Confidentiality in Healthcare
Ethics & Law
Sean McArt BSc, MSc, H Dip.
‘The things that most people want to know about are usually none of their
business’
George B. Shaw
Session Objectives
• What is confidentiality? /Why respect
confidentiality?
• The law
• Is confidentiality absolute/Exceptions to
confidentiality/Breeching confidentiality
• Confidentiality –Death, incapacity and minors
• Confidentiality - Palliative care case study
Confidentiality
• Generally, if
institution/person ‘A’ holds
information about person ‘B’
then person ‘C’ cannot obtain
that information in the
normal course of events
without the consent of person
‘B’
• ‘Most people consider health
information to be highly
personal and, therefore, need
to be confident that their
privacy will be protected
whenever they use a health
service ... Clear and open
communication between the
health service provider and
health consumer is integral to
good privacy’
Radwanshi (2001)
What information is confidential?
All identifiable patient information, whether written,
computerised, visual or audio recorded or simply held in the
memory of health professionals, is subject to the duty of
confidentiality.
It covers:
• Any clinical information about an individual’s diagnosis or
treatment
• A picture, photograph, video, audiotape or other images of the
patient
• Who the patient’s doctor is and what clinics patients attend
and when
• Anything else that may be used to identify patients directly or
indirectly.
(BMA 2008)
When does a matter become
confidential?
Broadly speaking the courts have recognised
three elements to deciding whether a matter is
confidential:
• The nature of the information
• Nature of the encounter
• Nature of any disclosure
Why respect confidentiality?
• Trust is an important aspect between patients and
healthcare professionals. Patients without fear of a
breech of confidentiality should be able to
communicate symptoms that often they may feel are
embarrassing, stigmatising, or indeed trivial
• Without this trusting relationship patients may not
divulge information which may make treating them
impossible
• Patients may not seek medical attention at all
• Has important role in a professional patient
relationship establishing a sense of security,
freedom of action and self respect for patients
http://www.dataprotection.ie/viewdoc.asp?DocID=225 (2003)
Why respect confidentiality?
Why respect confidentiality?
• Hospital policy
▫ Contained within each member of staff contract of
employment
▫ Can result in disciplinary action
Why respect confidentiality?
• Professional Code of Conduct – An Bord
Altranais
‘Information regarding a patient’s history,
treatment and state of health is privileged and
confidential...’
‘Professional judgement and responsibility should
be exercised in the sharing of such information with
professional colleagues. The confidentiality of patient’s
records must be safeguarded.’
(http://www.nursingboard.ie/en/publications_current.as
px?page=4 )
The Irish Medical Council – Guide to
Professional Conduct and Ethics
• ‘Confidentiality is a fundamental principle of medical
ethics and is central to the trust between patients and
doctors’
• ‘Patient information remains confidential even after
death’
• ‘You should ensure as far as possible that the patient’s
privacy is maintained at all times and that accidental
disclosure of confidential information does not occur’
• ‘You should ensure as far as possible that confidential
information in relation to patients is maintained
securely and in compliance with data protection
legislation’.
Why respect confidentiality?
The Data Protection Commissioner
Criminal sanctions
• Under section 31 of the Acts, the maximum fine on summary
conviction of such an offence is set at €3,000. On convictions on
indictment, the maximum penalty is a fine of €100,000.
Civil sanctions
Where a person suffers damage as a result of a failure by a data
controller or data processor to meet their data protection
obligations, then the data controller or data processor may be
subject to civil sanctions by the person affected. Ordinarily, the
"injury" suffered by a data subject will be damage to his or her
reputation, possible financial loss and mental distress.
