the abridged place of the doctor's duty of confidentiality in modern medical law and eth

13 Pages·2016·0.26 MB·English

SEX, SECRECY, AND THE RIGHT TO KNOW:
THE ABRIDGED PLACE OF THE DOCTOR’S DUTY OF
CONFIDENTIALITY IN MODERN MEDICAL LAW
AND ETHICS

1
‘Confidentiality is a time honoured principle of medical ethics.
It extends after death and is fundamental to the Doctor/Patient relationship’.1

INTRODUCTION: MEDICAL CONFIDENTIALITY – THEORY & PRACTICE
Theoretically, at least, the duty of medical practitioners not to disclose confidential
information regarding their patients to third parties could very well be regarded as one of the
most crucial and intrinsic hallmarks of effective medical practice and quality healthcare in
modern society.2 Not only is a doctor’s duty of confidentiality enshrined as one of the oldest
moral codes in the history of medical practice and patient treatment,3 but it also continues to
retain robust foundations in a number of medical, ethical and legal codes across the world.4
In modern practice, however, it seems questionable whether or not the concept of
medical confidentiality can retain its eminence as a legitimate professional doctrine.5 This
paper will not only examine the complexities which often underlie both the ethical and legal
perimeters of doctor-patient confidentiality,6 but it will also attempt to tease out the often
problematic conflicts of interest which can arise between individual rights and the greater
public interest, with a particular focus on the increasing value of third-party rights in critical
venereal disease cases.7

1 Irish Medical Council, A Guide to Ethical Conduct and Behaviour, (7th edn, Medical Council, Dublin 2009).
2 For some introductory reading on medical confidentiality, see Raanan Gillon and Daniel Sokol,
‘Confidentiality’ in Helga Kuhse and Peter Singer (eds), A Companion to Bioethics (2nd edn, Wiley-Blackwell
2013) 513-519; Kenneth Kipnsis, ‘Medical Confidentiality’ in Rosamond Rhodes, Leslie Francis and Anita
Silvers (eds), The Blackwell Guide to Medical Ethics (Wiley-Blackwell 2006) 104-127. For discussion on the
quality of healthcare, see, for example, Avedis Donabedian, ‘The Quality of Care: How Can It Be Assessed?’
(1988) 260(12) Jama 1743-1748; Stephen Campbell, Martin Roland, and Stephen Buetow, ‘Defining Quality of
Care’ (2000) 51(11) Social Science and Medicine 1611-1625; Peter Harteloh, ‘The Meaning of Quality in
Health Care: A Conceptual Analysis’ (2003) 11(3) Health Care Analysis 259-267.
3 See Emily Jackson, Medical Law: Text, Cases, and Materials (Oxford University Press 2013) 357. In 1947,
the widely heralded Hippocratic Oath was revised by the World Medical Association in the Declaration of
Geneva to read: ‘I will respect the secrets which are confided in me, even after the patient has died’. For some
interesting analysis of the historical aspect of medical confidentiality, see, for example, Sebastian Pranghofer
and Andreas-Holger Maehle, ‘Limits of Professional Secrecy: Medical Confidentiality in England and Germany
in the Nineteenth and Early Twentieth Centuries’ (2006) 31(3) Interdisciplinary Science Reviews 231-244.
4 Deirdre Madden, Medical Law in Ireland (Kluwer Law International 2011) 90.
5 See, for instance, Mark Siegler, ‘Confidentiality in Medicine—A Decrepit Concept’ (1982) 307(24) New
England Journal of Medicine 1518-1521. See also Bernard Dickens and Rebecca Cook, ‘Law and Ethics in
Conflict over Confidentiality?’ (2000) 70(3) International Journal of Gynaecology and Obstetrics 385-391.
6 See Anne-Marie O’Neill, Irish Mental Health Law (First Law 2005) 203.
7 For some useful introductory commentary, see, for instance, Suzanne Talbot, ‘Conflict between a Doctor's
Duty to Warn a Patient's Sexual Partner that the Patient has AIDS and a Doctor's Duty to Maintain Patient
Confidentiality’ (1988) 45 Washington and Lee Law Review 355; Kenneth Boyd, ‘HIV Infection and AIDS: The
Ethics of Medical Confidentiality’ (1992) 18(4) Journal of Medical Ethics 173-179; Gary McLean, ‘HIV
Infection and a Limit to Confidentiality’ (1996) 12 South African Journal on Human Rights 452.

