Media enquiries and nurses Kerri Rose

Kerri Rose At time of writing: Final year Pre-registration Diploma student, Edge Hill College of Higher Education, Liverpool

Correspondence: Staff Nurse, Ward 20, Medical Unit, Fazakerly Hospital, Liverpool, UK

(Requests for offprints to KR) Manuscript accepted 24 September 1996

In this article, the legal and professional implications surrounding 'confidentiality' and in particular confidentiality with regards to dealing with media enquiries are considered; and professional and legal responsibilities and problem areas for nurses are outlined. The use of specific policies which give instruction on dealing with media enquiries is also discussed.

I N T R O D U C T I O N

Many nurses at some point in their careers have had to deal with media enquiries. Experience during a recent work placement in a regional unit for neurology and neurosurgery revealed that many nurses were unaware of their legal and professional obligations with regard to dealing with these enquiries in the course of their work. The aim in this article is to clarify the situation and discuss the advantages and dis- advantages of such units having specific policies laid down for dealing with the Press.

Serious head injury at times is of great inter- est to the Press and enquiries can cause a great strain on staff working in regional neurology and neurosurgery ICUs. There is a history of press interest in neurological intensive care, for example the curiosity sparked when well- known personalities, such as Gorden Kaye o f the television series 'Allo Ailo' and also Lesley Crowther, sustained head injuries.

SPECIFIC POLICIES

Au employer may issue a specific policy on divulging information to third parties, perhaps in an effort to protect the organisation's reputation. Confidentiality with regard to the patient is expected due to the nature of the relationship between the patient and nurses. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC 1987), states that,

Where information is given to a nurse, mid- wife or health visitor the patient/ci ient has a right to believe that this information, given in confidence in the expectation that it will be used only for the purposes for which it was given, will not be released to others without the consent of the patient/client.

The U K C C (1996) staffspecify that,

Most trusts do have a policy in place which states that media enquiries, because of their very nature do go to the highest possible person, i.e. a board director or chief execu- tive who will take advice from both nursing and medical s t a f in preparation of any press statement or communication.

One regional unit for neurology and neuro- surgery in which I recently worked holds such a policy. The policy states that 'Staff must not

divulge information to the media regarding individuals or events which take place within the Trust. A l l such enquiries should be referred to the Chief Executive's Office'. Similarly, Kingston Hospital National Health Service (NHS) Trust in Surrey has a policy which states,

In the course o f your normal work with the Trust you will come into the possession of confidential information concerning patients, the Trust and its staff. Such infor- mation must always be treated as strictly confidential and, further, must not be divulged to any individual or organisation, including the Press, without prior written approval of the Chief Executive or his nom- inated deputy.

So, what are the benefits of having a defined pohcy for dealing with enquiries? It may be the case that someone working in the Nursing Administration office or away from ward level will not know as much about the patient as the nurses and medical staff directly involved in his/her care. This may be viewed as an advan- tage, i.e. the nurse administrators are less likely to give confidential information away acci- dently, or as a disadvantage, i.e. the information gleaned by enquirers may be seen as 'bland'. However , facts divulged are likely to be more consistent than if enquiries are dealt with by various individuals. It is certainly less t ime-con- suming for nursing and medical staff i f all media enquiries are forwarded to one person. There is also less associated risk of divulging too much or inappropriate information to callers. Information is more likely to be previously compiled before disclosure, and as a conse- quence is less likely to be detrimental to the patient/cl ient or disclosed without prior reflec- tion. The time delay which is likely to be

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involved can be seen as advantageous as it allows an interval where the patient's or rela- tives' wishes can be sought if not known already. This is, of course, assuming that their consent has already been given to communi- cate with third parties in the first place.

Amongst the disadvantages of holding a spe- cific policy is the possibility that there is a higher risk of information being less accurate, due to the person giving it lacking knowledge or understanding of the patient's condition and factors surrounding his/her admission to the unit. Whilst, as previously mentioned it is less time-consuming for staff to pass on media enquiries to an appointed person rather than dealing with them as they arise, this person still has to approach nursing and medical staff for details. This can cause a time delay which could prove to be problematic. A time delay before disclosure of information to the Press/media may cause the journalist/reporter to become impatient, which could influence the way in which information is presented to the public. It may also tempt reporters to contact less author- itative sources to gain the necessary details.

