In the case of AG v Guardian Newspapers. (No. 2) 23, Lord Goff provided a summary of the main tenets of the law of confidences. 24 The relationship between doctor and patient evidently requires that the criteria set in the law regarding this duty of confidence be adhered to. In the case of Hunter v Mann 25 this obligation is reinforced. 26 Discrepancies are thought to arise when a breach of the duty has to be made. Some have put forward the case that a doctor’s duty of confidence is ‘over-determined’ due to the fact that it derives from the way in which the information is obtained and the quality of the data.
Problems may come into lay if the information is not of a medical nature or if it has been given out in a situation other than an appointment between doctor and patient. Information obtained in a confidential student-teacher relationship would be protected. This would also be the case in completely different circumstances such as a relationship between cohabiting partners. There are no specific conditions that have to be fulfilled with regard to the marital status or sexual orientation of those in a personal domestic relationship.
The case of Stephens v Avery 27 concerned information about sexual conduct (i. e. a lesbian relationship). The case illustrated that the duty of confidentiality is equally applicable in such a case. Any information relating to the sexual behaviour of a patient must also be kept confidential, even if it does not fall under the category of ‘medical information’. This issue was raised yet again in R v Wilson 28. The facts of this case were that the defendant was charged under s. 47 of the Offences against the Person Act 1981 for actual bodily harm but appealed against this.
He was involved in an incident with his spouse in which he engraved his initials into her buttocks with a hot knife. She apparently fully consented to the act being performed. The case of R v Brown was the main authority which was thought to apply to this case, but difficulties faced the principles of medical confidentiality because the doctor had made a report of this when he carried out a medical examination on his patient. The police had then requested the information. If the patient had not granted the doctor permission to divulge this information to the police then this may be considered a breach of confidence.
The doctor would not be protected by the fact that the information was not exactly ‘medical’ because if one considers the principles of Stephens v Avery, the information would be considered confidential. Moreover, it was given during a medical appointment. In the case of R v Department of Health exp Source Informatics Ltd 29, The Court of Appeal were faced with the problem of whether information about a patient remained anonymised, amounted to a breach of the duty of confidence. The case involved a company who had attained information about unnamed patients from pharmacists and doctors.
The data collected was for the purpose of establishing a database which pharmaceutical companies could access. The revelation of anonymised patient data was still considered to be a breach of confidentiality by the Department of Health’ set guidelines. This was challenged by Source Informatics Ltd who subsequently applied for judicial review of the decision made by the judge of first instance who had ruled in the favour of the Department of Health. The Court of Appeal overturned the decision and ruled that the breach is at the ‘conscience’ of the person who revealed the information.
Fennel however advocates the view that although the Court of Appeal were right to state there was no breach, ‘the reason is that it is not against the patients’ interests’30 and is not concerned with the doctor who reveals the information acting bona fide or not. Under the Regulation of the NHS (Venereal Diseases) 1974 a further statutory justification for the assurance of confidence can be offered. 31 Kenney and Grubb32, claim that the ‘regulation was introduced so as to give statutory emphasis to the obligation of confidence in the area of medical practice…
‘ In relation to children and confidentiality, the leading authority is the case of Gillick v West Norfolk and Wisbech AHA1986 33. One of the main problems that doctors and academics alike are faced with is whether information in relation to a child should be made known to the parents of that individual if they do not want their parents to be notified? 34. Doctors therefore approach this dilemma in three different ways. 35 A doctor owes no duty of confidence to an adult who has always been incompetent.
If a status approach or an unconscionability approach were adopted however, then this would be different. There is however an ethical duty owed to an incompetent patient but disclosure may be necessary if it is in the best interest of the patient to do so. Those who have deceased are still owed a duty of confidence as the GMC maintains that any information about a dead person should remain confidential and the data should only be disclosed in certain circumstances. It is now well established that the duty of confidence is circumstantial as opposed to being absolute.
In order to put things into context, it is imperative that the additional conditions in which information may be divulged are considered. If the patients consent to the information being revealed then the data may be disclosed as appropriate. As already seen, the interests of the public are paramount when determining if information may be disclosed. Firstly, information is permitted to be disclosed so that the press can still have the freedom to publish/report information that are of a ‘legitimate concern’ to the public.
This was contested by the courts in the case of In the case of X v Y 36, however who felt that the press should not have freedom when it concerned the preservation of the anonymity of those patients being treated for AIDS. 37Another justification for a breach is to prevent a potential crime for example. 38 Several authorities exist in this are of breach of duty of confidentiality with many grounds for exposure being contested by the courts claiming that no ‘legitimate public interest’ was apparent. The courts have however stated that a disclosure simply ‘for the public good’ is enough. 39
When medical research is conducted, the GMC emphasise the importance of attaining the consent of those in which the research will be carried out. Information can however be disclosed for research purposes, but the anonymity of the subjects must be must be upheld. The provisions contained in legislation such as the Health Act 1999, s. 23 (2) the Heath and Social Care Act 2001, s. 60, the Road Traffic Act 1988, s. 172 and the Public Health (Control of Disease) Act 1984 permit disclosure to be made pending certain conditions. The proposals made by the Secretary of State to introduce new legislation are controversial to say the least.
40 Taking all things into consideration, It is evident that an absolute duty does not exist in relation to a doctor’s obligation to keep confidences. If a breach occurs which does not satisfy any of the conditions then an individual can sue for damages. 41The authorities in this area of Medical law suggest that the floodgates of litigation will inevitably be open to cases where a breach of confidence has arisen. Proposals for new legislation have come under great criticism with many advocating the view that it is now too easy for people to access ‘confidential’ information.
The circulation of information and the access to data on the Internet for example illustrates how easy the public can obtain information, which is of a confidential nature. The question which should really be posed is should the obligation of confidence be subject to conditions or should it be a duty which can only be breached in exceptional life and death circumstances? However farfetched this may seem, it appears that the limitless grounds for breaching confidence has given rise to numerous breaches by the media for example who many argue have abused this freedom.