In the case of MS v Sweden, (1997) The social security department dealing with a claim for the claimant’s industrial injury benefit had requested for medical records concerning her gynaecological conditions which were held by a clinic. These details were eventually disclosed. She had not been advised of this and the European Court of Human Rights held that her rights under Article 8(1) had been infringed, but under Article 8(2) this breach was justified as the economic wellbeing of the state was considered to be in possible jeopardy. More on point, if people are claiming money from the state then a ‘dependency culture’ may become apparent as those who are not really in need of support will be claiming it and they will begin to rely on public funds.
Many have suggested that it is difficult to categorise the law of the obligation to maintain confidences. The application of equitable principles is relevant to the law of confidence because it pertains to the laws governing contract and tort. Gurry has asserted that the laws governing confidence invoke principles of contract and tort. He goes on to refer to the case of Alperton Rubber Co. Manning where Peterson J. held that the defendant’s behaviour amounted to ‘a breach of trust or confidence, and…of the implied provision in all contracts of service that the employee will observe the rules of honesty.’ He also refers to case of Prince Albert v Strange, where a similar assertion was made by the court.
The Law Commission published a Report in 1981in which it made several suggestions to rectify the uncertainties/discrepancies, which existed in the law. The main recommendation made was for an introduction of a tort of breach of confidence. The government has never implemented the recommendations made.
As already established, the obligation of confidence is not absolute but is independent, with the interests of the public at the forefront of the safeguarding of confidence.
R. Scott in his work Confidentiality and the Law, discusses the battle between public interests as opposed to private and public interests:
‘The law of confidentiality, like the law of negligence and the
law of nuisance, requires a balance to be struck. The balance will,
on both sides, involve public and private interests.’
In the case of AG v Guardian Newspapers. (No.2) [1990], Lord Goff provided a summary of the main tenets of the law of confidences. The relationship between doctor and patient evidently requires that the criteria set in the law regarding this duty of confidence be adhered to. In the case of Hunter v Mann [1974] this obligation is reinforced.
Discrepancies are thought to arise when a breach of the duty has to be made. Some have put forward the case that a doctor’s duty of confidence is ‘over-determined’ due to the fact that it derives from the way in which the information is obtained and the quality of the data. Problems may come into lay if the information is not of a medical nature or if it has been given out in a situation other than an appointment between doctor and patient. Information obtained in a confidential student-teacher relationship would be protected. This would also be the case in completely different circumstances such as a relationship between cohabiting partners. There are no specific conditions that have to be fulfilled with regard to the marital status or sexual orientation of those in a personal domestic relationship. The case of Stephens v Avery [1988] concerned information about sexual conduct (i.e. a lesbian relationship). The case illustrated that the duty of confidentiality is equally applicable in such a case.
Any information relating to the sexual behaviour of a patient must also be kept confidential, even if it does not fall under the category of ‘medical information’. This issue was raised yet again in R v Wilson [1996]. The facts of this case were that the defendant was charged under s.47 of the Offences against the Person Act 1981 for actual bodily harm but appealed against this. He was involved in an incident with his spouse in which he engraved his initials into her buttocks with a hot knife. She apparently fully consented to the act being performed. The case of R v Brown was the main authority which was thought to apply to this case, but difficulties faced the principles of medical confidentiality because the doctor had made a report of this when he carried out a medical examination on his patient. The police had then requested the information. If the patient had not granted the doctor permission to divulge this information to the police then this may be considered a breach of confidence. The doctor would not be protected by the fact that the information was not exactly ‘medical’ because if one considers the principles of Stephens v Avery, the information would be considered confidential. Moreover, it was given during a medical appointment.
In the case of R v Department of Health exp Source Informatics Ltd [2000], The Court of Appeal were faced with the problem of whether information about a patient remained anonymised, amounted to a breach of the duty of confidence. The case involved a company who had attained information about unnamed patients from pharmacists and doctors. The data collected was for the purpose of establishing a database which pharmaceutical companies could access. The revelation of anonymised patient data was still considered to be a breach of confidentiality by the Department of Health’ set guidelines. This was challenged by Source Informatics Ltd who subsequently applied for judicial review of the decision made by the judge of first instance who had ruled in the favour of the Department of Health. The Court of Appeal overturned the decision and ruled that the breach is at the ‘conscience’ of the person who revealed the information. Fennel however advocates the view that although the Court of Appeal were right to state there was no breach, ‘the reason is that it is not against the patients’ interests’ and is not concerned with the doctor who reveals the information acting bona fide or not.
