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Confidentiality / Medical privacy is a long established role of medical ethics

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traceable to the Hippocratic Oath. The International Code of Medical Ethics sums
it up aptly that : all doctors should preserve absolute secrecy, regarding their
patients secrets of the confidence entrusted in them. This essay shall argue that
medical privacy is not an overrated value and its importance is demonstrated by
the protection afforded to it in English Law. Despite several examples stating that
the law is overrated and perhaps stretched too far, it will be contended that
these instances are justified and confined within reasonable limits. Nonetheless,
it is recognised that in some situations, it will be necessary to put claims of
confidentiality subordinate to the rights of others for the proper functioning of
society. This essay shall assert that although confidentiality is vital, it is
justifiable and practical to put it second to the protection of others from harm,
notably injury or disease.
Why is medical privacy so important?
There exists two main reasons for why medical privacy/ confidentiality is
important. Firstly the deontological reason is that the patient autonomy dictates
that respect should be given to patient wishes. Paula Case stated, that patient
autonomy is the bedrock of medical law, after enjoying primacy over the sanctity
of life. Therefore, patients should be able to have control over their personal
information. The Medical Research Council’s 2000 guidelines explained control
over patients information is important for patient’s ‘self respect’ security and
freedom of action. Furthermore, Raanan Gillon explains that there is a
teleological reason for maintaining medical privacy. Without assurances of
confidentiality, a patient is unlikely to be open and frank with their doctors,
hence compromising diagnosis and treatment. Gillon explains that wide regard to
transmittable diseases, the trust that the doctors will not tell that patients have
stigmatized diseases allows for doctors to educate and influence them on how to
prevent them from spreading. Therefore, medical privacy is cooperative not only
to ensure patient autonomy ( or informational autonomy as Case puts it), but
also to ensure effective medical treatment which is in the public interest.
How is medical privacy protected in English Law?
Obligations of confidentiality can arise in a number of ways. Example via
contracts, or professional guidelines (namely the General Medical Council 2009
guidelines, hereafter GMC ) Also, statutory provision can protect privacy, such as
the Abortion Regulations 1991 and the Human Fertilisation and Embryology Act
1990). The Data Protection Act 1998, s.2 € also indicates medical information is
to be processed justly and lawfully until the aim of protecting privacy, with
damages for distress being available under s.13
However the main manner in which an obligation of privacy arises is with the
equitable duty of confidence, reaffirmed in Seager v Copydex. In Coco v An
Clark Megarry J noted three requirements to establish a claim in a breach of
confidence:
1.The information has the necessary quality of confidentiality
2.It is imparted in circumstances which impact an obligation of confidentiality
3.It is used without authorisation to the detriment of the communicator

Baroness Hale . the obligation is confined within reasonable limits because the obligation weakens with the passage of time (GMC). this was rejected in Wainwright . Lord Keith in AG v Guardian Newspapers contended disclosure of private information was sufficient detriment and that it was unnecessary to show harm in any positive way. However. it was confirmed that the deceased representatives may enforce action for breach of confidence on the deceaseds’ behalf which may suggest it is overrated. substantial right to privacy in English Law. In Campbell. some may agree that Lord Griffith in AG v Guardian Newspapers was connect in arguing detriment had to be present to establish a claim. shows the principle is not overrated. Still the rationale behind it is that if patients knew privacy would be breached.determination has been intruded upon is sufficient harm enough to justify this One may also argue that medical privacy is overrated because GMC confirms obligations of confidentiality are maintained after death. evidence that confidentiality is not too tightly upheld On another note the fact that it is open to question (Egdell) whether patients can recover damages for distress. confirmed in Hunter v Mann and Egdell. In Bluck. Now. which is in their best interests. With regards to detriment.Gillick competent children and children under the s8 Family Law Reform Act 1969 suffer the consequences of Re R and Re W involving parents in treatments. One may argue that the fact no detriment has to be shown suggests medical privacy is overrated. Gillon argues iin the context of familial relationships. However. Article 8 rights to private life European Convention on Human Rights With the passing into force of the HRA 1998. once they are dead. medical privacy should not be so strictly protected to allow relatives to be involved in patient treatment. Also Jessica Berg argues that obligation posthumous is important to protect relatives interests as they may have their own identity to protect by keeping the deceaseds’ information private. they may be less open and frank. This was followed in X v Y . non. Art 8 is incorporated into common law. As the consequence is the principled basis of which notions are held has been broadened. Jackson. Besides. however rightly suggests not all patients have supportive families abd so confidentiality should be upheld to protect autonomy and allow patients to keep things secret from relatives for whatever reasons they choose to do so. Also. Asworth Society Hospital v MGN clarified that the doctor-patient relationship imparts an obligation of confidence.It is well settled that medical information is confidential in nature. They may also wish to keeo the original memory of the dead alive. the other case law suggests otherwise. breach of privacy decisions views avoid the autonomous decisions of individuals to control private information ( Douglas v Hello!). Lewis explained that this can be waivered in the name of public interests. Some would say that this goes too far because confidentiality means nothing to the dead. it symbolic harm that self. Furthermore. However. and in Bluds it was held the absence of detriment did notrun an action for breach. Despite Sedley J arguing that is now a free standing. one may contend it is overrated because it cannot be relaxed to involve relatives in decision making processes. P has to state the fact the Mental Capacity Acr 2005 permits relatives to participate in decisions of the incapacitated.