Confidentiality Ethics and Law
Confidentiality in Law
•
•
•
•
•
•
•
•
•
•
Constitution
Universal Declaration on Human Rights 1948
European Convention on Human Rights 1950, 2003
Council of Europe Convention on Data Protection
1981
Convention on Human Rights & Biomedicine 1997
Data Protection Act 1988 & 2003
Freedom of Information Act 1997-2003
Convention on Human Rights Act 2003
Common Law
Lisbon Treaty
Constitution
• Article 40.3.1 protects the ‘personal rights’ of
each citizen
• These personal rights include implied rights
• Implied right to privacy first outlined in McGee
v. Attorney-General [1974] I.R.284
‘State to protect & vindicate the citizen’s right to
constitutional privacy’
European Convention on Human Rights
1950, 2003
• The act under article 8 guarantees the right to
respect for private and family life. This quite clearly
includes the right to confidentiality stating
‘Protection of personal data, not least medical data,
is a fundamental importance to a person’s
enjoyment of his or her right to respect for private
and family life ... Respecting the confidentiality of
health data is a vital principle in the legal systems
of all the contracting parties to the convention’
The Data Protection Act
• Data Protection Act 1988 –
▫ Computerised personal information only
• Data Protection Act 2003
▫ Extended the data protection remit to manual files
▫ Strengthens the privacy rights of individuals
▫ Adds obligations on data controllers to fairly
process personal information
▫ Gives power to the Data Protection Commissioner,
The Freedom of Information Act 1997
& 2003
Gives individuals legal rights to:
• Access personal and non-personal records
• Have personal details amended or deleted where
information is incorrect, incomplete or
misleading
• Seek reasons for decisions that affect them
Is the duty of confidentiality absolute?
Is confidentiality an absolute right?
• In Ireland confidentiality or privacy is
recognised by the courts as a right, but not an
absolute right
• The belief that confidentiality is not absolute is
also the model which our two closest neighbours
the U.S. and the U.K. subscribe to
• In France and Belgium confidentiality is
considered as an absolute requirement to protect
the patient’s interests
The exceptions to confidentiality
There are four circumstances where exceptions may be
justified in the absence of permission from the patient:
• (1) When ordered by a Judge in a Court of Law, or by a
Tribunal established by an Act of the Oireachtas.
• (2) When necessary to protect the interests of the
patient.
• (3) When necessary to protect the welfare of society.
• (4) When necessary to safeguard the welfare of another
individual or patient.
(https://medicalcouncil.ie/MediaCentre/Publications/Older/Ethical%20Guide%202004.
pdf )
When necessary to safeguard the
welfare of another individual or
patient
Tarasoff v. Regents of the University of
California
• Prosenjit Poddar a university student from India
studying in the U.S. attended folk dancing classes
with Tatiana Tarasoff and subsequently kissed her
on New years eve.
• Tatiana rebuffed his advances sending him into an
emotional crisis, in which he became depressed neglecting his appearance, studies and health
• Owing to this he was placed under the care of a
psychiatrist Dr. Gold
• Dr. Gold in turn referred him as an out-patient to a staff
psychologist named Dr. Moore. Following several sessions Poddar
outlined his intention to kill Tatiana, on her return from vacation
• Shortly after the session, Dr. Moore informed the campus police to
detain Poddar, at which time he would sign a seventy-two hour
detaining order, he also outlined this in a letter to the head of the
campus police.
• The campus police on coming into contact with Poddar decided on
their own initiative to release him. Simultaneously Dr. Powelson the
director of psychiatry learned of Dr. Moore’s actions and ordered
him to intercept the letter to the campus police and destroy it along
with his therapist’s notes and take no further action against
Prosenjit. On the 27th of October Poddar killed Tatiana with the use
of a knife as she ran away from him
When necessary to protect the welfare
of society
• W v. Edgell and Others [1990] 1 All ER 835 CA
England
• Infectious Disease (Amendment) Regulations
2000
• Gunshot wounds, where one may inform the
authorities under section nine of the Data
Protection Act (1988)
• Road Traffic Law
When necessary to protect the
interests of the patient
• Children or adults who are subject to abuse Child Care Act 1991, furnishes the Garda
Siochana with the power to evoke an emergency
care order if they believe there is an immediate
and serious risk to the health or welfare of a
child
• The protection of an individual from themselves,
in cases of suicide could also be broadly placed
in this category; this is where the limits of this
exception become vague
When ordered by a Judge in a Court of
Law
• Discovery – must be done by court order
• Discovery is related to relevant issues involved
in the court proceedings only
• ‘The duty cast on every good citizen to assist in
the investigation of serious crime’
Hunter v. Mann [1974] QB 767
Breeching Confidentiality
• If the individual consents
• If required by statute
▫
▫
▫
▫
Infectious disease
Child protection
Road traffic law
Eligibility to health services
▫
▫
▫
▫
Preventing harm to others
Exposing, detecting or preventing crime
In litigation
Traditionally, no medical research exception has been recognised
• The Public Interest
• Is disclosure for relevant and sufficient reason and
proportionate?
