Chapter 2 - Confidentiality and access to information
Paul is a general practitioner working from a private practice in Harley Street. Amongst his patients are many other medical doctors and one of these, David (a surgeon at a London NHS hospital) has come to see him about the results of a blood test that was done recently. It transpires that David is HIV positive and Paul informs him of this finding. During the ensuing discussion it emerges that David has no intention of telling his HIV negative partner about the diagnosis and is likely to continue to have unprotected sex. He also rejects Paul's suggestion that David should inform his NHS trust of the diagnosis to ensure that either appropriate surgical protocols can be in place or that he might be transferred to a role in the hospital where his infection status does not pose an elevated risk to others.
Paul is enraged by both the callousness with which David is acting towards his partner and the unprofessional attitude he is displaying towards his employer and his patients. He considers contacting (a) David's partner, (b) his line manager at the NHS trust and maybe even (c) the local newspaper to prevent harm to others. He speaks to Marc and Simon who together often advise NHS hospitals in difficult scenarios. Marc is a solicitor and medical lawyer at the nearby hospital’s preferred firm, Rowlett McGuinness LLP, and Simon is an ethicist who coordinates a clinical ethics committee. Paul asks them for advice on how to proceed.
Marc starts by telling Paul that, as the case of Egdell (see p. 19) makes clear, he owes a professional duty of confidence to David and must thus justify disclosure. Simon adds that the special relationship of trust between a doctor and a patient also justifies an initial assumption that all information will be kept in strict confidence: David should be able to autonomously reach a decision about how his information is handled. In this case, therefore, because there is no statutory duty to disclose the information without explicit consent from David, Paul will have to show that it is in the public interest to do so. Simon agrees that exceptions to confidentiality must be possible in order to prevent harm to others in certain circumstances.
So Paul will have to demonstrate that there is a public interest in relation to each of the three disclosures that he wishes to make: with respect to David’s partner, Marc advises that the GMC guidance (p. 20) explicitly states that such a disclosure is permissible, and that the courts have been very reluctant to sanction doctors who follow guidelines. Simon also thinks that this is a situation where Paul will need to balance his obligation of confidence towards David against the possiblity of preventing serious harm to an innocent third party. Equally, David's line manager at the NHS Trust will have an interest in receiving the information so that the risk to patients may be minimised. However, both Marc and Simon agree that it is difficult to justifiy that it is in the public interest to inform the local newspaper - particularly since any subsequent story would be read widely – as held by the court in X v Y (p. 18) Marc also notes that David might take legal action via Article 8 of the European Convention on Human Rights and Fundamental Freedoms that provides a right to privacy. He says that the test for justifying disclosure should such a challenge be made – necessity and proportionality – are conceptually very similar to the test in English law in X v Y and Egdell, and the court would probably reach the same answer, and for the same reasons, with respect to each of the three disclosures. Marc therefore advises Paul that while he may be justified in disclosing David’s HIV+ status to David’s partner and the line manager at the NHS Trust, David would most likely be able to sue for damages – through both breach of privacy and a breach of confidence – if disclosure were made to the local newspaper. Simon feels that whilst it is possible to construct an ethical argument that the information ought to be kept confidential (for example in order to preserve public trust in the medical profession), this view would attract few supporters in the context of serious harm being done to identified individuals or a whole patient population. It is rather preferable here to prevent serious harm to others whilst diminishing David's ability to decide how information about him his handled.
- D. Beyleveld and E. Histed, ‘Betrayal of Confidence in the Court of Appeal’ (2000) 4 Medical Law International 277 http://mli.sagepub.com/content/4/3-4/277.full.pdf
- P. Case, ‘Confidence Matters: The Rise and Fall of Informational Autonomy in Medical Law’ (2003) 11(2) Medical Law Review 208 http://medlaw.oxfordjournals.org/content/11/2/208.full.pdf+html
- R. Gilbar, ‘Medical Confidentiality within the Family: The Doctor’s Duty Reconsidered’ (2004) 18(2) International Journal of Law, Policy and the Family 195 http://lawfam.oxfordjournals.org/content/18/2/195.full.pdf+html
- M. Taylor, ‘Health Research, Data Protection and the Public Interest in Notification’ (2011) 19(2) Medical Law Review 267 http://medlaw.oxfordjournals.org/content/19/2/267.full.pdf+html
- G. Niveau, S. Burkhardt and S. Chiesa, ‘Medical Confidentiality and the Competent Patient’ (2013) Journal of Medical Ethics, doi: 10.1136/medethics-2012-100947 http://jme.bmj.com/content/39/11/686.long
- M. Rothstein, ‘Is Deidentification Sufficient to Protect Health Privacy in Research?’ (2009) 10(9) American Journal of Bioethics 3 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3032399/
- A. Slowther, ‘Sharing Information in Health Care: The Nature and Limits of Confidentiality’ (2006) 1(2) Clinical Ethics 82 http://cet.sagepub.com/content/1/2/82.full.pdf