other players and healthcare staff.  That plan might involve obtaining the player’s express consent to share the diagnosis with other people. If the player can be persuaded to cooperate with that approach willingly, then this is likely to make the management of the situation considerably easier. Therefore you will need to approach this discussion with very great care and sensitivity. When preparing for the discussion, consider whether there might be difficulties caused by language or cultural differences that could affect how your advice is understood and perceived by the player.  Be ready to answer any questions the player may have, including about what safeguards you will put in place to try to prevent the information going beyond those who ‘need to know’. More than one discussion may be needed, and it goes without saying that all the discussions need to be accurately recorded in the player’s confidential notes. For your protection, if the player does agree to partially waive their right to confidentiality, it would be prudent to get the player to sign a statement to that effect.

But what if you cannot persuade the player to cooperate, despite your best efforts?  The law recognises confidentiality as being in the public interest, but also that there are situations where  disclosure of personal information can also be in the public interest.  In particular, the situations where disclosure can protect individuals or society from the risks of serious harm, such as from serious communicable diseases. There is a fine balance in determining whether the benefits to an individual or society of the disclosure outweighs the patient’s and public interest in keeping the information confidential. The following ought to be considered when determining whether the public interest in disclosure outweighs the public interest in keeping information confidential:

  1. The potential harm or distress to the player if information is disclosed;
  2. The potential harm to trust in healthcare staff;
  3. The potential harm to others if information is not disclosed;
  4. The potential benefits to others if information is disclosed;
  5. The nature of the information to be disclosed and views of the player; and
  6. Whether the harms can be avoided or benefits gained without breaching the player’s privacy.

If it is considered that failing to disclose the information would leave others at risk so serious that it outweighs the player’s and public interest in maintaining confidentiality, disclosure of relevant information should be made promptly to the appropriate persons. For example, disclosure can be made to someone (Person A) with close contact with the infected player if there is reason to think that Person A might be at risk of infection likely to result in serious harm, and the player has not informed Person A and cannot be persuaded to do so. This is particularly important, as you cannot obtain the valid consent of Person A to blood tests or treatment unless they understand why you are recommending them.

When disclosing a player’s personal information, you should use anonymised information as far as practicable. You should also keep disclosure to the minimum necessary for its purpose.

In line with good medical practice, is it recommended that detailed and confidential chronological notes are kept of your actions and decisions. This can then provide a basis to evidence your reasoning should they be queried by a third party, such as the GMC.

Unfortunately it is impossible to decide in advance how to resolve this tension between your various duties as a doctor, because each situation is going to require a careful weighing-up exercise based on the particular individual facts of that case. If you find yourself in a situation where you may have to disclose a player’s diagnosis without their express consent, it is definitely worthwhile seeking confidential guidance so that you can be as sure as you can be that you are making the right judgment call in that particular situation.  You can obtain that guidance from the Standards Team at the GMC who can give advice about your obligations, and also from the SEMPRIS medico-legal helpline (0333 010 2826).

What about insurance?

Always remember that it is vital to inform insurers (“notify”) as soon as any “Claim” is made against you.  That doesn’t just mean a formal letter of Claim or Court proceedings, it can include much more subtle situations like someone saying they will sue you or suggesting that they should be compensated for something you have done. Similarly, you also have to notify insurers about a “Circumstance”, which is anything that could lead to a “Claim” against you.

Therefore if a player (or anyone else) suggests that you have improperly shared information about their transmittable disease, then you need recognise that this could indicate that the player may intend to report you to the GMC, or bring a negligence claim or even allege a data protection breach against you.  You would need to call the helpline (0333 010 2826) as soon as possible to get help in notifying all the relevant insurers and in managing the situation effectively.

Similarly, if someone suggests that they may have acquired a transmittable disease because you failed to protect them properly from another infected player, then notification would likely be appropriate.

Sports doctors also have to be alert to other potential classes of complainants, because players are often valuable commodities for agents and clubs, and particularly for the purposes of transfers.  If a sports doctor learns of any suggestion that s/he may have made the wrong decision about whether to certify a player as healthy, because of a transmittable disease, then calling the helpline to discuss whether notification is needed would be important for protecting the doctor’s interests.

[1] The disgraceful behaviour of some parts of the press in relation to Gareth Thomas’ HIV status being just one example 

October 2019

Dr Ronnie Tan, DWF Claims

Joanne Staphnill, DWF Law LLP

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