Confidentiality Professional obligation moral duty Hippocratic oath Whatever

Confidentiality • Professional obligation – moral duty – Hippocratic oath • Whatever I see or hear, professionally or privately, which ought not to be divulged, I will keep secret and tell no one. – Geneva Declaration • I WILL RESPECT the secrets which are confided in me, even after the patient has died – Professional guidelines • Codes of Ethics; GMC & BMA guidelines

Confidentiality • Ethical aspects • Deontological – autonomy – patient should control information about themselves • Utilitarian – Keeping confidences maximises happiness (utility) • Virtue ethics – faithfulness, maintain trust

Confidentiality • Justification for keeping confidences – privacy argument - ‘rights’- based argument • Universal Declaration of Human Rights • European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) – efficiency argument – public health -based • healthcare system requires patients to be open and honest – trust argument - fiduciary relationship • nature of relationship out of which confidentiality arise – autonomy argument • control over personal information

Confidentiality Nature of legal duty • General rights – Article 8 European Convention on Human Rights • Contract (tort) – private patients – implied term • Contract (employment) – NHS terms and conditions of service • Equity (tort of breach of confidence) – public policy • Negligence (tort) – professional standards (damage must be shown) • Statute law – various acts/regulations • Data Protection

Confidentiality Nature of legal duty Duty of confidence common law/equity – no right to privacy explicitly recognised in English law: privacy versus protecting confidence – specific equitable obligation developed by the courts “ … a duty of confidence arises where confidential information comes to the knowledge of a person in circumstances where he has notice, or is held to have agreed, that the information is confidential with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. ” Lord Goff AG v Guardian Newspapers (No 2) (1988)

Confidentiality Duty of confidence 3 pronged test • information confidential in nature • information imparted in circumstances that impose/confer obligation on confident to respect confidentiality* • confider must show cause for invoking help of court (e. g. detriment or public interest reason) – – Coco v AN Clarke (Engineers) Ltd (1969) RPC 41 AG v Guardian Newspapers (No 2) (1988) 3 All ER 545 X v Y (1988) 2 All ER 648 R v Department of Health, ex parte Source Informatics Ltd (1999)

Confidentiality Duty of confidence Doctor–patient relationship • explicitly recognised as one of the category of relationships protected by the equitable remedy of breach of confidence “ … in common with other professional men, for instance a priest …the doctor is under a duty not to disclose [voluntarily], without the consent of his patient, information which he, the doctor, has gained in his professional capacity” Boreham J Hunter v Mann (1974) QB 767 – X v Y (1988) 2 All ER 648 – W v Edgell (1990) 1 All ER 835 – R v Department of Health, ex parte Source Informatics Ltd (1999)

Confidentiality Duty of Confidence Statutory recognition National Health Service (Venereal Diseases) Regulations 1974 Abortion Regulations 1991 Human Fertilisation and Embryology Act 1991

Confidentiality Duty of Confidence Special cases – children • with capacity– obligation of confidence • without capacity– law requires ‘best interests’ approach – incompetent adults • law requires ‘best interests’ approach – deceased persons

Confidentiality Breach of confidence: • equitable remedy in tort of breach of confidence - injunction/damages • criminal sanctions for breach of statutory provisions Justifications for breaching confidentiality: – Consent – Public interest • freedom of the press • danger to health or safety of public or a third party • teaching, research and clinical audit – Statutory requirements – Court proceedings

Exceptions to Obligation for Confidentiality • patient threatens harm to self • patient threatens harm to others • when required by law: – communicable disease – occupational diseases – suspected abuse

Confidentiality in the NHS professional ethical codes professional guidelines NHS guidelines contract of employment Caldicott Guardians Statutes relating to patient information in health records Data Protection Act 1998 Access to Medical Reports 1988 Access to Health records Act 1990 Access to Personal Files Act 1987

Confidentiality in the NHS • Caldicott Committee’s Report on the Review of Patient. Identifiable Information, published in December 1997. • Health Service Circular (HSC 1999/012) appointment of Guardians: – an existing member of the management board of the organisation – a senior health professional – an individual with responsibility for promoting clinical governance • HSC 2000/009: Data Protection Act 1998: protection and use of patient information • The NHS Confidentiality Code of Practice Guidelines on the use and protection of patient information, November 2003.

Caldicott Principles • Caldicott Committee recommended that every flow of patient-identifiable information should be regularly justified and routinely tested against the principles developed in the Caldicott Report. – Principle 1 - Justify the purpose(s) for using confidential information – Principle 2 - Only use it when absolutely necessary – Principle 3 - Use the minimum that is required – Principle 4 - Access should be on a strict need-to-know basis – Principle 5 - Everyone must understand his or her responsibilities – Principle 6 - Understand comply with the law

Confidentiality in the NHS Breach of Confidence – possible consequences • complaint to the Information Commissioner for breach of the Data Protection Act 1998 • professional disciplinary proceedings (misconduct) • employer disciplinary proceeding (breach of contract of employment) • civil court action in tort of breach of confidence • criminal court action where breach of statute

Difficulties with maintaining confidentiality in the NHS • professional ‘need to know’ – other doctors, nurses, allied professions, students, etc. • non-professional ‘need to know’ – ward clerical/administrative staff, hospital staff, Trust, NHS agencies, etc. • communication risks verbal discussions fax/photocopy machine computer/electronic health records ‘celebrity/newsworthy’ patients telephone/answer machine bureaucracy

Special Problems in Confidentiality • • children adolescents psychiatric patients incompetent patients HIV status ‘celebrity’ patients professional colleagues genetic information