LEGAL IMPL ICATIONS

The U K C C (1989) state that:

Accountability is an integral part of profes- sional practice since, in the course of that practice, the practitioner has to make judge- ments in a wide variety of circumstances and be answerable for those judgements.

Nurses are first accountable to their patients and their employers under civil law. They are accountable to the general public under crimi- nal law and to the profession under U K C C rul- ings.

According to Dimond (1993a), the prime duty o f the nurse is this context is to maintain confidentiality o f information obtained about and from the patient. Dimond (1993a) stated that this duty arises from the contract o f employment, from professional duties set out by the U K C C (1992), and from the nature of the relationship with the patient. She further states that:

The duty is enforceable by the patient through an act for negligence alleging a breach in the duty o f care owed by the pro- fessional to the patient. It is enforceable through the employer through disciplinary procedures and it is enforceable by the pro- fessional registration bodies through profes- sional conduct hearings.

Young (1991) declares that, 'Considering

the importance of this area of the professional's work, there is surprisingly little legislation deal- ing directly with it'. Similarly, in 1989 she sug- gested that,

This is an area of the law where there is no direct provision for breach of confidential- ity. The law on trespass provides compensa- tion for wrongful interference with liberty, but only in the physical sense. Defamation, either as libel or slander, may also be seen as a breach of the individual's privacy, but in practice the defence that the subject matter disclosed is tree fails to prevent disclosure of confidential information. Also, the material has to be 'defamatory', that is, o f such a nature that the person concerned is lowered in the eyes of 'right thinking' people (Young 1989).

PROFESSIONAL A C C O U N T A B I L I T Y

The UKCC's Code of Professional Conduct (t992) states in Clause 10 that each nurse, mid- wife and health visitor must

protect all confidential information con- cerning patients and clients obtained in the course of professional practice and, make disclosures only with consent, where required by the order of a court or where you can justify disclosure in the wider public interest.

In an elaboration of this clause the U K C C (1987), declare that 'the responsibility o f whether or not information should be with- held or disclosed without the consent of the patient/client lies with the practitioner involved at the time and cannot be delegated'. This statement may appear contradictory in nature to a specific policy of delegation when dealing with enquiries as discussed previously. However, the U K C C staff(1996) clarified the situation by suggesting that media enquiries due to their very nature should go to the high- est possible person in the organisation. This communication continued ~as a general rule o f thumb, nurses should not have anything directly to do with the Press unless they have consulted their employer and carefully pro- duced any communication in advance' (UKCC 1996).

Accountability to employer

The U K C C (1987) states that, 'Those who employ or supervise nurses, midwives, and health visitors have an obligation to support these practitioners in discharging their responsi-

Media enquiries and nurses 337

bilities in respect of the fight to disclose or with- hold information using their professional j udge- ment ' . However, it is also the case that nurses have a responsibility towards their employer.

Employees also have an implied duty of confidentiality and loyalty to their employer. Breach of this duty may result in disciplinary action, whether or not there is a clause in their contract o f employment addressing the question of confidentiality (Ngwena & Chadwick 1994).

Ngwena & Chadwick (1994) go on to assert that this confidentiality is sought for different reasons to those of an individual. Employers want confidentiality to protect the reputation of an organisation and thus maintaining com- mercial success. They go on to claim that this is increasingly the case as the NHS becomes more and more business orientated. However , it is also suggested that legally employers cannot enforce confidentiality when there is a question of wrongdoing or to cover up information which may be of public interest.

P R I V A C Y LAW?

