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Published: Fri, 02 Feb 2018
With origins in the ancient Greek Hippocratic oath, the principle of confidentiality “confirms that patients can trust healthcare professionals not to publicize information that patients
With origins in the ancient Greek Hippocratic oath, the principle of confidentiality “confirms that patients can trust healthcare professionals not to publicize information that patients are obliged to disclose to them in order that their symptoms be properly diagnosed, treated and, if possible, cured” (Dickens and Cook 2000, p. 2). The existence of the duty of confidentiality is essential in maintaining an adequate healthcare system: “in the long run, preservation of confidentiality is the only way of securing public health otherwise doctors will be discredited as a source of education…[because] future individual patients ‘will not come forward if doctors are going to squeal on them” (Tur, 1998, p.17).
The origins of the duty of confidentiality have not always been clear but can be traced to the law of Equity, Contract Law (breach of contractual obligations either expressly stated or implied) and property and tort law (Mahendra 2001).Beyond the legal duties imposed on medical practitioners, there exist ethical duties based on the concept that it is unethical to breach the Trust granted by their patients. Such ethical requirements might be contained in legally enforceable codes of practice, or may be included in physicians’ obligations in s of employment.
The General Medical Council (GMC) issued an updated pamphlet in 2000, titled Confidentiality: Protecting and Providing Information. According to Mahendra the updated version of these guidelines on confidentiality gives the opportunity to re-visit (“re-explore”) disclosure and confidentiality, as well as seeking to comply with the Data Protection Act 1998 (Mahendra 2001). As noted by Hughes and Louw “the guidance is uncompromising throughout on the right of patients to expect confidential information to be kept confidential; and if it cannot be kept confidential the patient has a prima facie right to know why not” (Hughes and Louw, 2002, p147). The GMC views any breach of confidence as a disciplinary offence.
Article 10 of the Human Rights Act 1998 qualifies freedom of expression by stating that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…for preventing the disclosure of information received in confidence” (quoted in Mahendra, 2001, p.1).
The legal basis of the duty of confidentiality can also be traced to Contract Law. In the case of private practitioners, there is a “fee- for service” contract that implies confidentiality will be maintained, and which bounds both doctors and staff. In cases where practitioners receive a salary from an institution or government, there is no clear contract, but Courts may find alternative legal support, for example based on a general duty of care, the breach of which can be seen as negligence (Dickens and Cook, 2000).
Exceptions to the duty of confidentiality
Some legal scholars would argue that “the duty of confidentiality is relative, not absolute; and that it is primarily a matter for the professional judgement of the reflective health practitioner to determine in the particular case whether competing public interests (or other compelling reasons) override that duty” (Tur, 1998, p 15). Indeed, Courts are faced with a balancing act when deciding cases on confidentiality and disclosure.
Tur is a proponent of the model of a “Recource Role” of medical practitioners, which leaves the choice with agent (medical practitioner) as part of the responsibility of her role (moral dilemmas might be part of that role). If the legal system displays a tendency to respect the agent’s decisions, the agent’s role is both “role-defining” and “law shaping” (Tur, 1998, p.22). Tur views this as a model that “both requires conformity to its rules and extends a liberty to deviate from its rules in appropriate circumstances” (Tur, 1998, p.22).
Breach of confidentiality through disclosure may be legal under various circumstances, classified by Mahendra as permissible, mandatory and discretionary disclosure. Permissible disclosure might arise following a patient’s grant of consent, for example pre-employment disclosure of medical information to a potential employer. Mandatory disclosure is legal irrespective of whether the patient has granted consent, and usually has a statutory basis, for example in situations requiring compliance with the directions of a court order, or under the Road Traffic Act 1972. In Hunter v. Mann  1QB 767, a doctor who failed to disclose information linking the patient to a hit and run accident was convicted and fined under s168 (2) of the Act. Discretionary disclosure is subject to the public interest exception.
a) the public interest exception
Paragraph 36 of the GMC 2000 pamphlet foresees situations where disclosure is permissible under the public interest exception: “disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to risk of death or serious harm. Where third parties are exposed to a risk so serious that it outweighs the patient’s privacy interest, you should seek consent to disclosure where practicable. If it is not practicable, you should disclose information promptly to an appropriate person or authority.” (Quoted in Mahendra 2001, p3).
