All clinicians are regulated by their professional bodies (in the case of doctors, the General Medical Council – GMC) and the law. Professional regulation and the law both require compliance with:
- The Data Protection Act (DPA)
- GMC rules regarding consent and confidentiality
- Legal duties to reveal otherwise confidential information to government authority (only under very limited circumstances).
However, the relationship between (a) a clinician and his or her patient engaged in therapeutic activity and (b) a person referred for a forensic examination and the expert witness clinician carrying it out differ in important ways.
In the latter situation the expert witness has a primary duty to provide objective, impartial, and unbiased opinions and information to the court with complete honesty and candour. In the former the duty to the patient is paramount.
Expert clinical witnesses recognise these dual obligations and conflicts are rare. However, no doctor can ignore their clinical duties to a forensic examinee. For example: when taking a history for the purposes of a medico-legal report, evidence may emerge of possible or actual serious illness. The doctor then has a duty to ensure that such a person is able to and knows how to access appropriate healthcare. In the case of some communicable diseases such as TB, the possibility of a risk to public health must also be considered.
It is incumbent upon the expert witness and on the instructing legal representative to make these obligations clear to the examinee. “What does a Forrest medical examination involve – notes for patients” (in preparation).
The information revealed during forensic examinations for evidence of torture and ill-treatment is often particularly distressing and potentially – in the wrong hands – harmful or dangerous to the individual and/or their family and associates. The subject then needs credible evidence that their confidentiality requirements are going to be respected.
Under the DPA, to provide a paperless system which complies with the law and rules the expert witness preparing a medico-legal report must obtain informed written consent from the subject for electronic storage of their personal data.
The expert witness also needs informed written consent to share any information internally with colleagues as necessary (for example between administrator, expert, legal review, and sometimes second medical opinion).
Best practice also recommends that the expert witness seeks permission to use even anonymised portions of the data for audit and training.
The consent form used by Forrest MLS can be found here.
Consent must be informed, comprehended and freely given. The subject of the report (the legal representative’s client) may consent to some aspect with which he/she is prepared to agree and decline to consent to others.
The consent form will of course be carefully explained by the expert witness on the day. But in order for consent to be informed, we would ask that you discuss the consent form with your client and advise them as to the consequences so that they do not need to come back to you for further advice on this matter after the examination. If this subsequent consultation becomes necessary, it may result in delay in the production of a report.
On being given consent to do so, the data then obtained must be securely stored. It must be communicated within Forrest MLS as above and externally to the referring legal representative.
Forrest MLS currently complies with the law and regulations. We are establishing rigorous policies to implement secure storage and internal communications, with defined access rights and audit trails, using secure cloud-based groupware with high level security specifications and protocols.