I am a Writer/Researcher with Ivory Research Ltd and have satisfactorily completed many assignments. I am a qualified lawyer with a specialist degree in International Commercial and Shipping Law which I passed at distinction level from a UK University. I also have experience in the financial sector and telecommunications sector. As part of the requirements for the completion of my first and post graduate degrees, I was required and completed a number of term papers in different subjects of law and over twenty thousand word dissertations which involved not only academic but empirical and sociological research; tapping into the effect of law in practice and society. I am currently involved in further research for professional and academic purposes.

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How do doctors face an obligation of confidentiality towards their patients?
'Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom , which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets'ⁱ

This aspect of the Hippocratic Oath, widely cited, demonstrates the accepted ethical demand that a doctor-patient relationship should be one based on trust; a patient should be 'open', disclosing personal information to the doctor to enable proper diagnosis and treatment, the latter should, on the one hand, ensure that such information must not be disclosed in circumstances contrary to the patient's private interests.

The relevance of the doctor's duty of confidentiality cannot be overemphasised; it has ethical undertonesⁱⁱ , human rights implicationsⁱⁱⁱ , is recognised at common law and codified by statute^iv. A breach of this obligation exposes a doctor to serious professional penalties in some circumstances, including deregistration^v. The patient also has a right to enforce the obligation, either by way of injunction preventing disclosure of the confidential information or through damages^vi for detriment caused by disclosure^vii.

Its importance notwithstanding, the obligation is not absolute^viii. The law admits that certain circumstances warrant abrogation of this obligation; this is moreso where public interests demand that a doctor necessarily derogate from the obligation.

This paper shall attempt an examination of the doctor's duty of confidentiality, the exceptions to, and justifications for the exceptions to the obligation. In the first part we shall undertake a brief outline of the basis for an obligation of confidentiality generally, and as concerns doctors particularly; the legal basis of the duty, the nature of the obligation i.e. when the duty may be said to have been breached, and the scope of the duty. In the second part, we shall identify the exceptions or circumstances under which a medical doctor may be justified in derogating from this obligation. Our objective shall be a critical analysis of the circumstances of derogation as identified and an evaluation of the justifications for these exceptions. In this regard, we shall argue that the pragmatic 'interests balancing' approach adopted by the courts is necessary and best suited in a society of complex, dynamic and diverse medical and sometimes opposing social interests.

Whether the obligation of confidentiality is specie of the law of privacy^ix, or is derived from different fields of law giving rise to a 'composite jurisdictional basis'^x, it seems that the accepted legal basis for the duty of confidentiality lies in equity^xi. While suggesting an alternative basis for the duty of confidentiality in tort i.e. a doctor's negligence in the exercise of reasonable care, Jackson^xii further submits that an action can only be maintained on this ground on proof of 'tangible' damage thus making it less promising.

In Attorney General v Guardian Newspapers Ltd (No.2)^xiii the court directly acknowledged this duty of confidentiality and set out the general features of the duty. In that case, Goff, LJ stated that,

'...a duty of confidence arises when 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. ...The extent of this broad general principle reflects the fact that there is a public interest in the maintenance of confidences, that the law will provide remedies for their protection.'

It thus follows that for there to be a breach of the obligation of confidentiality, three elements must exist^xiv ;

1. The information divulged must have the necessary quality of confidentiality about it,
2. the information must have been imparted in circumstances importing an obligation of confidence , and
3. there must be an unauthorised use of that information.

The courts have accordingly accepted that the relationship of doctor and patient imposes an obligation on the doctor to treat information about his patients as confidential^xv . In Hunter v Mann^xvi Boreham, J, stated that; '...in common with other professional men, for instance a priest... the doctor is under a duty not to disclose [voluntarily], without the consent of his patient, information which he, the doctor, has gained in his professional capacity^xvii.'

Whilst it is apparently clear that the duty of confidentiality would apply to information which a doctor acquires directly from the patient or by his own examination or observation of the patient, it also seems that the duty extends to information concerning the patient which the doctor learns from other sources in his character as the patient's doctor^xvii. The position is such that even an inadvertent acquisition of information which clearly has the necessary quality of confidence about it, binds the doctor to confidentiality^xix.

