Medical Privacy

Question 1

Hippocratic Oath

Answer 1

‘All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal’

Question 2

International Code of Medical Ethics (World Medical Association, 1949)

Answer 2

‘A doctor shall preserve absolute secrecy on all he knows about his patients because of the confidence entrusted in him’ → no reason why he should share information.

Question 3

The Declaration of Geneva (2006)

Answer 3

‘I will respect the secrets which are confided in me, even after the patient has died’

Question 4

Campbell v Mirror Group HL

Answer 4

Facts: Campbell was ambassador for anti-drug taking charity. MGN printed pictures of Naomi Campbell attending a narcotics anon. meeting. Art 8 v Art 10.
Held: MGN was liable. While revealing that Campbell was not truthful was in the public interest, details and pics of her attending a drug rehabilitation programme was “obviously private”.

Question 5

Seager v Copydex Ltd [1967]

Answer 5

‘whatever the circumstances are which created the confidential relationship, the obligation to remain silent depends on a broad duty of good faith enforceable in equity’.

Question 6

Coco v AN Clark (Engineers) LTS [1969] - 3 stage test for action for breach of condifence

Answer 6

3 stage test for action in breach of confidence:
1. Information with the ‘quality’ of confidence
Generally accepted that medical/health information possesses quality of confidence (Wyatt v Wilson)

2. ‘Confidential Circumstances’
   Confidential information and agreement to keep confidential = an equitable obligation
3. Unauthorised use to the detriment?
   R v Department of Health: “It seems to me that… The breach of confidence in itself might carry with it sufficient detriment to justify the grant of a remedy”.

Question 7

Free standing right to privacy? Douglas v Hello

Answer 7

No freestanding right to Privacy
-> Lady Hale: “our law cannot, even if it wanted to, develop a general tort of invasion of privacy”

Question 8

Ash v McKennit [2006]

Answer 8

Must look to Art 8 and Art 10 to find rules of breach of confidence

Question 9

Things to consider when balancing Art 8 and Art 10

Answer 9

Equally important.

1. Is the information private under Art 8?
2. Reasonable expectations of privacy? (obvious in medical scenario)
3. Is disclosure justified by Art8(2)?
4. Do another’s Art 10 right to freedom of expression outweigh Art 8 right identified?

Question 10

Re S (a child) (identification: restriction on publication) [2004]: Test to assist Art 8 and 10 balancing.

Answer 10

Test to assist balancing of Art 8 and Art 10:
1. Neither Article has precedence
2. Where conflict between Art 8 and Art 10 -> intense focus is necessary upon the comparative importance of specific rights
3. Court must take into account the justifications for interfering with or restriction each right
4. The proportionality test must be applied to each

Question 11

Health professional/patient relationship

Answer 11

Well established that this is a confidential relationship.
Breach of duty is unlawful and may result in disciplinary proceedings brought by GMC.
Obligation of confidence is relative not absolute.

Question 12

Exceptions to rules of medial privacy

Answer 12

GMC para 9 - justifications for disclosure
1. Patient consents
2. Partient explicitly consents for other purposes
3. Disclosure of overall benefit to patient who lacks capacity
4. Required by law
5.** ‘Justified in public interest’**
* e.g., reporting gunshot or knife wounds - criminal activty
* Disclosing information about serious communicable diseases
* Disclosing fitness to drive concerns

Question 13

Article 8(2) and Article 10

Answer 13

Article 8(2): prevention of crime, protection of health or morals, protection of the rights and freedom of others.
Article 10 freedom of expression
Article 10(2) balanced against the protection of health or morals, protection of the rights and freedom of others.

Question 14

X v Y [1988]

Answer 14

Preserving confidentiality is the only ay of securing public health
Example of Article 8 supreme
Facts: 2 HIV positive GPs were receiving treatment from plaintiff health authority. Employee leaked the information and the names of doctors to the newspaper.
Held: Publication was prohibited regardless of the fact that the newspaper promised not to disclose the identity of doctors.
“Preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients will not come forward if doctors are going to squeal on them”.

