A very important covenant between a patient and his physician is that of confidentiality. Such information should not be revealed to others and the patient is well within his rights to insist upon the maintenance of such secrecy. It can be construed that it is the duty of the medical professional to ensure that a patient’s confidential information is not disclosed to others (Ashworth Security Hospital v MGN Ltd).
Medical treatment has become a very complex process. Hitherto fore, the confidential information in respect of a patient would be known to just one doctor or at most a few medical professionals. The situation is totally different at present. A patient’s medical records have to be made available to an array of specialists and moreover, such particulars are being stored in electronic databases. In order to provide expert medical treatment it is essential to make such information available to a number of medical experts. Further, it is expected of a doctor that he should inform the authorities about any injury sustained due to violence. For instance, a doctor had failed to divulge the particulars of physical abuse that a patient had suffered to the police. This incident transpired in 1975 and the court exonerated this doctor in accordance with the extant medical standards at that juncture (C v A J Cairns).
With the advent of modern medical practices, it is very rare for a patient to be attended upon by just one doctor. The usual scenario is that a patient’s ailment is scrutinized by a team of specialists who then discuss and analyze the symptoms before arriving at a diagnosis. This tends to make the very concept of confidentiality ridiculous. Due to the spread of information sharing, the confidential records of a patient can be accessed by several medical professionals. This results in a further dilution of confidentiality.
Moreover, the National Health Service Trusts compel their managers to carefully examine their patients’ medical history so as to provide them with vastly improved medical facilities. Nevertheless, medical professionals should strive to conceal sensitive information of patients. The World Medical Association’s International Code of Medical Ethics requires doctors to conceal the private and personal information of their patients.
Violation of such confidentiality cannot be construed to have violated any single or specific piece of legislation; nevertheless a medical practitioner who indulges in such disclosure wilfully can be held liable for such acts as per the provisions of several pieces of legislation. If a doctor divulges the confidential particulars of a patient then it can be construed that there has been a breach of contract. Any medical professional can be sued for damages if the patient’s confidential information, which had been revealed in confidence by the latter to the former, had not been kept secret (X v Y). Further, the disclosure of such confidential information can lead to a lawsuit for damages as per the provisions of Tort law (Swinney v Chief Constable of the Northumbria Police).
If the nature of the information made known to others by a medical professional, results in damage to the reputation of the patient then defamation suit can be filed by the latter against the former. However, the information disclosed has to be fabricated if the suit has to succeed. In Wainwright v Home Office, the House of Lords opined that the tort of infringing privacy is absent in English tort law (Wainwright v Home Office).
The contract of maintaining confidentiality falls under the purview of equitable obligations and a patient, whose confidential particulars had been divulged by a doctor, can file a suit against such a medical professional according this principle. Such a suit will succeed only if the disclosed information was personal or intimate in nature (Stephens v Avery). Moreover, the nature of the disclosed information should have been such as would have been accorded confidentiality by any reasonable person. The British Medical Association has directed that even minor or trifling pieces of private information pertaining to patients have to be kept secret by medical professionals (Campbell v MGN).
The patient’s information can be revealed under those circumstances that impose an obligation of confidence and the courts have opined that in order to prove a violation of a confidence contract it is not required to establish that the parties were engaged in a confidential relationship (Wainwright v Home Office). Earlier to this case, it was considered that establishing a confidential relationship between the parties was necessary. Subsequently the courts have made it clear that a person with access to the information has to realize that such information has to be maintained as confidential (Campbell v MGN). Thus, the information provided by the patient should be of a confidential nature and conversations and statements made in group therapy sessions also fall under the scope of confidentiality (Venables v MGN).
The rule of confidence is also applicable in situations where a person has information regarding a patient and apprehends that such information could be of a confidential nature (Attorney General v Guardian Newspapers Ltd (No 2)). Thus, when a doctor tells his wife about the medical condition of a patient, she falls within the scope of the duty of confidence due to the fact that she must be aware that the information has to be kept secret.