If a patient consents to having confidential information disclosed this may be a form of defence should an accusation of breach o f con- fidence arise. It may be the case that difficulties arise when a patient discloses personal details surrounding his /her history, diagnosis and prognosis quite frequently to interested parties (Dimond 1993b). It may be the case that the patient or relatives themselves may well be willing to enter into correspondence with the media, which may relieve the ward staff or des- ignated person of the responsibility. However , there is always the risk that if there are many enquiries to deal with this may cause added stress at a time when the patient or family is already vulnerable. There is also the possibility that i f the person dealing with the queries is under a lot of pressure she/he may give away details and later regret this. It may be necessary for the nurse to take on an advisory and sup- portive role at this time. I f there is an element of controversy or public interest surrounding a person's admission to a hospital there may be the possibility of harassment ofs taffor family by the Press. As this is unfortunately sometimes the case it might be beneficial to all concerned if a privacy law existed to protect patients from Press harassment whilst in hospital. Similarly, there is no law to prevent a nurse from disclos- ing confidential details. Dimond (1993) states,

At present there is no Privacy Act which

makes the disclosure of private information an offence or actionable. Unless a duty to maintain confidentiality arises by contract of employment, common law duty of care or agreement between the parties, then the information can be disclosed to the world.

P U B L I C I N T E R E S T

As previously mentioned, disclosure may occa- sionally be acceptable if the subject matter con- stitutes 'public interest'. Public interest may be indicated when there is a risk of harm to others if information is not disclosed. It has been emphasised by the courts that the circumstances surrounding such a disclosure must be excep- tional (Ngwena & Chadwick, 1994). Such a case is that of W ps Egdel (1990), where a psy- chiatrist wrote a report on the mental condition of one of his patients, the patient had a morbid fascination with firearms and a history o f killing and wounding people with gunshot, and this was recorded in the report. O n reading the report the patient decided not to divulge the contents which might have jeopardised his appeal for discharge. The psychiatrist involved asked permission of the patient to release to the hospital authorities the contents of the report. His request was refused. Believing that this man was a danger to the public, the psychiatrist released the report to the hospital authorities and to the Home Secretary. The patient attempted to sue the psychiatrist for a breach of confidentiality. The courts decided that the public interest outweighed the interest in pre- serving a duty of confidence to the patient (cited in Ngwena & Chadwick, 1994). Conversely, a medical centre was found negli- gent for failing to break a duty o f confidence when a young woman was killed by one of the centre's patients. The patient had warned the hospital of his violent intentions towards his ex-lover and that he was in the possession of a gun. Although the hospital had informed the police they had failed to warn the girl who was killed shortly after the patient's release (Tarasq(f v Regents of University of California 1976, cited in Brazier 1992). The U K C C (1987), states that, ' in all cases where the practitioner deliberately discloses or withholds information in what he/she believes the public interest he/she must be able to justify the decision'.

REDRESS

If a nurse does give out information without patient/family consent or, indeed, gives wrong

338 Intensive and Critical Care Nursing

or too much information, the patient or family may want to sue the nurse for a breach of con- fidence. So, how can one assess what damage has occurred as a result of this disclosure? The U K C C (1987) states that a breach has occurred ' if anyone deliberately or by accident gives information, which has been obtained in the course o f professional practice, to a third party without the consent o f the patient/client'. The U K C C (1987) publication on confidentiality goes on to assert 'there is no statutory right of confidentiality; but there is also no bar to an aggrieved individual bringing a common law case before a civil court alleging breach of con- fidentiality and seeking financial recompense'. As mentioned previously, much of the infor- mation held by practitioners in England, Wales and Northern Ireland is exempt from redress due to the fact that the information is true. However, in Scotland a claim for compensa- tion may be successful if the plaintiff can prove that the person who divulged the information was in a confidential relation to the plaintiffand that an injury has occurred as a result of the dis- closure. Damages may be awarded for mental distress and any subsequent physical or mental harm and has occurred, but another problem may exist in that Legal Aid cannot be awarded for cases o f defamation so it may be that only the very rich can actually afford to bring a case to court (Young 1989).

Ngwena & Chadwick (1994) suggest that:

In exceptional cases, however, disclosure is permissible, both ethically and legally, to prevent harm to third parties or promote a greater public good. However, only rarely will disclosure to the public through the media be permissible, on the whole, judges frown upon disclosure to the public through the media.

Apart from the risk o f actually being sued for damages, there is also the risk for nurses who disclose information that they may be disci- plined by their employer and, perhaps more importantly, removed from the professional register by the UKCC.

