"Issues of Confidentiality"

THE GENERAL LAW OF MEDICAL CONFIDENTIALITY

The limits of the obligation of confidentiality are essentially no different in medicine than in any other arena of human activity.

The law relating to confidentiality is presently evolving and it is fair to say that much remains to be decided. For these purposes it is sufficient to say that the law will, in certain circumstances, impose a duty upon the recipient of confidential information to maintain that confidence. That it may do so because of the contractual relations between the parties or by imposing a quasi-tortious duty is perhaps of little interest to practising psychiatrists. That the issue as to whether a Doctor is liable for negligent disclosure is undecided is perhaps of a little more interest, as is the fact that you might be liable for personal injuries sustained by a patient from disclosure of his medical records under the provisions of the Data Protection Act. You might however wish to consider the arrangements you have for storing and transporting patient’s medical records. Negligent breach of confidence will probably be held to be actionable.

[Police case of Swinney v The Chief Constable of Northumbria Police].

In essence for the law to impose a duty of confidentiality the following elements must be present :

(a) the information was confidential in nature and not a matter of public knowledge; and

(b)the information was entrusted to another person in circumstances which imposed an obligation on that person not to use or disclose the information without the consent of the party giving the information; and

(c)it is in the public interest to protect the confidentiality of the information.

There is no doubt that private and personal information passed to a psychiatrist by a patient in the course of a consultation comes within this and the law will impose a "duty of confidentiality", breach of which will potentially give rise to an action for damages and/or an injunction to restrain further breaches.

A Doctor will be liable for damages for breach of confidence and could be injuncted from making further disclosure. In the case of psychiatrists this could probably include damages for personal injury, for instance on the basis that the breach had so undermined the patient’s trust in the medical profession that they could no longer receive effective psychiatric treatment, and would also include damages for upset and distress.

Disciplinary action before the GMC could obviously be a consequence. Presumably bona fide errors of judgment would be dealt with by way of guidance and it would only be in the unlikely event of a deliberate breach, for example disclosure to the press for money, which would lead to the more draconian sanctions.

From earliest times the importance of the confidence of the doctor-patient relationship has been recognised. The Hippocratic Oath states:

"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."

The Declaration of Geneva (as amended in Sydney, 1968) contains the affirmation:

"I will respect the secrets which are confided in me, even after the patient has died."

THE EUROPEAN CONVENTION OF HUMAN RIGHTS, ARTICLE 8

Article 8(1) provides that:

"Everyone has the right to respect for his private and family life, his home and family life".

Bingham LJ in Egdell (supra) stated that this was wide enough to cover the disclosure of information subject to obligations of professional secrecy.

Article 8(2) states:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom or others."

The BMA Handbook of Medical Ethics states that:

"..a doctor is responsible to the patient or person with whom he is in a professional relationship for the security and confidentiality of information given to him..."

Detailed guidance is given in by the General Medical Council (GMC) in its "Bluebook": "Good medical Practice."

Requiring Doctors to "respect patient’s privacy and dignity" and to "treat information about patients as confidential. If in exceptional circumstances you feel you should pass on information without the patient’s consent, or against the patient’s wishes, you should follow our guidance on confidentiality and be prepared to justify your decision."

Most important is the GMC’s publication : "Confidentiality" which provides :

"Patients have a right to expect you will not disclose any personal information which you learn in the course of your professional duties, unless they give permission."

The Doctor is responsible for ensuring the confidentiality is protected against improper disclosure when it is disposed of, stored, transmitted or received. When a patient consents to disclosure the Doctor must ensure the patient understands what will be disclosed, the reason for disclosure and the likely consequences.

Doctors must respect patient’s requests that information should not be disclosed to third parties save in the exceptional circumstances discussed below. If you do make such disclosure you should only release as much information as necessary (and on a "need to know basis").

The courts regard the GMC's guidelines as practically co-extensive with and definitive of the obligations which the common law places upon medical practitioners. See for example W. v Egdell [1990] 1 All ER 835. . It is difficult to imagine cases where a court would condemn a practitioner for doing something which would be sanctioned by the GMC: It is only slightly more easy to think of examples where the GMC would condemn a practitioner for doing something for which the courts would not condemn him. This is primarily because of the Common Law's reluctance to condemn a professional for doing that which a responsible body of his colleagues would do, and is closely allied to the "Bolam" test in medical negligence cases.

As we shall many of the "exceptions" are inter-related.

May be express or implied consent. Parent can give consent on behalf of young child.

Disclosure should be on basis that recipient will maintain the confidence and be on a "need to know basis". Consent will often be implied, eg patient agrees to a referral for a specific treatment, or to your secretary for typing of reports, or to a solicitor instructed by the Patient.

