Medical professionals have an obvious common law duty to respect the privacy of their patients11, with this duty12 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,13 and thereby the rational medical practitioner, would deem the information to be of a confidential nature14, or if their exists a notion of secrecy or privacy15 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,16 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 enough17 The HOL have decreed that information relating to the detail’s of one’s medical situation is “obviously private”18 An action for breach of confidence can be brought by a patient independently of any associated claim in negligence or in contract19 (only private patients enter into a contract with their doctor20) 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 abuse21 it is to be presumed that the medics themselves have a vested interest in maintaining the appropriate standard of protection of patient information22.
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 policy23. 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 order24) to disclose. The extent of his obligation would in these circumstances be an obligation not to volunteer the information, but there the obligation ends. 25 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 confidence26, 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. The last exception to the duty of confidentiality is when the disclosure of is regarded as being in the public interest27. This has been defined as information being disclosed in order to prevent a danger or public risk or harm. 28 29 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. 30
It is often thought that the patient’s private expectation of practitioner confidence relating to his confidential medical information is continually competing with the possibility of countervailing public interests promoting possible disclosure. This is inaccurate. In the case highlighted below it was stressed that the law’s actual concern with confidences and their protection are themselves intrinsic matters of public interest31. This is of great importance as the equality introduced into the equation promotes an automatic fairness that would be lacking if the relative weight of private interest and public interest were compared against each other.
32 Although the courts have relied heavily on input from the GMC to decide the exactness of the circumstances, which would determine that a doctor’s ethical duty of confidentiality be overridden, the question remains a matter for the judiciary to decide. 33 4. What is Public Interest? The common law doctrine of “public policy” has evolved into what is recognised today as being “the public interest”. Winfield described it ” as a principle of judicial legislation or interpretation founded on the current needs of the community”. The public interest role in the development and protection of the law of confidence emulates that played by public policy in the development of contract law.
It facilitates an entry point for the intervention of the courts whilst simultaneously circumscribing the ambit of that intervention. 34 5. Public Danger and Private Disease. There appears to be two main exceptions to the public’s general acceptance of the limitations of patient confidence. The first is where the patient has an ethical or moral reason for refusing particular treatments which may be required by law i. e. vaccinations or immunizations. The second is in the instances where the information disclosure is likely to be to the serious social detriment of the patient, or even as in days of old35 loss of liberty36 resulting from enforced medical confinement and separation.
37 There are a group of diseases whose etiology determines that in order to best safeguard the health of the populous as a whole, regardless of the consequences to the individual, a doctor must notify the relevant official immediately he suspects that a patient is suffering in this manner. 38 This directive originated at the end of the nineteenth century and exemplifies the theory of the greater good39. This relieves the physician of struggling with any ethical or moral objections, which might otherwise have prevented him reporting the patient’s status. The importance of maintaining confidentiality in patients with AIDS is illustrated by the fact that they it is not currently a notifiable disease.
The majority of informed medical opinion support government policy that the anonymity of such patients is of paramount import, and that any physician deviating from the strictest anonymity in respect of patient identity and or information must be expect to be closely scrutinized40. That a patient is infected with AIDS should only serve to reiterate to doctors the special importance of maintaining the integrity of his confidence and medical records whilst recognizing the paramount social duty of preventing the infection spreading The concerns of any patient objecting to the disclosure of his health records are likely to be manifold when the information relates to a particular disease from which the patient is suffering.
Traditionally and predictably the main group of diseases to which there was a general resistance to reporting were the bacterial based, sexually transmitted diseases and estimates suggest that only about 10 per cent of known cases were ever disclosed, reflecting the grave social consequences likely to be suffered by the publicized patient. The social consequences of being known to be sexually diseased intensified in the mid 1980’s with the discovery of AIDS and HIV, the uncertainty of its profile at that time and the widespread social ignorance as to its infectiousness or otherwise compounding an age-old stigma and reinforcing backward thinking homophobic tendencies. Even now when it is known that transference of the virus is limited to either blood contamination or sexual intercourse, the AIDS sufferer could still be susceptible to social prejudice endangering both employment and relationships.
Recognising this, such patient’s privacy is protected by statute41 with physicians being able to communicate information about STD’s for the purpose of treatment and prevention. 42 Simply because of the acknowledged strong public interest in avoiding actively discouraging those citizens suffering from a sexual disease from seeking prompt medical advice or treatment, it is difficult for a physician in these circumstances to claim that a breach of confidentiality was justified on a public interest basis in al but the most extreme cases. Boyd argues that despite this, the moral and ethical reasons for maintaining patient privacy should not change, with a system of mutual empowerment facilitating both aims.
Acknowledging that a clear understanding of the premise of the ethics of confidentiality be laid bare at the initial consultation, a contract would then be signed with the patient, Boyd would hope to circumvent the actual requirement for the doctor to break the patients confidence by empowering the patient and if necessary their partners with counseling courses, with the aim of educating them out of their shame and denial into an informed state of acceptance whereby the patient would be transformed into a responsible and informed individual happy to take the necessary steps to prevent further infection spreading.
The conflicting responsibilities of the doctor considering not only with his patients safety, but also that of the patients sexual partners and the other members of the healthcare provision team have resulted in the GMC allowing the doctor to in good conscience disclose details regarding the patients status to other member so the health team if they are in direct danger of contamination whilst they remain ignorant of the AIDS diagnosis and also the informing of the patients sexual partner, in instances where despite copious counseling and encouraging the patient absolutely refuses to undertake this task on their own44.
The English courts have clearly established the expected level of confidentiality that should legally be routinely applied to Aids patients finding that despite the strong public interest in having a free press, of greater public interest was the assurance that such patients should be absolutely assured of their entitlement to have their identity concealed. When a newspaper threatened to publish the names of two doctor hospital inpatients receiving treatment for AIDS, their employed Health Authority sought to prevent them as the patient names had been originally been disclosed illegally. They won primarily on the basis that neither doctor was in direct contact with patients in a manner that could facilitate infection and that both were actively taking every authorized precaution to minimize the risk of same. They also reasoned that the negative effect of disclosing the information could deter existing and future sufferers from seeking help.
The court decided as was outlined above that this was not a matter of pitting private against public interest, but public interest against public interest and cautioned the Health Authority themselves against the practice which led to the original unlawful disclosure of patient names. Whilst hailing this decision as being a victory not only for health care professionals, but for AIDS patients as a group, some commentators have rather predictably blamed the salacious nature of the press for instigating such public interest, denying a cover up by the courts they rather deferentially imply that a medical justification can be found for this decision, suggesting that the chances of a “well – counseled physician” inadvertently passing on their disease to a patient would be minimal45.
This could be construed as being nai?? ve given that consideration has been given only to patients of the physician post diagnosis, pre diagnosed patients are not considered neither are partners and the actual value of minimal remains unexplored. Arguably one patient in two million would be minimal but mightn’t that be one patient too much? The moral premis of this case was that of the absolute and inalienable right of AIDS patients in the UK to anonymity when seeking medical treatment, regardless of their profession or social standing, not that the relative education of doctors makes them less of a public interest concern than a non- medical AIDS patient.