Law and Practise Surrounding the Obligation of Confidentiality Owed by a GP to his Patient - Case Study Example

Law and Practise surrounding the Obligation of Confidentiality owed by a GP to his patient I. Introduction The very idea of "doctor-patient confidentiality" goes back to the Roman Hippocratic oath that every doctor takes upon entering the medical profession. Note that the Oat of Hippocrates includes a promise that "Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret… "(Edelstein, L.1943). The origins of the obligation of confidentiality owed by a GP to his or her patient are therefore both an ethical and legal issue. Ethical in the sense that every medical professional is bound by the rules of ethics of the profession1, and legal in the sense that both statutory and common law in the United Kingdom provide rules regarding information shared in confidence (Medical Protection Society (Spring 2006). Throughout the practice of profession of a GP, he or she is bound to gather personal information regarding the patient. Medical records such as letters to and from other health professionals regarding the medical status of the patient, laboratory reports, hand-written clinical notes made by the GP during and after patient consultations, radiographs, telephone conversations with the patient and the likes all form part of the medical records of the patient and should be kept in confidence. However, before the obligation of confidentiality can arise, the following requisites must be satisfied. First, a bona-fide doctor-patient relationship must exist and that the information learned by the GP should arise from that doctor-patient relationship (Medical Protection Society (Spring 2006). We need to make a clear distinction between what information is within the doctor-patient privilege and what information is beyond the scope of the doctor-patient privilege. Such information may be embarrassing for the patient when made know to the public. If the patient is not assured with the confidentiality of information, he or she will be less likely to disclose important details about his or her health to the GP. These two principles are very important to preserve the good relationship between the GP and the patient. Confidentiality is one of the most important things that every GP has to consider in practicing his or her profession. The duty of confidence of the GP towards the patient hinges on two basic things, namely, the principle of respect for autonomy and the basic principles of the law that protects the privacy of the person. The duty of confidence between the patient and the GP arises when the patient discloses personal information to the GP under a reasonable assurance that such information shall be kept away from the public eye. We must understand that certain types of information that are disclosed during medical consultations or those findings made by the doctor about the medical status of the patient may prove to be embarrassing for the patient. Moreover, certain information generated during the consultation between the doctor and the patient may prove to be social destructive on the part of the patient. For instance, certain types of diseases carry with it some sort social stigma that when disclosed or made public may lead to alienation on the part of the patient. Given these circumstances, it is therefore very important that information shared between the patient and the GP should be kept confidential unless there are legal and compelling reasons that warrants for the disclosure of this information. II. Laws Affecting Doctor-patient relationship Some of the leading laws that promote the obligation of confidentiality by a GP to his or her patient are the The Human Rights Act (1998), The Data Protection Act (1998) and common law derived from cases decided by the English court. Article 8 of the Human Rights Act (1998) so provide that the right to private and family life, home and correspondence should be respected, thus every person is to enjoy a certain degree of confidentiality especially when dealing with personal information like medical records. On the other hand, the Data Protection Act (1998) so provide that personal data that are lawfully collected should only be used to the purpose over which it was collected and that such data should never be disclosed to other parties without the consent of the individual concerned unless there are some overriding legal reasons that requires the disclosure of such information. Aside from the general provisions of the law regarding the obligations of the GP to protect the privacy of his or her patients, there are also a number cases decided by the English courts that clearly outlines the confidentiality of information shared by the patient to a doctor. One of the recent cases brought to court that tested the provisions of the law regarding confidentiality of information is the case of Campbell v MGN Ltd (2004)2. According to ruling of this case, the duty of confidence arises whenever a person receives information which he or she ought to regard as confidential. A breach of such confidentiality brings about a right for redress through a court action. Note that in the case of Campbell v MGN Ltd (2004)3, the petitioner was treated for drug addiction and some information regarding her treatment was leaked to the media. The fact that such information was released without the consent of the petitioner and the fact that such information was personal made the breach an actionable wrong. According to the court, it does not matter that the petitioner here was a public figure and that she has been in the limelight for sometime. The fact that her medical problems are not supposed to be of public concern made the disclosure of actionable wrong. To further protect the rights of the patient to privacy, the GP is required only to keep the records of the patient for a certain period of time or as necessary. Moreover, any person who obtains the personal data of a patient without authorization shall be held accountable of breach of confidence and may be sued in court for tort. These provisions of the law are very relevant in protecting the right of the patient against breach of confidence on the part of the GP. On the other end, the GP cannot just disclose any information about his or her patient without the consent of that person. Breach of confidentiality on the part of the GP entitles the patient to sue the GP for breach of confidentiality. The assistant of the GP is also governed by the obligation of confidentiality (Medical Protection Society (Spring 2006). Whenever the assistant or any medical personnel of the GP is present during examination and become privy to the information given during this session, the assistant or personnel cannot divulge any of this information to any third persons. You see, under the law, the assistant of the GP falls under the category of "extension" or alter ego of the GP thus, he or she too is bound by the rules of confidentiality. The obligation of confidentiality does not only cover face to face interaction between the patient and the GP. According to the case of Barnett v Chelsea and Kensington Hospital Management Committee (1969)4, the court ruled that