• A healthcare professional MUST be able to justify any breech
of confidentiality
Confidentiality for those who cannot
consent?
Who has a right to know your
healthcare information?
• If you are >18
• Are fully competent (or are competent to
understand your medical information in order to
make a decision)
• And are alive
• Only you and the people you authorise to share
your private information with have a right to
view your information (relatives of a
competent adult do not).
Groups
• Incapacity
• Death
• Minor
Incapacity
• Where an individual cannot;
comprehend or retain treatment
information, believe it and
weigh it in the balance to arrive
at a choice then they are
considered unable to consent to
that treatment
• If a doctor decides to breach
confidentiality on the ‘best
interest’ argument, first they
must weigh the possible harms
against the benefits, second,
they must be prepared to justify
their decision and third if
unsure they should consult
experienced colleges
Re C (adult refusal of medical
treatment) [1994] 1 All ER 819
General Medical Council.
Confidentiality: protecting and
providing information.
http://www.gmcuk.org/guidance/current/library
/confidentiality.asp
Death
• Declaration of Geneva –
‘respect for the secrets
confided... even after the
patient has died’
• General Medical Council –
‘extends after death’
• Morally an individual’s
confidentiality is still
considered to require respect
• Legally -confidence is prima
facie a personal matter thus
the legal duty ends with the
death of a patient
• Death certificate is a public
document
• Medical records can be
accessed if certain criteria are
met under the Freedom of
Information Act by their
spouses or next of kin
Minors
• Unwanted parental intrusion to confidentiality
can result in minors loosing trust in healthcare
providers and move away from health care
• Gillick competency has not been shown by any
Irish case law to exist
Minors
• For those aged between sixteen and eighteen, the NonFatal Offences Against the Person Act (1997), allows
consent to surgical, medical or dental treatments (this
act does not allow them to decline treatment)
• The Child Care Act (1991)
‘Insofar as practicable, give due consideration, having
regard to his age and understanding, to the wishes of
the child’. (Child Care Act 1991)
Law Reform Commission in Ireland have suggested that it
is the prevailing belief in Irish legal opinion that under
16’s have no personal power to consent to medical
treatment
Case
‘Against all the odds, and despite being referred to a hospice, Collette showed
signs of recovering from bowel cancer. After several months, the
consultant decided that Collette was no longer terminally ill, although he
could not be certain that she would not become ill again in the future.
Accordingly, he felt she no longer required the extensive support supplied
by the hospice and discharged her. Collette was very upset by this, partly
because she did not want to loose her terminally ill status, which had
generated her more attention from her family than she had become
accustomed to in the past.
The hospice staff were not unsympathetic. They had promised that they
would not abandon her and would care for her until she died. The staff
also widely believed that her family had rather neglected her previously.
Because they did not wish to let Collette down, she was given radically
reduced honorary status as an out-patient. For instance she still attended
social events and had her hair set by the hair dresser who donated some of
her spare time to the hospice. It quickly became obvious that Collette’s
family did not realise that she was no longer thought to be terminally ill.
The nurse manager attempted to talk to Collette about this, but she was
politely and firmly told to mind her own business.’
(Webb 2005)
How can healthcare providers insure
confidentiality is maintained
•
Discretion in general conversations
▫
‘New technology’: Facebook, Twitter
▫
Online posting of unprofessional content
(Katherine C. Chretien, et al. JAMA. 2009;302(12):1309-1315 Oct, 2009)
•
•
Examining how we talk to patients
▫
Out-side work
▫
With Non-clinical personnel:(confidentiality agreement)
How do we ‘carry’ data?
▫
Unsecured laptops
▫
USB keys
▫
Is data anonymised where possible
•
When information is shared – every party must be aware of his/her obligation of
confidentiality
•
Seek patient consent as early as is reasonably possible
Summary
• Confidentiality is VITAL in healthcare – But is not
always an absolute right
• There are 4 exceptions defined by the Irish medical
council
• A healthcare professional MUST be able to stand over
any breech of confidentiality and it should be a last
resort
• Duties to inform authorities in certain cases (Child
abuse, elderly abuse, public interest) – where danger
exists, should only be done after careful consideration
• All competent persons over 18 have the right to
confidentiality- for all other persons healthcare
providers must act in the patients best interests
Questions?