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Confidentiality in the light of legal , ethical and human rights issues (European convention on human rights) Essay Example

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18Confidentiality

Confidentiality

UK Medical Law

Question 2: Dr Shah is a GP who has recently taken on a new patient, Richard. As part of the initial GP registration Richard underwent a range of sexual health investigations which showed that he had chlamydia. Dr Shah arranged for Richard to attend the genitourinary medicine clinic for treatment and recommended that Richard tell his wife about the diagnosis in order that she could also access tests and treatment. Richard said that he was not willing to do that and admitted that he had had a string of one night stands which he did not want his wife to find out about. Richard then made a comment that he always chose red-haired women because they reminded him of his wife, and that he felt angry with the women and with his wife for making him cheat and often felt like hurting them.

Advise Dr Shah as to the legal, ethical and Human Rights issues arising from
this scenario.

Introduction

The scenario of Dr. Shar and Richard is that of doctor’s duty of confidentiality to the patient’s medical information. There are various legal, ethical as well as human rights issues that arise from the scenario. This assessment is aimed at describing соnfidеntiаlity in the light of legal, еthiсаl and human rights issues using a case study of Dr. Shah and the Richard (Doctor and Patient) on disclosure of patient’s information.

Legal Issues

It is evident that confidentiality is the central to a trusting relationship between doctors and patients. The law stipulates various principles of confidentiality that must be followed by medical practitioners in relation to disclosure of confidential medical information about a patient1. Failure of following those principles, it warrants a breach of confidence to the patients.2The case between Coco v A N Clark (Engineers) Ltd [1969] RPC 41, ChD provides evidence of conditions that define a breach of confidence. The court held that, there are three elements that must be present for a breach of confidence case to succeed. They include; the information must be of confidential nature, the communication of information must have been done in circumstances that import an obligation of confidence and the use of information was unauthorized and detriment of the person communicating it. 3Doctors have a duty to ensure that patient’s information is kept confidential and only disclosed for the purpose of the patient’s care. Usually patients are not aware that their medical information can be disclosed for different purposes other than their care.

Therefore, it is required for the doctor to inform patients about specific disclosures of information that the patients would not reasonably expect. This involves seeking consent before the disclosure of confidential information. The law stipulates that, confidentiality is a duty which is important; however, it is not absolute. 4The doctor can disclose patient’s personal information under various conditions such as; if the information is required by the law, with the patient’s consent and when it is justified in the public interest. There are various rules that doctors must follow when disclosing information about a patient that are provided by the law. When disclosing confidential information, doctors should use information which is coded if it is practicable and if such a practice will serve the purpose. They should also be satisfied that, the patient already has access of the information that provides an explanation that there is a possibility of disclosing their personal medical information for the sake of their care, local clinical audit. The doctor must also have been satisfied that the patient has not objected the disclosure of the confidential information5.

Doctors are required by the law to get express consent from the patient if confidential information is to be disclosed for other uses other that their care and local clinical audit, unless such as a disclosure is required by the law or is justifiable in the public interest. Disclosures of information must be kept at minimum while observing all legal requirements that are relevant. After doctors are satisfied that confidential information should be disclosed, they are required to act quickly and disclose all information which is relevant. However, patients should be respected and helped to exercise their legal rights to be informed about the way in which their private information is going to be used and have access to copies of the health records6. Doctors are required by the law to protect patient’s information by making sure that any information which is personal about their patients that they hold is effectively protected all the time contrary to inappropriate disclosure. Doctors must follow the guideline provided by the UK health departments during their practice. Doctors are required to avoid incidences of improper disclosure of patient’s personal information7.

Disclosure of Information with Consent

Before disclosing any personal information about a patient, doctors are required to seek patient’s consent otherwise the doctors will be in breach of confidence. A breach of confidence arises when private information of a patient is disclosed to a third party by a doctor without the patient’s consent. The case between Ashworth Security Hospital v MGN [2001] 1 WLR 515 describes clearly breach of confidence by the hospital to the patient8. The hospital did not seek any consent from the patient before disclosing confidential information about the patient to the newspaper company that went ahead and published the medical records of the patient in their newspaper. Seeking the consent of a patient to the disclosure of information shows respect and it is considered as a way of good communication between patients and doctors. Failure of seeking consent to disclose private information is important because when the disclosure of such information is made by the doctor and the patient suffers harm, then the doctor will be liable. Importance of seeking consent is demonstrated in the case between R v. Dica [2004] Q.B. 1257 whereby the court held that, Dica was guilty of intentionally inflicting bodily harm to the two women by infecting the with HIV virus without their consent9.