doctors who receive information from their patients over the phone and doctors who give advice to their patients over the phone are government by the same laws and principles that govern face to face interaction between doctors and patients. To bring an action against the GP for breach of confidence, the same rules of evidence also apply (see Lowns v Woods (1996)5 The fact that the relationship between the GP and the patient ceased does not negate the responsibility of the GP to keep the records of the patient confidential. Common law so provide that the duty to keep the records of the patient confidential subsist even after the formal doctor-patient relationship expired. Death does not extinguish the obligation of confidentiality of the GP towards his or her patient (see www.medicalprotection.org) If you take a closer look at the provisions of the law regarding the obligation of confidentiality of the GP towards the patient, we can say that the law may be bias towards the protection of the patient. Note that under the law, the waiver of confidentiality belongs to the patient. If the patient gives his or her express consent on the release or disclosure of his or her medical records, the GP cannot do otherwise. At the express instructions of the patient, the GP has to share the medical information of his or her patient. The waiver of confidentiality can also be done constructively. For instance, a patient can waive the confidentiality of information he or she gave to his or her GP by voluntarily testifying in court as to the nature of his medical condition. By voluntarily disclosing his or her medical condition to the court or any lawful authorities, the patient express opens up his or her medical records for scrutiny by the proper authorities. III. Legal Exemptions And Disclosure The obligation of confidentiality of the GP towards the patient is not absolute. There are instances when the GP will need to divulge patient information even without the patients consent provided that there are compelling reasons for such action. One of the most compelling reasons that can exempt the GP from the duty of confidentiality is the need to share information regarding the patient to help diagnose the condition of the patient. Sharing information between colleagues for the purpose of properly diagnosing the medical condition of the patient is a common medical practice (Medical Protection Society (Spring 2006). We must understand that healthcare is a shared responsibility thus is a GP cannot really deliver the best service to his or her patient without really sharing some relevant information about the patient with this or her colleagues. We have to understand that sharing of information is sometimes essential to save the life of the patient. Sharing information with patients about their own health and treatment is an essential part of good practice (BMA Annual Representative Meeting, Belfast, 1999). In practice, there are times when the GP needs to disclose some vital medical information about his or her patient to help the patient. Technically, sharing of information under this context does not amount to breach of confidentiality on the part of the GP. When it comes to laws and regulations governing confidentiality of information in the United Kingdom, although there are laws that protect the confidentiality of information shared between the patient and the GP, there are also laws that permit disclosure of confidential information. Some of these laws are the Public Health (Infectious Diseases) Regulations 1988; the Road Traffic Act 1988; Mental Health Act 1983; The Childrens Act and the Crime and Disorder Act 1998 allows the GP to disclose confidential information about his or her patient under limited circumstances. These laws are very important to promote the common good. Under the statutory notification system of the United Kingdom doctors are required to notify the proper officer or the local authority if they are presented with some serious and communicable diseases that are classified as "notifiable diseases". The purpose of this law is to prevent possible outbreaks and to control communicable diseases in certain parts of the country. At present, the disclosure of cases involving "notifiable diseases" is governed by the Public Health (Control of Disease) Act 1984 and Public Health (Infectious Diseases) Regulations 1988. While certain bodies like the HSE have both the common law and legal obligations to protect the confidentiality of patients information, other agencies of the government also have rights to demand the disclosure of certain medical records on legal grounds. Road Traffic Act 1988 and the Childrens Act and the Crime and Disorder Act 1998 are some of the laws that the police often use to extract medical information of an offender. Based on the provisions of these laws, the police may use the medical records of the patient to help detect and prevent crimes. (See Marcel v Commissioner of the Police of the Metropolis [1992]6 The GPs obligation of confidentiality towards the patient may be legally circumvented based on these circumstances. Clearly, the obligation of confidentiality of the GP towards the patient is not an absolute guarantee of the law nor is it an absolute ethical norm. There are certain circumstances during the course of the practice of the GP that warrants the disclosure of otherwise confidential information about the patient. Where the requisites of laws and norms are satisfied, the GP cannot be help liable for breach of confidentiality when he or she discloses some medical information about his or her client. References: 1. Barnett v Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428, [1968] 1 All ER 1068 (QBD) 2. Barnett v Chelsea and Kensington Hospital management Committee [1969] 1 QB 3. BMA Annual Representative Meeting, Belfast, 1999 4. Campbell v MGN Ltd [2004] A.C.457 5. Clerk & Lindsell on Torts, 19th edition (2006), Chapter 28, paragraphs 28-01 and 28-02 6. Department of Health (2002) Confidentiality: A Code of Practice for NHS Staff; (www.doh.gov.uk/ipu/confiden) 7. Edelstein, L, 1943. From The Hippocratic Oath: Text, Translation, and Interpretation, by Ludwig Edelstein. Johns Hopkins Press, Baltimore. 8. General Medical Council (2000) Confidentiality: Protecting and Providing Information; (www.gmc-uk.org) 9. http://www.bma.org.uk/ap.nsf/AttachmentsByTitle/PDFConfidentialitydisclosure/$FILE/Confidentiality.pdf 10. Information Commissioner (2002): use and disclosure of health data, guidance on the application of the Data Protection Act 1998; (www.informationcommissioner.gov.uk) 11. Lowns v Woods (1996) Aust Torts Reports 81-376 (NSWCA). 12. Marcel v Commissioner of the Police of the Metropolis [1992] 1 All ER 72) 13. Medical Protection Society (Spring 2006). Confidentiality http://www.medicalprotection.org/adx/aspx/adxGetMedia.aspx?DocID=697,111,108,99,22,11,Documents&MediaID=640&Filename=issue_5.pdf 14. Mental Health Act 1983 15. Public Health (Control of Disease) Act 1984 16. Public Health (Infectious Diseases) Regulations 1988 17. Road Traffic Act 1988 18. The Childrens Act and the Crime and Disorder Act 1998 19. The Data Protection Act (1998) 20. The Human Rights Act (1998) Read More