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PART I: MEDICAL CONFIDENTIALITY: A CONFLICT OF ETHICAL OPINION?
Throughout the sometimes complex web of medical ethics, confidentiality has long been
regarded as an essential aspect of the doctor-patient relationship.8 In Ashworth Security
Hospital v MGN Ltd,9 Lord Phillips MR quite succinctly surmised the long-standing ethical
ideology underlying medical confidentiality, stating that:
‘[i]t is well settled that there is an abiding obligation of confidentiality as between
doctor and patient, and in my view when a patient enters a hospital for treatment,
whether he be a model citizen or murderer, he is entitled to be confident that details
about his condition and treatment remain between himself and those who treat him.’10
Confidentiality has been considered a cornerstone of effective communication between
practitioner and patient.11 Both deontological and teleological reasoning have called for the
robust justification of medical confidentiality on numerous grounds.12 While the former argue
that confidentiality is a ‘moral principle’ which bestows ‘respect for autonomy or ... privacy’,
considered to be a ‘fundamental moral end in itself’,13 the latter endorse it on the basis of
trust.14 The uniquely personal complexity of the doctor-patient relationship often requires that
communication therein is wholly based on trust.15 There is a common understanding that it is
primarily through the fusion of confidentiality and trust that patients are more likely to
honestly and openly disclose ‘potentially stigmatising information about health-related
behaviours and personal feelings’16 in the hope of an effective diagnosis.17 As Gillon quite
accurately put it:

8 See, for instance, Gerald Higgins, ‘The History of Confidentiality in Medicine’ (1989) 35 Canadian Family
Physician 921; Irwin Kleinman et al, ‘Bioethics for Clinicians: Confidentiality’ (1997) 156(4) Canadian
Medical Association Journal 521-524; Onora O'Neill, Autonomy and Trust in Bioethics (Cambridge University
Press 2002) 3.
9 Ashworth Security Hospital v MGN Ltd [2000] 1 WLR 515.
10 ibid at 527.
11 Ron Paterson, ‘AIDS, HIV Testing, and Medical Confidentiality’ (1989) 7 Otago Law Review 379 at 384. See
also Howard Marsh and John Reynard, ‘Patient Confidentiality: Ethical, Legal and Regulatory Responsibilities’
(2009) 104(2) British Journal of Urology International 164–167; Jonathan Matusitz and Jennifer Spear,
‘Effective Doctor–Patient Communication: An Updated Examination’ (2014) 29(3) Social Work in Public
Health 255.
12 Jackson (n 3) 358.
13 Raanan Gillon, 'Confidentiality' (1985) 219 British Medical Journal 1635.
14 ibid.
15 See Susan Goold and Mack Lipkin, ‘The Doctor–Patient Relationship’ (1999) 14(1) Journal of General
Internal Medicine 26-33; Jing Jih Chin, ‘Doctor-Patient Relationship: A Covenant of Trust’ (2001) 42(12)
Singapore Medical Journal 579-81; and Helge Skirbekk et al, ‘Mandates of Trust in the Doctor–Patient
Relationship’ (2011) 21(9) Qualitative Health Research 1182-1190.
16 David Mechanic and Mark Schlesinger, ‘The Impact of Managed Care on Patients’ Trust in Medical Care and
Their Physicians’ (1996) 275 Journal of the American Medical Association, 1693 at 1694.
17 Jonathon Herring, Medical Law and Ethics (4th edn, Oxford University Press 2012) 222.
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‘in order to do a good job for their patients doctors often need to have information of
a sort that people generally regard as private, even secret. Some of the information is
merely embarrassing to discuss, some may be positively harmful to the patients or
others if divulged... [I]ntrusive medical enquiries are based not on prurience or mere
inquisitiveness but on the pursuit of information that is of potential assistance to the
doctor in treating and helping the patient. Nonetheless many patients are unlikely to
pass on this information unless they have some assurance of confidentiality’.18
Conflicts in the ethical approach have sometimes manifested in debate surrounding the nature
and scope of medical confidentiality. Some theorists are inclined to adopt a steadfast and
invariable approach in support of an absolute guarantee of confidentiality.19 However, it is
here contended that such an approach is manifestly unfounded. Notions of absolute
confidentiality would be grossly irreconcilable bearing in mind the reality of current medical
practice.20 Patients in hospitals will regularly undergo treatment from a number of medical
professionals who will each need to have access to his/her records in their efforts to provide
effective healthcare. Specialist and consultancy referrals will almost always require the
transfer of confidential information in the pursuit of effective medical treatment. Clearly,
there certainly remains a complex ethical dilemma in this regard.
Another context in which a conflict of ethical opinion has arisen has been the issue of
third parties and informational disclosure.21 While there has been some rather ill-founded
endorsement for the automatic disclosure of confidential information to family and
relatives,22 more importantly, insufficient consideration in ethical theory has been afforded to
instances of the protection of third parties in the event of serious risks being posed to them in
the bulk of duty-based and consequentialist reasoning. As Jones has quite rightly argued:
‘[t]he utilitarian justification for maintaining medical confidentiality rests ultimately
on a calculation of the effects of confidentiality or disclosure on the behaviour of
current and potential future patients...[F]or many people the utility of confidentiality

