Kategorier: Alle - trust - records - confidentiality - consent

af Vicky Balmer 14 år siden

347

Group 4 Project Medicine and the Law

The interplay between medicine and the law involves complex considerations about patient confidentiality. On one hand, maintaining confidentiality is crucial for building trust, ensuring honest communication, and delivering effective healthcare.

Group 4 Project Medicine and the Law

Group 4 Project: Medicine and the Law - Confidentiality

Should the Doctor Tell?

Medical Records and Medical Research
Research

R v Department of Health ex p Source Informatics Ltd

shifted basis of the duty of cinfidentiality to that of the fairness of use.

no realistic possibility of patients identity being revealed

no breach

When can confidential patient information be processed?

monitoring and managing

infections

reactions

immunistaion

exposure

outbreaks

controlling and preventing spread of disease

regognising trends in diseases

Health Service (Control of Patient Information) Regulations 2002

only applies in England and Wales

Department of Health Confidentiality : NHS Code of Practice (2003) par 34

Is the disclosure of information for the good of the public?

Who can give permission for confidetntial record sto be used?

Secretary of State

approved by a regonised ethical commitee

Scotland

Privacy Advisory Commitee

England

Patient Information Advisory Group

Records

Consent to publish

C v C [1946]

patient or legal advisor

Healthcare proffesionals

Nursing and Midwifery Code of Professional Practice (2002)

patient has right to believe that the information given in confidence will not be released without their permission

Cornelius v De Taranto [2001]

Hunter v Mann [1974]

common law duty arises where relationship implies it

Patient access to their medical records

Denied access

Appeal to Information Commissioners Office

Human Rights Act 1998

Article 8

not an absolute right

state has an obligation to respect private and family lives

matter of entitlement

What are the restrictions?

MG v United Kingdom [2002]

request made by another on a persons behalf e.g. a parent for their child

if access would cause serious harm to persons physical or mental state

Data Protection (Subject Access Modification) (Health) Order 2000

Data Protection Act 1998

Access to Medical Reports Act 1988

s5

s4

s3

s2

Children
Capacity

Mental Health Act 2007

Age of Legal Capacity (Scotland) Act 1991

s.2 (4)

s.1(a)

Abortions

R. (on applidcation of Axon) v. Secretary of Health 2006

Moth sought review of 2004 document, wanted disclosure

Women under 16 can seek an abortion without parental consent

If they meet Fraser guidelines

Contraception

2004 Department of Health document that gives guidance on giving advice and treatment to under 16s

Gillick v West Norfol Area Health Authority (1985)

Lord Fraser Guidelines

Child abuse

Confidence can be breached if there is evidence patient is abusing a child

Subtopic

M and N (Minors), Re

Disclosure to sexual partner

Reasons NOT to disclose

Society is not entitles to infringe rights of HIV infected patients when there is not enough support to help them.

May lead to domestic violence

Is it just permissible to disclose information or is there a duty to disclose? (Reisner v Regents of the University of California)

Feminist push to have a right of third parties to be informed because more likely to be women who are not told about HIV infected partners

Criminal Offence of Infecting Partner (R v Dica)

Is there a duty to inform the police? And is this were it would stop?

Does the threat of committing an offence mean patient waives their right to confidentiality?

Should there be a duty to warn the victim of the crime?

Influence of Human Rights?

But is this reasonable considering other infectious diseases (e.g. chickenpox) do not carry a duty to be disclosed to those at risk?

Does the states duty to protect cirtizens under Art 2 and Art 3 ECHR require NHS to inform those at risk?

What if doesn't disclose and partner gets infected?

Would Tarasoff decision be replicated here? Brazier and Cave suggest it would not.

Peabody Donation Fund v Parkinson

English law (and presumably Scottish) would be reluctant to make the Doctor liable for the wrong of someone else, therefore the infected party would have a greater hurdle to overcome.

The wrong is infecting the 3rd party which is committed by the infected patient.

American Case - Tarasoff v Regents Uni of California: Found liable in negligence for not breaching patient's confidentiality to warn individual of risk.

Did the Dr. have a duty to tell them?

Do they have a right of action?

Position if person at risk is also a patient of the Dr. (Special relationship)

Australia (PD v Harvey and Chen) Disclosing as last resort

US and Canada- Statutory duty to inform person at risk

No definitive legal decison in the UK - just about balancing rights.

General Medical Council and Institute of Medical Ethics (Guidance)

Disclosure of infected health worker( X v Y and H v Associated Newspapers Limited)
Heath Authority Duty to Report (Aids Control Act 1987)
Confidentiality and the deceased
Genetics Commission
Public Rights to medical history of the dead
Disclosing the status of deceased persons

Legal Issues

Ethical

Whether General Duty continues after death is unclear

Department of Health (ethical basis)

Guidance from General Medical Council

Lewis v Sec State for health and Bluck cases

Exceptions to Confidence

Statutory
Public Interest
Press Freedom
Medical Research
Preventing or detecting crime
Family (Child Protection)
HIV
Consent

Arguments in favour/against confidentiality?

Against
May protect others in society
May be better for the protection of the patient
favour
Builds up trust
Aids an effective health care system
Best medical care can be given because patient will be honest

Duty of Confidence

Hippocratic Oath
Not a single statute or common law body of laws governing confidentiality
Patients may be unwilling to disclose
Common Law Duty