There are various circumstances under which patients can give implied consent for the disclosure of confidential information including; sharing information with the health care team or other health care professionals who are providing care to the patient and for local clinical audit10. There are disclosures that require doctors to seek express consent from patients. Generally, the law requires that, doctors should seek the express consent from patients before disclosing any information that is identifiable for other purposes other than provision of patient’s care and local audit. Disclosure of private patient information other these purposes by doctors should meet some criteria.

Doctors must have satisfaction that, the patient is in possession of enough information concerning the scope, purpose as well as consequences that are likely to emanate from the disclosure and that the information which is relevant cannot be withheld. Doctors must obtain a written consent from the patient or another person who is in authority to act on the behalf of the patient before disclosing personal information11. Doctors are also required by the law to disclose information which they can substantiate, which is unbiased and relevant to the request. Doctors should give the patients copies of any report they have made about them before it is sent, unless the patient indicates that they do not want to see the report, the disclosure have a likeliness of causing a serious harm to the patient or someone else and the disclosure has a likeliness of revealing information about someone else who has not consented12. In the event that, the patient does not consent, or it is impracticable to obtain their consent, doctors are allowed to disclose confidential information if the law requires them to do that and if it is justifiable in the public interest as stipulated under the NHS Act 200613.

Disclosures in the Public Interest

Doctors are allowed by the law to disclose confidential information about a patient in the public interest. It is evident that, there is a public good which is clear in having a medical service which is confidential. The reason is that, people seek advice as well as treatment for gaining knowledge about; communicable diseases, societal benefits as a whole and the individual14. The law recognises confidential medical care as in the public interest. Never the less, there is likeliness of public interest in the disclosure of information for the purpose of protecting individual persons and the society from exposures to serious harm like communicable diseases and serious crime that will benefit the society as a whole. Therefore, personal information of a patient can be disclosed in the public interest with seeking consent from the patient, and in cases that are exceptional whereby patients are found to withhold consent.

Information can also be disclosed in cases where the benefits to the interests of the patient in keeping the information are outweighed by the public interest in disclosing that information15. Doctors are required to weigh the harms that may arise from failure of disclosing the information against the harm which is possible both the patient as well as to the trust which is overall trusting relationship that exists between the doctors and patients as a result if releasing that information. Before a doctor considers disclosing patient’s personal information, it is necessary to justify in the public interest. This means that, doctors must be satisfied that the information which is identifies is essential for the specific purpose or that they cannot annonymise that information. In such a case, the doctor must seek consent from the patient not unless it is impracticable to do co. Doctors should also inform patients that the disclosure of confidential information will be made in the public interest even if they have not sought any consent, not unless to do so is not practicable, would put the doctor and others at a risk of serious harm and would also prejudice the purpose of disclosing that information16. Doctors must also document the purpose of disclosing the confidential information without the consent of the patient and any steps that were taken to seek the consent of the patient to inform the patient about the disclosure and the doctors’ reasons for not informing the patient.

Disclosures to Protect Others

The law permits doctors to disclose patient’s personal information without their consent and is justifiable in the public interest and the failure of disclosing such information may expose others to risks of death and serious harm. However, doctors must seek consent from the patient to disclose personal information us it is practicable while considering any reasons that are given for refusal17. For example, the case for Dr. Shar and Richard is justifiable to pose risk to the wife if the doctor does not disclose the medical information of Richard to his wife. Disclosure of information by the doctor will be justifiable if the wife remain at risk of contracting the disease.

Additionally, doctors must be aware that, when a patient refuses to consent to the disclosure of information by the doctor and such refusal leaves others to risks that are serious to an extend that, those risks outweigh the need for maintaining confidentiality of the patient and also public interest, or whether it is not practicable or even safe for the doctor to seek consent, the law permits the doctor to disclose the information quickly to a person or authority which is appropriate18. Here, the doctor must inform the patient prior to disclosure of the information if it is practicable and safe to do so, even if the doctor intends to disclose the information without the patient’s consent. Doctors are also required by law to cooperate with requests for information which is relevant about a patient who may be in a situation of posing a risk of serious harm to others.