18 Gillon (n 2) 514.
19 See, for instance, Michael Kottow, ‘Medical Confidentiality: An Intransigent and Absolute Obligation’ (1986)
12(3) Journal of Medical Ethics 117-122.
20 Jackson (n 3) 359. See also Katrina Spooner, ‘The Legal and Ethical Principles of Medical Confidentiality
Are Far From Absolute’ (2015) 3 North East Law Review 60.
21 For a good general overview, see Roy Beran, ‘The Doctor/Patient Relationship, Confidentiality and Public
Responsibility’ (2002) 21 Medicine and Law (2002) 617-637.
22 See Roy Gilbar, ‘Medical Confidentiality within the Family: The Doctor’s Duty Reconsidered’ (2004) 18
International Journal of Law, Policy and the Family 195. For a conflict of opinion, see Jackson (n 3) 361.
4
appears to be outweighed by the benefits of disclosure in order to protect third
parties’.23
Not only does this seem hard to reconcile considering the very real dangers of non-disclosure
to which the Supreme Court of California was graphically exposed in the case of Tarasoff v
Regents of the University of California,24 but it also places the moral compass behind much
ethical theory into question. As we will see in the next section, this lack of desirable
commitment to the protection of third-party rights, while afforded some greater recognition in
law, has yet to truly reflect the reality of modern medical practice.

PART II: MEDICAL CONFIDENTIALITY: A CONFLICT OF LAWS?
While it would appear to remain a well-established principle of both ethics and law that
individuals who undergo treatment from medical practitioners possess the right not to have
their personal information improperly disclosed to others, under the umbrella protections of
both patient confidentiality and privacy protection,25 it seems that despite this apparent
consensus between the two fields, the law’s approach to the concept remains curiously
unclear.26 In Attorney General v Guardian Newspapers (No. 2),27 Lord Goff held that a duty
of confidentiality exists in circumstances where:
‘... confidential information comes to the knowledge of a person ... in circumstances
where he has notice or is held to have agreed that the information is confidential, with
the effect that it would be just in all the circumstances that he should be precluded
from disclosing the information to others’.28
It has been suggested that a doctor’s common law duty of confidentiality may stem from
three distinct foundations; firstly, from a contractual foundation based upon the agreement of
certain contractual terms; secondly, from an equitable foundation based on notions of
patient/practitioner trust; or thirdly, a purely moral foundation of respect for confidentiality.29
Taking these sweeping understandings into account, it is perhaps not so surprising that there

