Group 4 Project: Medicine and the Law - Confidentiality

Common Law Duty

Patients may be unwilling to disclose

Not a single statute or common law body of laws governing confidentiality

Hippocratic Oath

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

Consent

Public Interest

HIV

Family (Child Protection)

Preventing or detecting crime

Medical Research

Press Freedom

Statutory

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.

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

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.

Peabody Donation Fund v Parkinson

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

Influence of Human Rights?

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

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

Criminal Offence of Infecting Partner (R v Dica)

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

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

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

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

Reasons NOT to disclose

May lead to domestic violence

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

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

Medical Records and Medical Research

Records

Patient access to their medical records

Access to Medical Reports Act 1988

s2

s3

s4

s5

Data Protection Act 1998

What are the restrictions?

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

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

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

MG v United Kingdom [2002]

Human Rights Act 1998

Article 8

matter of entitlement

state has an obligation to respect private and family lives

not an absolute right

Denied access

Appeal to Information Commissioners Office

Healthcare proffesionals

common law duty arises where relationship implies it

Hunter v Mann [1974]

Cornelius v De Taranto [2001]

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

Consent to publish

patient or legal advisor

C v C [1946]

Research

Who can give permission for confidetntial record sto be used?

approved by a regonised ethical commitee

England

Patient Information Advisory Group

Scotland

Privacy Advisory Commitee

Secretary of State

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

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

Health Service (Control of Patient Information) Regulations 2002

only applies in England and Wales

When can confidential patient information be processed?

regognising trends in diseases

controlling and preventing spread of disease

monitoring and managing

outbreaks

exposure

immunistaion

reactions

infections

R v Department of Health ex p Source Informatics Ltd

no breach

no realistic possibility of patients identity being revealed

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