Ethical Issues

Doctor’s duty to maintain patient’s confidentiality is well outline in the professional code of conduct in the medical practice. The professional code of conduct requires that, regarding confidentiality, all patients have a right to expect that their confidential information is held in confidence by their doctors. Confidentiality is considered to be key to trust between patients and doctors19. Confidentiality principles within the modern medical practice are ethical. To sustain a trusting relationship between the doctor and patient, confidentiality must be maintained unless there is a justification for disclosure by an interest that prevails over the interest of the patient in confidentiality being maintained.

General Principles of Confidentiality

The general principles of confidentiality stipulate that, confidentiality is an important principle in the medical ethics and it is the basis of trust that exists between doctors and patients. Doctors should not disclose information about patient to others except in certain circumstances that are limited. Information about a patient remains confidential even after their death20. If a doctor is not clear whether the patient had consented to the disclosure of information after their death, then, they should determine how the disclosure of information will be of benefit or a cause of distress to others. They should also consider the effect of disclosing the information to the reputation of the patient as well as the purpose of the disclosure. Individual discretion in this case is limited by law. Doctors must ensure that, patient’s privacy is maintained as far as possible and at all times and accidental disclosure of information which is confidential doesn’t occur. Confidential information about a patient should be securely maintained by doctors while complying with the data protection regulation21.

Breach of Confidence and Justifications under the Professional Code of Conduct

The code of ethics for medicine puts confidentiality at its heart. Doctors have an ethical duty of confidentiality to their patients and breach of confidence is considered to be unethical. The Data Protection ACT 1998 and 2003 notes that, doctor’s breach of confidentiality is a serious professional misconduct22. However, there are various exceptions that the duty of confidentiality can be breached by doctors as stipulated in the professional code of conduct in the medical practice. Doctors can breach the duty of confidentiality when the law requires them to do so. This is a situation whereby the breach of confidentiality is lawful and the doctor does not need to be in fear of the legal proceedings23. However, this does not mean that, the breach is ethical. Breach of confidentiality is considered ethical when the disclosure of information is done to satisfy a statutory requirement. Patients must be informed of such disclosures when practicable but it is not a must for doctors to seek their consent.

Another situation when doctors can breach confidentiality is with the patient explicit consent to do so. It is ethical for doctors to disclose confidential information about a patient if they believe that it is to the best interests of the patient. Majorly, this condition arises whereby a patient does not have the capacity to make their own decisions. In such a situation, the doctor is allowed to do what is necessary for the purpose of promoting the welfare of the patient24.

Doctors can still breach confidentiality of patients without consent if they believe that the disclosure is in the interest of the public. When making a decision to disclose the information about the patient, it is necessary for the doctor to balance the public interest knowledge of the confidential information and the patient’s interest in keeping the information confidential25. A doctor must weigh between two choices including; are the public at risk which is significant if the doctor does not disclose the information? and if the doctors discloses the confidential information, what effect will it have on the doctor-patient relationship and will the patient become less likely to seek medical help as a result of lack of trust. The decision of the doctor will be based on weighing which of the two options has more significant risk. The public interest must outweigh the patient interest for the doctor to breach confidentiality rather than keeping the information confidential. The doctor should also satisfy that including the identifiable data is more necessary and the data cannot be practically be anonymised26. The doctor must seek consent from the patient before disclosing the information not unless it is not practicable.

Failure of the patient consenting, the doctor can disclose the information without their consent only when there is a serious risk to the patient or to others. 27When a patient having medical condition that puts other people at risk, for example, where a patient has a communicable disease like HIV, doctors should consult with the patient and discuss about minimising the risk to others. If the patient is reluctant in modifying their behaviour, then it is ethical for the doctor to breach confidentiality and disclose the information to a known sexual conduct. Doctors must discuss the need for informing their sexual partners and the options that are available for safe sex. They must persuade the patients to agree to the disclosure of the confidential information voluntarily28. Advice to patients should be given if they refuse the disclosure of the information, then, the doctor will be obliged to share it. They may breach confidentiality and inform the patient’s close sexual contact. Consent must be sought from the patient before disclosing the information29.

