Confidentiality / Medical privacy is a long established role of medical ethics,

traceable to the Hippocratic Oath. The International Code of Medical Ethics sums
it up aptly that : all doctors should preserve absolute secrecy, regarding their
patients secrets of the confidence entrusted in them. This essay shall argue that
medical privacy is not an overrated value and its importance is demonstrated by
the protection afforded to it in English Law. Despite several examples stating that
the law is overrated and perhaps stretched too far, it will be contended that
these instances are justified and confined within reasonable limits. Nonetheless,
it is recognised that in some situations, it will be necessary to put claims of
confidentiality subordinate to the rights of others for the proper functioning of
society. This essay shall assert that although confidentiality is vital, it is
justifiable and practical to put it second to the protection of others from harm,
notably injury or disease.
Why is medical privacy so important?
There exists two main reasons for why medical privacy/ confidentiality is
important. Firstly the deontological reason is that the patient autonomy dictates
that respect should be given to patient wishes. Paula Case stated, that patient
autonomy is the bedrock of medical law, after enjoying primacy over the sanctity
of life. Therefore, patients should be able to have control over their personal
information. The Medical Research Councils 2000 guidelines explained control
over patients information is important for patients self respect security and
freedom of action. Furthermore, Raanan Gillon explains that there is a
teleological reason for maintaining medical privacy. Without assurances of
confidentiality, a patient is unlikely to be open and frank with their doctors,
hence compromising diagnosis and treatment. Gillon explains that wide regard to
transmittable diseases, the trust that the doctors will not tell that patients have
stigmatized diseases allows for doctors to educate and influence them on how to
prevent them from spreading. Therefore, medical privacy is cooperative not only
to ensure patient autonomy ( or informational autonomy as Case puts it), but
also to ensure effective medical treatment which is in the public interest.
How is medical privacy protected in English Law?
Obligations of confidentiality can arise in a number of ways. Example via
contracts, or professional guidelines (namely the General Medical Council 2009
guidelines, hereafter GMC ) Also, statutory provision can protect privacy, such as
the Abortion Regulations 1991 and the Human Fertilisation and Embryology Act
1990). The Data Protection Act 1998, s.2 also indicates medical information is
to be processed justly and lawfully until the aim of protecting privacy, with
damages for distress being available under s.13
However the main manner in which an obligation of privacy arises is with the
equitable duty of confidence, reaffirmed in Seager v Copydex. In Coco v An
Clark Megarry J noted three requirements to establish a claim in a breach of
confidence:
1.The information has the necessary quality of confidentiality
2.It is imparted in circumstances which impact an obligation of confidentiality
3.It is used without authorisation to the detriment of the communicator

It is well settled that medical information is confidential in nature. Asworth

Society Hospital v MGN clarified that the doctor-patient relationship imparts an
obligation of confidence, confirmed in Hunter v Mann and Egdell.
With regards to detriment, some may agree that Lord Griffith in AG v Guardian
Newspapers was connect in arguing detriment had to be present to establish a
claim. However, the other case law suggests otherwise, Lord Keith in AG v
Guardian Newspapers contended disclosure of private information was sufficient
detriment and that it was unnecessary to show harm in any positive way. This
was followed in X v Y , and in Bluds it was held the absence of detriment did
notrun an action for breach. One may argue that the fact no detriment has to be
shown suggests medical privacy is overrated. However, it symbolic harm that
self- determination has been intruded upon is sufficient harm enough to justify
this
One may also argue that medical privacy is overrated because GMC confirms
obligations of confidentiality are maintained after death. Some would say that
this goes too far because confidentiality means nothing to the dead. Still the
rationale behind it is that if patients knew privacy would be breached, once they
are dead, they may be less open and frank. Also Jessica Berg argues that
obligation posthumous is important to protect relatives interests as they may
have their own identity to protect by keeping the deceaseds information private.
They may also wish to keeo the original memory of the dead alive. In Bluck, it
was confirmed that the deceased representatives may enforce action for breach
of confidence on the deceaseds behalf which may suggest it is overrated.
However, Lewis explained that this can be waivered in the name of public
interests. Also, the obligation is confined within reasonable limits because the
obligation weakens with the passage of time (GMC).
Furthermore, one may contend it is overrated because it cannot be relaxed to
involve relatives in decision making processes. Gillon argues iin the context of
familial relationships, medical privacy should not be so strictly protected to allow
relatives to be involved in patient treatment, which is in their best interests.
Jackson, however rightly suggests not all patients have supportive families abd
so confidentiality should be upheld to protect autonomy and allow patients to
keep things secret from relatives for whatever reasons they choose to do so.
Besides, non- Gillick competent children and children under the s8 Family Law
Reform Act 1969 suffer the consequences of Re R and Re W involving parents in
treatments, P has to state the fact the Mental Capacity Acr 2005 permits
relatives to participate in decisions of the incapacitated, evidence that
confidentiality is not too tightly upheld
On another note the fact that it is open to question (Egdell) whether patients can
recover damages for distress, shows the principle is not overrated.
Article 8 rights to private life European Convention on Human Rights
With the passing into force of the HRA 1998, Art 8 is incorporated into common
law. As the consequence is the principled basis of which notions are held has
been broadened. Now, breach of privacy decisions views avoid the autonomous
decisions of individuals to control private information ( Douglas v Hello!). Despite
Sedley J arguing that is now a free standing, substantial right to privacy in
English Law, this was rejected in Wainwright . In Campbell, Baroness Hale

