One year ago the people of Glasgow were coming to terms with the horrific bin lorry crash which killed six people. The full determination from the fatal accident inquiry has been now been published and there are implications for local authorities, the DVLA, and – potentially – the Crown Office.
Implications also arise for the GMC in approaching the conflict between a doctor's duty of confidentiality and their duty of public protection.
Following the accident there was significant press focus on the supposed failings of medical professionals. Bus driver Harry Clarke had failed to disclose a history of dizzy spells and fainting to the DVLA. Could or should these conditions have been disclosed by his GP or occupational health doctors?
One of Sheriff John Beckett QC's nineteen recommendations was that the government should instigate a consultation on whether doctors should be given greater freedom, by the GMC or by Parliament, to report fitness to drive concerns directly to DVLA.
The GMC is already consulting and has issued draft guidance emphasising a doctor's duty to disclose information to the DVLA where the patient has failed to act. This is part of a public consultation on the GMC's core guidance on confidentiality.
The draft guidance says that while the main responsibility to disclose remains with the patient, the doctor has a duty of public protection, to disclose information to the DVLA where the patient has failed to act. To quote the GMC's Chief Executive, "confidentiality is not absolute and doctors play an important part in keeping the wider public safe if a patient is not safe to drive."
Two issues remain: would this guidance provide enough clarity; and what should doctors do in the meantime?
If the draft guidance is published, the key question will be how and when a doctor determines that their duty of public protection trumps the duty of confidentiality. Must a doctor follow up patients to ensure they've informed the DVLA? If they happen to spy their patient driving out of the supermarket car park, must they call Swansea?
And what must doctors do in the meantime? The GMC's consultation runs until February 2016 and the final version of the guidance will be published later in the year. Doctors should remember the decision in ABC v St George's Healthcare NHS Trust [2015] EWHC 1394 (QB); the duty of confidentiality owed to the patient is not absolute and disclosure can be made in the public interest. If a doctor concludes that a patient driving poses a risk to the public, and the patient has failed to disclose this to the DVLA, then it is surely in the public interest for the doctor to make that call.
Doctors should also remember that it is not a breach of confidentiality if the patient gives permission. So before calling the DVLA, they should ask the patient for permission – while remembering that in this scenario, no doesn't necessarily mean no.
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