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Patient confidentiality: When can a breach be justified?
Article in Continuing Education in Anaesthesia, Critical Care and Pain · March 2013
DOI: 10.1093/bjaceaccp/mkt032
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, Patient confidentiality: when can a breach
be justified?
Matrix refernce 1F01,
K Blightman MBChB FRCA GDL DFMS LLM 1F02, 1F03, 1F05
SE Griffiths BSc MBBS FRCA LLM
C Danbury MPhil FRCP FRCA FFICM
Downloaded from https://academic.oup.com/bjaed/article/14/2/52/271401 by guest on 21 August 2021
Key points Confidentiality is central to the preservation of - have the necessary quality of confidence,
trust between doctors and their patients. The - be imparted in circumstances importing an
Confidentiality is central to
moral basis is consequentialist, in that it is to obligation of confidence,
the preservation of trust
between doctors and their improve patient welfare. There is a wider com- - be disclosed without the permission and to
patients. munitarian public interest in the protection of the detriment of the person originally com-
confidences; thus, preservation of confidentiality municating it,
Patient confidentiality is not
is necessary to secure public health. Failure to - not already be in the public domain,
absolute.
maintain this venerable obligation may result in - be in the public interest to protect it.
Legitimate exceptions are suboptimal treatment (X v Y [1992] 3 BMR 1).
disclosures with patient Enforcement of a legal duty in the UK has to
For centuries, doctors have upheld this ethical
consent, when required by date been relatively weak. Both the GMC and
principle underpinned by the Hippocratic Oath
law and where there is a Department of Health3 provide ethical guidance
public interest. that has been updated by the international com-
for professionals that would nonetheless be
munity assenting to the Declaration of Geneva.
When breaching patient given considerable weighting by the courts or in-
The practice of doctors in the UK is subject to
confidentiality and patient dependently lead to professional disciplinary
the regulatory authority of the General Medical
consent cannot be obtained, action. There has to date been no criminal con-
seek advice from senior Council (GMC) who strongly uphold this profes-
viction of a doctor for breach of confidence, al-
colleagues or a medical sional duty. The British Medical Association
though civil claims in negligence have occurred
defence union and (BMA) advises doctors to consider the benefits
and damages awarded (Cornelius v Taranto
document your reasons of breaching patient confidentiality against the
[2001] 68 BMR 62) when confidence has been
clearly. harmful consequences of damaging the profes-
breached by revealing medical information
sional relationship and risking public trust in a
without explicit consent.
confidential service.1
The NHS has historically had a poor record
However, medical confidentiality is not abso-
K Blightman MBChB FRCA GDL DFMS of data protection. In 1997, the Caldicott Report
LLM lute in modern medicine. There are occasions
was commissioned to provide a framework for
Specialist Registrar when there is a need to breach this idealism. The
the storage and use of patient information as
Royal National Orthopaedic Hospital legitimate exceptions are specified by the
Brockley Hill shown in Table 1. As a result, each NHS Trust
GMC’s professional code of conduct:2
Stanmore has a nominated Caldicott Guardian responsible
Middlesex HA7 4LP - disclosures with consent; for protecting patient confidentiality by ensuring
UK
- disclosures required by law; the Caldicott principles are followed when
SE Griffiths BSc MBBS FRCA LLM - disclosures in the public interest. breaching confidentiality.
Specialist Registrar More recently, a review of information gov-
Royal Marsden Hospital
Fulham Rd
ernance by Dame Fiona Caldicott was commis-
London SW3 6JJ Characteristics of confidential sioned by the government in 2012 to look at the
UK information need to balance the protection and sharing of
C Danbury MPhil FRCP FRCA FFICM patient information in order to improve patient care
The general principles of what is considered
Consultant in Anaesthesia and Intensive in a modern world.
Care and Visiting Fellow in Health Law confidential have been outlined in common law.
Intensive Care Unit A duty of confidence arises when one person
Royal Berkshire Hospital discloses information to another (e.g. a patient
London Road Breaching patient
to a doctor) in circumstances where it is reason-
Reading RG15AN
able to expect that the information be held in
confidentiality
UK
Tel: þ44 1183 228840 confidence. To represent a breach, confidential Inadvertent breaches are potentially common-
E-mail: chris.danbury@nhs.net
(for correspondence) information must: place on wards if medical notes are left visible
doi:10.1093/bjaceaccp/mkt032 Advance Access publication 28 August, 2013
52 Continuing Education in Anaesthesia, Critical Care & Pain | Volume 14 Number 2 2014
& The Author [2013]. Published by Oxford University Press on behalf of the British Journal of Anaesthesia.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
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