asserted the law will be developed to incorporate Art 8 and in Ash v McKennit it
was said that that Art 8 will be shoehorned into common law. Therefore,
protection of medical privacy has been broadened.
Some may view this is evidence that medical privacy is overrated. However, Art
8 (2) states that it is a qualified right to privacy is that it be breached
legitimately in favour of say, health, public safety etc. Also Art 10 freedom of
expression often has to be balanced against Art 8 sometimes, privacy will win is
in H v Associated Newspapers and X v Y. However Varoness Hale in Campbell
argued that in the case of a public figure, not all information could be
confidential, whereby privacy could be seen as overrated. In Ash v McKennitt, it
was held Art 8 and Art 10 will be balanced in order to identify the scope of the
duty of confidentiality, by references to the exceptions to this rule
Exceptions
Confidentiality, despite being important, can be overridden by an array of
exceptional circumstances. However these are justifiable and practical for the
functioning of society.
Required by the Law
GMC clarifies that doctors may disclos patient information if statutory provisions
permit them to, for example, the Public Health ( Control of Disease )Act 1984
allows doctors to disclose records to prevent the spread of commercial diseases
such as cholera and plague. Thus it is necessary for public health. Additionally
s.172 Road Traffic Act 1988 clarifies disclosure is necessary to identify risk of
death or serious harm. (Hunter v Mann) Thus, it is vital for law enforcement.
GMC clarifies the disclosure is permissible in the name of investingating
complaints of malpractice in practice. In X v Y , records were disclosed, despite
patient objections to tackle malpractice and initiate disciplinary procedures.
Therefore, necessary for improvement of health services.
Public Interest
Paula Case noted that in medical law, the best interests calculation is patient
specific and neither explicitly or implicitly acknowledges the interests of
immediate others or interests of the community. In Bland, Lord Mustill, rejected it
as having no role in deciding treatment. However, in reality, confidentiality is
often over arched in the name of public interest as Schering Chemicals v
Falkman .
Medical Research
GMC confirms patient information can be needed for the likes of research and
epidemiology and confirms identifiable information can be disclosed without
consent if required by law, s.251 NHS Act 2006 , or for public interests. S.251
NHS Act 2006 explains confidentiality can be breached for essential NHS Activity.
Although Richards study suggests most patients would be concerned about this,
Paula Case stated it was merely to dissuade people from being frank. Whilst the
government states protection in the HRA, it takes chunks out of it with the most
legislative , not which is damning evidence of untrustworthiness.

Paula Case who notes how it may be impossible to put research under the public
interest defence. In Egdell the defence required in immediate risk of serious
harm, potential beneficiaries of medical research only face harm that is indirect
and cumulative and non-immediate. Harris and Woods argue that if we want to
reap the benefits of modern medicine, we should recognise our commemorative
duty to participate in research, Also Jennifer Burnell confirms that if consent was
sought then the need would arise a consent bias in data, then being
unrepresentative of the UK. Thus, it is correct to argue with the view of Brom LJ in
Source Informaties that medical privacy should be uncriminilised to
accommodate medical research. This is for the advancement of medicine.

GMC also explains that patient information should be disclosed for prevention,
detection and prosecution of a crime. In Egdell, information was disclosed about
a dangerous psychiatric patient noticed he would not be released back into
society where he would be a danger. In Tarasoff, a psychiatric patient had
psychotic fantasies about a potential victim and it was held the psychiatrist
under a duty to disclose this information to protect her. In the UK McLean and
Mason argue that no such legal duty exists. However a psychiatrist would not
use for disclosing. Jackson argues paradoxically, breaching confidentiality may
increase risk in the situations as routine disclosre would dissuade people from
relaxing psychiatric fantasies and seeking help. Nonetheless the preservation of
life in immediate dangerous circumstances sees a overriding interest and Ozman
v UK suggests that the ECHR may impose this duty.
To conclude, medical privacy is not overrated as it has solid deontological and
teleological reasons for its adherence. Still for law enforcement, the
advancement of medical , the improvement of medical and protection from
harm, it is justifiable to put it being a vital competing interest.