23 Chris Jones, ‘The Utilitarian Argument for Medical Confidentiality: A Pilot Study of Patients’ Views (2003)
29 Journal of Medical Ethics 348.
24 Tarasoff v Regents of the University of California 551 P 2d 334 (Cal 1976). Here, a duty of care was imposed
by the Supreme Court of California on a therapist whose patient had informed him of his intent to kill his former
girlfriend. See also Vanessa Merton, ‘Confidentiality and the Dangerous Patient: Implications of Tarasoff for
Psychiatrists and Lawyers’ (1982) 31 Emory Law Journal 263; Justice Tobriner, ‘Protecting Third Parties: A
Decade after Tarasoff’ (1987) 144(1) American Journal of Psychiatry 68-74.
25 In Europe, this right is protected under Article 8 of the European Convention on Human Rights. See, for
instance, MS v Sweden (1999) 28 EHRR 313.
26 Herring (n 16) 223.
27 Attorney General v Guardians Newspapers Ltd (No. 2) [1988] 3 All ER 545 at 658-659 per Lord Goff.
28 ibid.
29 O’Neill (n 6).
5
exists such a lack of clarity in the current legal framework,30 with the breadth and scope of
the duty having been stretched to nearly inconceivable theoretical limits.
Perhaps another very telling aspect of the law’s unclear approach to the issue of
medical confidentiality manifests itself in the very nature of the right itself. A useful source to
determine the status of medical confidentiality in law has been the jurisprudence of the
European Court of Human Rights (ECt.HR). In the seminal case of Z v Finland,31 the ECt.HR
approached the protection of an individual’s confidential information as a corollary32 of their
right to respect for private and family life under Article 8 of the European Convention on
Human Rights (ECHR). The ECt.HR iterated quite strongly that:
‘... the protection of personal data, particularly medical data, is of fundamental
importance to a person’s enjoyment of his or her right to respect for private and
family life as guaranteed by Article 8 of the Convention. Respecting the
confidentiality of health data is a vital principle in the legal systems of all the
Contracting Parties to the Convention. It is crucial not only to respect the sense of
privacy of a patient but also to preserve his or her confidence in the medical
profession and in the health services in general.’33
The ECt.HR would thus appear to have highlighted the concerns which the law designs itself
to protect in the context of medical confidentiality; namely, the personal rights of the patient
and the safeguarding of confidence in national healthcare services. This is a delicate balance
the law must strike, and so the complexities of the ethical dilemma are strongly manifest.34
Importantly, the complex interplay between individual rights and public policy does
not end here. Out of concern for overriding public interest concerns, the right to
confidentiality is not absolute.35 It remains qualified,36 and certain disclosures may be
deemed lawful under the ECHR, for instance, where executed in accordance with the law and
necessary in a democratic society.37 In Ireland, the Irish Medical Council’s Guide provides
that disclosure of confidential patient information is permissible under certain conditions,

30 In Ireland, there is no current statutory model setting out the duty of medical confidentiality; see Madden (n 4)
89. This is a stark contrast to, for instance, the Australian framework, where NPP 2.1 of the Privacy Act 1988
imposes a clear duty of confidentiality upon organisations and individuals, with limited exceptions.
31 Z v Finland (1997) 25 EHRR 371.
32 See Maria Sokalska, ‘Medical Confidentiality - Quo Vadis?’ (2004) 11 European Journal of Health Law 35.
33 Paragraph 41.
34 Jeanette Davidson and Tim Davidson, ‘Confidentiality and Managed Care: Ethical and Legal Concerns’
(1996) 21(3) Health and Social Work 208-215.
35 Article 8(2) of the ECHR.
36 ibid. See also Joanna Glynn and David Gomez, The Regulation of Healthcare Professionals: Law, Principle
and Process (Sweet and Maxwell 2012) 916.
37 See A Health Authority v X (2001) 61 BMLR 22 where Munby J outlined the strict conditions which can
justify certain types of disclosure under certain circumstances.
6
including when ordered by a judge in a court of law or a Tribunal of Enquiry established by
an Act of the Oireachtas;38 where necessitated by infectious disease regulations;39 where
necessary to protect the patient or others from serious risk of death or serious harm;40 or
where necessary in the public interest.41 However, it is the third exception, namely, the threat
of serious harm to others, which will be the foundation of our discussion in the next section.