The duty of confidentiality subsists even where the doctor has a 'dual responsibility' to the patient and another third party with respect to such information e.g. where he has been engaged by an employer, insurance company or other institution, such as the police, for the latter's purposes. However, the scope of the obligation in this regard is limited, and would not be held to exist where the doctor discloses the information to the third party who engaged him and in the circumstances in which the patient knew or reasonably ought to know that it would be disclosed to that third party^xx.

Another category of special patients owed a modified duty of confidentiality include children, incompetent adults and the dead^xxi. In Venables v News Group Newspapers^xxii , it was held that '[c]hildren, like adults, are entitled to confidentiality in respect of certain areas of information... [and] [m]edical records are the obvious example.' However, it would seem that the obligation should only be owed to a 'Gillick Competent' child, while the 'best interest' test should be invoked in determining whether such a duty is applicable to a 'non Gillick Competent' child^xxiii. It is accepted however, that a doctor's duty of confidentiality to a very young child does not involve keeping medical information from her parents. In this case, the duty of confidentiality is owed to the family unit of parent(s) and child^xxiv.

In R (on the application of S) v Plymouth City Council^xxv the court of appeal accepted that whilst an incapacitated adult did have a 'theoretical' interest in the confidentiality of his medical records, disclosure to an appropriate person was necessary and proportionate^xxvi.

With respect to the dead, the debate arises as to the legal basis for the duty of confidentiality. While the Law Commission^xxvii takes the view that a right of action for breach of confidence after the death of the confider can only arise if the information is of a 'quasi proprietorial' character, legal experts^xxviii are of the opinion that equity may on the basis of 'unconscionability' impose a duty of confidentiality on the doctor in these circumstances. Others^xxix argue for a post mortem duty of confidentiality on the basis of the 'best consequences' analysis. These arguments and analysis find support in the Department of Health and GMC^xxx guides on confidentiality.

It is recognised that for there to be breach of the obligation of confidentiality, there need not be 'deliberate disclosure', the obligation is breached even where the disclosure is 'inadvertent'^xxxi.

However as earlier observed, the obligation is not absolute; in certain circumstances the duty is abrogated or excepted. Thus in Spycatcher case, the court accepted the limits of the obligation when it stated that,

'...although the basis of the law's 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 other countervailing public interest which favours disclosure....It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure'.

Our purpose in this section is an analysis of these circumstances and the justifications thereof.
CONSENT: Consent extinguishes the duty of confidentiality. Where a patient expressly or impliedly consents to the disclosure of information, then the doctor is no longer under an obligation of confidentiality in that regard^xxxii.

Questions may however arise as to the validity of consent especially with regard to implied or consent arising from 'undue pressure'. It is sometimes taken for granted that a patient being treated by a doctor impliedly consents that that the details of his information be disclosed and shared with other specialist, student doctors, administrative staff etc. In some cases that may not be the situation. Can the doctor then be regarded as being in breach of his obligation of confidentiality in these circumstances?

It would seem not. The justification for the abrogation of this duty lies in the changes in specialization and in the organisation and financing of medical care-it is the argument that these have inevitably increased the number of persons to whom one might expect to be part of the direct treatment of an individual patient^xxxiii. An absolute duty of confidentiality would make it impossible to provide effective medical treatment^xxxiv. For proper treatment there is justification for disclosure to persons on a 'need to know' basis.

PUBLIC INTERESTS: The doctor's duty of confidentiality is excepted where the public interest in disclosure of information outweighs the public interest in protecting patient confidentiality. Justifications for disclosure on this ground may centre on the need for public debate on matters of public interests, demands of press freedom and the threat of serious harm to the public. It is pertinent to note that considering the relevance of the obligation of confidentiality, only 'significant and serious' considerations are allowed to supersede the doctor's apparent obligation of confidentiality. Thus the obligation of confidentiality is overridden where;

