Lecture 11 – Confidentiality PDF

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Sehar Azam – LLB Yr3 – Medical Law Lecture 11 – Confidentiality - Obligation of confidence is a feature of ethical codes of conduct Obligation to secrecy e. lawyer-client Distinguish absolute from relative obligations Former could never be breached regardless of circumstances. Latter could in certai...

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Sehar Azam – LLB Yr3 – Medical Law Lecture 11 – Confidentiality -

Obligation of confidence is a feature of ethical codes of conduct Obligation to secrecy e.g. lawyer-client Distinguish absolute from relative obligations Former could never be breached regardless of circumstances. Latter could in certain situations Examples : Patient has STD Patient maybe a violent criminal Patient maybe abusing her/his children Dilemma: Doctor divulges information for the protection of vulnerable or at risk persons v deterring patients in need from coming forward for medical help

Ethics - Consequentialist arguments can justify the obligation of confidentiality by reference to the practical value of having a climate in which confidences are kept. This practical value is all the greater when the relationship is one based on trust such as that between a medical professional and patient/volunteer - Gillon, Philosophical Medical Ethics, Wiley and Sons, 1986, 108 notes that the consequences of a doctor not keeping secrets would be that patients would be less inclined to divulge embarrassing but potentially medically important information and this would reduce their chances of getting the best medical care, or they would disclose such information and feel anxious and unhappy at the prospects of their secrets being made known. - He notes that deontologists tend to base their arguments for confidentiality on respect for autonomy and privacy. Ofcourse privacy is, in a sense, an aspect of the principle of autonomy because it is about respecting the boundaries that stem from existing as a person, these boundaries being a kind of ‘autonomous space.’ Legal development - Common law is the basis - Note impact of the Data Protection Act 1998 - Article 8 European Convention of Human Rights - Law of Equity developed to impose an obligation not to disclose information. Covers areas such as trade secrets and discussions taking place in Cabinet (AG v Jonathan Cape 1976) Human Rights - Campbell v MGN [2004] UKHL 22 - Test of whether the information is of a personal or private matter is whether person had a reasonable expectation that information will be kept private. - HL held right to respect for private and family life under art 8 ECHR underlies protection of confidentiality - “…the right to privacy which lies at the heart of an action for breach of confidence has to be balanced against the right of the media to impart

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information to the public [Lord Hope] She sued for breach of confidence and won. Photograph of her leaving Narcotics Anonymous with article published

Sehar Azam – LLB Yr3 – Medical Law -

Time, place and details of treatment were confidential Note balancing exercise between art 8 and art 10 freedom of expression She was awarded small amount of damages

But… - Lady Hale: “Not every statement about a person’s health will carry the badge of confidentiality or risk of doing harm to that person’s physical or moral integrity. The privacy interest in the fact that a public figure has a cold or broken leg is unlikely to be strong enough to restrict the press’s freedom to report it. What harm could it possibly do?” Art 8 - Art 8 protects right to respect for private and family life. Includes protection of confidential information (Z v Finland- disclosure of woman’s medical records, revealing her HIV status, during husband’s criminal trial for rape- disclosure of medical records justified but not her identification) - McKennit v Ash [2006] EWCA Civ 1174 - Singer got injunction against publication of book by business associate. Some health information. Confirmed that medical information was private and confidential and secured under art 8. Art 8 trumps art 10 unless private information can be justifiably disclosed under art 10 in special circumstances. - Remedies: - Court preventing the disclosure of information- injunction - Civil action for breach of confidence Anonymised information - So, general duty of medical confidentiality can be readily established - Question arises when can the duty be breached? - Note in R v DoH ex p Source Informatics Ltd (2000)- held release of anonymized medical information not a breach of confidence. Focus of case is away from protection of information to the issue of fairness in the way it maybe used- controversial. But in AG v Guardian- is a public interest in confidentiality even if no individual suffers harm. Also, if information can somehow identify patient, surely, is confidential e.g. rare condition? Do all patients agree with their information being used for research they object to? - Company wanted information on way doctors prescribe to sell onto drug companies for marketing. Anonymous except for post code. DoH policy against this and company challenged via JR. Held basis of decision on whether to disclose was one of fairness. Pharmacists conscience intact as no breach of confidentiality. Disclosure permitted- some examples - Where legally required to disclose information e.g. court proceedings or statutory authority - Public interest e.g. crime - Public good from disclosure outweighs the interest in confidentiality. For example, in Lion Laboratories v Evans and Express Newspapers [1985] QB 526 it was held legitimate to disclose documents that cast doubt upon the accuracy of a machine used in testing for drink driving.

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E.g. if Doctor cannot persuade P to report condition preventing him from driving and considers matter in public interest then should inform DVA.

Sehar Azam – LLB Yr3 – Medical Law -

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Public Health (Control of Disease) Act 1984; Public Health (Infectious Diseases) Regs 1988- Doctors under duty to notify LA of Ps suffering from notifiable diseases e.g. cholera and measles. Abortion Regs 1991-Doctors under duty to notify Chief Medical Officer of termination. In certain circumstances a disclosure may be legitimated to protect a third party as in Re C (A Minor) (Evidence: Confidential Information (1991) 7 BMLR where disclosure by a doctor to the Court in relation to fitness of a mother to bring up a child was acceptable in adoption proceedings.

GMC Guidance - New GMC’s Guidance on Confidentiality 12 th October 2009 - Supplementary guidance notes available on website - “Serious or persistent failure to follow this guidance will put your registration at risk.”(para 5) - Disclosure justifiable where: - Required by Law (para 17-23) - Patient consents (para 25-35) - Justified in the public interest (para 36-39) - Patient may give implied consent to disclosure - Sharing information with health care team, including administrative and other staff. Patients need to be informed this happens in person or via websites, posters, leaflets - Local clinical audit. - Express consent required: - Insurance or benefit claims or financial audit - Third parties request e.g. employer, benefits agency or government dept. Public interest - “Personal information may be disclosed in the public interest, without the patient’s consent, and in exceptional circumstances where patients have withheld consent, if the benefits to an individual or to society of the disclosure outweigh the public and the patient’s interest in keeping the information confidential.” (para 37) - Disclosure justified “to protect individuals or society from risks of serious harm, such as serious communicable diseases or serious crime; or to enable medical research, education or other secondary uses of information that will benefit society over time.” (para 36). - Protecting P- “...you should usually abide by a competent adult’s refusal to consent to disclosure, even if their decision leaves them, but nobody else, at risk of serious harm. (para 51) - Protecting others -then disclosure justified where failure “may expose others to a risk of death or serious harm.” (para 53) - “Such a situation might arise, for example, when a disclosure would be likely to assist in the prevention, detection or prosecution of a serious crime, especially crimes against the person.” (para 54) - “When victims of violence refuse police assistance, disclosure may still be justified if others remain at risk, for example, from someone who is prepared

to use weapons or from domestic violence when children or others may be at risk.”...