The Law on Confidentiality between a GP and His Patient - Case Study Example

MEDICAL LAW ASSIGNMENT Critically comment on the Law and Practise surrounding the Obligation of Confidentiality owed by a GP to his patient WORD LIMIT 2000 When examining the law on confidentiality between a GP and his patient it is necessary to study case law in this area to determine whether the principles are applied uniformly or whether there are exceptions when the confidentiality can be breached. In the case of Attorney General v Guardian (No2) 1988 it was stated that "A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others" It follows from the above that the relationship of doctor and patient would be encompassed under the above rule. It can therefore be anticipated that if the doctor should breach that confidentiality the patient would be entitled to take action against the doctor for the breach. Despite the general rule about confidentiality there are occasions when the doctor might be able to breach that confidentiality without facing legal action. Cases where doctors have been ordered to disclose the medical details of their patient occur where a judge decides that disclosure is in the public interest. One prime example when a judge refused to order disclosure on the grounds of public interest was the case of X v Y. In this case a newspaper was attempting to publish information about 2 doctors who were continuing to practice despite having contracted AIDS. In deciding whether disclosure should be ordered the judge stated "On the one hand, there are the public interests in having a free press and an informed public debate; on the other, it is in the public interest that actual or potential AIDS sufferers should be able to resort to hospitals without fear of this being revealed, that those owing duties of confidence in their employment should be loyal and should not disclose confidential matters and that, prima facie, no one should be allowed to use information extracted in breach of confidence from hospital records even if disclosure of the particular information may not give rise to immediately apparent harm" By contrast in the case of W v Edgell (1990) the judge decided that disclosure could be ordered if there was a threat of serious harm to the public if disclosure was not ordered. There are a number of occasions when the obligation of confidentiality can be dispensed with. It is obvious that such disclosure would be allowed if the patient agrees to the disclosure. This can frequently occur where the patient has been the victim of an assault and the police are seeking to adduce evidence of the injuries complained of. In these cases the police will ask the patient to sign a certificate agreeing to the release of medical information concerning their treatment following the attack. Statute can allow medical information to be disclosed as well as cases where it is in the public notice. Sometimes disclosure can be ordered on a need to know basis. Looking firstly at when a statute would dictate that disclosure must occur, one of the prime examples would be under the Road Traffic Act 1988. This Act makes it a requirement that anyone who holds information that might identify a driver has a duty to disclose the information. The Act makes no exceptions for medical professionals and so therefore such individuals would also have a duty to disclose. Certain illnesses are notifiable to a local authority under the Public Health (Control of Diseases) Act 1984. Under this Act doctors have a duty to notify the authority that a patient is suffering from one of the listed infectious diseases. Disclosure can be compelled under the Supreme Court Act 1981 for the medical records to be released in certain areas of litigation. Likewise a judge can compel a doctor to disclose medical records under the Police and Criminal Evidence Act 1984 if it is necessary for the investigation of a criminal offence. In the treatment of mental health confidentiality may be qualified such that the nearest relative of the patient has to be consulted before the patient can be admitted for treatment1. Similarly under the Mental Health (Patients in the Community) Act 1995 there is a requirement for the responsible medical officer to consult with the patient’s nearest relative before a supervision application is made. Such patients are entitled to object to the consultation however a responsible medical officer can overall this objection if the "patient has a propensity to violent or dangerous behaviour towards others". Access to health records legislation by a third party can allow access to be refused to protect the confidentiality of the informants of the doctor2. In cases where the public interest needs to be served the confidentiality between the doctor and the patient can be overruled. In W v Edgell (1990) mentioned above the court used the public interest argument to order disclosure stating "Rarely, disclosure may be justified on the ground that it is in the public interest which, in certain circumstances such as, for example, investigation by the police of a grave or very serious crime, might override the doctors duty to maintain his patients confidence" In this case Dr Edgell had been instructed by the solicitor’s representing the patient to conduct an appraisal of the mental health of the patient with a view to applying for the patient to be released into the community. In the