Under the Regulation of the NHS (Venereal Diseases) 1974 a further statutory justification for the assurance of confidence can be offered. Kenney and Grubb, claim that the ‘regulation was introduced so as to give statutory emphasis to the obligation of confidence in the area of medical practice…’
In relation to children and confidentiality, the leading authority is the case of Gillick v West Norfolk and Wisbech AHA1986 . One of the main problems that doctors and academics alike are faced with is whether information in relation to a child should be made known to the parents of that individual if they do not want their parents to be notified?. Doctors therefore approach this dilemma in three different ways.
A doctor owes no duty of confidence to an adult who has always been incompetent. If a status approach or an unconscionability approach were adopted however, then this would be different. There is however an ethical duty owed to an incompetent patient but disclosure may be necessary if it is in the best interest of the patient to do so. Those who have deceased are still owed a duty of confidence as the GMC maintains that any information about a dead person should remain confidential and the data should only be disclosed in certain circumstances.
It is now well established that the duty of confidence is circumstantial as opposed to being absolute. In order to put things into context, it is imperative that the additional conditions in which information may be divulged are considered.
If the patients consent to the information being revealed then the data may be disclosed as appropriate. As already seen, the interests of the public are paramount when determining if information may be disclosed. Firstly, information is permitted to be disclosed so that the press can still have the freedom to publish/report information that are of a ‘legitimate concern’ to the public. This was contested by the courts in the case of In the case of X v Y [1988], however who felt that the press should not have freedom when it concerned the preservation of the anonymity of those patients being treated for AIDS.Another justification for a breach is to prevent a potential crime for example. Several authorities exist in this are of breach of duty of confidentiality with many grounds for exposure being contested by the courts claiming that no ‘legitimate public interest’ was apparent. The courts have however stated that a disclosure simply ‘for the public good’ is enough.
When medical research is conducted, the GMC emphasise the importance of attaining the consent of those in which the research will be carried out. Information can however be disclosed for research purposes, but the anonymity of the subjects must be must be upheld.
The provisions contained in legislation such as the Health Act 1999, s.23 (2) the Heath and Social Care Act 2001, s.60, the Road Traffic Act 1988, s.172 and the Public Health (Control of Disease) Act 1984 permit disclosure to be made pending certain conditions. The proposals made by the Secretary of State to introduce new legislation are controversial to say the least.
Taking all things into consideration, It is evident that an absolute duty does not exist in relation to a doctor’s obligation to keep confidences. If a breach occurs which does not satisfy any of the conditions then an individual can sue for damages.The authorities in this area of Medical law suggest that the floodgates of litigation will inevitably be open to cases where a breach of confidence has arisen. Proposals for new legislation have come under great criticism with many advocating the view that it is now too easy for people to access ‘confidential’ information. The circulation of information and the access to data on the Internet for example illustrates how easy the public can obtain information, which is of a confidential nature. The question which should really be posed is should the obligation of confidence be subject to conditions or should it be a duty which can only be breached in exceptional life and death circumstances? However farfetched this may seem, it appears that the limitless grounds for breaching confidence has given rise to numerous breaches by the media for example who many argue have abused this freedom.
Sourcebook on Medical Law, Marc Stauch, Kay Wheat and John Tingle
in his article entitled Patient Confidentiality – Breach of Clinical Confidence
The BMA definition of confidentiality is:
‘The principle of keeping secure and secret from others, information given by or about an individual in the course of a professional relationship’
1986, Chichester: John Wiley, p108:
Excerpt from Philosophical Medical Ethics:
'…The commonest justification for the duty of medical confidentiality is
undoubtedly consequentialist: people's better health, welfare….are more
likely to be attained if doctors….undertake not to disclose their patient's
secrets…'
The Hippocratic oath: 'All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce
with men, which ought not to be spread abroad, I will keep secret and never reveal.
Ac 109, p282, per Lord Goff
'….although the basis of the law's protection of confidence is that there
is a public interest that confidences should be preserved and protected
by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure.'
In his work In Breach of Confidence 1984, Oxford: Clarendon, p.5
…Deontologists …are likely to base their arguments for confidentiality not just (if at all) on welfare considerations but also on the moral principle of respect for autonomy or sometimes on a putatively independent principle of respect for privacy, which is seen as a fundamental moral requirement in itself.'
