von Vicky Balmer Vor 14 Jahren
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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
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
Mental Health Act 2007
Age of Legal Capacity (Scotland) Act 1991
s.2 (4)
s.1(a)
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
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
Confidence can be breached if there is evidence patient is abusing a child
Subtopic
M and N (Minors), Re
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)
Legal Issues
Ethical
Department of Health (ethical basis)
Guidance from General Medical Council
Lewis v Sec State for health and Bluck cases
