GOC's consultation on disclosing confidential information

The consultation

In March 2019, the GOC launched a consultation on disclosing confidential information about patients without consent, including notifying the DVLA/ DVA where patients may not be fit to drive. The full consultation can be found on the GOC’s consultation hub.

The AOP’s response

We welcome the GOC's decision to consult on draft guidance, particularly on notification to the DVLA/DVA where patients may be unfit to drive. This can be a difficult issue for our members, and clear guidance on it from the GOC would be most helpful.

Overview

We think section 1 of the draft guidance is helpful in summarising the context and confirming that there are circumstances in which registrants can disclose patient information to others without consent.  This will make it easier for registrants to understand and manage the tension between the GOC’s standards of practice on maintaining confidentiality on the one hand and protecting people from harm on the other. Once the new guidance is finalised, it would be helpful if the standards could be updated to refer to it.

We also think sections 3 and 4 of the guidance are helpful in summarising the considerations around disclosures in the public interest, other than those relating to driving. Most of the issues covered in the guidance are unlikely to arise often in community optometry, and the key thing is to highlight the need to balance confidentiality and public interest and seek advice where necessary. The draft guidance does this, although it would be helpful if it referred to the exemptions in data protection law that cover processing information for the purposes of preventing and detecting crime, and to the relevant ICO guidance.

The key element of the guidance from our members’ point of view is section 2, on vision and safe driving. We think section 2 of the draft guidance in its current form is a significant missed opportunity. It rightly explains that registrants need to balance patient confidentiality and public interest – but does not do enough to help registrants understand how to do that. The draft GOC guidance is far less clear than the equivalent GMC guidance and could leave registrants less confident about this than they are at present. 

Since section 2 of the guidance is by far the most important for our members in their day to day practice, our overall response to the key questions in the GOC’s consultation is that the draft guidance:

• Does not make clear what the GOC expects of registrants 
• Will not help registrants understand when and how to override patient confidentiality
• Will not give registrants more confidence to make notifications to the DVLA

In the remainder of this consultation response, we have explained our main concerns about section 2 of the draft guidance and suggested how the guidance could be amended to help registrants deal confidently with difficult issues around driving and vision, for the benefit of their patients and the public. Our formal answers to the consultation questions are listed in Annex A of this response.

Our concerns about section 2 of the draft guidance

The key part of section 2 of draft GOC guidance is the one headed “Disclosing to the DVLA without consent”. Paragraph 35 says (our emphasis):

“If, in your professional judgement, a patient either will not or cannot notify the DVLA/DVA themselves, you should consider notifying the DVLA/DVA if there is a concern for the safety of the patient and wider public.”

This tells registrants that they need to decide whether to notify the DVLA/DVA. But it does not explain what factors registrants should take into account when taking that decision, or how they should balance them. The following paragraph 36 merely sets out the procedural steps a registrant should take if they decide to notify the DVLA.

Paragraph 35 seems inconsistent with the background material set out earlier in the draft guidance, and particularly paragraph 25 in the section headed “Your responsibilities”, which says (our emphasis):

“In cases where a patient who drives and is unfit to do so either will not or cannot notify the DVLA/DVA, you should notify the DVLA/DVA yourself if you are concerned about road safety, in relation to both the patient and the wider public”. 

This is clearer and more directive than the “you should consider notifying” in paragraph 35.

We are also concerned that the reference in paragraph 35 to “professional judgement” is confusing in this context. Deciding whether or not a patient will notify the DVLA/DVA themselves is not in itself a matter of professional judgement. Rather, it is a question of fact (does the evidence available to the registrant suggest that the patient has not notified the DVLA and is not willing to?), albeit one that the registrant may have to decide on the balance of probabilities. In our view professional judgement becomes relevant at the next stage in the decision-making process – deciding whether, in the view of the registrant, a patient who is continuing to drive will pose a risk of harm to others. This element of judgement is particularly important given the practical challenges inherent in some aspects of testing the vision standards, as we discuss below.

In contrast, the GMC guidance on confidentiality and driving provides clear instructions for registrants on how to take this crucial decision. It says (paragraph 9, our emphasis):

“you should consider whether the patient’s refusal to stop driving leaves others exposed to a risk of death or serious harm. If you believe that it does, you should contact the DVLA or DVA promptly”. 

This gives registrants a clear steer that if, in their professional judgement, there is a risk of serious harm, then the decision to notify the DLVA/DVA will follow more or less automatically – there is nothing further to consider. 

The GMC approach has some similarities to the position set out in the College of Optometrists guidance on confidentiality, which says (section C88, our emphasis):

“If you conclude that the public interest outweighs the duty of confidentiality, for example a patient who has told you that they intend to commit a crime or who continues to drive after being told not to, you should notify the relevant authority”.

Again, the message to registrants is that they should notify, rather than “consider notifying” – although the College’s guidance doesn’t explicitly refer to the need to consider the risk of harm if the patient continues to drive.  

The vagueness of the GOC’s draft guidance on this crucial point is likely to cause difficulties in any fitness to practise (FTP) action in the event of a complaint of a breach of standard 14 on patient confidentiality. The current wording of paragraph 35 implies that the risk of harm is an objective fact that must be proved. That would be hard to establish at an FTP hearing without reference to expert evidence.