Beauchamp, TL Childress F, Principles of Biomedical Ethics, 5th Edition)
The GMC is the abbreviation. The main points of the guidelines can be summarised as being the following:
- Seek the consent of the patient to disclose, wherever possible.
- Anonymise data where unidentifiable data will serve the particular purpose.
- Keep any disclosure to the minimum necessary
- Always be prepared to justify any decision about confidentiality
(Excerpt from ‘Medical Law Handbook’ by Sylvia Elwes) – See Appendix for full text guidelines
which came into force on the 1st of October 2000
Article 8 States:
- Everyone has the right to respect for his private and fami8ly life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national, security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others.
Sociological term –Functionalist perspective
The obligation imposed on a doctor may come under the umbrella of contact law implicitly or expressly but it is evident that it goes beyond that. If it were only contract based, then no legal obligation would exist to protect confidence/privacy in regards to the treatment provided by the NHS as illustrated in the case of Pfizer Corp v Ministry of Health [1965] AC 512
In Breach of Confidence, 1984, Oxford, Clarendon, P.25
Law Commission, Breach of Confidence, Report No. 110Mnd 8388, 1981, London: HMSO
Introduction, in Clarke, L (ed), 1990, London LLP pxxii
‘I start with the broad general principle (which I do not intend to be in any way definitive) that a duty of confidence arises when confidential information comes to the knowledge of the person (confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others…
the first limiting principle is that the principle of confidentiality only applies to information, to the extent that it is confidential….once it has entered what is usually called the public domain…the principle of confidentiality can have no application to it……
the second limiting principle is that the duty of confidence applies neither to useless information of trivia…..
the third……is of far greater importance….although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure.’
Lord Keith: The law has long recognised that an obligation of confidence can arise out of particular relationships of doctor and patient, priest and penitent, solicitor and client, banker and customer.’
SI 1974/29:
Confidentiality of Information
- Every Regional Health Authority and every District Health Authority shall take all necessary steps to secure that any information capable of identifying an individual obtained by officers of the Authority with respect to persons examined or treated for any sexually transmitted disease shall not be disclosed except:
a)for the purpose of communicating that information to a medical practitioner or to a person employed under the direction of a medical practitioner in connection with the treatment of persons suffering from such disease or the prevention of the spread thereof; and
b) for the purpose of such treatment or prevention
Medical Law, 3rd Edition, 200, London:Butterworths p1127
The case of a child going to his or her doctor for contraceptives is a classic example
1. A status approach – When a child is taken to a doctor, he/or she is then the patient of that doctor. The obligation of confidence arises out of the status.
2. A Capacity approach- The obligation is apparent when the child is competent to form a ‘relationship of confidence’. This is when he/she is aware of what secrecy entails. If a child is incompetent, no confidential relationship can be formed therefore there is not duty of confidence owed. The doctor can then disclose the information about that patient to the parents of the individual.
3. Equity and unconscionability – case of R v Department of Health ex parte Source Informatics 1999 52 BMLR 65 illustrates an equitable duty that exists due to the context in which the information has been acquired by the doctor. A child’s capacity to enter into a confidential relationship is a condition, which is relevant in deciding whether a disclosure should be forbidden but it is not ‘determinative’. (excerpt from Medical Law Handbook by S. Elwes)
The Health authority in this case applied for an injunction against the newspaper so they could not publish the names of the doctors who were being treated for Aids. The names of the doctors had been provided by an employee with the health authority and given to the newspaper.
In the case of X v Y, the Health authority tried without success to obtain the name of the individual who had illegally sold the medical record of an employee of the Heath Authority. The authority argued that it needs the disclosure in order to prevent crime. The court contested this by stating that it had no public duty to prevent crime
This was apparent in the case of Lion Laboratories v Evans and Express Newspapers [1985] QB 526.
The Secretary of State has made proposals for a regulation (the Health Service (Control of Patient Information) Regulations 2002 in order to give way for the creation of a database, which serves to monitor and scrutinise public health, disease and health, and medical research among others. These regulation have to be compatible with the Human Rights Act 1998 but discrepancies have arisen as they permit patient data to be revealed which would in normal circumstances be against the law and patients would not have the opportunity to consent or not to this happening.
In Seager v Copydex Ltd (19671) WLR 923, it was held that a patient could recover for ‘foreseeable economic loss from the occurrence of the breech’. This could be redundancy for example.
