Essay question

The duty of confidence is subject to limitations in English law. To what extent can these be justified and might confidentiality best be served as an absolute duty?

Outline answer

The question asks you to focus on the duty of confidence as it applies to medical law in England and Wales, and to examine the recognised exceptions that exist to this duty. The question is asking for some critical evaluation because you will need to conclude as to whether or not the duty of confidence should be absolute, or whether exceptions ought to be available in certain situations.

You might wish to start your answer by defining the duty of confidentiality and explaining its ancient origins that go back to the Hippocratic Oath. Confidentiality has a strong ethical basis that incorporates deontological grounds such as the protection of privacy and rights, as well as consequentialist arguments that are justified on the basis that patients must be honest and open with their doctors in order to receive appropriate medical care. As far as the law is concerned the duty of confidence is underpinned by common law (see Attorney General v. Guardian Newspaper (No 2) [1990]) and statute including human rights legislation (in particular Article 8 that protects the right to respect for private and family life) and the General Data Protection Regulations.

The central importance of the duty of confidentiality can be seen by its pervasiveness. It applies to all persons including adults and those who lack capacity. The duty extends to Gillick-competent children (R (Axon) v. Secretary of State for Health [2006]) and the duty does not necessarily end following death (Bluck).

Notwithstanding the importance of this duty, it is not absolute. Lord Goff held that the duty can be qualified by the public interest (Attorney General v. Guardian Newspaper (No 2)).  You may wish to consider the key exceptions which (amongst other matters) include statutory exceptions, breaking confidence in order to prevent harm to others, police investigations, the public interest and freedom of the press. 

The question calls for consideration as to whether these exceptions to confidentiality can be justified. The cases of Egdell and Tarasoff will be relevant where there was a risk of injury to a third party. Evaluate the law in the context of whether confidence can be broken on the basis of third party interests being ascertainable and therefore recognition of to whom the risk was directed. In Palmer v. Tees, the court found that the Health Authority did not owe a duty of care to the third party on the basis that the threat had not been directed at an ascertainable person. Would this be justified in today’s environment considering the importance of child protection? Compare this to the case of R (Stone) v. South East Coast Strategic Health Authority, where the court ruled that in view of Michael Stone’s criminal acts and the publicity surrounding his case, an interference with his right to confidence was both necessary and proportionate.

A context that is likely to become more important in the coming years pertains to genetic relationships and confidentiality. ABC v. St George’s Healthcare NHS Foundation Trust [2017] concerned whether doctors owed a duty of care to the pregnant daughter of a patient with Huntington’s disease, which has a transmission rate of “fifty-fifty” to children. The man refused to allow his doctors to tell his daughter, and it was unknown whether the condition had been passed to the child. Had she been informed she could have decided to terminate the pregnancy. The daughter brought an action claiming negligence and breach of her human rights. On appeal the case was found to have an arguable basis and the case was remitted for trial. Although it was held that no duty was owed to the daughter in the circumstances, future cases would be decided on specific facts and a duty could to disclose confidential information could be owed where the facts required.

You might wish to consider the circumstances under which confidence can be breached on account of statutory exceptions, for example, under the Health Protection (Notification) Regulations 2010, which requires doctors to notify a local authority proper officer if there are reasonable grounds for suspecting that a person has a notifiable disease. Although Schedule 1 lists several conditions, the list is not exhaustive and confidentiality can be breached if, in the view of the doctor, a disease could present a significant harm to health. To what extent is breach of confidence justified in these circumstances since it might depend solely on a single person’s viewpoint? There are also several issues surrounding breach of confidentiality and HIV cases that you may wish to consider. Similarly, if there is an ongoing police investigation then a duty of confidentiality may be broken in relation to serious crime, but what is the definition of such a crime?

In your concluding paragraph remember to refer back to the question and come to a conclusion as to whether the duty of confidentiality ought to be absolute or subject to exceptions. Explain your conclusions. If you feel this should be an absolute duty, then you must explain why you think so. On the other hand, if you believe that the duty should not be absolute, then what safeguards should exist, particularly in respect of the public interest and proportionality so that individuals’ right to privacy are maintained.