Confidentiality

• Professional obligation – moral duty

– Hippocratic oath
• Whatever I see or hear, professionally or privately, which
ought not to be divulged, I will keep secret and tell no
one.
– Geneva Declaration
• I WILL RESPECT the secrets which are confided in me,
even after the patient has died

– Professional guidelines
• Codes of Ethics; GMC & BMA guidelines
 Confidentiality
• Ethical aspects
• Deontological – autonomy
– patient should control information about
themselves
• Utilitarian
– Keeping confidences maximises happiness (utility)
• Virtue ethics
– faithfulness, maintain trust
 Confidentiality
• Justification for keeping confidences
– privacy argument - ‘rights’- based argument
• Universal Declaration of Human Rights
• European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR)
– efficiency argument – public health -based
• healthcare system requires patients to be open and honest
– trust argument - fiduciary relationship
• nature of relationship out of which confidentiality arise
– autonomy argument
• control over personal information
 Confidentiality
Nature of legal duty
• General rights
– Article 8 European Convention on Human Rights
• Contract (tort)
– private patients – implied term
• Contract (employment)
– NHS terms and conditions of service
• Equity (tort of breach of confidence)
– public policy
• Negligence (tort)
– professional standards (damage must be shown)
• Statute law
– various acts/regulations
• Data Protection
 Confidentiality
Nature of legal duty
Duty of confidence common law/equity
– no right to privacy explicitly recognised in English
law: privacy versus protecting confidence
– specific equitable obligation developed by the courts
“ … a duty of confidence arises where confidential information
comes to the knowledge of a person 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.”
Lord Goff AG v Guardian Newspapers (No 2) (1988)
 Confidentiality
Duty of confidence
3 pronged test
• information confidential in nature
• information imparted in circumstances that
impose/confer obligation on confident to respect
confidentiality*
• confider must show cause for invoking help of court (e.g.
detriment or public interest reason)
– Coco v AN Clarke (Engineers) Ltd (1969) RPC 41
– AG v Guardian Newspapers (No 2) (1988) 3 All ER 545
– X v Y (1988) 2 All ER 648
– R v Department of Health, ex parte Source Informatics
Ltd (1999)
 Confidentiality
Duty of confidence
Doctor–patient relationship
• explicitly recognised as one of the category of
relationships protected by the equitable remedy of breach
of confidence
“ … in common with other professional men, for instance a
priest …the doctor is under a duty not to disclose
[voluntarily], without the consent of his patient, information
which he, the doctor, has gained in his professional
capacity” Boreham J Hunter v Mann (1974) QB 767
– X v Y (1988) 2 All ER 648
– W v Edgell (1990) 1 All ER 835
– R v Department of Health, ex parte Source Informatics
Ltd (1999)
 Confidentiality
Duty of Confidence
Statutory recognition
National Health Service (Venereal Diseases) Regulations 1974
Abortion Regulations 1991
Human Fertilisation and Embryology Act 1991
 Confidentiality
Duty of Confidence
Special cases
– children
• with capacity– obligation of confidence
• without capacity– law requires ‘best interests’
approach
– incompetent adults
• law requires ‘best interests’ approach
– deceased persons
 Confidentiality
Breach of confidence:
• equitable remedy in tort of breach of confidence
- injunction/damages
• criminal sanctions for breach of statutory provisions
Justifications for breaching confidentiality:
– Consent
– Public interest
• freedom of the press
• danger to health or safety of public or a third party
• teaching, research and clinical audit
– Statutory requirements
– Court proceedings
 Exceptions to
Obligation for Confidentiality

• patient threatens harm to self

• patient threatens harm to others
• when required by law:
– communicable disease
– occupational diseases
– suspected abuse
 Confidentiality in the NHS
Confidentiality in the NHS
professional ethical codes
professional guidelines
NHS guidelines
contract of employment
Caldicott Guardians
Statutes relating to patient information in health
records
Data Protection Act 1998
Access to Medical Reports 1988
Access to Health records Act 1990
Access to Personal Files Act 1987
 Confidentiality in the NHS
• Caldicott Committee’s Report on the Review of Patient-
Identifiable Information, published in December 1997.
• Health Service Circular (HSC 1999/012) appointment of
Guardians:
– an existing member of the management board of the organisation
– a senior health professional
– an individual with responsibility for promoting clinical governance
• HSC 2000/009: Data Protection Act 1998: protection and use of
patient information
• The NHS Confidentiality Code of Practice
Guidelines on the use and protection of patient information,
November 2003.
 Caldicott Principles
• Caldicott Committee recommended that every flow of
patient-identifiable information should be regularly
justified and routinely tested against the principles
developed in the Caldicott Report.
– Principle 1 - Justify the purpose(s) for using confidential
information
– Principle 2 - Only use it when absolutely necessary
– Principle 3 - Use the minimum that is required
– Principle 4 - Access should be on a strict need-to-know basis
– Principle 5 - Everyone must understand his or her
responsibilities
– Principle 6 - Understand and comply with the law
 Confidentiality in the NHS
Breach of Confidence – possible consequences
• complaint to the Information Commissioner for
breach of the Data Protection Act 1998
• professional disciplinary proceedings (misconduct)
• employer disciplinary proceeding (breach of
contract of employment)
• civil court action in tort of breach of confidence
• criminal court action where breach of statute
 Difficulties with maintaining
confidentiality in the NHS
• professional ‘need to know’
– other doctors, nurses, allied professions, students, etc.
• non-professional ‘need to know’
– ward clerical/administrative staff, hospital staff, Trust,
NHS agencies, etc.
• communication risks
verbal discussions computer/electronic health records
fax/photocopy machine ‘celebrity/newsworthy’ patients
telephone/answer machine bureaucracy
 Special Problems
in Confidentiality
• children
• adolescents
• psychiatric patients
• incompetent patients
• HIV status
• ‘celebrity’ patients
• professional colleagues
• genetic information