Group 4 Project: Medicine and the Law
Duty of Confidence
Common Law Duty
Patients may be unwilling to disclose
Not a single statute or common law body of laws governing confidentiality
Hippocratic Oath
Arguments in favour/against confidentiality?
favour
Best medical care can be given because patient will be honest
Aids an effective health care system
Builds up trust
Against
May be better for the protection of the patient
May protect others in society
Exceptions to Confidence
Consent
Public Interest
HIV
Family (Child Protection)
Preventing or detecting crime
Medical Research
Press Freedom
Statutory
The relaxation of the rules on confidentiality- Is it justifiable?or Should the Doctor Tell?
Confidentiality and the deceased
Whether General Duty continues after death is unclear
Lewis v Sec State for health and Bluck cases
Guidance from General Medical Council
Department of Health (ethical basis)
Disclosing the status of deceased persons
Ethical
Legal Issues
HIV
Public Rights to medical history of the dead
Genetics Commission
HIV
Heath Authority Duty to Report (Aids Control Act 1987)
Disclosure of infected health worker( X v Y and H v Associated Newspapers Limited)
Disclosure to sexual partner
General Medical Council and Institute of Medical Ethics (Guidance)
No definitive legal decison in the UK - just about balancing rights.
US and Canada- Statutory duty to inform person at risk
Australia (PD v Harvey and Chen) Disclosing as last resort
Position if person at risk is also a patient of the Dr. (Special relationship)
What if doesn't disclose and partner gets infected?
Do they have a right of action?
Did the Dr. have a duty to tell them?
American Case - Tarasoff v Regents Uni of California: Found liable in negligence for not breaching patient's confidentiality to warn individual of risk.
Would Tarasoff decision be replicated here? Brazier and Cave suggest it would not.
Children
Child abuse
M and N (Minors), Re
Confidence can be breached if there is evidence patient is abusing a child
Subtopic
Contraception
Gillick v West Norfol Area Health Authority (1985)
Lord Fraser Guidelines
2004 Department of Health document that gives guidance on giving advice and treatment to under 16s
Abortions
Women under 16 can seek an abortion without parental consent
If they meet Fraser guidelines
R. (on applidcation of Axon) v. Secretary of Health 2006
Moth sought review of 2004 document, wanted disclosure
Capacity
Age of Legal Capacity (Scotland) Act 1991
s.1(a)
s.2 (4)
Mental Health Act 2007
???