Don’t tell!

topsecret

A duty of confidence rises when confidential information comes to the attention of a person or public authority in circumstances where it would be unfair were that information to be disclosed to others.

To determine if the information was acquired in confidence, and whether its revelation constitutes a breach of confidence we will apply the case of Coco v A N Clarke Ltd [1969]. For the purposes of Freedom and Information Act 2000 S.41 a breach will always be illegal if:

  • the information has the necessary quality of confidence;
  • the information was imparted in circumstances importing an obligation of confidence; and
  • there was an unauthorised use of the information to the disadvantage of the confider

A breach will not be actionable when there is a defence in the public interest. There are instances, however, where they will rule that the information should be disclosed to the public as a whole, or a section of the public as it is in their interest.

However, an actionable breach is not just one that is arguable but one that would, on the balance of probabilities, succeed.

Lord Bingham held in AG v Guardian Newspapers (No. 2) that a duty of confidence arises from an obligation of conscience. Lord Goff further established that it would be illegal for a doctor to disclose a patient’s information to anyone but the patient. It was also held in General Medical Council that “Confidentiality” is central for patients in order to feel confident to provide information or seek essential medical care.

Patient’s interests in confidentiality is also protected under The Human Rights Act 1998, Article 8; Right to respect for private and family life. However Article 8 is not an absolute right and is qualified by Article 8(2).

Z v Finland (1997) is a good example of a case that applied Art 8 of the Human Rights Act 1998. The court held that there was no violation of the Article as there was good reasons for obtaining information, as the binding purposes being followed and no inconsistent measures were taken.

Baroness Hale held in Campbell v MGN Ltd [2004];  “Blundering in when matters are acknowledged to be at ‘fragile’ stage may do great harm.” An obligation of existence of confidentiality due to the nature of treatment for Ms Campbell’s drug addiction was established.

A recent well known case where unauthorized access to patient medical data and breach of confidence took place, is the case regarding the duty nurse who after a hoax call revealed information about the pregnancy of the Duchess of Cambridge, to two ‘prank-callers’ without identifying them.

The case emphasizes the importance of protecting patient information from dishonest individuals and media sources. Immediate communications and internet, joined with extensive EHR implementation, make confidentiality breaches more common.

The Nurse, Mrs. Saldanha, committed suicide a few days after the incident. She had not shown any previous signs of mental illness or depression. One of the involved parties of the ‘prank-call’ gave her apology to Mrs. Saldanha’s family and added “There is a lot to learn from this tragic event, I believe that hospitals and media organizations should look into their procedures and policies to ensure a tragedy like this never happens again”

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The biggest guru-mantra is; “never share your secrets with anybody. It will destroy you” ― Chanakya

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