1. it is necessary to prevent harm or danger to the health or safety of others; A breach of the duty of confidentiality on this ground is only justified where there is a 'real risk of serious harm'. In W v Edgell, a convicted paranoid schizophrenic had applied to be released from a high security mental hospital. His application was refused by the secretary of state and he subsequently applied for a judicial review, pursuant to which his solicitors commissioned an independent consultant to assess the mental health of the applicant. The ensuing report concluded that the applicant harbored an interest in homemade bombs and was still posed a danger to society. The applicant/plaintiff withdrew his application following these conclusions. However, the respondent in the interest of the applicants further treatment, sent a copy of the report to the hospital were the applicant was held, a copy was also sent to the secretary of state who forwarded same to the tribunal. At the claimant's suit for breach of confidence, the court held that where a psychiatrist is privy to information even in circumstances of confidence which would be relevant to a responsible authority in determining the degree of risk that a subject of mental illness who had committed serious offences in the past posed to society, then, public interest demanded that the duty of confidentiality may be overridden. The circumstance of a patient who has not yet committed a crime, but has expressed tendencies to do so, is more delicate. While it is submitted that a breach of confidentiality in these cases would be justified^xxxv , there is also a cogent argument that patients would be reluctant to disclose information about their fantasies with psychiatrist, which would make it likely that their underlying problem would remain untreated^xxxvi. Another delicate question in this regard is with respect to HIV positive individuals; the argument is that public interest would require confidentiality in these circumstances so as to encourage people to come forward for testing and treatment^xxxvii , on the other hand public interest would also demand that a doctor who knows of a patient's HIV status should disclose it to persons who may be at risk of infection. The question though would be, is it better for one man's privacy to be respected, than for score's of lives to be destroyed? The argument about discouraging people, for instance HIV positive individuals, from coming forward does not seem to have any empirical or logical support. Most people who are aware that they have this disease would seek to have their loved ones know about it, most especially if it would prevent their infection. The issue is one of identifying the 'category of persons to whom disclosure can legitimately be made'. The position of the GMC, which is commendable, is that in the public interest, disclosure without consent would be justifiable in the appropriate circumstances^xxxviii.
2. Preventing or detecting Crime: The GMC^xxxix and DoH^xl recognise that disclosure on this ground would be justified^xli. It would seem that the less serious the criminal offence, the less likely that public interest in disclosure would supersede the public interest in confidentiality. Some argue that a particular disclosure of a patient's dangerousness could save the life of a particular third party but would equally obscure the fact that a general rule requiring disclosure may in fact lead to the deaths of many more individuals. Others assert that a violation of medical confidentiality results in certain harm as it brings suspicion into the patient-doctor relationship, thereby undermining patient frankness and lowering the standard of medical care. It equally follows that, the assessment and predictability of the harm caused by the threat of violent behavior is quite difficult; how does one assess that the threat of violence issued by the patient would materialize - how does one gauge whether a risk is real, potential of fictitious? Second disclosure for the purposes of crime prevention is not defensible in that preventive arrest is not lawful and other preventive measures will often not be available to ensure that the threat is not carried out^xlii. On the first point it may be argued that it may be better to err on the side of caution. With regard to prevention, it can only be argued that there is wisdom in the adage 'to be forewarned is to be forearmed'; the crime may be prevented if relevant parties are forewarned. Generally justification for disclosure where it would help prevent or detect crime is entrenched in the Hippocratic Oath itself; the injunction to secrecy refers to'...those things which ought not to be noised abroad'^xliii , in this regard, it is difficult to accept that information which may help to prevent crime, ought not to be noised to the relevant authorities.
3. Teaching , Research and clinical Audit; It is submitted that public interest in maintaining secrecy of confidential patient information is reduced and outweighed by the public interest in improved health care provision^xliv. Thus the GMC and the Medical Research Council^xlv provide that for the purposes of teaching, research and clinical audit, a doctor may derogate from this obligation, where certain steps are taken to protect the identity, and respect the privacy and integrity of the subject of the information. The relevant question in this regard is whether the sum of potential future benefit/harm avoidance to many others in the form of medical research, (and we may add teaching and clinical audit) can operate so as to give rise to a legitimate exception to the doctor's obligation of confidentiality^xlvi. The Courts seem to have accepted the position that the obligation would not be breached where necessary steps are taken to anonymise the data, or obtain the consent of the patient where possible and where consent is not possible, to properly weigh the benefits of disclosure against the patients' rights before disclosure. In R v Department of Health, ex parte Source Informatics Ltd^xlvii where a pharmaceutical company set up a scheme to obtain 'anonymised' patient information from doctors and pharmacists about a certain prescription drugs for marketing purposes, the court reasoning from a teleological perspective, held that where the patients privacy and integrity is safeguarded, the doctor or pharmacist, would not be regarded as being in breach of his obligation. The relevance of research in medical development and the challenges of a strict adherence to confidentiality has to a certain extent been modified by S.60 of the Health and Social Care Act 2001 which provides to the effect that the Secretary of State may make regulations to authorize the disclosure of confidential patient information without consent where necessary. Critics however argue that this provision would affect the relationship of trust between doctor patient and the fear of 'big brother' syndrome would prevent a patient from disclosing full information to the doctor with implications for the quality of health care^xlviii. There is however strong justification for the abrogation of the obligation of confidentiality on this ground in that there is public interest in actions that prevent the spread and treatment of certain communicable or chronic diseases and the effective delivery of medical care. This is moreso when information about an individual becomes separated from the identity of the individual for teaching, research and clinical audit purposes. It is argued that in these circumstances, such information should not even be thought of as information about the individual, but as data about 'conceptual entities'^xlix thus obviating the question of a breach of confidence.

