PRIVACY, CONFIDENTIALITY AND HIV

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PRIVACY, CONFIDENTIALITY AND HIV

• DILEMMAS OF DISCLOSURE

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Health care professionals and confidentiality

• The Hippocratic legacy
• Professional ethical codes address
  confidentiality
• General Medical Council ( 2004) (1997)
• Nursing and Midwifery Council (2004)

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HEALTH CARE, HIV AND CONFIDENTIALITY

• The justifications
• - utilitarian
• - the right to privacy

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LEGAL SAFEGUARDS

• AG v Guardian Newspapers (No 2) 1988
• a duty of confidence arises where confidential
  information comes to the knowledge of a person
  (the confidant) in circumstances where he has
  notice, or is held to have agreed that the
  information is confidential with the effect that
  it would be just in all the circumstances that he
  should be precluded from disclosing the
  information to others per Lord Goff.

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CONFIDENTIALITY AND PRIVACY

• Article 8 of ECHR
• 1. Everyone has the right to respect for his
  private and family life his home and
  correspondence.
• 2. There shall be no interference by a public
  authority with the exercise of this right except
  such as is in accordance with the law and is
  necessary in a democratic society in the
  interests of national security, public safety or
  the economic well being of the country, for the
  prevention of disorder or crime, for the
  protection of health or morals, or for the
  protection of the rights and freedoms of
  others.''

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CONFIDENTIALITY,PRIVACY AND THE ECHR

• For an interpretation of Art 8 in relation to
  health care confidentiality see
• Z v Finland (1998) 25 EHRR 371
• MS v Sweden (1997) 45 BMLR 133 (ECHR).

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CONFIDENTIALITY AND PRIVACY

• No general privacy tort ?
• See Wainwright v Home Office 2003
• But implications of the ECHR- privacy is an issue
  to be taken into account
• Campbell v MGN 2004

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CONFIDENTIALITY AND HIV

• X v Y 1988
• H(a health worker) v Associated Newspapers Ltd
  2002

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CONFIDENTIALITY AND THE PUBLIC INTEREST

• AG v Guardian Newspapers( No 2) 1988
• although the basis of the laws protection of
  confidence is that there is a public interest
  that confidences should be preserved and
  protected by the law, nevertheless that public
  interest may be outweighed by some countervailing
  public interest which favours disclosure per
  Lord Goff.

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Disclosure and the Public Interest

• Gartside v Outram, (1857) 114, there is no
  confidence as to the disclosure of iniquity..per
  Wood VC
• Beloff v. Pressdram 1973, Ungoed Thomas J.
  held that disclosure of information relating to
  "matters medically dangerous to the public" is
  justified

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DISCLOSURE AND THE PUBLIC INTEREST

• Disclosure must be to someone with a proper
  interest in receiving the information see Initial
  Services v. Putterill 1967.

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DISCLOSING WITHOUT CONSENT GMC (2004)

• 27. Disclosure of personal information without
  consent may be justified in the public interest
  where failure to do so may expose the patient or
  others to risk of death or serious harm. Where
  the patient or others are exposed to a risk so
  serious that it outweighs the patients privacy
  interest, you should seek consent to disclosure
  where practicable.

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GENERAL MEDICAL COUNCIL 2004

• If it is not practicable to seek consent, you
  should disclose information promptly to an
  appropriate person or authority. You should
  generally inform the patient before disclosing
  the information. If you seek consent and the
  patient withholds it you should consider the
  reasons for this, if any are provided by the
  patient.

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GENERAL MEDICAL COUNCIL 2004

• If you remain of the view that disclosure is
  necessary to protect a third party from death or
  serious harm, you should disclose information
  promptly to an appropriate person or authority.
  Such situations arise, for example, where a
  disclosure may assist in the prevention,
  detection or prosecution of a serious crime,
  especially crimes against the person, such as
  abuse of children.

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An obligation to disclose?

• Police investigations?
• Specific statutory obligation to disclose
• Police and Criminal Evidence Act 1984 s9.
• R v Cardiff Crown Court ex parte Kellam 1999
• Note R v Kelly (2001)- Scottish case.

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An obligation to disclose a patients HIV
positive status?

• Civil Law liability?
• See W v Egdell 1989
• Tarasoff v. Regents of the University of
  California (1976)
• Reisner v Regents of the University of California
  (1995)
• c/f Palmer v Tees HA 1999

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Confidentiality in the Courtroom

• No specific privilege for the health professional
  in the courtroom.
• Duchess of Kingstons case (1776)
• Hunter v Mann (1974)

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PRIVACY, CONFIDENTIALITY AND HIV

• DILEMMAS OF DISCLOSURE