Abstract
The right of the patient to confidentiality on the part of the doctor is fundamentally important. The patient often reveals personal, intimate and sensitive matters to the doctor. Trust is an essential element in the relationship. Without trust, the patient may feel inhibited, reluctant or unwilling to talk with candour, a situation which could damage the patient–doctor relationship and impede diagnosis and treatment and recovery, generally. Personal privacy is much treasured in our culturally reticent society. Privacy is recognised as a human right in the European Convention on Human Rights article 8, subject to exceptions.
The medical and other information coming to the attention of the doctor will inevitably become known to his supporting colleagues and staff, and in the modern hospital setting the patient may well be passed from doctor to doctor, from medical team to medical team and within the supporting administration handled by an army of administrators. All are subject to the confidentiality. The principle is recognised by the Data Protection Act 1998; though the Act specifies a list of exemptions where a degree of disclosure is permitted, including national security, crime and taxation, health, education and social work (s 30), regulatory activity, journalism, literature and art, and research, history and statistics (part IV). Digitalisation has opened up information to an extensive audience.
Notification
In the interests of public safety, there has long been a duty on the doctor to notify the appropriate local authority of specified diseases and contaminants. 1
There is a variety of situations whereby statute and statutory instrument disclosure may be required from the doctor:
Human Fertilisation and Embryology Authority
The Human Fertilisation and Embryology Authority is the statutory authority with responsibility for licensing artificial insemination clinics, in which the doctors operate subject to the normal confidentiality rules. The Human Fertilisation and Embryology Authority is entitled to impose a wide range of conditions and to call for information even in breach of confidentiality, but in practice is interested in the efficiency and effectiveness of the clinics and any medical matters of general concern. 4
Abortion
The doctor involved in abortion must notify the Chief Medical Officer acting on behalf of the Secretary of State for Health but otherwise remains under a duty of confidence to the patient. 5
Terrorism
As with any other person, a doctor who has reason to know or suspect another person, such as a patient, of engaging in terrorism must report the matter to the police. 6 A case for criminally obstructing the police could be made out for a refusal to assist the police. 7
Legal requirement to disclose the identity of the driver
The patient was involved in a road traffic accident. The drivers and the passengers were taken to the hospital. The patient told the doctor he had been driving. The police suspected the patient to have been one of the drivers and asked the doctor to identify her. He refused. As there is a statutory duty to disclose a known identity in such circumstances, the doctor was guilty of an offence, he was under a legal duty to co-operate and disclose, despite the normal duty of confidentiality, though he was required only to disclose identity. 8
Social workers
Difficulties have arisen over disclosure of medical records to social workers, who are not health professionals, for example, in child protection and care situations, and in the care of the patient, discharged from hospital. A greater awareness of the complementary roles of the two professions and the contemporary move towards the integration of health and social care are gradually overcoming the problem. Social workers as professionals respect the confidentiality of the client.
Employment
The employer may wish to know about the medical condition of the employee, for example regarding suitability for a particular job such as a driver or a pilot, or if the employee becomes seriously ill or is constantly absent through illness. Two recent examples in 2015 caught the public imagination. A German aeroplane pilot crashed his aeroplane into the mountains, apparently deliberately. A Scottish bin lorry driver lost consciousness, blacked out, lost control of the vehicle and six people died; he had suffered a similar loss of consciousness in a previous employment as a bus driver, but had not disclosed this. The contract of employment, therefore, normally requires the employee to consent to the disclosure of his medical records or to submit to an examination by a doctor nominated by the employer, the report to be made available to both employer and employee. 9 Life insurers act upon the same principle.
Driver
As a condition of holding a driving licence, a driver is required to disclose to the Driver Vehicle and Licensing Agency (DVLA) any adverse medical condition (a long list) and to submit to a medical examination if so required by the DVLA. Any person refused a licence may appeal to the magistrates’ court.
Child patient
The doctor treats a child, for example, a girl aged 13–15, and advises on contraception, sexually transmitted diseases and abortion. He tries to persuade the girl to allow him to consult her parents, but she refuses. He does not inform the parents. Provided that the girl is of sufficient understanding and maturity, and he follows the Department of Health (DoH) guidelines, he is bound by her wishes and is acting lawfully. 10
The Secretary of State has “control of patient information,” the power by regulation to require or regulate the processing of prescribed patient information for medical purposes, as he considers necessary or expedient in the interests of improving patient care or in the public interest (National Health Service Act 2006 s 251). Although the power is very wide and covers patients’ confidential information, the power must not be exercised if it would be reasonably practical to achieve the purpose in any other way; and the purpose of the power is really to facilitate the collection of statistics and information generally, rather than to pry into the medical affairs of individual patients. Any excessive or unreasonable use of the power would entitle judicial intervention in judicial review.
