Legal Doctrine of Clinical Confidentiality

THE LEGAL DOCTRINE OF
CLINICAL CONFIDENTIALITY
Dr Kieran Doran, Solicitor

Senior Healthcare Ethics Lecturer
School of Dentistry
University College Cork
1

Legal Definition of Confidential Information
CoCo Engineering v AN Clark (Engineers)
[1969] RPC 41
.if the circumstances are such that any reasonable man
standing in the shoes of the recipient of the information would
have realised on reasonable grounds the information was
being given to him in confidence, then this would suffice to
impose upon him the equitable obligation of confidence.

Legal Definition of Confidential Information
Thomas Marshall v Guinle
[1979] 1 Ch. 227
First, the information must be the information the release of
which the owner believes to be injurious to him or of
advantage to others. Second, the owner must believe the
information is confidential or secret. Third, the owners belief
must be reasonable. Fourth, use of the information must be
judged in light of the usage and practice of the particular
industry.

Categories of Confidential Information
Personal Information:
Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302
Government Information:
A-G v Guardian Newspapers Ltd [1990] AC 109

Categories of Confidential Information
Commercial Information:
Thomas Marshall v Guinle [1979] 1 Ch 227
Clinical Information:
Hunter v Mann [1974] QB 767

Action for Breach of Confidence
Stephens v Avery [1988] 1 Ch. 449
To be subject to the Legal Protection of an Action for Breach
of Confidence, the Information must satisfy the following
criteria:
Have the necessary character of Confidence;
Have been imparted in circumstances implying an Obligation of Confidence ;

and
Have been used in an unauthorised manner, to the detriment of the Party

(Patient) communicating it
6

The Defence of Public Interest to
Lion Laboratories v Evans [1984] 2 AER 417
Disclosure of information is justified on the basis of
safeguarding the General Public against unlawful arrest and
prosecution through the operation of faulty breath test
devices by the Police Force.

X v Y & Others [1988] 2 AER 648
The public interest in preserving the Confidentiality of Clinical
Records, from which actual or potential HIV/AIDS sufferers
could be identified, outweighs the Public Interest in the
freedom of the Press to publish such Information.

Tarasoff v Regents of the University of California
[1976] 131 California Reporter 14
Here the Psychologist was counselling a Patient, who
threatened to kill a named person, i.e. Ex-Girlfriend. The
Psychologist, Dr Moore, had warned the University Campus
Police and Hospital, but the Patient was released. The ExGirlfriend was then murdered.
The Protective Privilege ends where the Public Peril begins.
9

Lipari v Spears [1980] 497 F Supp 185:
There is a General Duty to predict danger and protect Society.
10

Brady v Hopper [1983] 570 F Supp 1333:
The Legal Test is limited to Specific Threats to Specified
Individuals.
11

Di Marco v Lynch Homes [1989] 525 Pa 558:
There is a General Duty to warn any potential victim of the
HIV/AIDS Status of a Patient.
12

Reisner v Regents of the
University of California [1995] 31 Cal App 4th 1110
A Third Party needs to prove the following against a Dentist:
The presence of a potentially serious harm posed to the Third Party;
The presence of a serious likelihood of the harm occurring;

13

Reisner v Regents of the
University of California [1995] 31 Cal App 4th 1110
A Third Party needs to prove the following against a Dentist:
The identity of the Third Party at risk should be known to the Medical
Practitioner; and
The Medical Practitioner was in a position to notify the Third Party.

14

W v Egdell [1990] 1 AER 835
Dr Egdell was a Psychiatrist writing a Report on a Prisoner, a
Convicted Murderer, who sought a Prison Transfer. Dr Egdell
considered W a danger to the General Public and released
his Report to the Secretary of State at the Home Office and
Prison Hospital. Held to be in Public Interest to release Report.
15

Palmer v Tees Health Authority
[1999] Lloyds Reports 351
Psychiatrist and Hospital did not owe a duty of care , as no
proximity existed between the parties, i.e. The Psychiatric OutPatient and the murdered child . There has to be a Special
Relationship with an Identifiable Victim.
16

