Chapter 7 Guidance on answering selected questions from the book

Question

Does it matter whether the protection of medical confidential information is regarded as a matter of private rights or public interest or both?

Guidance

This question goes to the heart of many debates about confidentiality.  It is easy to see the law on confidentiality as a matter of balancing a patient’s right to protect their confidential information and the public good in circumstances in which a breach of confidentiality can be justified.   That, however, would be to over-simplify the issue.  There is a public interest in protecting confidentiality.  If patients are reluctant to discuss their medical issues with their doctors, that will be costly to the NHS and the public as a whole.  The current concerns about pandemics, for example, show how important it is that people have faith in the medical profession.  Similarly the ‘simple’ approach fails to acknowledge that the most common justification for breach is consent from the patient: that rests primarily in the interests of the patient, rather than the public good.

One way, therefore, of answering this question is to go through the different justifications for protecting confidentiality and the different justifications for breaching confidentiality and explore how these can be said to be protecting public and private interests.  In fact, it may well be the distinction between private and public interests is a very blurred one.

Reading

Chico, V. and Taylor, M. (2018) ‘Using And Disclosing Confidential Patient Information and the English Common Law: What Are The Information Requirements Of A Valid Consent?’, Medical Law Review 26: 51.

Stanton, C. (2018) ‘Patient Information: To Share or Not to Share?’, Medical Law Review 26: 328.