Human Rights Issues

Respecting the confidentiality of a patient has been an intrinsic part of the medical practice. Patient’s right to privacy is reinforced by confidentiality. Section 6 of the Human Rights Act 1998 provides that, private information of a patient should not be disclosed without their consent30. Disclosure of that information will be breach of confidence under the Human Rights Act. Breach of confidence is well demonstrated in the case between Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 whereby the court held that, violation of privacy was a violation of human rights and breach of confidence to the patient by the Mirror Group Newspapers Ltd31. However, justification of breach of confidentiality is provided in Article 8 of the European Convention on Human Rights. The Act provides an enhanced degree of protecting privacy of human rights depending on the sensitivity of the issue in question. Article 8 of the jurisdiction was prepared for the purpose if recognizing that private interests are the basis for confidentiality whereby common law should cover the full scope of privacy protection under this Article. However, the rights that are protected under Article 8 qualify by derogations and the disclosure of information which is confidential by doctors must be balanced against the interest of the public32.

Disclosing private information about a patient is considered as a human rights issue. Article 8 of the European Convention on Human Rights provides for the protection of confidential information about a patient by a doctor. It provides that, private life of a person must be protected. However, section 2 of the Article gives permission for breaching the rights of an individual if such a breach will be necessary in a society which is democratic and serves to the interests of the national security, public safety, for the well-being of the country, for the protection of rights as well as freedoms of others33. These conditions are considered to justify a breach of confidentiality under the European Convention on Human Rights. For the protection of rights and freedoms of others, a breach of confidentiality is necessary in the case of Dr, Shar and Richard. This means that, this breach is necessary for the purpose of protecting other people’s rights to health.

Section 2 of Article 8 of the European Convention on Human Rights provides a justification of breach of confidence whereby it is necessary to protect the interest of others34. This section refers to cases where a doctor identifies that there is a threat to other people if there is no disclosure of such information. Cases that have been identified as posing threat to others as described by the Department of Health include; murder, rape, child abuse, communicable diseases or any other case that poses serious harm that justifies a breach of confidence. The breach of confidence by doctors is justified when it is clear that failure to disclose that information will not serve to protect the rights of others.

Justification for breach of confidence is supported in the case between W v Edgell (1990). In this case, a doctor had prepared had prepared a report with the information of a patient who was being detained in a secured hospital35. In his duty, the doctor realized that the hospital was failing in appreciating the fact that the patient was dangerous. This made him to disclose the information to the hospital and thereby breaching confidence. The court held that, the risk posed by the patient to others in the hospital if the information was not disclosed was enough evidence to justify the breach of confidence. The presence of a risk of danger which is real and serious to the public justifies the breach36. The doctor was also justified since the disclosure of information was minimal as required only to the hospital and not in the press. If it was disclosed to the press, the doctor would be considered to have been in breach of his duty. This case is relevant in the case for Dr. Shaw, it is clear that failure of disclosing confidential information will pose risk of danger to others.

Liability for Breach of Confidentiality

When confidential information about a patient is disclosed without their consent and causes harm to patient, the patient has a right to raise an action against the doctor for malpractice, breach of duty and invasion of privacy among other torts. If the patient did consent to the disclosure, there is no breach that occurred. A breach of confidence was evident in the case between Douglas v Hello (2001) whereby the court held that, there was breach of confidence because Hello did not have consent from Ok magazine to publish photographs for which Ok magazine had been awarded the contract of taking those photographs. Hello invaded privacy by taking photographs in the wedding and publishing them unlawfully37.

Remedies against Breaches of Confidence

There are various remedies that can be awarded to patients as a result of breaches of confidence by doctors including; injunction, damages and declaration. Injunction is the main remedy that is available for a patient who is seeking to prevent breach of confidence which is unlawful38. The court can grant the patient an injunction to prevent any unlawful disclosure of private information by the doctor. Patients can also claim for damages or compensation in case of breach of confidence and the patient suffers an economic loss that was foreseeable by the doctor39. Declaration can be used by courts to declare the legal relationship that exists between the doctor and the patient. The court asserts that, certain information is confidential between the parties and should not be disclosed unlawful. Even though declarations are not enforceable, it is useful in cases of breach of confidence for the purpose of identifying that the information that was disclosed was confidential40.