MQ v Gleeson and Dublin City VEC, Chance
and Eastern Health Board [1999] High Court
Duty of Care of Health Boards extends to children who are not
readily identifiable and who may be at risk in the future by
reason of a specific potential hazard to which a Health Board
reasonably suspects may come about in the future.
17

Legal Principles of Clinical Confidentiality
W v Egdell [1990] 1 AER 835
It has never been doubted that the circumstances here were
such as to impose on Dr Egdell a Duty of Confidence owed to
W. He could not lawfully sell the contents of the Medical
Records/Report to the Media. Nor could he, without a Breach
of the Law as well as Professional Etiquette, discuss the Case
in a learned article, his memoirs, or gossiping with friends.
18

Legal Principles of Medical Confidentiality
McInerney v McDonald [1992] 137 NR 35
The relationship between Dentist and Patient is one which is
fiduciary in nature, i.e. one based on mutual trust and a duty
of confidence. The Patient entrusts personal clinical details
to the Dentist on the understanding that they are to be treated
in the strictest confidence, as he/she has a beneficial interest
in this Information stored in the Clinical Records.
19

Ethical Principles of Clinical Confidentiality
Irish Medical Council
A Guide to Ethical Conduct and Behaviour and
Fitness to Practice 7th Edition 2009
Exceptions to Duty of Confidence:
When Disclosure is required by a Judge in a Court of Law, or Tribunal

established by an Act of the Oireachtas;
When Disclosure is mandated by Infectious Disease Regulations;
When Disclosure is in the Interest of the Patient or Other People;

20

Exceptions to Duty of Confidence:
When Disclosure is in the Public Interest; and
When Disclosure is required to share the Patients Clinical Details with

Other Healthcare Professionals.
21

Exceptions to Duty of Confidence: Basis of Justification
Disclosure of Patient Information without his/her Consent may be

justifiable in exceptional circumstances when it is necessary to
protect the Patient or Others from serious risk of death or serious
harm. Patient consent to disclosure should be obtained if possible;
22

Ethical Principles of Medical Confidentiality
Exceptions to Duty of Confidence: Basis of Justification
If disclosure of Patient Information is considered to be justifiable then

anonymisation of the Patient Information should be considered in order to
achieve the same potential benefits. Any disclosure should be made to an
Individual or Organisation who understands that the Patient Information
should be kept Confidential . Only the minimum Patient Information necessary
should be disclosed;
The Patient should be informed unless this would cause harm .

23

Issues to be Considered:
The Doctor-Patient relationship should be respected at all times;
Where circumstances permit, the Patients own Doctor should be

informed;
24

Issues to be Considered:
Documents containing Medical Details should always be transmitted

under Confidential Cover; and
Medical Information obtained by a Doctor in the process of Patient

Examination should always be used for the betterment of that Patient.
25

British Medical Association Guidelines on
Breaches of Confidence
Balance the benefits of disclosure with the drawbacks of breaching

Patient Confidentiality in the context of the individual Medical
Practitioner-Patient Relationship and maintaining Public Confidence in
the Medical Profession;
Assess the Urgency for Disclosure;
Persuade the Patient to Consent to Disclosure;
Seek Patient Consent unless it would increase the risk of harm or inhibit
effective clinical investigation;
26

Disclose the Patient Information promptly to the appropriate

Healthcare Professional or Professional Body;
Reveal only the minimum Patient Information necessary to

achieve the Clinical Objective;
Seek assurances that the Patient Information will only be used

for the proposed Clinical Objective;
27

Record on the Medical Records the steps taken to obtain

Patient Consent and the reasons for refusal of Patient Consent;
Be able to justify the decision in terms of appropriate Clinical

Practice; and
Record the extent of and grounds for the Disclosure of Patient

Information.
28

DENTAL COUNCIL CODE OF PRACTICE:
PROFESSIONAL BEHAVIOUR AND
ETHICAL CONDUCT
Confidentiality: Section 10
Non-Disclosure of Confidential Patient Information is Clinical Priority;
Disclosure only with Consent of Patient except where Disclosure is

Required by Law, Directed by a Court or Body Established under an Act
of the Oireachtas, Necessary to Protect Interest of the Patient, and in
Exceptional Circumstances to Protect the Public Interest;
29