AIDS/HIV is not a notifiable condition. Doctors and health professionals themselves suffering from the condition have been able to obtain an injunction to stop the hospital giving the information to the press. Their interest in protecting their privacy outweighs the interests of a free press. 11 Knowingly to infect another person by sexual intercourse is a criminal offence. 12
The common law: Public interest
The duty of confidentiality is not absolute. Where the public interest outweighs the private interest of the patient, the doctor may be under a legal duty to make disclosure to an appropriate person or organisation; or he may have a discretion to make disclosure, so as to be legally protected whether he discloses or does not disclose. There may be a duty or there may be a power. The protection of the privilege of confidentiality ends where the public peril begins. 13 The proposition is simply stated; application in practice is complex. The doctor considering disclosure finds himself in a situation of conflict or dilemma. Keep to patient confidentiality and leave someone else at risk or break patient confidentiality and relieve someone else of risk. The easier and more straightforward course is simply to keep to confidentiality. But that may not accord with the law or medical ethics. The common law regarding public interest is notoriously vague and uncertain, having developed pragmatically over the years, case by case, reflecting the changing values in society.
If a doctor is minded to disclose a confidential matter without the knowledge and consent of the patient, or even with the knowledge of the patient, he should reflect carefully, perhaps discreetly put the problem to a senior colleague anonymising the patient, and also perhaps similarly approaching the Ethics Committee for a view. Following DoH and GMC and BMA advice and guidelines, such as the GMC Good Medical Practice and the DoH Guidance on Confidentiality, and the generally accepted practice in the profession, must virtually always be prudent. The GMC guidelines on confidentiality do recognise a duty to the wider community where there is a risk of death or serious harm, such as violence or child abuse.
Where there is no relevant statutory provision, the judge is faced with a balancing exercise, weighing the important and significant principle of individual patient confidentiality against the important and significant principle of public interest, and deciding in the particular case which principle outweighs the other, which principle should prevail. What is the severity of the risk? What is the likelihood of the risk materialising? Does protection of the public require disclosure? Public interest means genuine objective public interest, as distinguished from the idle curiosity and inquisitiveness of the media and the uninvolved general public.
The claimant patient killed several people, he suffered from paranoid schizophrenia, he was convicted of manslaughter by reason of diminished responsibility and detained in a secure hospital. Years later, he was being considered for release. His doctor considered him to be a danger to the public and unfit to be released. The patient refused to agree to a disclosure. Nonetheless, the doctor did disclose to the Secretary of State at DoH. In view of the nature of the crime and the need to protect the public from violence, and that the doctor had followed the DoH guidelines, the disclosure was lawful. 14
Duty to follow up
If the doctor is under a duty to disclose or he makes a lawful discretionary disclosure, he should disclose to the appropriate person or organisation and if need be follow up his disclosure in order to ensure that appropriate action is taken. In the baby Peter Connelly case several medical and social work people reported that the child was injured, everybody left action to everybody else, nobody did anything and the child died. 15 The duty to disclose may require an inherent or further duty to ensure, or to use best endeavours to ensure, that the disclosure is in fact acted upon.
The patient does not keep his word
The patient may say to the doctor that he will make disclosure to his family or employer or DVLA or whoever and then intentionally or forgetfully fail to do so. If disclosure by the doctor would have been proper and lawful, the doctor should ensure that the promise is kept or otherwise himself make the disclosure. However, reliance upon the responsible patient may be sufficient, whereas reliance upon the irresponsible or inadequate patient may clearly not be sufficient.
The parent is the patient. The child may or may not be a patient. The doctor becomes aware of injury or real threat of injury to the child. A disclosure by the doctor to the appropriate authority, such as the local authority or the DoH, but not the media, would be wholly justified and lawful. 16 Disclosure should be limited to the extent that it is strictly necessary.
The judge always has the power to order disclosure in litigation such as care proceedings, because the right of the patient to confidentiality is not an absolute legal right, unlike the legal professional privilege subsisting between client and solicitor. An undisclosed expert medical report can be ordered by the judge to be disclosed. 17
No duty to third party
Whatever the duty of the doctor to the patient, and whether he breaks that duty or not, there is no duty to a third party.