Conclusion

Doctors have a duty of keeping patient’s information secretly and ensure that it remains confidential from other people at all times. Failure of keeping the information confidential, doctors will be in breach of confidence which is punishable by the law. However, there are circumstances with which the breach of confidentiality is justified under the law, under the professional conduct of medical practice an under human rights Act 1998. The main conditions that doctors are allowed to breach confidence is when the law requires them to do so, when in the public interest and with the express consent of the patient. Breach of confidence under these conditions is lawful and doctors cannot be liable for breach of duty or privacy. When the disclosure of confidential information about a patient is unlawful, the patient has a right to raise an action against the doctor for reach of confidence. The patient can be rewarded remedies such as; injunction, damages and declaration.

References

Ashworth Security Hospital v MGN [2001] 1 WLR 515

Brazier M. Medicine, Patients and the Law, 3rd Ed. Ch 3. London: Penguin 2003

British Medical Association, Confidentiality and Disclosure of Health Information Tool Kit, (2009).

Brooks, K, Medical Ethics and Law: Confidentiality, J NI Ethics Forum, (2006, 3: 146-153)

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

Coco -v- A N Clark (Engineers) Ltd; ChD 1968

Coggon J, Ignoring the Moral and Intellectual Shape of the Law After Bland: The Unintended Side Effect of a Sorry Compromise, Legal Studies, Vol.27, Iss.1, pp.110-125 (Cardiff Law School, 2007).

Data Protection Act 1998 

Data Protection Acts 1988 and 2003

Department of Health, Social Services and Public Safety, Good Management, Good Records, (2005)

Douglas v Hello (2001)

England and Wales High Court Archer v. Williams [2003] EWHC 1670, 2003

Finnis J, Case Comment Bland: Crossing the Rubicon? Law Quarterly Review, (Sweet & Maxwell and its Cotributers, University College, Oxford, 2013).

Freedom of Information Act 1997 section 28(6) Regulations 1999

General Medical Council (UK). Ethical guidance: Confidentiality, (2009).

General Medical Council (UK). Confidentiality: Protecting and Providing Information, (2000). 

The General Medical Council, Confidentiality: Disclosing Information about Serious Communicable Diseases, (2009).

GMC. Confidentiality: Protecting and Providing Information. (2004)

GMC. Good Medical Practice. (2001)

Grubb A, Med Law Rev, 8(1):115-20. (Spring; 2000).

Her Majesty’s Stationery Office (UK). The Data Protection Act (1998), (1998).

.

Herring J, Medical Law and Ethics, 3rd edn, (Oxford: Oxford University Press, 2010).

Her Majesty’s Stationery Office (UK). The Data Protection Act (1998). (1998).

Human Rights Act 1998

Laurie G, Recognizing the Right Not to Know: Conceptual, Professional, and Legal Implications, The Journal of Law, Medicine & Ethics,  ,Iss, 1 ,Vol, 42pp. 53–63, (Spring, 2014).

Laurie G, Genetic Privacy: A challenge to Medico-Legal Norms, (Cambridge: Cambridge University Press, 2002).

Law Commission Breach of Confidence Report No. 110 (Cmnd 838, 1981)

Mason K, & Laurie G, Mason and McCall Smith’s Law and Medical Ethics, 9th edn, (2013).

Mason K & Laurie G, Law and Medical Ethics, (Oxford: Oxford University Press, 2006).

Mason J, McCall Smith R, Laurie G, Law and Medical Ethics (London: Butterworths, 2002).
, 6th Ed. Ch 10.

Montgomery, J, Healthcare Law. Oxford: (Oxford University Press, 2002)

Morrison D, A Hollistic Approach to Clinical and Research Decision Making Lessons from the UK Organ Retention Scandals, Medical Law Review, Vol.45. (2005).

NHS Act 2006

R v. Dica [2004] Q.B. 1257

Strickland S, Law, Ethics and Medicine: Conscientious Objection in Medical Students: A Questionnaire Survey, J Med Ethics, Vol. 38, pp. 22-25 (2012).