T H E PRESS C O M P L A I N T S C O M M I S S I O N

The Press Complaints Commission (PCC) is an independent body set up to uphold a code of practice agreed by the Press. It handles complaints made against magazines and news- papers. Its aim is to resolve any meaningful dispute involving a breach of the code o f practice. The PCC usually deals with com- plaints from people directly affected by the

matters about which they complain. In prac- tice it considers third party complaints only when there is a breach of the code. This may mean that a nurse only has cause to complain on a patient's behalf if one o f the clauses o f the code has been broken. The code includes clauses regarding privacy and harassment. Clause 6 o f the code concerns hospitals specifically and states:

1. Journalists or photographers making enquiries at hospitals or similar institutions should identify themselves to a responsible executive and obtain permission before entering non-public areas.

2. The restrictions on intruding into privacy are particularly relevant to enquiries about indi- viduals in hospitals or similar institutions.

The privacy clause states: 'Intrusions and enquiries into an individual's private life with- out his or her consent are not generally accept- able and publication can only be justified when in the public interest'. The PCC aims to settle complaints amicably; however, it is unable to obtain any financial recompense for com- plainants.

C O N C L U S I O N

Dimond (1993b) advocates that before a nurse contemplates a disclosure o f some form she/he should consider: what information is required? W h o is requesting it? Does the patient agree to disclosure? If not, is there a legal duty to disclose it? What is the nature of this legal duty? H o w much information is covered by the duty? Have the consultant's/ manager's views on the disclosure been obtained? She states, 'Knowledge is power. H o w that power is used is fundamental to the role o f the nurse in her professional duties.' Indeed, there is much to consider when mak- ing a decision as to whether or not to disclose information and it is a decision that should never be taken lightly, without prior reflec- tion. The U K C C (1987) declares that a nurse should always take the opportunity to discuss the matter with other practitioners and per- haps seek the views of members of other disci- plines; and once having made the decision the nurse should keep a written record of how and why the decision was reached and keep this record on file in case it should later be necessary to justify the resulting actions.

Finally, as the matter is not clear cut, it should be remembered that we all as nurses, have responsibility to protect our patients and the general public at large, and a responsibility

Media enquiries and nurses 339

to uphold the reputat ion o f our profession. It

may be useful to take heed o f the words o f

D i m o n d (1993) w h o asserts that,

as long as these uncertainties exist, the right

o f the patient to prevent unauthorised dis-

closure is severely l imited and the pro tec t ion

o f the patient 's interests and privacy rests

upon the attitudes o f health professionals,

employers, the media and ult imately the

general public.

She believes that it is the way that these people

perceive the importance o f confidentiality and the

degree to which it is upheld that will eventually

shape any legislation which is implemented.

REFERENCES

Brazier M 1992 Medicine, patients and the law. Penguin, Harmon&worth, pp 58-59

Dimond B 1993a Disclosure of information to the police and the Accident and Emergency Department. Accident and Emergency Nursing. 1 no (2): 108-110

Dimond B 1993b Patient's rights, responsibilities and the nurse. Quay Publishing pp 48-53

Ngwena C, Chadwick IK 1994 Confidentiality and nursing practice: ethics and law. Nursing Ethics 1 (3): 136-150

Press Complaints Commission 1995 How to complain. London

UKCC 1987 Confidentiality, an elaboration of clause 9 of the second edition of the UKCC's Code of Professional Conduct for the Nurse, Midwife and Health Visitor. United Kingdom Central Council for Nursing, Midwifery and Health Visiting, London

UKCC 1989 Exercising accountability. United Kingdom Central Council for Nursing, Midwifery and Health Visiting, London

UKCC 1992 Code of Professional Conduct. United Kingdom Central Council for Nursing, Midwifery and Health Visiting, London

UKCC 1996 Personal Communication. United Kingdom Central Council for Nursing, Midwifery and Health Visiting, London

Young A 1989 Legal problems in nursing practice, 2nd ed. Harper and Rowe, London pp 238-243

Young A 1991 Law and professional conduct in nursing. Scutari, London, pp 98-103