"When assessing a patient on behalf of a third party (for example, an employer or insurance company) {the police/the court?} you must make sure, at the outset, that the patient is aware of the purpose of the assessment, of the obligation that the Doctor has towards the third party concerned, and that this may necessitate the disclosure of confidential information. You should undertake such assessments only with the patient’s written consent."

Obviously of potential relevance to some of the issues in the vignettes posed later.

In exceptional circumstances a doctor may consider it undesirable, for medical reasons, to seek a patient's consent to the disclosure of confidential information. In such cases information may be disclosed to a relative or some other person but only when the doctor is satisfied that it is necessary in the patient's best medical interests to do so.

One can well imagine this arising in the context of psychiatric cases, eg where members of a family have to be informed of patients condition, prognosis and such matters as symptoms to watch out for, but that obtaining such consent from a patient is either impossible or likely to have an adverse impact upon their condition.

It should be viewed as a "last resort provision" - and essentially the Doctor should ask himself whether the patient would have given his consent but for the impediment to seeking his consent. So that the provision is effectively based upon "implied"consent.

See also Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 - contraceptive case - where patient's impediment to consent was immaturity and consequent lack of insight into "own best interest".

Where a doctor believes that a patient may be the victim of physical or sexual abuse and the patient is not capable of giving or withholding consent to disclosure, the patient's medical interests are paramount and may require the doctor to disclose information to an appropriate person or authority. Allowable where it is necessary to prevent further harm to the patient.

These exceptional circumstances are ones which most Doctors, if time allowed, would want to discuss with a senior colleague or perhaps the GMC before acting upon. 

The Duty of Confidentiality survives the patient, though mute point as to who in law could maintain an action - the dead cannot sue for defamation.

In effect guidance is that you should seek consent of patient’s executor or close relative. Not hard to imagine difficult situations re : insurance companies and next of kin seeking information about circumstances before a death.

If it would be possible to identify the individual patient involved by the disclosure of information in any of these contexts, the individual must be told of this and told that they can at any stage withhold his consent to such disclosure.

If this consent is refused, and information is nonetheless disclosed which identifies the particular patient concerned by name, then notwithstanding the fact that the project has received the approval of a recognised committee, the disclosing doctor is likely to be at risk in proceedings seeking an injunction restraining further publication, but since detriment is probably a necessary element of the fully constituted tort of breach of confidence, an action in damages is unlikely to lie, since detriment is unlikely to be shown in medical research cases. It is submitted that if information about patients is disclosed in a form which makes it impossible for the patient to be identified by name, not even injunctive relief would be available.

"Disclosure may be necessary in the public interest where a failure to disclose information may expose the patient, or others, to risk of death or serious harm. In such cases you should disclose information promptly to an appropriate person or authority.

"Such circumstances may arise, for example, where :

"A patient continues to drive, against medical advice, when unfit to do so..."

"A colleague, who is also a patient, is placing patients at risk..."

"Disclosure is necessary for the prevention or detection of a serious crime."

This is by far the most controversial and problematic provision. In essence where a doctor has, by reason of his confidential professional relationship, come into possession of information which might assist the police in the detection or prevention of serious crime (which for these purposes will include serious violence, rape and child abuse), the doctor will almost certainly not be found liable in an action for breach of confidence.

Two examples to illustrate the Court's approach :

In W. v Egdell (supra), W., having being convicted of the manslaughter of five people and the wounding of two others, was ordered to be detained indefinitely in a secure psychiatric hospital. W. wanted to be released. He instructed solicitors, who commissioned a report from Dr. Egdell, a Consultant Psychiatrist. It was intended that, if favourable, this report would be presented to a mental health review tribunal. The report was not favourable to W. It stated that W. was a dangerous psychopath who had a morbid interest in explosives. W's solicitors withdrew the application to the mental health tribunal. They did not disclose the report to the tribunal or to the hospital where W. was detained. Dr. Egdell discovered that his report had not been disclosed. This worried him. Without seeking W's consent, he disclosed the report to the hospital and agreed that it should also be disclosed to the Home Secretary. Dr. Egdell's professional competence and good faith were not in doubt. W. sued Dr. Egdell for breach of confidence. The judge at first instance gave judgement for Dr. Egdell. W. appealed. The appeal was dismissed. The Court of Appeal were adamant that Dr. Egdell did owe W. a duty of confidence, but this duty was not absolute. There were two competing public interests - the interest of the public in having the principle of medical confidentiality upheld, and the interest of the public in being protected against potentially dangerous men such as W. The interest which W. was asserting was a public, not a private one. (He probably did have a private right in contract as well, since he will have paid Dr. Egdell for the report, but this was not relied upon). These public interests had to be balanced against one another. Balancing those interests in this case, the court concluded that Dr. Egdell had been justified in disclosing the report.

