20140107 Lecture on The Legal Doctrine of Clinical Confidentiality.ppt

THE LEGAL DOCTRINE OF CLINICAL CONFIDENTIALITY

Dr Kieran Doran, SolicitorSenior Healthcare Ethics LecturerSchool of DentistryUniversity College Cork *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYLegal Definition of Confidential Information

CoCo Engineering v AN Clark (Engineers) [1969] RPC 41

.if the circumstances are such that any reasonable manstanding 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.

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYLegal 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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYCategories 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

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYCategories of Confidential Information

Commercial Information:

Thomas Marshall v Guinle [1979] 1 Ch 227

Clinical Information:

Hunter v Mann [1974] QB 767*

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYAction 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

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYThe Defence of Public Interest toAction for Breach of Confidence

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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYThe Defence of Public Interest to Action for Breach of Confidence

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.

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Tarasoff v Regents of the University of California[1976] 131 California Reporter 14

Here the Psychologist was counselling a Patient, whothreatened 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 Ex-Girlfriend was then murdered.

The Protective Privilege ends where the Public Peril begins. *


Lipari v Spears [1980] 497 F Supp 185:

There is a General Duty to predict danger and protect Society.

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Brady v Hopper [1983] 570 F Supp 1333:

The Legal Test is limited to Specific Threats to Specified Individuals.*


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.

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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;

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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.

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W v Egdell [1990] 1 AER 835

Dr Egdell was a Psychiatrist writing a Report on a Prisoner, aConvicted 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. *


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 Out-Patient and the murdered child . There has to be a Special Relationship with an Identifiable Victim. *


MQ v Gleeson and Dublin City VEC, Chanceand 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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYLegal 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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYLegal 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 detailsto 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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYEthical Principles of Clinical Confidentiality

Irish Medical CouncilA Guide to Ethical Conduct and Behaviour andFitness 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;

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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.

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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;*

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYEthical 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. *



Issues to be Considered:

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

Where circumstances permit, the Patients own Doctor should be informed;

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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. *


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;

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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;

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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.

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DENTAL COUNCIL CODE OF PRACTICE:PROFESSIONAL BEHAVIOUR ANDETHICAL 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;

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DENTAL COUNCIL CODE OF PRACTICE:PROFESSIONAL BEHAVIOUR ANDETHICAL 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.

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYConstitutional 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 *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYHuman Rights Principles of Confidentiality

The European Convention on Human RightsThe 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 *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYAccess 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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYAccess to Clinical Records: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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYAccess to Clinical Records:Legislative Principles

Data Protection Acts 1988-2003

Freedom of Information Acts 1997-2003

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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;

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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.

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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.

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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. *



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;

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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.

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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;

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Records which are subject to Legal Privilege;

Records entrusted to the HSE in confidence; and

Records from which an individual may be identified. *




Records which if accessed would divulge personal information of a deceased Patient;

and

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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. *

THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYCase Study One

You are a Dentist in Private Practice in Bishopstown. APatient 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?

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYCase 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 . What issues of Clinical Confidentiality arise here?

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITYCase Study Three

You are a Dentist in Inner City Dublin. The Gardai arriveinto your Practice seeking to get access to DentalRecords 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 toidentify the deceased Patients body.

What issues of Clinical Confidentiality arise here?

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THE LEGAL DOCTRINE OFCLINICAL CONFIDENTIALITY

Thank You!

Dr Kieran Doran, SolicitorSenior Healthcare Ethics LecturerSchool of Dentistry University College Cork(021) [email protected]

(C) Dr Kieran Doran, Solicitor, 2014 *

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