Confidentiality within the NMC Code
This essay will explore the aspect of confidentiality as embodied within the Nursing and Midwifery Council Code (hereafter referred to as NMC, 2008). The Code (NMC, 2008) explicitly lays down a duty on nurses and midwives to protect confidential information and clearly lays down the duty of trainee and practitioner nurses to respect a patient’s right to privacy and confidentiality (The NMC Code, 2008). Furthermore, there is a requirement of ensuring how and why subject information is to be shared by nurses unless with the honest belief that the patient may be at grave risk of harm otherwise (para 5.3 The NMC Code, 2004). The NMC code states that the information given to nurses in confidence has to be treated only for the purposes for which it was provided (The NMC Guidelines on Confidentiality, 2008).
According to McKenzie (2002) the concept of confidentiality within nursing care, “as applied to information obtained by health professionals has ethical, legal and clinical dimensions…. (with) three basic ethical principles relating to confidentiality: autonomy, duty of care and non-maleficience”(2002:1). Based on the above, then, the NMC Code (2008) is aimed at giving effect to the spirit of these main principles of confidentiality through the “no harm” principle where the patients’ wishes are given effect by placing a duty of care upon nursing professionals to respect patient privacy and to prevent and avoid any harm to patients through any such disclosure of information to a third party.
The NMC Code of Conduct (2004, para 5.1) expressly requires all nurses and student nurses to “treat information about patients and clients as confidential, and use it only for the purposes for which it was given”(NMC, para 5.1). Furthermore, the code goes on to warn the practitioner or trainee nurse, “you must guard against breaches of confidentiality by protecting information from improper disclosure at all times” (NMC, Para, 5.1). Rare exceptions to such prohibitions within the NMC Code against disclosures include informed consent and public interest (para 5.3 and 5.4, NMC Code, 2004).
In all other cases failure to conceal the objects of a study or treatment as well as information about their health carers is a breach of the NMC code. Under the code nurses may make patient records and have access to them, but ownership of such records rests with the governing medical body and thus the legal right of access to them vests with the same as well. Thus there will be a breach of confidentiality if a patient’s records are accessed for another purpose or without the patient’s consent. The NMC duly takes into account the relevant data protection legislation in its guidelines (The NMC Guidelines,2004). The Data Protection Act 1998 provides for the patients and the subjects of medical studies to be able to request access to both their paper-held and online notes and even have inaccurate information about themselves corrected. Such rights of access are also contained in the Access Modification (Health) Order 1987, the Access to Health Records Act 1990 and the Access to Health Records (Northern Ireland) Order 1993 define their rights of access. These rights are further supplemented in the NMC via the Freedom of Information Act 2000.Any breach of such rules and regulations, which lead to a breach of confidentiality on behalf of a nursing practitioner or trainee can trigger disciplinary action under civil law and by the relevant governing body (Fulbrook, 2007 a). In case the patient is deceased then the law under the Access to Health Records Act 1990 still requires the nurses or midwives formerly involved in his care and treatment to respect his/her privacy and confidentiality. The NMC is also in line with such protection as the Code states that disclosure without consent can only be made if the practitioner or trainee nurse believes that someone may have been at a risk of harm and that such disclosure should be justifiable or in the public interest, that is to protect individuals, groups or society as a whole from the risk of significant harm. For example in situations where the nurses might be faced with drug traffickers, paedophiles and criminal activity there would be a need to set aside confidentiality and prefer the interests of justice (Fulbrook, 2007b).
The reason the duty of confidentiality in the NMC code is important is that there is no express statutory right to confidentiality per se, but this is more of a common law right supplemented by data and record protection legislation as discussed above. As such, academic opinion is of the view that the new NMC itself strengthens the quality and integrity of the nursing profession (Fulbrook, 2007c). However, there are many dilemmas faced by nurses in practical situations where urgent and emergency care means that decisions have to be taken fast. This is especially true for rape and murder cases where the police agencies might have at hand enquiries, which are too inquisitive in nature and may possibly violate the nursing code of confidentiality (Esterhuizen, 2006). In such situations things may be further complicated with the risk of a breach of confidentiality occurring in the absence of advice from senior staff. The latest NMC code (2008) now advises the trainee and practitioner nurses to consult with their senior colleagues or any other medical UK medical governing body in order to be able to make a decision to disclose information without the person’s consent (The NMC Guidelines, 2008).