• If you don’t preserve confidentiality you are not going to secure public health.
• Furthermore, risk to GP’s patients is negligible. Doctors have their own private medical information and rights to privacy.

Question 15

H (a health worker) v Associated Newspapers [2002]

Answer 15

Judges gave a greater degree of weight to freedom of the press
Held: HIV workers identity and his employing NHS authority could NOT be identified but his speciality could.

Question 16

W v Egdell [1990]

Answer 16

Public safety justification
Facts: W convicted of manslaughter of 5 neighbours and wounding. Pleaded diminished responsibility, ordered to be detained indefinitely in secure hospital. Applied for transfer but was refused so appealed to MH tribunal. W’s solicitors arranged for D Egdell to conduct psychiatric report.
He reported against W stating he was dangerous etc. Solicitors withdrew application to MH review. Dr asked them to pass report to hospital – they refused as breach of confidence and violation of legal professional privilege.
Dr Edgell sent the report to hospital where W was detained and agreed with director hat copy should be forwarded to Home Secretary.
CA Held: Egdell owed obligation of confidence BUT public interest in safety outweighed both the public, and Ws interest in confidentiality.

Question 17

Duty to disclose?
Osman v UK 2000

Answer 17

No duty to disclose in English Law -> although possible HR law may impose obligation in exceptional circumstances to preserve life.

Question 18

Protection of others?

Answer 18

Statue may require doctors to supply infromation on request from police (e.g. Terrorism Act 2000)
BUT no general obligation on doctor to volunteer information about crime -> doctors are asked to judge public interest.

Question 19

May disclose information when:

Answer 19

• Risk of harm is greater than the patients right to privacy and the public interest in confidentiality
• Dr has taken all reasonable steps to gain consent

Question 20

Reporting Crimes?

Answer 20

Consider:

• Future risk to others
• Is risk identifiable? E.g. confess that they have decided to kill Mr Burrows – he is identifiable and police can do something about it.

Question 21

Public Health and Communicable Disease

Answer 21

Doctor must notify Secretary of Health when coming across certain diseases → Rationale = containment, reduce risk to others.
Other diseases it MAY be in public interest
Factors to consider:
1. Way in which diseases are spread e.g., HIV is sexually transmitted – can control it spreading to another.

Question 22

ABC v St George’s NHS Hospital Trust [2017]: Third party rights

Answer 22

Facts: Claimants father convicted of manslaughter of claimants mother → sectioned under MHA. 2009 he was diagnosed with Huntington’s. Refused to allow doctors to disclose his condition to his daughter. Daughter (C) became pregnant and gave birth in 2010. C learned of fathers condition accidently. C tested and returned positive for Huntington’s.
Case: C sued St George Hospital for negligence → failed to tell her about father’s condition.
Argued doctors had DoC to her and violated her right to family life under Art8(1). Claimed she would have terminated her pregnancy had she known she had Huntington’s.
Nichol J: Must maintain confidence. Case failed.
Court of Appeal: Overturned Nicol J allowing case to go to full trial.

Obligation to third parties MAY arise in relationships of close proximity where there is reasonable foreseeability of harm

NOTE: limited in where it may apply – failed in this case.

Question 23

Gillick v West Norfolk and Wisbech Area Health Authority [1986]

Answer 23

Young people (mature minors)
Confidentiality and contraceptive advice/treatment.
Held: doctors could provide advice/treatment where:

• Young person had sufficient maturity to understand advice
• Could not be persuaded to tell parents
• The young person is likely to commence sexual relations with or without treatment
• Likely to suffer harm to their physical or mental health without advice/treatment
• Best interests that she receives advice/treatment without parental knowledge and consent.
  Usually aim to persuade child to tell parents.