opinion of Edgell the patient posed a greater risk to the public then the responsible medical officer had highlighted. The solicitors for the patient decided to withdraw their request for the appraisal by Edgell but because Edgell was worried about the potential dangerousness of the patient the report was made available to the hospital authority that was responsible for the detention of the patient. The patient’s legal representatives attempted to prevent the report from being distributed but the judge overrode this stating that disclosure was in the public interest as the patient posed a serious risk to others. In the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (1996) the public interest definition to identify when confidential information may be disclosed without the consent of the patient was widened. In the 1996 publication it stated that "The public interest means the interests of an individual, or groups of individuals or of society as a whole, and would, for example, cover matters such as serious crime, child abuse, drug trafficking or other activities which place others at serious risk" Toulson and Phipps (1996) made the observation that “In general, a patient who consults a doctor impliedly consents to the doctor disclosing such information about the patient to other appropriately skilled staff (whether by sending a sample for analysis or otherwise) as may be necessary to enable the doctor to decide how best to perform the three phases of diagnosis, advice and treatment" The above demonstrates how confidentiality can be breached on the principle of the ‘need to know’. It is generally held that in such circumstances there is an implied consent that the patient is allowing disclosure of their medical history in order to receive the correct treatment for their condition. In a publication by the Department of Health (1996) it was assumed that staff of other agencies would be entitled to view the personal information of the patient in order to ensure they received the appropriate treatment. The ‘need to know’ principle is slightly more difficult when dealing with patients with mental illnesses. There is no specific list of persons who might be regarded as ‘needing to know’ and there is also difficulty in deciding which information is relevant for disclosure purposes. When dealing with children the Department of Health (1996) made the observation that "In child protection cases the overriding principle is to secure the best interests of the child. Therefore, if a health professional (or other member of staff) has knowledge of abuse or neglect it will be necessary to share this with others on a strictly controlled basis so that decisions relating to the childs welfare can be taken in the light of all relevant information" This notion was adopted in the case of Re G (A minor) (Social worker: disclosure) (1996) where the court held that disclosure of suspected child abuse was in the best interests of the child and ought to be disclosed to protect the child from the risk of future harm. This principle has been adopted by the General Medical Council in respect of the disclosure of medical records of children suspected of being abused. There is no statutory obligation under the Children Act 1989 to disclose such information; however the best interest’s policy in the Act has in many cases been interpreted to include such disclosure in order to protect the child from further harm. In some instances disclosure of information relating to the care of children can only withheld under the principle of public interest immunity. In such cases the courts would have to make an application to the relevant authorities in order to override the public interest immunity. It can be concluded from the above that although the doctor has a duty to maintain the confidentiality between themselves and their patients there are occasions when the courts can order a breach of that confidentiality. Doctors can also have a statutory duty in some instances to disclose the medical condition of their patient. Where a doctor is not under a statutory obligation and no court order has been made legal action can be taken against the doctor if he discloses confidential information surrounding the patient. As mentioned above there are special circumstances when disclosure is essential in the public interest. In these cases any action brought by the patient in respect of the disclosure is unlikely to be successful. References Breach of Confidence (1981) (Law Com No 110) (Cmnd 8388) British Medical Association (1993) Medical Ethics Today: Its Practice and Philosophy. London: BMA. Department of Health (1996) Protection and Use of Patient Information. Guidance from the Department of Health. HSG 96/ 18& Lassi. 96/5. London: Department of Health. General Medical Council (1995) Confidentiality. Duties of a Doctor. London: General Medical Council. Mason & McCall Smith, Law and Medical Ethics, 5th Ed, 1999, Butterworths Toulson, R. G. & Phipps, C. M. (1996) Confidentiality. London: Sweet and Maxwell. United Kingdom Central Council for Nursing, Midwifery and Health Visiting (1996) Guidelines for Professional Practice. London: United Kingdom Central Council for Nursing, Midwifery and Health Visiting. A.-G. v Guardian (No. 2) (1988), 3 All ER, 658. W. v Egdell (1990) l All ER, 835. X. v. Y. (1988) l All ER, 660. Re G. (a minor) (social worker: disclosure) (1996) l WLR,1407. Read More