DENTAL COUNCIL CODE OF PRACTICE:
PROFESSIONAL BEHAVIOUR AND
ETHICAL CONDUCT
Confidentiality: Section 10
In the event of Disclosure of Confidential Patient Information from

Patient Records the Patient must be informed of Disclosure and
Reason for it;
Patient Confidentiality should be respected even when Patient is Dead .
30

Constitutional Principles of Confidentiality
Bunreacht na h-Eireann 1937
Article 40: Right to Privacy
McGee v Attorney-General [1974] IR 284
Norris v Attorney-General [1984] IR 36
Kennedy & Arnold v Ireland [1987] IR 587

31

Human Rights Principles of Confidentiality
The European Convention on Human Rights
The Human Rights Act 2003
The Right to Respect for Family and Private Life:
ECHR Article 8 (1)
Exception where non-observance of Privacy is in accordance
with Law and Democratic Society : ECHR Article 8 (2)
Z v Finland [1997] 45 BMLR 107
32

Access to Clinical Records:
Common Law Principles
McInerney v McDonald [1992] 2 MLR 267
Of primary significance is the fact that the Clinical Records
consist of Information that is highly private and personal to
the Patient. It is Information that goes to the personal
integrity and autonomy of the Patient. This Clinical
Information remains in a fundamental sense ones own, for the
individual Patient in question to communicate or retain as
he/she sees fit.
33

Common Law Principles
R v Martin Unreported [1993]
In the courts opinion there is a distinction to be made
between the information conveyed by a Patient for the benefit
of the Dentists consideration and the conclusion to which the
Dentist comes to based on that information. The opinion of the
Dentist is wholly the property of the Dentist . It does not appear
to the Court that the fact the Patient provides the original
information, entitles him/her to access.
34

Legislative Principles
Data Protection Acts 1988-2003
Freedom of Information Acts 1997-2003
35

Registration with Data Protection Agency;
Patient Information to be accurate and stored for specified and lawful

purposes;
Appropriate Security Measures needed to prevent unauthorised access

to or alteration, disclosure or destruction of data;
36

Disclosure of Patient Information is only permissible if required as a

matter of urgency to safeguard a Patients health ;
As far as the matter of Access to Patient Clinical Records is

concerned the Patient has the right to be informed of any Clinical
Information held on Computer, and is entitled to a copy thereof. If
the Clinical Information is unintelligible, for example through the
use of Dental Terminology, then the Patient is entitled to an
explanatory note of such terms.
37

The Patient may request alteration to any inaccurate information held

on file, to be done within forty (40) days;
The Minister for Justice is empowered to modify the Right of Patient

Access to Clinical Records if it is in the Patients interests;
Under the terms of the Data Protection (Access Modification) (Health)

Regulations SI 82 of 1989 Clinical Information will not be supplied if
likely to cause the Patient serious harm.
38

The 1997-2003 Acts have a two fold purpose which are as follows:
To provide a general right of access to information in the possession

of Public Bodies; and
To afford Private Citizens the right to access and possible correction

of Personal Information held about them by a Public Body. The term
Public Body includes the Department of Health and Children, the
Blood Transfusion Board and the Irish Medicines Board .
39

The relevant legal provisions of the 1997-2003 Acts are:
Decisions on Patient access to publicly held records are made by

the Head of the Public Body, and in the case of Clinical Records it
is the CEO of the Health Services Executive, HSE;
While Patient access may be permitted by the HSE through a

transcript of the Patient Information held on the Clinical Records,
such access may be denied if access would be detrimental to the
record, infringe copyright or conflict with a legal obligation of the
HSE;
40

A Patient may instruct the CEO of the HSE to correct any personal
information, for example, information held on Clinical Records,
which is incomplete, incorrect or misleading . In the event that the
request for alteration or correction is refused by the HSE then the
Patient is entitled to have a note attached to the file outlining their
objections and the fact that the application had been made ;
A Patient may receive information about acts of the HSE that

affect the individual. Here the term acts refers to any decision of
the HSE, for example, the decision not to issue a Clinical Card.
41

Certain Public Records are exempt from the provisions of the
1997-2003 Acts:
Records used in deliberations by a Public Body are exempt unless it is a

factual or scientific Report;
Records which if accessed would interfere with the proper management

of the HSE;
42

1997-2003 Acts:
Records which are subject to Legal Privilege;
Records entrusted to the HSE in confidence; and
Records from which an individual may be identified.

