ConfidentialityED HOROWICZ

Objectives

To define confidentiality. Understand the legal obligations relating to

confidentiality. Understand the circumstances in which a breach of

confidentiality is justified under English law. Understand your professional responsibilities and

obligations under confidentiality.

What does confidentiality mean?

Put simply confidentiality means to ‘trust wholly’. Confidentiality has long been regarded as a

fundamental ethical obligation, recognised from the Hippocratic Oath.

“ Whatever, in connection with my professional practice, or not in connection with it, I see or hear in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.”

Confidentiality Healthcare professions regard confidentiality as of the upmost

importance and requires that unauthorised third parties do not acquire confidential information relating to patients without the patient’s consent.

English law protects legally recognises a person’s right to medical confidentiality and protects this under;

Common Law, The Human Rights Act 1998, The Data Protection Act 1998 Specific healthcare legislation such as the National Health

Service Act 2006 and the Health Protection (Notification) Regulations 2010.

Common Law The common law applies to civil claims for breach of

confidence. In W v Egdell [1990] confidential information could be

disclosed to appropriate professionals, in the public interest, provided that the risk is real and that it involves the danger of physical harm to the public.

Confidence is also not dependent upon being in a confidential relationship.

In Campbell V MGM [2004] the court held that the duty of confidentiality will arise whenever a person receives information that they know or should know is confidential. E.g. finding medical notes.

The Data Protection Act 1998

Enacted over concern that existing common law did not sufficiently protect confidential personal information.

Section 2 (e) classifies medical records as sensitive personal data.

Specifically section 68 (2) defines medical information as any record which;

‘a) consists of information relating to the physical and mental health or condition of an individual and,b) Has been made by or on behalf of a health professional in connection with the care of an individual’. Applies only to the living!

Data Protection Act 1998 Data can only be released or ‘processed’ when; The patient consents. When it is necessary to protect the vital interests of the

patient. When the court demands it. When the data controller (the trust) needs the information for

medical purposes (preventative medicine, medical diagnosis, medical research and the provision of treatment), importantly this must be undertaken by a healthcare professional or a person owing the same duty of confidentiality to such information.

It is in the public interest. The Act does provide remedies to those who have suffered

damage as a result of breach in confidentiality such as; the halting of any data processing, compensation or that data is amended.

The Human Rights Act 1998

Article 10: The Freedom of Expression provides that ;

‘ Everyone shall have the right to freedom of expression. The exercise of these freedoms may be subject to restriction; conditions or penalties which are described in law... For the protection of reputation of others, for preventing the disclosure of information received in confidence…’

The Human Rights Act 1998

Article 8: Right to Respect for Private and Family Life.

Can only be overridden in interests of national security, public safety, economic well-being, prevention of crime, protection of health or morals and protection of the rights and freedoms of others.

Campbell v MGM [2004]

Breaching Confidentiality There are circumstances where confidentiality may be breached

but also circumstances where confidentiality must be breached. Legal obligation to breach; Health and Social Care Act 2012, in circumstances of infection or

contamination of disease that presents or could present significant harm to human health. Consider recent Ebola cases.

Safeguarding children following recent government guidelines. If giving evidence to a court, although only to the extent

necessary. To answer police questions relating to a serious offence or

suspected terrorism. No professional protection to refuse to answer.

May Breach Confidentiality- Adults

When a patient has consented to information being shared with relatives.

If it is in the public interest and there is a risk of physical harm; such as mental health tribunals, where drugs beyond personal consumption are found, where infections such as HIV are likely to be contracted, where the patient is incompetent and where language barriers exist and require an interpreter, as a

person who cannot speak English is vulnerable by definition. However, this should be official for best practice, as the interpreter holds responsibilities to confidentiality.

May Breach Confidentiality- Children

Children are owed a duty of confidence . Young people between 16-18 are provided with this duty under

the Family Reform Act 1969. If a child is Gillick competent then advice and treatment may be

given if the criteria are satisfied. In R (Axon) v SoS for Health [2006] the court affirmed the duty of confidence owed to a competent child.

Young children obviously have their information shared with their parent(s)/guardian as part of parental responsibilities under the Children’s Act 1989, importantly such information is protected from sharing with any other unauthorised person.

Professional Obligations

The Department of Health has a code of practice for confidentiality.

The GMC has specific guidance for confidentiality and confidentiality with respect to children.

The NMC and HCPC all have professional conduct standards for confidentiality.

Caldicott Report 1997 Recognised that each individual, each trust and the NHS as a corporate

entity has a duty to uphold confidentiality. 6 principles were set out; If confidential information is required, there should always be a

justification for this purpose. Patient-identifiable information should only be used when it is

absolutely necessary. When patient-identifiable information is required, only the minimum

necessary to achieve the desired purpose should be used. Access to patient-identifiable information should be on a strict need-to-

know basis. Everyone who has access to this information is under a duty of

confidence. Everyone should understand and comply with the law.

QUESTIONS????

References

Brazier.M. and Cave.E, 2011. Medicine, Patients and the Law. 5th Edition, London :LexisNexis / Penguin.

Department of Health, 2003. Confidentiality: NHS Code of Practice. London: Department of Health.

Department of Health, 2003. Confidentiality: NHS Code of Practice. Supplementary Guidelines: Public Interest Disclosures. London: Department of Health.

Fletcher.N, Holt.J, Brazier.M and Harris.J, 1995, Ethics, Law and Nursing. Manchester: Manchester University Press.

General Medical Council, 2006. Good Medical Practice. 2006, London: General Medical Council.

Herring.J, 2012. Medical Law and Ethics. 5th Edition, Oxford: Oxford University Press.

Pattinson.S, 2011. Medical Law and Ethics. 3rd Edition, London: Sweet and Maxwell.