Guidelines under the NMC code (2008) clearly state that any decisions to set aside the duty of confidentiality and to make disclosures should be recorded in the current data base holding the subjects’ or patients’ records. This includes any supplementary records, which might in exceptional circumstances be drawn up with the aim of recording details and reasons for the disclosure. However, the nurse or midwife caring for the patient can then only access such supplementary records. The factum of the existence of the supplementary record should be brought on record to the health care team and, in order to maintain the integrity of the person’s confidentiality, should not be under any circumstances duplicated.
The NMC code (2008) places upon the nursing and midwifery profession a duty to maintain the integrity of their records – whether electronic, internet based or paper based.
This clearly mandates a duty to set out and follow clear protocols at the grass roots level within the organisation and should be implemented at local level to specify which staff members have access to computer-held records (Shutterworth, 2008). If there is a possibility that these records will at some point be accessed by different members of the inter-professional health care team, this should be duly notified to the patient(s) in advance.
Nonetheless, at this point, in the year 2009, a number of ethical and practical dilemmas still preoccupy NMC policy makers: these include the conduct of nurses and midwives during “off duty” hours or in emergency situations where they were not working in the course of their normal duty hours (Kirkland, 2008). Whether or not their misconduct during “off duty or emergency” or situations could trigger disciplinary action against them is still being discussed by medical policy makers (Kirkland, 2008).
The NMC code (2008) is clearly better than its predecessors as it seeks to clarify a number of other aspects in line with rights of the patient/subject to access personal records in order to be able to limit the amount of information relevant to their health condition and have any other irrelevant information removed from their permanent records (Shutterworth, 2008). Although a right of deletion is not available, under the code nurses are able to have such irrelevant information limited to who may or may not be able to access such information (Shutterworth, 2008). An example can be a previous abortion taken by a single mother coming from a conservative culture, or the background and history or a patient who went through sex change in the past. However, such limitation will not permanently delete the requested information; rather it will be concealed from certain people as desired by the patient.
Another issue duly dealt with by the NMC Code (2008) and the NMC Guidelines (2008) pertains to access to patient records for the purposes of teaching, research and audit. The rules of confidentiality also apply in the situation where the information is to be used by students for the purposes of gaining medical knowledge and skills. Similar duties have to be observed by the person in charge of training nurses and they will be expected to appreciate the need for incorporating understanding confidentiality and the need to follow the legal procedures for handling and storing patient records (Shutterworth, 2008). The NMC code is widely quoted by academic institutions today which offer nursing and midwifery education in strictly prohibiting trainee nurses from using a patient’s real name or location, the real name of the location that patient was treated at, and submitting work containing photocopied or scanned information directly from the patient records which might identify the patient in terms or name, age or location (The NMC Guidelines, 2008). An important dilemma often faced in practice is whether or not to use the name or documents identifying the Primary Care Trust where the patient might have been treated if it does not put the identification of the patient at risk per se.
McKenzie (2002) has highlighted the need for confidentiality in terms of people with learning disabilities which nurses must comply with, even in situations of complaints lodged against nursing staff, as well while handling assessing their own case notes pertaining to the patient with a learning disability. It is possible to see that many ethical dilemmas arise in terms of individuals with mental or learning disabilities as in terms of such patients it is not always easy to obtain informed consent. Thus, while balancing the needs of confidentiality with the patient’s best interests, the practitioner nurse has to formulate a way forward, so even if disclosure is made within a multi agency framework which has a duty to care for such a patient, no unreasonable disclosure occurs.