PART III: REASSESSING MEDICAL CONFIDENTIALITY IN PRACTICE:
CRITICAL VENEREAL DISEASE CASES & THE PROTECTION OF THIRD-PARTIES
It is here contended from the outset that, where there is a real and serious risk of transmission
of serious venereal disease, namely the human immunodeficiency virus (HIV) and/or
acquired immune deficiency syndrome (AIDS), from a patient to another, then a doctor’s
duty should shift from one of confidentiality to one requiring that that other be warned in
relation to that risk.42
Globally, the HIV/AIDS crisis has become a profound social and cultural epidemic.43
The World Health Organisation estimates that over 78 million people have been infected with
HIV virus worldwide, with about 39 million people having died from the virus.44 An
estimated 35 million people were living with HIV in 2013.45 Despite the virus having been
mostly concentrated across the African continent,46 Western society has not been immune to
its grasp.47

38 See A Guide to Ethical Conduct and Behaviour (n 1) 27-29, Para 27.1.
39 ibid.
40 ibid, para 28.1.
41 ibid, para 29.1.
42 For some interesting academic discussion on the issue, see, for instance, Roger Magnusson, ‘Privacy,
Confidentiality and HIV/AIDS Health Care’ (1994) 18(1) Australian Journal of Public Health 51–58; Anna
Harding, Lizbeth Gray and Marianne Neal, ‘Confidentiality Limits With Clients Who Have HIV: A Review of
Ethical and Legal Guidelines and Professional Policies’ (1993) 71(3) Journal of Counselling and Development
297–305; and Rebecca Stanard and Richard Hazler, ‘Legal and Ethical Implications of HIV and Duty to Warn
For Counselors: Does Tarasoff Apply?’ (1995) 73(4) Journal of Counselling and Development 397–400.
43 See Tony Barnett and Alan Whiteside, AIDS in the Twenty-First Century (Palgrave 2002); Peter Piot et al,
‘The Global Impact of HIV/AIDS’ (2001) 410(6831) Nature 968-973.
44 World Health Organisation, World Health Statistics 2010 (World Health Organisation 2010).
45 World Health Organisation, ‘Global Update on HIV Treatment 2013: Results, Impact and Opportunities’
(World Health Organisation 2013).
46 See Helen Jackson, AIDS Africa: Continent in Crisis (Harare: SAfAIDS 2002); John Illife, The African AIDS
Epidemic: A History (Ohio University Press 2006); Thomas Quinn et al, ‘AIDS in Africa: An Epidemiologic
Paradigm’ (1986) 234(4779) Science 955-963; Tony Barnett and Piers Blaikie, AIDS in Africa: Its Present and
Future Impact (Belhaven Press 1992).
47 Alma Adler, Sandra Mounier-Jack, and Richard Coker, ‘Late Diagnosis of HIV in Europe: Definitional and
Public Health Challenges’ (2009) 21(3) AIDS Care 284-293; James Curran et al, ‘Epidemiology of HIV
Infection and AIDS in the United States (1988) 239(4840) Science 610-616; Gregory Dore et al, ‘Trends in
Incidences of AIDS Illnesses in Australia from 1983 to 1994: The Australian AIDS Cohort’ (1997) 16(1)
Journal of Acquired Immune Deficiency Syndromes 39-43.
7
The issue of confidentiality in situations where patients are being treated for the virus
has received significant academic treatment in the field of medical law and ethics.
Unfortunately, however, much of the discussion on the subject has failed to satisfactorily
analyse the numerous problems which healthcare professionals often encounter in their
attempts to ‘reconcile their legal, ethical, and public-health responsibilities in treating HIV-
infected patients’.48 Similarly, some of the international legal approaches to the concept, and
particularly, that adopted in Ireland, have also been sufficiently inadequate in the steadfast
commitment to the protection of third party rights in situations of harmful jeopardy.
As we have seen, a threat of serious harm to others can – and should – justify a breach
of medical confidence.49 Where there is a serious risk that an individual will contract HIV or
AIDS from a patient, which essentially carries with it the effect of ‘serious harm’,50 then
medical confidentiality should, in the pursuit of the protection of human rights, yield to the
greater public interest of a duty to warn in this regard. In W v Egdell,51 the English Court of
Appeal laid down some useful perimeters in the justification of a threat of serious harm to
others. In this case, the Court justified the disclosure of a medical report which indicated the
dangerous nature of the practitioner’s patient on this basis. In its reasoning, the Court
explained that, for such a disclosure to be justified, certain standards had to be met. Firstly,
the risk of danger or significant harm to the victim must be real and serious; secondly, it must
be ongoing;52 thirdly, such a disclosure has to be to an appropriate person who has a
legitimate interest in it; and fourthly, the same disclosure must be restricted to the minimum
necessary in order to protect the public.53 This approach would appear to bring English law
greater in line with the Californian Supreme Court’s approach in the wake of Tarasoff.54
Where there is a risk of transmission of the HIV virus to an individual, it is here
contended that the above standards are not difficult to meet, and thus should be applied in
cases to justify a breach of medical confidence. While in reality it may not always be clear
who may be at risk of contracting the virus if a patient’s sexual partners are unknown to the
practitioner, his/her the duty to warn should at the very least extend to spouses and known
partners of the patient in question in order to vindicate their personal rights. To knowingly

