A case report was submitted to journal X reporting on a child who had been admitted to hospital suffering an injury, which the doctors suspected resulted from a deliberate cigarette burn. This was not proved until the child returned to hospital with other non-accidental injuries, and following a full criminal investigation the child’s parents were convicted of child abuse.
Patient consent was not sought from the child’s legal guardians as the child was placed with the social services and lost to follow-up.
The authors believe the case report should be published to raises awareness among clinicians about potential symptoms of non-accidental injury in children, even though they cannot provide consent from the child or the child’s guardians to publish. The editorial staff of the journal however has some concerns.
It is possible that the child could be identified, because the location of the hospital is given in the authors’ affiliations, the injuries are clearly detailed and the parents have been convicted of child abuse (it is not known if there was any press coverage of this case).
The editors of journal X have informed the authors that they are awaiting advice from COPE before deciding whether or not to proceed with peer review.
Does this case meet the criteria laid out in the COPE code of conduct to publish without patient consent:
“It may be possible to publish without consent if the report is important to public health (or is in some other way important); consent would be unusually burdensome to obtain; and a reasonable patient would be unlikely to object to publication (all three conditions must be met).”
Is the child’s right to privacy in this instance more important than the right to publish?
Should the journal proceed with peer review of this manuscript, or should the report be rejected due to lack of consent?
Some members of the Forum argued that a paper containing identifiable details of a patient cannot be published without consent unless the patient is dead or the patient has given informed consent to publication. In this case, consent cannot be obtained and therefore the presumption should be that the case report should not be published. The Forum advised that the editor should consider not only the ethical and legal issues involved in deciding to publish, but also the data protection issues. In terms of whether the pubic health value of publication should overturn considerations of consent and confidentiality, the general consensus of the Forum was that it is unlikely that a single case report is so medically important that it must be published, and that if he or she wishes to use a public interest defence, the editor must be prepared to defend their decision in the event of a complaint by the patient or a regulatory body.
In summary, the advice from the Forum to the editor was that in deciding to publish, the editor should consider carefully the legal and data protection issues and also the medical value in publishing the case report.
Following discussion of the advice from COPE with the Editor-in-Chief of the journal, this case report was rejected from the journal on the grounds of lack of patient consent. The journal has since made a number of improvements to the instructions for authors to clarify the journal's position on consent for publication of case reports.