The father killed the mother, and was convicted of manslaughter by reason of diminished responsibility. The doctor treated him as his patient. The daughter was not a patient of the father’s doctor but was counselled by other medical staff in the hospital, as the family clearly faced problems. The doctor diagnosed the father with Huntingdon’s disease, a genetically transmissible disease. The doctor could not persuade the father to tell his daughter. The daughter became pregnant and bore a child. The daughter was diagnosed with the disease. The child had a 50% chance of having the disease but was too young to be tested and diagnosed. The daughter, having discovered the facts by accident, sued the doctor, claiming that had she been informed by the father or his doctor, she would not have become pregnant or would have had a termination. Her claim was based on negligence and breach of the human right to family life, the psychiatric damage suffered and the avoidable pregnancy and all its consequences. The judge held that she had no cause of action, no duty was owed to her, and it would not have been fair, just and reasonable to have imposed any such duty upon the doctor. 18 The common law duty of disclosure in the public interest did not apply in respect of an individual. The judge indicated that in principle disclosure to a third party might even be or could be injurious, for example, cause psychiatric injury. However, disclosure would not have injured the father but did in fact injure the daughter. Does not the public interest encompass protecting the family against injury caused unnecessarily by a cantankerous unreasonable father? The father was aware of the risk, to his own family, his own daughter and possible grandchild, and was advised accordingly by the doctor. Apparently, he thought that disclosure would lead to suicide or abortion on her part. In fact, had the doctor disclosed the genetic condition to the daughter, the daughter would have avoided the pregnancy and birth. The Guidelines from the RCP, the RC Path and the BSHG in Consent and Confidentiality in Genetic Practice: Guidance on Genetic Testing for Sharing of Genetic Information April 2006 recognised the possibility of disclosure of genetic risk in breach of confidentiality where unsuccessful attempts had been made to persuade the patient to disclose, colleagues had been consulted, the patient informed and disclosure made to an appropriate authority.
The decision has been poorly received in some quarters. The mental capacity of the father to consent or to refuse should have been in doubt in view of his history. His reasons for refusing consent to disclosure were unconvincing. The daughter suffered serious harm. She was not “any old third party”, she was his daughter and she was directly involved in family counselling arising out of his conduct, manslaughter. Although technically not the patient of the father’s doctor, she was in contact with him and his colleagues. There was proximity to the doctor, and foreseeability of harm if no disclosure, and harm resulted, all the constituents for a duty of care. If innovation in the law were necessary, a more compelling factual situation would be difficult to imagine. The wellbeing of an individual can be a matter of public interest. If one of us is injured, we are all diminished. If one of us is injured, who may be next?
In an analogous case, the patient was a young adult woman, severely depressed. She was a voluntary patient in the psychiatric hospital, though the intention was to compulsorily detain her if she were to seek to discharge herself. The doctor decided to release her into the care of her parents for the weekend, but did not tell the parents that she was a suicide risk and should not be left alone. The parents let her out of their home on her own for a walk in the park. She killed herself in the park. Her estate could claim against the doctor, but there was no duty to disclose her condition to the parents. 19 To make the doctor liable for the suicide of his patient would place an intolerable burden on the medical profession.
Whistle-blowing on colleagues
In view of the unfortunate hospital disasters in recent years, such as the Mid-Staffs Hospital, and the resultant public concern, Government has been urging the duty of candour upon the medical profession, namely the duty to whistle-blow upon medical colleagues who are seen not to be up to standard and to represent a threat to the safety of patients, i.e. the health and safety of any individual has been, is being or is likely to be endangered (Employment Rights Act 1996 Part IVA ss 43A–43L: Protected disclosures).
Effect of the death of the patient
Strictly speaking, the duty of confidentiality continues to exist after the death of the patient. The right of the patient continues in his estate. A breach of confidentiality could affect his reputation, copyright, insurance, taxation and testamentary dispositions; and also family sensitivities. The passage of time is likely to render such matters of increasingly less importance, and the damage from disclosure increasingly less. Dr Moran wrote about his deceased patient Winston Churchill, in The Struggle for Survival, and no action was taken. In France, there was much public interest in President Mitterand and his personal life after his death. 20 A public inquiry was set up by the Secretaries of State to look into the possible radiation effects upon those employed in the nuclear industry. Medical reports on deceased employees contained intimate and sensitive material. In view of the importance of the issue and the need to retain confidence in the NHS and nuclear industry, the judge found the balance in favour of limited disclosure, subject to safeguards. 21