“A doctor shall preserve absolute secrecy on all he knows about his patient because of the confidence entrusted to him”. 68 Confidence is the essence of the medical relationship between doctor and patient. It is highly valued in the UK and rightly so. The courts are reluctant to interfere, following where the GMC leads with both clearly providing for circumstances where patients suffer from a STD. Less clear are the situations which would justify the breaching of patient confidence in the name of public interest where the patient has threatened serious harm to others.
There is little merit I think in comparing the idea of imposing on doctors a statutory duty doctor to warn potential victims with the lack of a statutory duty to rescue at statute. It is a cardinal feature of all legal obligations and servitudes that they are retrospective in nature and not prospective, and so it would be with rescuing, if developed it would be a retrospective act, we can only rescue what is in peril, the damage has been done.
In this way a duty to rescue would be right to be considered to be a legal obligation. A duty to warn would be a prospective action, an attempt to prevent harm occurring, in this respect if ever developed legally such an legal duty would not be considered to be an obligation as the courts have already ruled that it is not in any manner a retrospective act69. Therefore the two matters are intrinsically different.
However it is the case that both situations (would) involvelove a duty to third parties, complicated by the duty of care, which exists between doctor and patient and does not exists between doctor and third party. The law has traditionally been reluctant to introduce any type of responsibility or duty or obligation to third parties, weakening as it would the clearly defined boundaries of such obligations, blurring the definitions of harm.
The public interest test as it stands adequately facilitates any breach of confidence that a doctor may feel is necessary to safeguard or warn others, and although liable for this breach, if the public interest test failed to fully justify his actions, any liability could easily be avoided by the doctor acting with reasonable care for which the traditional application of Bolam70 would allow his peers considerable discretion in the consideration of what they and subsequently the judiciary would consider to be reasonable.
In some parts of Europe medical confidentiality is an absolute right, in both France and Belgium it is protected in the criminal code. 71 It is an absolute, a given. In general the medical profession as a whole recognise the importance of confidence72 with Warwick being unusual in expressing her rather extreme opinion promoting the banishment of this component of the doctor patient relationship.
She argues that since the promises made by doctors to preserve confidentiality are not binding, then there is no reason why patients should view this expected element of confidentiality as being constant, rather than a malleable, transmutable piece of rhetoric that develops alongside physician determined priorities.
This GP reasons that society will benefit from the ensuing openness and that an easy manner of protecting ones personal “secrets” is simple not to communicate them, and in the context of the healthcare provider, by the patient refusing to impart certain confidences then they remain totally protected with no damage to the relationship.
For her part she promises that if patients do renege their right of confidence, doctors will promise not to idly gossip about their patients or sell their information for remuneration of any kind (echoing Bingham LF in Edgell) and in this manner the medical profession will actually be increasing patient autonomy and ultimately aiding the development of a healthier and more open society as a whole.
In general this proposal is contra to the ideals currently promoted by the GMC and from a public interest viewpoint, would be detrimental to society as a whole and I believe indicates an ignorance as to the importance of the law of confidence to both the law of medicine and the law of commerce. As the Court Of Appeal has reiterated recently74, this element of our law is very much alive and the value of confidence in both its commercial and private sense is no less valued today than it has been in the past, it underpins many legal transactions of varying natures and is an essential component of our democracy.
One commentator has formulated a clear relationship between a more recent UK case75 and the establishment of an accepted and routine duty of care to third parties by psychiatrists reasoning that the implication of ECHR makes such an event inevitable. 76 The police were alerted by a family who became aware of a teachers obsession with their young son whom the teacher eventually murdered. Reaching the European Court the family were ultimately unsuccessful in their attempt to prove negligence on behalf of the police for their failure to prevent the teacher murdering the findings of the majority have given Gavaghan.
He argues that Article 2 of The Convention spawns the duty by protecting the right to life; the European Court reiterated that the duty applies only to identifiable individuals as per the UK courts with duty being limited by competing legal obligations and practical considerations. In this manner he suggests that via the European courts the first approach to a duty of care to third parties analogous to the Tarasoff approach of the US has been introduced to the European courts with the further evolving of Osman being only a matter of time. For the moment though, no such duty exists.