confidentiality is often over arched in the name of public interest as Schering Chemicals v Falkman .251 NHS Act 2006 explains confidentiality can be breached for essential NHS Activity. in reality. Art 8 (2) states that it is a qualified right to privacy is that it be breached legitimately in favour of say. whereby privacy could be seen as overrated. Required by the Law GMC clarifies that doctors may disclos patient information if statutory provisions permit them to. for example. by references to the exceptions to this rule Exceptions Confidentiality. GMC clarifies the disclosure is permissible in the name of investingating complaints of malpractice in practice. the best interests calculation is patient specific and neither explicitly or implicitly acknowledges the interests of immediate others or interests of the community. Also Art 10 freedom of expression often has to be balanced against Art 8 sometimes. Medical Research GMC confirms patient information can be needed for the likes of research and epidemiology and confirms identifiable information can be disclosed without consent if required by law. S. Public Interest Paula Case noted that in medical law.172 Road Traffic Act 1988 clarifies disclosure is necessary to identify risk of death or serious harm. However these are justifiable and practical for the functioning of society. it takes chunks out of it with the most legislative . necessary for improvement of health services.251 NHS Act 2006 . Additionally s. In Ash v McKennitt. it was held Art 8 and Art 10 will be balanced in order to identify the scope of the duty of confidentiality. . public safety etc. Therefore. despite patient objections to tackle malpractice and initiate disciplinary procedures. can be overridden by an array of exceptional circumstances. Lord Mustill. the Public Health ( Control of Disease )Act 1984 allows doctors to disclose records to prevent the spread of commercial diseases such as cholera and plague. Some may view this is evidence that medical privacy is overrated. Thus it is necessary for public health. it is vital for law enforcement. However Varoness Hale in Campbell argued that in the case of a public figure. rejected it as having no role in deciding treatment. protection of medical privacy has been broadened. not all information could be confidential. not which is damning evidence of untrustworthiness. Paula Case stated it was merely to dissuade people from being frank. Whilst the government states protection in the HRA. Therefore.asserted the law will be developed to incorporate Art 8 and in Ash v McKennit it was said that that Art 8 will be shoehorned into common law. (Hunter v Mann) Thus. Although Richards study suggests most patients would be concerned about this. s. In Bland. or for public interests. health. However. records were disclosed. despite being important. In X v Y . privacy will win is in H v Associated Newspapers and X v Y. However.

This is for the advancement of medicine. However a psychiatrist would not use for disclosing. the improvement of medical and protection from harm. Jackson argues paradoxically. To conclude. In the UK McLean and Mason argue that no such legal duty exists. Thus. Nonetheless the preservation of life in immediate dangerous circumstances sees a overriding interest and Ozman v UK suggests that the ECHR may impose this duty. Harris and Woods argue that if we want to reap the benefits of modern medicine. breaching confidentiality may increase risk in the situations as routine disclosre would dissuade people from relaxing psychiatric fantasies and seeking help. then being unrepresentative of the UK. . we should recognise our commemorative duty to participate in research. In Tarasoff. potential beneficiaries of medical research only face harm that is indirect and cumulative and non-immediate. a psychiatric patient had psychotic fantasies about a potential victim and it was held the psychiatrist under a duty to disclose this information to protect her. it is correct to argue with the view of Brom LJ in Source Informaties that medical privacy should be uncriminilised to accommodate medical research. Also Jennifer Burnell confirms that if consent was sought then the need would arise a ‘consent bias’ in data. detection and prosecution of a crime.Paula Case who notes how it may be impossible to put research under the public interest defence. In Egdell. Still for law enforcement. the advancement of medical . medical privacy is not overrated as it has solid deontological and teleological reasons for its adherence. information was disclosed about a dangerous psychiatric patient noticed he would not be released back into society where he would be a danger. it is justifiable to put it being a vital competing interest. In Egdell the defence required in immediate risk of serious harm. GMC also explains that patient information should be disclosed for prevention.