In R v Crozier [1988] 8 BMLR 128-136 Where C pleaded guilty to attempted murder of his sister (he had tried to run her down with a car and then had attacked her with an axe). He was examined in prison by Dr W who concluded he was sane and not affected by the Mental Health Act. However he regarded C as a danger to other members of his family and especially his sister. Sentence adjourned for Defence to obtain medical report. He was examined by Dr M who recommended a hospital order under section 37 with restrictions on discharge under section 41. Judge sentenced C to 9 years without knowledge of Dr M’s report. Dr M, who knew that Dr W had changed his mind and now concurred with his recommendation, attended Court shortly after sentence was passed and was so concerned he disclosed his report to prosecuting counsel. The Crown applied to vary sentence to the judge, disclosed Dr M’s report and at a later hearing Dr M gave evidence before the Judge in accordance with his report. Sentence was varied to a hospital order. Defence objected to disclosure of the report and relied on confidentiality. Court of Appeal upheld the varied sentence and, in effect, approved Dr M’s actions finding that the strong public interest in disclosure of Dr M’s views took precedence over the confidence he owed to the appellant.

A case going the other way is :

X v Y [1988] 2 All ER 648, in which the defendant reporter and newspaper were supplied by an employee or employees of the plaintiff health authority with information from hospital records which identified two doctors who were continuing in general practice despite having being diagnosed as HIV positive. The plaintiff sought an injunction restraining publication of the identity of the doctor. The defendants argued that the public interest in the publication of the doctors' names outweighed the acknowledged public interest in the maintenance of the confidentiality of medical records. Rose J. held that the public interest in preserving the confidentiality of such hospital records as those in issue here outweighed the public interest in the freedom of the press to publish such information, because if confidentiality were not maintained, victims of HIV may be deterred from seeking proper medical help. Free and informed public debate about HIV and AIDS (which it was acknowledged was in the public interest) would not be hampered by the non-publication of this confidential information.

There is also the new provision contained in the Crime and Disorder Act 1998 section 115 which provides :

(1) "Any person who, apart from this subsection, would not have power to disclose information -

(a) to a relevant authority; or

(b) to a person acting on behalf of such an authority,

shall have power to do so in any case where the disclosure is necessary or expedient for the purpose of any provision of this Act.

"Relevant authority" is defined as a Chief Constable, local authority, a probation committee, or a health authority.

Sort of provision that makes one despair of our legislators. Only came into force on 30^th of September 1998. Tempted to say I haven’t a clue what it means. If I tell you that Section 1 of the act creates the Orwellian "Anti-social behaviour orders" - requiring proof that a person over the age has 10 has behaved in a way likely to cause distress to another outside his family you will appreciate why I would hesitate to advise that reliance on section 115 would get you very far if your motivation was to expedite the obtaining of such an order.

A "confession" for these purposes can be taken to be a "statement adverse to interest" - eg one damaging to the defence of an individual.

The authorities are Smith (1979) 69 Cr. App. R. 378 - there is no rule of law which renders inadmissible statements made by a Defendant to his Doctor. (Defence automatism (sleeping walking), history given to Defence psychiatrist inconsistent with that account. Prosecution able to call psychiatrist to prove earlier account).

R v McDonald [1991] Crim. L.R. 122, confession by drug taker to psychiatrist who examined him re : fitness to plead, and R v Gayle [1994] Crim L.R. 679 Def examined by Doctor who told him not to tell her anything he did not want the police to hear. He gave her an untrue account of his whereabouts at time of attempted murder. Prosecution called her to prove Defendant had attempted to set up a false alibi. Court of Appeal held there was no automatic privilege for a statement made to a Doctor. Admissibility was a matter for the Judge's discretion.

The statutory provision most likely to arise for psychiatrists is The Misuse of Drugs (Notification of and Supply to Addicts) Regulations 1973 which requires a doctor who attends a person whom he has reasonable grounds to suspect is addicted to a drug in the schedule to the Regulations to give information about that person (including his name, address, sex, date of birth and National Insurance number) to the Home Office.

Where a statute requires "any person" to answer police questions, "any person" includes a doctor, and will include answering questions which will lead to disclosure of confidences.

Doctors, just like anybody else, have to disclose information about terrorist offences or treason.

Disclosure must be given where a doctor is directed to disclose information by virtue of an order of the court.

The GMC's latest guidance is contained in a statement entitled"HIV Infection and AIDS: The Ethical Considerations" dated 8 May 1988 and re-issued in April 1991 and June 1993. This asserts that disclosure of such information to third parties without the consent of the patient is permissible only "where the doctor judges that the failure to disclose would put the health of any of the health care team at serious risk ...or to safeguard [sexual partners] from a possibly fatal infection".

Toby Wynn

11 Kings Bench Walk and
3 Park Court
Park Cross Street
Leeds
LS 1 2QH

3^rd November 1998