In contrast, the GMC’s guidance makes it clear that the registrant’s decision on the existence or otherwise of a risk of serious harm is a subjective one. This approach simplifies the assessment of such decisions at an FTP hearing, because it only requires the panel to establish the registrant’s own belief at the time. If the GOC guidance provided the same clarity as the GMC guidance, it would be simpler for an FTP panel to determine whether the registrant had complied with the guidance.

As mentioned above, we think it is important that the GOC’s guidance on this issue acknowledges the well known practical challenges inherent in testing some aspects of the DVLA vision standards. For instance, there are known variations in Snellen test and retest results. Test outcomes may also be affected by the fact that conditions may reasonably vary between different consulting rooms – for instance, the chart used, contrast/illumination, distance and refraction end point.

We also think the GOC’s draft guidance should do more to put the decision on whether to notify the DVLA / DVA into a wider context. Paragraph 21 of the guidance says the DVLA “are legally responsible for deciding if a person is medically fit to drive and retain their licence”. This is an important piece of context; where a registrant notifies a patient to the DVLA, they are not taking away that patient’s driving licence, but simply inviting the DVLA to decide whether the licence should be removed. It would be helpful for the GOC’s guidance to spell this out more fully and link it directly to the guidance on considering whether to notify to the DVLA without patient consent. For instance, the guidance could advise registrants to notify the DVLA “if it appears that the patient would not meet” the DVLA standard.

Suggestions for change

If the GOC guidance helped registrants to break down the steps involved in the decision whether to notify the DVLA – as the confidentiality guidance from the GMC and the College does, in different ways – it would be much more valuable to registrants and would do more to protect the public.

We therefore suggest that section 2 of the guidance should be amended to:

• Provide registrants with a structured approach to taking decisions on notification to the DVLA/DVA – we have set out how this could work in Annex B of this response
• Ensure that the guidance acknowledges some of the inherent challenges in testing aspects of the DVLA vision standards  
• Confirm that if a registrant attempts to follow this decision-making process, this will be taken into account in any subsequent FTP investigation into concerns about breaches of patient confidentiality 
• Highlight that if a registrant decides to notify the DVLA/DVA without a patient’s consent, it is the DVLA/DVA which will be responsible for deciding whether the patient should lose their licence because they cannot reach the required vision standard.

Annex A – the AOP’s responses to the GOC’s consultation questions

Q16: Is the guidance presented in a way that is clear, accessible and easy to use?

Yes. Leaving aside our concerns about the content of section 2 of the guidance (see our responses to other questions), the document is logically ordered.

Q17: Is anything missing, incorrect or unclear in the guidance?

Yes. We think section 2 of the guidance is incorrect in some respects, and generally unclear, as we explain in detail our consultation response.

Q18: Does the new supplementary guidance make clear what the GOC expects of its registrants?

No. We think section 2 of the guidance needs to be amended to make the GOC’s expectations clear, and to support registrants in meeting those expectations, as explained in our consultation response. 

Q19: Will the guidance help registrants to understand when and how to apply their professional judgement to override patient confidentiality and consent, ie when there is a duty to protect the public from risk of harm?

No. Although sections 1, 3 and 4 of the guidance provide some help to registrants, section 2 – which deals with the situation most likely to present registrants with challenges about balancing patient confidentiality and the public interest – will not help registrants as much as it should do. 

Q20: Is the supplementary guidance sufficiently flexible to accommodate any differences in practice within the optical sector (for example, differences in the nations of the UK or in how optical care is provided)?

Not sure. Sections 3 and 4 of the guidance are drafted in a non-exhaustive way which appears sufficiently high-level to cater for any differences in practice.

Q21: Are there any specific issues or barriers which might prevent registrants from using the guidance?

No. We have not identified any specific issues that would prevent use of the guidance.

Q22: Would any further supporting activities be beneficial to registrants in implementing the guidance?

Yes. If the guidance is amended on the lines, we have suggested in our consultation response, to give registrants more certainty in taking decisions about whether to refer a patient to the DVLA/DVA, it would be helpful if the GOC could actively promote the guidance so that registrants are aware of its content. We would be happy to help in communicating messages about the guidance to our members.

Q23: Will the guidance give registrants more confidence to report directly to the DVLA/DVA, where appropriate?

No. Unless the guidance is amended and clarified along the lines, we have suggested in our consultation response, it will not give registrants more confidence, and could even make them less confident than now.

Q24: Overall, do you expect that the guidance will be beneficial to or have a positive impact on protection of patients and the public?

No. Although sections 1, 3 and 4 of the draft guidance are helpful, section 2 of the guidance – which deals with the issues most likely to affect the protection of patients and the public – will not have a positive impact as it is currently drafted.

Q25: Overall, do you expect the guidance will be beneficial to, or have a positive impact on individual GOC registrants?

No. As discussed in our consultation response, section 2 of the guidance is the most important in terms of the issues that arise in community optical practice, and as currently drafted it will have a neutral or negative impact on registrants.

Q26: Are there any aspects of the guidance that could have an adverse or negative impact on any group of patients, the public, GOC registrants or others?

The College of Optometrists has noted that there is a risk that the guidance could deter some people with correctable poor vision from having a sight test, because of concerns that they could lose their driving licence. We agree, and think it is important that the guidance is framed carefully for public consumption. It should be made clear that a sight test can enable people to have their vision corrected so that they can continue to drive safely, and that there is only a risk of referral to the DVLA/DVA if the patient poses a genuine danger to themselves and other road users when driving.

Annex B  

A proposed structured approach to decisions about notifying the DVLA/DVA