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Ethical Issues - Confidentiality

Legal considerations

The Human Rights Act, which encompassed the European Convention on Human Rights into UK law, recognises the importance of confidentiality under Article 8 of the Convention, the right to respect for private and family life which states:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection.

There is a public interest in health professionals maintaining patient confidentiality - this encourages patients to fully divulge relevant information so that the healthcare professional can make a proper assessment of the patient’s condition. On the other hand there may, occasionally, be circumstances where the interest in maintaining confidentiality is outweighed in the public interest (disclosure to prevent a crime, for the health interests of others etc) and this justifies disclosure of confidential patient information without consent. The health professional will have to balance these competing public interests in deciding whether or not to disclose. Assistance can be gleaned from legal cases and professional guidance (the courts do take account of these).

W v Edgell [1990] 1 ALL ER 835

The patient was a prisoner in a secure hospital following convictions for killing five people and wounding several others. He made an application to a mental health tribunal to be transferred to a regional unit. An independent psychiatrist, Dr Edgell, was asked by W’s legal advisors to provide a confidential expert opinion that they hoped would show that W was no longer a danger to the public. However Dr Edgell was of the opinion that in fact W was still dangerous. W’s application was withdrawn. Dr Edgell, knowing that his opinion would not be included in the patient’s notes, sent a copy to the medical director of the hospital and to the Home Office.

The patient brought an action for breach of confidence.

The Court of Appeal held that the breach was justified in the public interest, on grounds of protection of the public from dangerous criminal acts. However, the Court said the risk must be ‘real, immediate and serious’.

X v Y [1988] 2 ALL ER 648

A Health Authority sought an injunction to prevent a national newspaper publishing the names of two practising doctors who were receiving treatment for AIDS. The Court balanced the public interest in freedom of the press against the public interest in maintaining hospital records confidential. The Court found that lack of publication of the information would be of minimal significance since there was a wide ranging public debate about AIDS generally.

In balancing these competing interests it should be noted that disclosure should in any event only be made to a relevant party - there should be no blanket disclosure.

See also: H (a Healthworker) v Associated Newspapers Ltd [2002] EWCA civ 195. Times, March 19, 2002 in which again the Court of Appeal reiterated the strong public interest in maintaining the confidentiality of health workers infected with HIV.

In Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) the Court addressed the issue of confidentiality in relation to minors under the age of 16 years.  This case concerned disclosure of information regarding termination of pregnancy but the principle can be applied to confidentiality in other situations. The court emphasised that a young person is entitled to the same standard of confidentiality as an adult provided that they are competent. (see our commentaries pages for a summary of this case).

Statues requiring disclosure

Some statutes require disclosure of confidential information where this would otherwise be a breach of confidentiality. These include:

Police and Criminal Evidence Act 1984
The police can access medical records for the purpose of a criminal investigation by making an application to a circuit judge.

Public Health (Control of Disease) Act 1984 and Public Health (Infectious Diseases) Regulations 1988
A doctor must notify the relevant local authority officer (usually a public health consultant) if he suspects a patient of having a notifiable disease. AIDS and HIV are not notifiable diseases.

Abortion Regulations 1991
A doctor carrying out a termination of pregnancy must notify the relevant Chief Medical Officer including giving the name and address of the woman concerned.

Births and Deaths Registration Act 1953
The doctor or midwife normally has a duty to inform the district medical officer of a birth within six hours. Stillbirths (a baby born dead after 24th week of pregnancy) must be registered. Doctors attending patients during their last illness must sign a death certificate, giving cause of death.

Road Traffic Act 1988
All citizens, including doctors, must provide the police, on request, with information (name, address), which might identify a driver alleged to have committed a traffic offence. This would not normally justify providing clinical information without the patient’s consent, or a court order. A doctor may have a legal obligation to inform the DVLA if he has concerns that a patient has a medical disability that could affect his driving.
DVLA

Human Fertilisation and Embryology Act 1990
The Human Fertilisation and Embryology Authority maintains a register of individuals receiving fertility treatment.

NHS (Venereal Diseases) Regulations 1974
Allows limited disclosure of information for contact-tracing in the case of sexually transmitted diseases. Such disclosure can only be made to a doctor, or to someone working on a doctor’s instruction in connection with treatment or prevention. It forbids those working in a genito-urinary clinic to inform an insurance company of a patient’s sexually transmitted disease – even with the patient’s consent. GP’s are not routinely informed of the patient’s attendance at such clinics, although the patient may request that the GP be informed.

Children Act 1989
Regulates many aspects of childcare including professionals’ duties when there is suspicion of child abuse.

Prevention of Terrorism (Temporary Provisions) Act 2000
All citizens, including doctors, must inform police, as soon as possible, of any information that may help to prevent an act of terrorism, or help in apprehending or prosecuting a terrorist.