43

1997-2003 Acts:
Records which if accessed would divulge personal information of a deceased

Patient;
and
44

1997-2003 Acts:
Records which if accessed by the Patient as the requesting party would

prejudice the physical and mental health of the individual Patient in question.
Access may be permitted through a nominated Health Care Professional who
has the relevant clinical expertise in respect of the subject matter stored on the
Clinical Records.
45

Case Study One
You are a Dentist in Private Practice in Bishopstown. A
Patient of the Practice, Mr Evans, a middle-aged Bus
Driver with Bus Eireann, attends you for a filling. As Mr
Evans enters your Surgery he has an epileptic fit.
Although Mr Evans quickly recovers he decides to
postpone his appointment in order to see his local GP.
What issues of Clinical Confidentiality arise here?
46

Case Study Two
You are a Dentist in a rural town in West Cork. Richard,
a 35-year-old Patient of your Practice is diagnosed as
being HIV Positive. His wife is also a Patient of your
Practice.
You also note that he has an appointment later in the
week with the Practices Dental Hygienist .
47

Case Study Three
You are a Dentist in Inner City Dublin. The Gardai arrive
into your Practice seeking to get access to Dental
Records as one of your Patients was murdered five
years ago and the body had only been discovered the
previous day. The Clinical Records are needed to
identify the deceased Patients body.
48

Thank You!
Dr Kieran Doran, Solicitor
Senior Healthcare Ethics Lecturer
School of Dentistry
University College Cork
(021) 4901513
K.Doran@ucc.ie
(C) Dr Kieran Doran, Solicitor, 2014
49

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THE LEGAL DOCTRINE OF

Dr Kieran Doran, Solicitor

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

Have the necessary character of Confidence;

Have been imparted in circumstances implying an Obligation of Confidence ;

Have been used in an unauthorised manner, to the detriment of the Party

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

The presence of a potentially serious harm posed to the Third Party;

The presence of a serious likelihood of the harm occurring;

THE LEGAL DOCTRINE OF

The Medical Practitioner was in a position to notify the Third Party.

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

THE LEGAL DOCTRINE OF

When Disclosure is required by a Judge in a Court of Law, or Tribunal

When Disclosure is mandated by Infectious Disease Regulations;

When Disclosure is in the Interest of the Patient or Other People;

THE LEGAL DOCTRINE OF

When Disclosure is in the Public Interest; and

When Disclosure is required to share the Patients Clinical Details with

THE LEGAL DOCTRINE OF

Disclosure of Patient Information without his/her Consent may be

THE LEGAL DOCTRINE OF

If disclosure of Patient Information is considered to be justifiable then

The Patient should be informed unless this would cause harm .

THE LEGAL DOCTRINE OF

The Doctor-Patient relationship should be respected at all times;

Where circumstances permit, the Patients own Doctor should be

THE LEGAL DOCTRINE OF

Documents containing Medical Details should always be transmitted

Medical Information obtained by a Doctor in the process of Patient

THE LEGAL DOCTRINE OF

Balance the benefits of disclosure with the drawbacks of breaching

Assess the Urgency for Disclosure;

Persuade the Patient to Consent to Disclosure;

THE LEGAL DOCTRINE OF

Disclose the Patient Information promptly to the appropriate

Reveal only the minimum Patient Information necessary to

Seek assurances that the Patient Information will only be used

THE LEGAL DOCTRINE OF

Record on the Medical Records the steps taken to obtain

Be able to justify the decision in terms of appropriate Clinical

Record the extent of and grounds for the Disclosure of Patient

THE LEGAL DOCTRINE OF

Non-Disclosure of Confidential Patient Information is Clinical Priority;

Disclosure only with Consent of Patient except where Disclosure is

THE LEGAL DOCTRINE OF

In the event of Disclosure of Confidential Patient Information from

Patient Confidentiality should be respected even when Patient is Dead .