It is important to establish that some person could be harmed due to the disclosure of private information pertaining to that person. However, disclosing information in anonymity or without reference to any specific person cannot be considered to be a breach of confidentiality (R v Department of Health exp Source Informatics Ltd). In the case of Campbell v MGN, their lordships accentuated the importance of the right to respect for private and family life under Article 8 of the European Convention on Human Rights, which was to be considered as the main support for the protection of confidentiality. Whenever, the confidentiality of information is protected it results in the honouring of the independence and self respect of citizens (Campbell v MGN).
In Jones v. Manchester Corporation, Lord Denning opined that hospital authorities were duty bound to exercise reasonable skill and care while treating patients, the moment a patient was admitted for treatment (Jones v. Manchester, 1952). The National Health Service (General Medical Services) Regulations 1992 (UK), states that if an individual’s name finds a place on the list of a general practitioner, then that person is deemed to be that doctor’s patient despite the fact that this patient had never been treated by the doctor (Jones, 1996).
A paternalistic approach to medical treatment results in a denial of rights to patients. This approach assumes that the patient has to accept the treatment decided upon and that the patient has to repose absolute and total trust in the doctor. In addition, paternalistic medical practice constitutes a far greater danger to the right to self determination by a patient in comparison to the harm caused to the welfare of the latter. Unlike discussions undertaken in the context of professional medical ethics, debates of an ethical but non – medical nature have been of the opinion that individuals could select their own destiny (Teff, 1994).
The realization seems to have finally dawned that it is essential to provide protection for and promote the rights of patients’. Consequently, the generally acknowledged opinion is that due to the need to accord respect for the dignity of a patient, it is essential to permit patients to take decisions. The change in attitude is because of the fact that it is the patient who will be directly affected by the treatment should be permitted to decide as to resolve in respect of undertaking or rejecting the suggested treatment. Moreover, patients have to be provided with the necessary information, so as to enable them to arrive at an informed decision regarding not only the treatment but also the existence of any other viable option (Teff, 1994).
In general, the privacy of a patient stands to be violated by the various kinds of medical mediations. The main objective of obtaining the approval of a patient, who understands the risks and benefits of a particular course of treatment, is to engender mutual trust betwixt the physician and the patient. Such shared trust and understanding is dependent on the obtention of suitable therapy from a medical professional in whom they have reposed their trust. This process of enhancing mutual trust is aided to a great extent if doctors inform their patients about the various options and then select that alternative that would best serve their interests. The adoption of such a process places heavy psychological demands on a doctor due to the fact that the doctor has to conform to the varying requirements of the patient (David, 2006).
The process of mutual trust is governed to a large extent by the patients’ decision taking capacity. The patients’ competence is essential for determining if their consent is to be obtained or not. On quite a few occasions treatment methods that are still in the experimental stage have to be adopted, at such times the patients’ consent would be of value only if they were capable of comprehending the advantages and disadvantages of such treatment methods (David, 2006).
The assessment of a patient’s decision making capacity comprises an integral part of communication between doctors and patients. In addition, capability has been deemed to be a legal concept, which encompasses communication skills, comprehension and the ability to remember and rationally utilize pertinent information to take decisions. The Adults with incapacity act permits decision making on behalf of those cannot decide on their own (Adults with Incapacity (Scotland) Act 2000). The recommendations of the Mental Capacity Bill are that decisions should be taken on behalf of persons who cannot decide of their own accord.
This Bill allows patients with all their faculties intact to make permanent power of attorneys that permit medical decisions to be taken in their stead if they subsequently become physically or mentally impaired. Such a power of attorney holder can either accept or refuse mental treatment on behalf of the patient. In addition, this Bill permits patients to indicate the treatment that they would prefer to avoid if at a later stage they are incapacitated (David, 2006).
The Human Rights Act guarantees a wide array of human rights that have as their objective the improvement and protection of human dignity and decision making that is overt (Human Rights Act 1998. Chapter 42). Patently, it would be unlawful for any patient or carer to compel doctors to indulge in treatment that contradicts their professional judgment. The legal requirement is that any treatment given to patients should not harm their interests (David, 2006).