The public interest exception is illustrated in the leading case of W v. Edgell  2WLR 471. Here, W was a patient in a secure hospital following an incident where he shot and killed five people and wounded two others. After having spent ten years in that institution W applied for a review by a mental health tribunal, hoping to be relocated to a regional secure unit and eventually to be discharged. Edgell was a consultant psychiatrist instructed by W’s solicitors to examine W. Following the examination, Edgell concluded W should not be relocated (given his continuing interest in firearms and explosives). As a result, W withdrew the application and issued a writ asking for an injunction barring Edgell from disclosing the report. When the action failed W appealed, but the Court of Appeals upheld the public interest exception.
In deciding whether to uphold the public interest exception, the Courts face a “balancing operation” whereby they weigh the public interest in upholding confidentiality against the public interest of disclosure. As noted by Tur, to use the public interest exception, the following tests must be satisfied based on a perception of the degree of risk involved:
“(a) that such a risk is real, immediate and serious, (b) that it will be substantially reduced by disclosure, (c) that the disclosure is no greater than is reasonably necessary to minimise the risk and (d) that the consequent damage to the public interest protected by the duty of confidentiality is outweighed by the public interest in minimizing the risk” (Tur 1998, p.16). The Courts also seem to take the position that a doctor owes a duty to the public as well as his patient.
b) limits to the public interest exception
In A Health Authority v X and Others  EWCA Civ 2014, CA Judge Thorpe LJ asserted that the health authority was challenging the condition that: “Save with the prior leave of this court the authority shall not disclose any of the documents or communicate any information contained in them to any person other than: (a) a medical discipline committee or the NHS Tribunal or the GMC and (b) in accordance with regulations 4 and 5 of the NHS (Service Committees and Tribunal) Regulations 1992, SI 1992 No 664 as amended”.
Also quoted in the case was Regulation 36(6) of NHS (General Medical Services) Regulations 1992 which provides: “A doctor shall send the records relating to a patient to the Health Authority (a) as soon as possible, at the request of the Health Authority or (b) where a person on his list dies, before the end of the period of fourteen days beginning with the date on which he was informed by the Health Authority of the death…”.
The appellant health authority argued that that there are sufficient pre-existing safeguards for the patient, such as: (a) the duty of confidence, (b) art 8 Convention rights, (c) the Data Protection Act 1998, (d) the Department of Health Guidance, and (e) the creation of a structure of Caldicott guardians created in response to recommendation 3 of the Caldicott report December 1997.
Judge Thorpe found that in cases of children strict confidentiality is owed but “of course that strict confidentiality is not absolute. There are many instances in which it must yield to a conflicting public interest”. Judge Thorpe further clarified that his judgement only applies to Children Act proceedings and should not be used as a general rule.
c) the duty in relation to children
A relevant case here is R v R (a child) (disclosure) BLD 0609043810  EWHC 2085. In this case a child with disruptive behaviour saw a child psychologist (employed by the respondent primary care trust) since the age of five. At a later stage the child was diagnosed with Attention Deficit Disorder and Asperger’s Syndrome. It was claimed that because the respondent failed to diagnose at an earlier stage, the child did not receive the proper treatment that could potentially improve his condition.
