Confidentiality

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Cases from unusual sources have recently given us considerable insight into the English courts’ perspective of the confidential relationship between the doctor and her patient. We all recognise that confidentiality is an imperative, rather than merely an option in the exercise of good manners, but quite how far will the courts ask us to go in protecting our patients’ secrets?

This story starts with an unlawful killing. The man responsible, F, was convicted of his wife’s manslaughter, because he lacked capacity to form the intention necessary to be found guilty of murder. Once placed in a secure psychiatric unit, it was suspected that F might have Huntington’s disease. This would go some way to explaining his lack of capacity to form the intention to murder; although his capacity to defend his private information was intact. At the relevant tertiary genetic centre, the responsible triplet repeat of the gene for HD was confirmed. F said that he had told his brother, and his doctors sought consent to disclose the diagnosis to his daughter, who at this time was in her first trimester, attending the same tertiary centre for her antenatal care. F refused consent for his daughter to be told, in part because he feared it might lead her to have an abortion. Her later complaint, the substance of this case, was that if she had been told of her father’s diagnosis, she would have been tested, since her inheritance risk was 50%. The test would have revealed her own diagnosis of HD. And on the basis of that, she asserted that she would have aborted her foetus, thus obliterating the risk of transmitting to another generation this grievous disease.

The case was discontinued; because the judge refused to accept that the hospital’s duty of care to the father extended to a third party, in this case his daughter. To find otherwise would have been invidious, since the geneticists would have had to choose between their duties of confidence to the father, as opposed to their duty to disclose to the daughter. By making either choice, they would have broken their duty of care to one or other patient. But putting that aside, the judge made crystal clear the duty to protect the father’s confidence, irrespective of the consequences to his oblivious child and grand child.

A year later, a Family Court sitting in private was considering care proceedings relating to a 15 year old girl. A psychiatrist who had assessed and treated her mother provided factual evidence relating to her mental health to the court. Following the care proceedings, the mother made allegations in the press against, amongst other things, Dr X’s conduct; and published materials on the internet despite an injunction preventing her from doing so. The materials she put in the public domain included both defamatory statements about Dr X and an excerpt from her own medical report.

Doctor X was unable to defend himself in this (very) public arena without disclosing the patient’s clinical information, necessary to counter these criticisms point by point.

He returned to the Family Court, requesting to use her clinical details to defend himself via ‘reputable journalists’. This he said was necessary, since “...misinformed press reporting has severely damaged my reputation and my ability to work in child protection or within the court arena”. The court would not allow this, irrespective of his argument that the mother had already willingly placed her private information into the public domain. The court reminded Doctor X that the mother’s behaviour gave him no licence to behave similarly. If he wished to assert that her accusations were defamatory, he was free to do so in the civil courts: but emphatically he was not permitted to join in open public combat with the mother armed with her very personal confidences.

Both cases illustrate that even with health and reputations at stake, courts are loathe to allow confidences to be shared without consent, despite circumstances that some may see as favouring disclosure on the basis of ‘natural justice’. Whether or not you agree with these judgements, their defence of confidence is plainly resolute, and will bolster our regulator’s determination to maintain patient confidentiality.

Robert Wheeler
Department of clinical law, October 2016