W v Edgell (1990)

Weekly Law Reports Seager v. Copydex [1967] 1 WLR 923, 1967

Woolf L, Are the Courts Excessively Deferential to the Medical Profession?, Medical Law Review, Vol.9, Iss. 1, (Oxford University Press, 2001).

1 General Medical Council (UK). Ethical guidance: Confidentiality. (2009).

2
Coco -v- A N Clark (Engineers) Ltd; ChD 1968

3 Laurie G, Genetic Privacy: A challenge to Medico-Legal Norms, (Cambridge: Cambridge University Press, 2002)

4 The General Medical Council, Confidentiality: Disclosing Information about Serious Communicable Diseases, (2009).

5 Laurie G, Recognizing the Right Not to Know: Conceptual, Professional, and Legal Implications, The Journal of Law, Medicine & Ethics, , Iss, 1, Vol, 42pp. 53–63, (2014, Spring).

6 Data Protection Act 1998 

7 Department of Health, Social Services and Public Safety, Good Management, Good Records, (2005)

8 Ashworth Security Hospital v MGN [2001] 1 WLR 515

9 R v. Dica [2004] Q.B. 1257

10 General Medical Council (UK), Confidentiality: Protecting and Providing Information, (2000). 

11 Mason K, & Laurie G, Mason and McCall Smith’s Law and Medical Ethics, 9th edn, (2013).

12 Department for Work and Pensions, Healthcare professionals: Information from DWP, Government of UK, (2011).

13 NHS Act 2006

14 Her Majesty’s Stationery Office (UK). The Data Protection Act (1998), (1998).

15
Woolf L, Are the Courts Excessively Deferential to the Medical Profession?, Medical Law Review, Vol.9, Iss. 1, (Oxford University Press, 2001).

16
Morrison D, A Hollistic Approach to Clinical and Research Decision Making Lessons from the UK Organ Retention Scandals, Medical Law Review, Vol.45. (2005).

17 Coggon J, Ignoring the Moral and Intellectual Shape of the Law After Bland: The Unintended Side Effect of a Sorry Compromise, Legal Studies, Vol.27, Iss.1, pp.110-125 (Cardiff Law School, 2007).

18 Strickland S, Law, Ethics and Medicine: Conscientious Objection in Medical Students: A Questionnaire Survey, J Med Ethics, Vol. 38, pp. 22-25 (2012).

19 Finnis J, Case Comment Bland: Crossing the Rubicon? Law Quarterly Review, (Sweet & Maxwell and its Cotributers, University College, Oxford, 2013).

20 Mason K & Laurie G, Law and Medical Ethics, (Oxford: Oxford University Press, 2006).

21 Herring J, Medical Law and Ethics, 3rd edn, (Oxford: Oxford University Press, 2010).

22 Data Protection Acts 1988 and 2003

23
Freedom of Information Act 1997 section 28(6) Regulations 1999

24 British Medical Association, Confidentiality and Disclosure of Health Information Tool Kit, (2009).

25 Brooks K, Medical Ethics and Law: Confidentiality, J NI Ethics Forum, (2006, 3: 146-153)

26 Brazier M. Medicine, Patients and the Law, 3rd Ed. Ch 3. London: Penguin 2003

27
GMC. Confidentiality: Protecting and Providing Information. (2004)

28 GMC. Good Medical Practice. (2001)

29 Mason J, McCall Smith R, Laurie G, Law and Medical Ethics, 6th Ed. Ch 10.
(London: Butterworths, 2002).

30 Human Rights Act 1998

31 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

32 Montgomery J. Healthcare Law. Oxford: (Oxford University Press, 2002)

33 Mason K & Laurie G, Law and Medical Ethics, (Oxford: Oxford University Press, 2006).

34 Grubb, A, Med Law Rev. 8(1):115-20, (Spring; 2000)

35 W v Edgell (1990).

36 Montgomery, J, Healthcare Law, Oxford: (Oxford University Press, 2002)

37
Douglas v Hello (2001)

38 England and Wales High Court Archer v. Williams [2003] EWHC 1670, 2003

39 Weekly Law Reports Seager v. Copydex [1967] 1 WLR 923, 1967

40 Law Commission, Breach of Confidence Report No. 110 (Cmnd 838, 1981