Health Confidentiality

Overview

Confidentiality is central to the relationship between a healthcare professional and patient. It is part of the Hippocratic Oath for doctors. It is essential to trust and confidence and underpins the relationship.

At common law, it has been said that, in common with other professional men, doctors are under a duty not to disclose, without the consent of their patient, information that the doctor has gained in his professional capacity, except in very exceptional circumstances.

The obligation to maintain confidence is both a legal and professional ethical requirement. It subsists at common law and under regulatory guidelines. It is supported by civil law principles.

Privacy, particularly in relation to matters affecting health and medicine, is guaranteed by the constitution in many contexts. The European Convention on Human Rights recognizes the right to respect for family and private life. There are exceptions where infringement is in accordance with law and necessary in a democratic society.

The disclosure of medical records by the parties may constitute a breach of the right to privacy under the constitution and under the European Convention on Human Rights. Disclosure may be justified where strictly necessary in accordance with those principles. At common law, disclosure of confidential information may be required by legal process. Disclosure may be permitted where consented to.

What is Confidential Information

What is or is not confidential depends on the nature of the information concerned. Facts of everyday life not relevant to healthcare or medical treatment may not be subject to confidence. At common law, confidentiality covers what a reasonable person in the shoes of the recipient would have realized upon reasonable grounds that the information was being given to him in confidence.

Typically, confidential information is such that its disclosure would be unconscionable or unfair.

A patient may consent to disclosure, but the person must have the capacity to give consent. The consent must be clear and unambiguous. Ideally, it should be recorded.

There may be implied consent to disclosure between medical professionals. This depends on the circumstances. Generally, information may be shared with the healthcare team and support staff.

Confidentiality belongs to the patient. The patient may waive confidentiality. The doctor may not waive it.

Not Privileged

Medical information is not subject to privilege in the same way as discussions with or disclosures to legal professionals or sacerdotal (priest or minister) confidentiality.

Where there is privilege, the client or penitent may not be required to disclose the information even under legal process. However, medical information that is confidential between a healthcare professional and a client may potentially be required to be disclosed in legal proceedings. A doctor may be ordered to disclose information relevant to proceedings notwithstanding that it would be the subject of confidentiality.

Doctors can be compelled to testify concerning matters that would otherwise be confidential. Medical records may be the subject of disclosure in legal proceedings.

If a person commences legal proceedings in relation to personal injuries, they may impliedly consent to the disclosure of records.

Exceptions to Duty

At common law, there are a number of exceptions to confidentiality between a healthcare professional and a patient:

• When the interests of the welfare of society require it.
• To prevent harm to another.
• When the operation of the legal system requires or justifies disclosure.
• When the disclosure is in the best interests of the patient, particularly if the person lacks capacity.

The exception should not be presumed. If disclosure  is to happen at all, it should be part of a process commencing with consent.

Consideration should be given to making an anonymized disclosure if required. If disclosure is required, it should be proportionate and the least amount should be given. If disclosure has been made without consent, the patient should be advised of the steps taken.

Court Order to Protect

The Civil Law (Miscellaneous Provisions) Act 2009 provides that where a person has a medical condition, the person may apply to the court for an order prohibiting the publication or broadcast of any matter relating to the proceedings which would be likely to identify the person as having the condition. The order may be made if the court is satisfied that:

• The relevant person has a medical condition.
• Identification of that person as having the condition would be likely to cause him undue stress.
• The making of the order would not be prejudicial to the interests of justice.

Policing and Public Interest

In principle, disclosure of information may be required by police authorities. Guidance suggests that it may be appropriate in a serious case or where a grave offense is concerned:

• For the prevention or detection of a crime, which would be seriously prejudiced or delayed without the disclosure.
• When the information is not available from another source.

Common law allows for the disclosure of information that would otherwise be subject to confidentiality where it is necessary in the public interest. There must be a strong and compelling public interest in disclosure. The disclosure should be no wider than necessary and made to the appropriate party.

Overriding Patient

In principle, it is possible for this duty of confidentiality to be lifted in the interests of the patient. This will be relatively unusual and restricted. This raises difficult questions as to how the person’s interests are best met.

Disclosure may be made to protect a minor in certain instances. There should be a clear overriding interest.

A further question is whether there is a duty or obligation to disclose information to prevent harm. This may be harm done to or by the patient. There have been relatively few cases on these issues in the jurisdiction.

Liability to Third Parties

In theory, a healthcare professional could be held liable to a third party where:

• There is a presence of serious potential harm posed to a third party.
• There is a serious likelihood of it occurring.
• The identity is known to the clinician.
• The clinician could have taken steps to notify the third party or taken some other effective step.

Medical Council guidelines extend the obligation to maintain confidentiality even after the death of the patient. However, from data protection and other perspectives, the interest in the protection of privacy after death is greatly reduced.

Whistleblowing

There is extensive legislation in relation to whistleblowing set out in separate articles,which cut across rights of confidentiality.

It allows for protected disclosures in certain specified circumstances. In particular, it may allow protected disclosure by a person working in health services where:

• The health or welfare of the person who is receiving a health or personal social service is or is likely to be at risk.
• The actions of any person employed by or on behalf of the party are posing or are likely to pose a risk to the health or welfare of the public.
• The relevant body or person has failed to comply with any legal obligation to which the person is subject in the performance of their functions.
• The conduct of the body or person employed is likely to lead to misuse or substantial waste of public funds.
• There is evidence that any matter falling within the previous headings is likely to be deliberately concealed or destroyed.