According to McKenzie (2002) “Clients with a learning disability often have to rely on others to help them access information about services and may discuss their concerns and complaints with others before going through formal channels” which is the reason their personal information might be at a greater risk of a breach of confidentiality. At the same time the NMC Code (2008) is very much anxious to work towards enhanced child protection, which may require breaches of the code when nurses are caring for children in a multi-agency framework. Paragraph 5.4 of the NMC Code (2008) states that “..where there is an issue of child protection you must act at all times in accordance with national and local policies…”, which would, in the case of nurses being trained or practicing in the UK, mean that due regard has to be given to the multi-agency framework for childcare and child protection. There will be times where information about possible child abuse or welfare will need to be shared with parents, law enforcement agencies, school teachers and others.
McKenzie (2002) and Semple (2003) are of the view that, since nurses are a part of the actors involved in a multi-agency framework for children and the disabled, they face many problems while dealing with partnerships and joint initiatives to monitor children and disabled patients where necessary in their interests. It is at these times there are a number of confidentiality dilemmas which may be faced by nurses and which are duly addressed by paragraphs 5.3 and 5.4 of the NMC Code (2008). This sentiment has been echoed by several other commentators and academics like Doherty (XXX). Laura Doherty (XXX Please confirm date) has criticized the current state of confidentiality as expressed in the Code and in practice and she has highlighted the example of a 15 year old teenager who killed herself in Birmingham three weeks after confiding in a nurse that she was a rape victim. Doherty (XXX) believes that the girl’s life could have been saved if the nurse had tried to get parental or legal help instead of sticking resolutely to strict confidentiality.
Arguably, then, confidentiality is a ‘two-edged sword’ which can be beneficial but which is not always in the best interests of the patient who may actually be in need of help. The NMC code of confidentiality should now be looking towards helping the nurse distinguish between a serious wish of anonymity against a cry out for help. This is an issue which should be treated as a cornerstone of nursing practice and education in the future. Sometimes clinical governance does not just require silence on the part of the nurse but a real effort to save life through a rational decision taken in a timely fashion. The way ahead for the NMC code in its future revised renditions would be to develop this area more carefully considering the context of modern British society and the real traumas the patients might be going through.
Doherty.L (XXXX) Confidentiality case prompts demand for clarity in the NMC Code (PLEASE LOCATE THE JOURNAL OR MAGAZINE HERE)
Esterhuizen, P. (2006) Is the professional code still the cornerstone of clinical practice? Journal of Advanced Nursing, 53 (1), 104-113.
Fulbrook, S. (2007a) Legal principles of confidentiality and other public interests: Part 1. British Journal of Nursing, 16 (14), 874-875.
Fulbrook, S. (2007b) Regulatory codes of conduct and the common law. Part 2: confidentiality. British Journal of Nursing, 16 (15), 946-947.
Fulbrook, S. (2007c) Confidentiality. Part 3: Caldicott guardians and control of data. British Journal of Nursing, 16 (16), 1008-1009.
Mckenzie.K (2002givi)Complaints And Confidentiality:Practice And Research Vol 5 No 4 May 2002 Learning Disability Practice
Kirkland.N (2008) Why and how the Code was revised; in “The NMC Code:Standards of conduct,performance and ethics for nurses an midwives in Association with the Nursing Times published by the Nursing and Midwifery council NT 28 April 2008 Vol 104 No 17 available at http://www.nmc-uk.org/aDisplayDocument.aspx?documentID=4703
Shutterworth.A (2008) Record Keeping is more than just paperwork Why and how the Code was revised; in “The NMC Code:Standards of conduct,performance and ethics for nurses an midwives in Association with the Nursing Times published by the Nursing and Midwifery council NT 28 April 2008 Vol 104 No 17 available at http://www.nmc-uk.org/aDisplayDocument.aspx?documentID=4703
Semple, M. Cable, S. (2003) The new code of professional conduct. Nursing Standard, 17 (23), 40-48.
The NMC Code (2008) as available online
The NMC Guidelines on Confidentiality (2008) available at http://www.nmc-uk.org/aDisplayDocument.aspx?documentID=4289