The World Medical Association had directed that patient confidentiality had to be observed. In addition, the International Code of Medical Ethics has considered patient confidentiality as being absolutely essential. A major component of professional conduct in the United Kingdom is the principle of confidentiality and patients are entirely justified in expecting their confidential information being concealed by the physician who is treating them (Cordess, 2001).
The doctor patient relation comprises of a legal as well as a moral duty to keep the personal information of a patient confidential. In AG v Guardian, the court opined that if a person obtained knowledge that was to be kept confidential and if that person had known about this condition, then such a person is duty bound to conceal such information. The information received about a patient by a doctor during treatment has to be kept confidential by the doctor. The doctor is not obliged to conceal information that is already known to the public and which will not result in any harm to the patient on disclosure. Merely rendering the information devoid of personal details cannot exonerate a doctor, if such information due to its nature, permits the identification of the patient (Attorney General v Guardian Newspapers Ltd (No 2)).
In the Duncan case, the court held that the doctor – patient relation required the maintenance of confidentiality (Duncan v Medical Practitioners Disciplinary Committee , 1986). In the absence of such confidentiality, this relation would be ineffective as the patient might conceal sensitive information from the doctor. The court also observed that the doctor was duty bound to maintain secrecy (Cordess, 2001).
The General Medical Council has specified that a patient’s confidential information can be divulged if first, such disclosure is in the context of some judicial or statutory requirement; second , if the patient’s interests require such disclosure and third if the interests of the public would be harmed by keeping such information confidential. In this disclosure process, the main question to be answered is whether public interest would be benefited more than the patient would be harmed by such disclosure (Cordess, 2001).
The current system of health is complicated and has to cope up with demand that is far in excess if the available resources. Moreover, the allocated funds for this system are meagre and the applicable technology changes continually. There is a dearth of instructions regarding situations where a patient’s benefit is to the detriment of another patient. Due to the lack of moral goals it has become a daunting task to make available quality health care with accountability (Hall & Berenson, March 1998).
Certain values that pertain to the need of an individual are either personal, social or those that apply to social systems. Health care applies either to a region or a specific state and constitutes a value that applies to a social system. The health system clearly brings out the variation in interest that exists between the requirements of a patient and the capacity and duty of society to fulfil these needs. The allocation of resources entails a great deal of difficulty due to the insufficient resources available with the health authorities. However, such considerations are never taken cognizance of by patients. This difference of opinion is further aggravated by the disparities in knowledge and information and due to the limited options available to patients.
Adults with Incapacity (Scotland) Act 2000. (n.d.). © Crown Copyright 2000.
Ashworth Security Hospital v MGN Ltd, (2000) 1 WLR 515.
Attorney General v Guardian Newspapers Ltd (No 2), (1990) 1 AC 109.
C v A J Cairns, (2003) Lloyds Rep Med 90.
Campbell v MGN, (2004) UKHL 22.
Cordess, C. (2001). Confidentiality and Mental Health. Jessica Kingsley Publishers.
David, J. M. (2006). Patient – Centered Ethics and Communication at the End of Life. Radcliffe Publishing.
Duncan v Medical Practitioners Disciplinary Committee , 1 NZLR 513 (1986).
Hall, M. A., & Berenson, R. A. (March 1998). Ethical practice in managed care: a dose of realism. Annals of Intern Medicine , Vol. 128, Iss. 5. Pp. 395 – 402.
Human Rights Act 1998. Chapter 42. (n.d.). © Crown Copyright 1998.
Jones v. Manchester, 2 All ER 125 (House of Lords 1952).
Jones, M. (1996). Medical Negligence. London: Sweet & Maxwell. P. 36.
R v Department of Health exp Source Informatics Ltd, (2000) 1 All ER 786.
Stephens v Avery, (1988) 2 All ER 477.
Swinney v Chief Constable of the Northumbria Police, (1996) 3 All ER 449.
Teff, H. (1994). Reasonable Care: Legal Perspectives on the Doctor – patient Relationship. Oxford University Press. ISBN: 0198255780. P. 94.
Venables v MGN, (2001) 1 All ER 908.
Wainwright v Home Office, (2003) 3 WLR 1337.
X v Y, (1988) 2 All ER 49.