Confidentiality in medical law (LLM). If a doctor believes that his patient presents a danger to others, he should be allowed to warn those who might be at risk. But he is not, and should never be, duty-bound to do so. Consider and discuss analytica

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‘If a doctor believes that his patient presents a danger to others, he should be allowed to warn those who might be at risk. But he is not, and should never be, duty-bound to do so.’ Consider and discuss analytically the preceding statement. Your answer should make reference to case law. Your essay should be approximately 5,000 words in length.


1. Introduction

American university student Cho Seung-Hui only last week calmly walked through his Virgina Tech campus shooting randomly at his loathed fellow students and professors pausing only to post his tirade on the World Wide Web. Clearly troubled and depressed as long ago as 2005 his “sullen and aggressive behavior culminated in an unsuccessful effort by the campus police to have him involuntarily committed to a mental institution." A local judge then signed an order referring Cho to the local psychiatric hospital for assessment stating that at that time he clearly presented “an imminent danger to self or others" 

However the hospital psychiatrist determined that Cho, although clearly depressed, he was of sound insight and judgment, on this basis the judge did not commit Cho but referred him instead for outpatient appointments. Shortly later it is believed that the concerns of a literature professor combined with the reported harassment claims by two female students may have attracted the attention of the Virginia Tech Counseling centre, which employs eleven psychiatrists. The Director of the centre Dr Flynn refuses to discuss the details of the gunman’s case. If Cho had indeed sought advise and if his psychiatrist had, divined as clearly as the judge that he had the potential to present a danger to others -  in particular his fellow students, the rich kids he hated - he or she clearly did not feel duty bound to inform either the university or police authorities about his mental state. If a psychiatrist in the UK were to find himself in this position, should he be expected to have confidence enough to forego the ethical concept of patient confidentiality in order to report his findings to the authorities, or should he in fact be compelled to report his patient by virtue of statute? This essay will explore the concept of confidentiality within the patient physician relationship; ascertain when the patient is right to expect that his confidences will be met and the circumstances of any exceptions to the general rules. Using case law I will examine the ethical moral and legal position presented by the physician who finds himself in possession of patient information that may indicate a possible harm or danger to the health and or safety of third party(ies), how the current common law duty of confidentiality facilitates the reporting of such information and evaluate the merits of developing the law to facilitate the future imposing of a statutory duty on the doctor.

2. Sworn to Secrecy?

“All that may come to my knowledge….which ought not to be spread abroad, I will keep secret” It would be fallacious to assign the medical profession an automatic moral underpinning deriving from their much fabled swearing of the Hippocratic oath. Lacking legal authority this declaration was originally a mere commercial tool employed by the Ancients to instill confidence in the first Roman, Greek and Medieval European medical practitioners, providing same with a higher earning capacity than their sorcerer competition, whose services were often proffered free of charge. This was one of the earliest recorded examples of the modern marketing strategy of “added value” - increasing the income of the medical practitioners and thereby aiding in the ongoing recruitment drive.

Physicians neither swore the oath, abided by its terms, nor claimed any allegiance to its ethos and so it is today. Conversely any declarations made by these early doctors were pragmatic in nature formalizing allegiances to either colleges, countries, royalty or specific councils, effectively securing their own medical domain or medical practice. The modern reciting of what is perceived to be a contemporary rewriting of an historical pledge can be attributed more to the establishing of professional bonding which in itself has negative connotations, than to a serious undertaking to act in a prescribed moral fashion at all times, serving only to further distance medics from their patients, arguably making empathy more difficult and endangering successful communication. However the romanticism of the fantasy of the Oath has survived through the centuries and these rather dubious lines underpin the notion that keeping a patients confidence is an ethical duty of the medical practitioner, reiterated by the GMC. The ethicism in part at least is practical in nature, facilitating the accurate diagnosis of illness and the best course of treatment with the trusting patients full consent, with this trust being difficult or at least harder to gain without the tacit understanding that patient confidence is paramount in the physicians mind. Confidentiality “produces utility”. The primacy naturally attached to the autonomy held by the medical patient in western societies automatically associates the patients right to dispose of her body in accordance with her personal beliefs and wishes. The patients right to confidentiality spawns from this inalienable right to autonomy – the right to privacy and the derived right to decide who will have access to his/her information. The patient has a natural right to expect that the private nature of the information shared with the physician will be acknowledged by the confidentiality afforded it by his/her doctor, even if the physician has disclosed information regarding the patient without the patients knowledge, where the principle of respect for patient autonomy underpins the duty of confidentiality, this constitutes a breach, regardless of whether the patient has actual knowledge of the event of the breach. The virtue ethics approach encapsulates the opposite proposition, centering not on the patient but on the “virtuous” doctor”, what would he do, how would he act? It is often argued that the physician’s associated moral goodness would naturally mean that such a person would automatically respect his patient’s confidence. Consequentialism, implied promise and contract, utilitarianism, act utilianarianism, all offer routes by which to explore the issue of patient confidentiality. Reflecting these ethical tensions the law adopts a compromise position by appealing to the greater good  (public interest), individual rights and interests (privacy and patient autonomy) and virtues. The result is a policy, which promotes a strong presumption in favour of confidentiality with utilitarian based exceptions in built.