48Bruce McDonald, ‘Ethical Problems for Physicians Raised by AIDS and HIV Infection: Conflicting Legal
Obligations of Confidentiality and Disclosure’ (1988) 22 UC Davis Law Review 557.
49 Herring (n 16) 240.
50 ibid.
51 W v Egdell [1990] 1 All ER 835.
52 R v Harrison [2000] WL 1026999; R v Kennedy [1999] 1 Cr App R 54.
53 Herring (n 16) 242.
54 Tarasoff v Regents of the University of California (n 23).
8
place a person at risk from such serious harm which carries with it the inevitability of death,
and where there is a real possibility of their protection, would certainly appear to be
manifestly contrary to the guarantee to an individual to have their right to life protected by
law.55 In LCB v UK,56 the ECt.HR held that the obligation present in Article 2(1) of the
ECHR, namely, to take ‘appropriate steps’ towards the protection of life may require a state
to adopt preventive action where there is a risk of loss of life resulting from a life-threatening
activity.57 In Ireland, an unenumerated right to ‘bodily integrity’ was recognised by the
Supreme Court in Ryan v Attorney General,58 and in light of such a development, it would
certainly appear that the lack of legal recognition given to third parties from a serious (but
potentially preventable) risk of venereal infection in place of the confidentiality of medical
records remains difficult to reconcile in this regard.

CONCLUSIONS: THE FUTURE OF MEDICAL CONFIDENTIALITY
Confidentiality as a discipline within medical ethics observes a number of emerging
developmental dilemmas.59 However, debate concerning the legal and ethical perimeters of
medical confidentiality in particular carries with it a series of theoretical dilemmas.60 A lack
of clarity and uniformity in the regulatory framework of healthcare services has placed
medical practitioners, particularly those who may be required to treat patients infected with
HIV or AIDS, in an unenviable position whereby they must grapple with their moral and
ethical conflicts.61
The risk to third parties of contracting HIV from AIDS patients is too grave to ever
justify an absolute duty of medical confidentiality in this context.62 It is essential now that
both law and ethics begin to sufficiently factor the unfortunate realities of modern medical
practice in their reasonings and, in doing so, move to better protect innocent and vulnerable
victims from the serious and life-threatening risks otherwise imposed upon them by strict
commitment to medical confidentiality.

55 Article 2 ECHR.
56 LCB v UK (1998) 27 EHRR 212.
57 David Harris, Michael O'Boyle and Colin Warbrick, Law of the European Convention on Human Rights
(Oxford University Press 2014) 208.
58 Ryan v Attorney General [1965] IR 294.
59 See, for instance, Keith Bauer, ‘Privacy and Confidentiality in the Age of E-Medicine’ (2009) 12 Journal of
Health Care Law and Policy 47.
60 See John Ziegler, ‘Ethical Dilemmas in the Doctor-Patient Relationship’ (1976) 2 Social Responsibility:
Journalism, Law, Medicine 69.
61 See also Judith Ensor, ‘Doctor-Patient Confidentiality Versus Duty to Warn in the Context of AIDS Patients
and Their Partners’ (1988) 47 Maryland Law Review 674.
62 See Dru Stevenson, ‘Against Confidentiality’ (2014) 48 UC Davis Law Review 337.
9
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10