The application was made for a pre-action disclosure based on s34(2) of the Supreme Court Act 1981. The respondent opposed the order for full disclosure based on claims of the potential harm to the child and the mother’s confidentiality. The Court found that a balance should be struck between private and public interests, that disclosure would be to medical and legal advisers only and they would be bound by rules of confidentiality and that in striking a balance the interests of a fair trial prevailed. Thus, full disclosure was ordered.
d) the duty in relation to HIV patients
According to the National Health Service Venereal Disease Regulations 1974 SI 1974 No 29 information capable of identifying any individual treated for STI shall not be disclosed except for the purpose of communicating the information to a medical practitioner and for the purpose of treatment or prevention. Following the repeal of the NHS Reorganisation Act 1973 these regulations have effect as if made under the NHS Act 1977, ss17, 18(1), (2).
In X v Y  2 All ER 648,  RPC 379, 3 BMLR 1,  NLJ Rep 1062, the health authority was found to be entitled to an injunction preventing the publication in a newspaper identifying two of its medical practitioners as AIDS sufferers. The court undertook a balancing operation, weighing competing interest, namely the public interest that AIDS patients should feel comfortable seeking treatment and the freedom of expression principle.
In A London Borough Council v (1) Mr & Mrs N (Foster Carers of the Child) (2) P (A Child by Her Guardian Pauline Bennett)  EWHC 1676 (Fam) the Court had to balance/ weigh up the interest of the child’s father in knowing that the foster parent was HIV positive and the foster parent’s right to confidentiality. The Court also considered that a disclosure without consent was in breach of the European Convention on Human Rights 1950 Art. 8. The Court held that the risk of infection was negligible and therefore the local authority was not under any duty to inform the child’s father of the foster parent’s condition.
e) the duty of confidentiality and the incompetent adult
Paragraph 38 of the GMC states that if a person with a “mental incapacity” requests that confidentiality is kept (contrary to the medical practitioners judgement), the medical practitioner should attempt to persuade the patient to give consent for an appropriate person to be involved in the consultation. According to Hughes and Louw paragraph 38 applies more to patients with a temporary mental condition, incapable of giving consent but potentially dangerous (Hughes and Louw 2002).
The GMC also states that if a medical practitioner believes that a patient is suffering from a condition impairing their ability to drive, then that practitioner is under a duty to inform the Driver and Vehical Licensing Agency. There is a process that must be followed here, including keeping the patient informed of any disclosures.
Hughes and Louw criticise the GMC as too inflexible to foresee and address every situation: “the upshot is that the individual person loses: attention to the person’s individual needs is subsumed by adherence to a coarser legalism” (Hughes and Louw 2002, p149). This view seems to validate Tur’s model of a “Recource Role” as a better- suited alternative approach.
The duty of confidentiality is “sacred”, however disclosure may be legal under certain circumstances (mainly under the public interest exception, and certain cases where the patient mental capacity has been affected and). Still certain requirements must be met before disclosure is acceptable in these circumstances; for example in the case of the public interest exception there might be an assessment of the degree of risk involved if a disclosure is not made. The way the Courts are handling the duty of confidentiality also illustrates the flexible nature of and the ongoing change occurring in the UK legal system.
Tur, R (1998). Journal of Applied Philosophy Vol 15 (1), pp15-28. Medical Confidentiality and Disclosure: Moral Conscience and Legal Constraints.
Hughes, C and Louw, J (2002). British Geriatrics Society, Age and Ageing Vol
31, pp 147- 150. Confidentiality and cognitive impairment: professional and philosophical ethics.
A London Borough Council v (1) Mr & Mrs N (Foster Carers of the Child) (2) P (A Child by Her Guardian Pauline Bennett)  EWHC 1676 (Fam).
Mahendra, B (2001). New Law Journal 151 NLJ 10. Medical Disclosure and Confidentiality.
National Health Service Venereal Disease Regulations 1974 SI 1974 No 29.
R v R (A Child) (Disclosure)  EWHC 2085 (Fam).
A Health Authority v X & Ors  EWCA Civ 2014, CA
Dickens, B and Cook R.J. (2000). International Journal of Gynaecology & Obstretrics Vol 70 (3), pp 385-391.
X v Y  2 All ER 648,  RPC 379, 3 BMLR 1,  NLJ Rep1062
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