Is breaching patient confidentiality ever
justifiable?
A cluster of AIDS cases in Cornwall has prompted calls for a person
allegedly linked to the outbreak to be named. But is breaching a patient's
confidentiality ever justifiable, even if it's in the interests of public
health? Mark Stephens, head of media at Finers Stephens Innocent and Dr
Stephanie Bown, a legally qualified doctor at the Medical Protection
Society, discuss the issues with Veronica Cowan...
The surf’s up in St
Ives, the Cornish resort, along with anxiety levels about an AIDS scare. A
cluster of up to ten cases led West Cornwall Primary Care Trust to warn
earlier this month that heterosexual men and women – with a risky sexual
history, between the ages of 20 and 50, could be at risk. The Trust was
under pressure to name a man after media reports that it had said there were
"some links to a person", but Dr David Miles, director of public health at
the Trust, denies this was said, although he did not rule out a link with an
individual.
Confidentiality is a fundamental ethical principle in health care and
doctors can be in a tricky situation, because naming an individual patient
without consent would breach patient confidentiality, and disciplinary
proceedings, and court action, could follow. In cases of “serious
communicable diseases” disclosure to sexual partners may be permitted, and
in exceptional circumstances disclosure to a public authority like the
police may be justified, said a spokeswoman for the General Medical Council.
But she added: “I cannot imagine any circumstances in which a doctor could
tell the media, without the patient’s consent”, and a doctor would have to
be prepared to justify his or her actions later."
So is this too restrictive where public safety is involved? A spokesman for
the Terrence Higgins Trust does not think it is when it comes to HIV: “There
is a nervousness about being identified, because of a fear of prosecution,
which is on the increase. There is also a stigma around HIV.” Dr. Miles does
not perceive the rule on confidentially as being a handicap to
practitioners like himself, and observed: “We can work with it.”
So what are the legal issues? Revealing medical records would be a criminal
offence under the Data Protection Act 1998, although the CPS would have to
demonstrate a public interest in any decision to prosecute, according to
Mark Stephens, head of media at Finers Stephens Innocent. On the civil law
front, a patient at risk of being named could get an injunction to prevent
this. ”If a patient has already been identified, he could claim his medical
privacy had been invaded,” comments Stephens, adding: “That is actionable in
damages, although there is a public interest defence, the success of which
would depend on how promiscuous the man had been, and whether he had
endangered third parties.” A defamation action could also follow disclosure,
although correct identification would raise the defence of justification, he
said.
Dr Stephanie Bown, a legally qualified doctor at the Medical Protection
Society, observed that clinicians regularly have to balance individual
rights of confidentiality against wider interests of public safety. “The
information on HIV would be considered highly sensitive but benefits in
disclosure would enable people to protect themselves from serious harm or
death. In deciding whether to breach confidence clinicians would need to be
confident of correct identification, try all other steps to prevent
individuals exposing others to risk, and be able to demonstrate that this
was done if there was a complaint to the GMC.” Noting that there could be a
public interest in disclosing to a well defined group, she gave the example
of a case where photographs were put up in nightclubs – a targeted
disclosure – to protect people from an individual.
The other side of the coin, observes Bown, is that if clinicians do nothing
and a victim, who contracts HIV from the infected person, takes the view
that insufficient steps were taken to alert him or her, the victim may be
able to bring an action in negligence if they can demonstrate it was
reasonably foreseeable they would be harmed.
She concluded that doctors would be well advised to contact their medical
protection organisation to get advice in cases like this. “The important
thing is to put themselves in the best position to rebut a challenge, by
showing everything is documented and that they have taken advice from other
professionals.”
(23/05/06)
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Legislative annotations in other services:-
Data Protection Act 1998