Any discussion on the duty of confidence imposed on doctors is surrounded by legal, ethical and academic controversy. As with most issues concerning medical law, there is a constant battle between the law and ethics/morality. As Marc Stauch et al comment in their preface1, ‘few other legal subjects display so clearly the interaction between law and morality. ‘ Sean Humber2 asserts that ‘mystery has surrounded the source and extent of the obligation to keep confidences… ‘ Although several definitions of confidence exist3 it is apparent that the principles are ever changing, reflecting the epoch that we live in.
Taking this into consideration, it can be said that the obligation of confidence may or may not be preserved depending of certain circumstances. But what is the extent to which this duty absolute? The legal obligations that a doctor has to his patients cannot be studied in isolation from the ethical duties that he or she also has. When looking at the responsibilities imposed on a doctor to respect a patient’s confidence, it is imperative that the ethical justifications are considered when examining the conditions in which it may be lawfully infringed.
The utilitarian philosophy is founded upon an ethos of practicality and an assessment of actions which will be beneficial for all. In relation to confidentiality, the duty is justified by the efficacy of doctors ensuring that all medically related data is kept private. R. Gillon in his work Philosophical Medical Ethics4, puts forward the argument that if patients are not guaranteed full confidentiality of the information they divulge, then they will inevitably be put off from confiding in their doctor. This will be to the detriment of the overall good of society. 5
What connects the Utilitarian doctrine with confidentiality is the fact that it does not hesitate to acknowledge the fact that the obligation imposed is not absolute and in certain conditions can be lawfully broken. ‘The Hippocratic Oath’ states that doctors must respect the confidences of their patients6 ‘The Declaration of Geneva’ has a similar pledge. The justification for an infringement comes about when the reasons/ grounds for revealing the information outweigh those grounds for keeping it confidential. The legal justifications at common law are the following;
a) It is for the benefit of society and in the public interest b) The patient has given permission for the disclosure to be made. Lord Goff in the case of AG v Guardian Newspapers (No. 2) [1990]7 commented on the public interest justification and how it intertwines with utilitarian principles8. F. Gurry9 expands on elements of the public interest defence by comparing it to the antiquated principle of public policy at common law. Winfield defines public interest as ‘a principle of judicial legislation or interpretation founded on the current needs of the community.
‘ Utilitarian ideologies conflict with deontological theories, which are conversely based on a theory of ‘duty rather that purpose. ‘ Gillon presents the argument against disclosure put forward by the deontological school of thought. 10 Beauchamp and Childress11 offer an alternative stance for the justifications of disclosure founded upon a notion of ‘autonomy’: ‘A second approach to the justification of rules and rights of confidentiality looks to respect for autonomy and privacy. The argument for privacy…
can here be extended to confidentiality, breaches of which have often been viewed as primary violations of privacy and personal integrity… ‘ There are also several ‘ethical codes’ which exist, offering differing opinions on the justifications of a breach. The guidelines provided by the General Medical Council12, although not official legislation has convincing authority behind it. The case of W v Edgell [1990]13is the leading authority on this case and clearly illustrates the point of the interest of the public being paramount. If any of the guidelines are breached however, disciplinary action will take place.
If the doctor is found guilty of ‘serious professional misconduct’ it is very likely that the doctor may be ‘struck off’ the register. Those who advocate a ‘rights based approach’ perceive the duty of confidence imposed on a doctor as the protection of the right to privacy. There is currently no law of privacy in English law, but privacy can be safeguarded by other means i. e. in the form of a nuisance or a tort of trespass. Most significantly, the incorporation of Article 8 of the Human Rights Act 1998 into UK law14 means that an individual now has the right to a ‘private and family life’ under the provision.
15 In the case of Z v Finland (1998)16, the European Court of Human Rights emphasised the importance for a doctor to keep ‘information confidential or those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even from seeking such assistance… ‘ In this case, Mrs Z was married to a man who had raped his victims and consciously transmitted the HIV virus to them. He was later accused of attempted manslaughter as a result.
So as to collect and obtain the necessary evidence, the medical records of Mrs Z were obtained. The trial record was limited to ten years by the court and it revealed the identity of Mrs. Z in the deliverance of its judgement. Under Article 8 of the Human Rights Act 1998, Mrs Z’s rights had been infringed, and the European Court of Human Rights were confronted with the dilemma as to whether this breach could be justified under Sub-section 2 of Article 8. It was then decided that the actions of the court were ‘in accordance with the law’.
The next issue that they face was whether it was ‘necessary in a democratic society’. It was later found that the medical records obtained from Mrs. Z’s doctors for evidential purposes did not breach Article 8(2). What was not justified however, was the fact that her identity had been exposed the confidentiality of the trial record had been limited to ten years. In the case of MS v Sweden, (1997)17 The social security department dealing with a claim for the claimant’s industrial injury benefit had requested for medical records concerning her gynaecological conditions which were held by a clinic.
These details were eventually disclosed. She had not been advised of this and the European Court of Human Rights held that her rights under Article 8(1) had been infringed, but under Article 8(2) this breach was justified as the economic wellbeing of the state was considered to be in possible jeopardy. More on point, if people are claiming money from the state then a ‘dependency culture’18 may become apparent as those who are not really in need of support will be claiming it and they will begin to rely on public funds.
Many have suggested that it is difficult to categorise the law of the obligation to maintain confidences. The application of equitable principles is relevant to the law of confidence because it pertains to the laws governing contract and tort. 19 Gurry20 has asserted that the laws governing confidence invoke principles of contract and tort. He goes on to refer to the case of Alperton Rubber Co. Manning where Peterson J. held that the defendant’s behaviour amounted to ‘a breach of trust or confidence, and… of the implied provision in all contracts of service that the employee will observe the rules of honesty.
‘ He also refers to case of Prince Albert v Strange, where a similar assertion was made by the court. The Law Commission published a Report in 198121in which it made several suggestions to rectify the uncertainties/discrepancies, which existed in the law. The main recommendation made was for an introduction of a tort of breach of confidence. The government has never implemented the recommendations made. As already established, the obligation of confidence is not absolute but is independent, with the interests of the public at the forefront of the safeguarding of confidence.