Medical professionals have an obvious common law duty to respect the privacy of their patients, with this duty extending not only to medical and therapeutic information, but to all information received by a medical practitioner from his patient (unless already in the public domain). This ruling applies if either the information is expressly denoted in it’s communication as being of a confidential nature, or, as more often happens, where the reasonable person, and thereby the rational medical practitioner, would deem the information to be of a confidential nature, or if their exists a notion of secrecy or privacy in the communication of the information i.e. within the context of a private (a limited number of people, not independent healthcare, although it would equally be the situation within the private sector) consultation then the patient has every right to expect the automatic application of this duty of protection to their data.  The duty of confidence automatically arises when an individual in receipt of information knows, or should know that it is confidential by the manner, content and circumstances of its disclosure, the fact that medical consultations are not communal exercises, but individual meetings behind closed doors would in itself be demonstrable of the privacy of the occasion. It is not actually necessary that the patient suffered any great detriment as a result of the doctors breach of confidence (although it is almost always the case) since the fact that the breach exists has been proved to be detriment enough The HOL have decreed that information relating to the detail’s of one’s medical situation is “obviously private” An action for breach of confidence can be brought by a patient independently of any associated claim in negligence or in contract (only private patients enter into a contract with their doctor) Given that the GMC recently reported that over half of the UK’s doctors reported for health difficulties likely to affect professional competence were suffering from alcohol abuse it is to be presumed that the medics themselves have a vested interest in maintaining the appropriate standard of protection of patient information. The duty of confidentiality extends to information requests from third parties, in which instance doctors should assert their confidentiality and refuse to provide information so long as it does not contravene public interest policy.

3. Exceptions.

The most obvious exception to the doctor’s duty of confidence occurs when the patient himself grants the physician his express permission to disclose the information or implies consent by his actions - providing that the patient is competent to consent and is fully aware of the nature of the proposed disclosure and of its intended audience. The incompetent patient is subject to a best interest test. It is established that the doctors obligation of confidence to his patient does not supersede his obligation to freely provide information regarding his patients information that he is compelled by law (either by statute or by a court order) to disclose. The extent of his obligation would in these circumstances be an obligation not to volunteer the information, but there the obligation ends. The information which the doctor is expected to keep confidential must contain information which clearly identifies the patient before being the subject of an obligation of confidence, any anonymous form of patient information is free to be published and disclosed and often forms the basis of medical trial data bases, national mortality reports such as SMR1 and government performance indicators. The GMC recognize four instances where information disclosure without the patients consent would be justified: where the patient is incapable of granting consent because of a mental deficiency, where the disclosure is necessary to save the patients life, where the act of requesting the patients consent to disclose the information in itself would likely cause the patient harm or distress and lastly where the consent is unable to be granted as a result of the patients suffering neglect or abuse.

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The last exception to the duty of confidentiality is when the disclosure of is regarded as being in the public interest. This has been defined as information being disclosed in order to prevent a danger or public risk or harm.  Public interest does not apply to all and sundry who comprise the general public, but rather it is legally contained within a need to know basis, for legal purposes the “public” consists solely of those who would be directly affected by the information disclosed.

It is often thought that the patient’s private expectation of practitioner confidence relating to his ...

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