CONCLUSION
Societal interests are complex and varied and the purpose of law is to strike a balance between these varied and sometimes competing interests. It is little wonder then, that public interests on the one hand provides the justification for the doctor's obligation of confidentiality to his patient and on the other, the opposite justification for the abrogation of this obligation in certain circumstances. The moral judgment whether from a utilitarian perspective or a deontological perspective is apparently easy to make from an armchair analysis, however, the challenge becomes more acute when one is involved and faced with a practical dilemma; should one keep the confidences of an HIV positive patient who has refused consent to disclosure and thus risks endangering the life of an innocent partner and probably that of a potential offspring?

The justifications for medical confidentiality are issues of moral judgment, exceptions or abrogation of the obligation should be equally morally justifiable and at least clearly established^l. It would seem that the grounds identified as abrogating this obligation under English law involve reference to moral principles as tools in formulating the legal responses to the challenges of confidentiality. In this regard, the 'pragmatic analysis of the proportionality of risk'^li adopted by English courts in justifying the grounds for abrogating the doctor's duty of confidentiality is defensible.

BIBLIOGRAPHY AND REFERENCE

Texts
Davies, M, Textbook on Medical Law 2nd edn (United Kingdom, Blackstone Press Ltd, 1998)

Garwood-Gowers, A, Tingle, J, and Lewis, T, (eds) Healthcare Law: The Impact of the Human Rights Act 1988 (Great Britain, Cavendish Publishing Ltd, 2001)

Grubb, A, Kennedy & Grubb Medical Law 3rd edn (London, Butterworths, 2000)

Jackson, E, Medical Law, Text, Cases and Materials (Oxford, Oxford University Press, 2006)

Mason, J, McCall Smith, R, and Laurie, G, Law and Medical Ethics, 6th edn (United Kingdom, Butterworths, 2002)

Michalowski, S, Medical Confidentiality and Crime (England, Ashgate Publishing Limited, 2003)

Tingle, J (ed) Patient Confidentiality (Hertfordshire, EMIS Professional Publishing, 2002)

Journals
Bradburn, N, 'Medical Privacy and Research' The Journal of Legal Studies (2001) 680-701

Case, P, 'Confidence matters: the rise and fall of informational autonomy in medical law' Medical Law Review (11) (2003) 208-236

Gibson T, M, and Coker, W, J, 'Medical Confidentiality: The Right of A Commanding Officer to Know' J R Army Med Corps (148) (2002) 130-6

Harbour, A, 'The Limits of Confidentiality' Advances in Psychiatric Treatment (4) (1998) 66-9

LIST OF CASES
Argyll v Argyll [1976] Ch.302 at 322

Attorney General v Guardian Newspapers Ltd (No.2 [1990] 1 AC 109

C v C [1946] 1 All ER 562

C v Cairns [2003] Lloyd's Rep. Med.90

Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47

Cornelius v De Taranto (2001) 68 BMLR 62

Hunter v Mann [1974] QB 767

R v Department of Health, ex parte Source Informatics Ltd [2001] QB 424

R (on the application of S) v Plymouth City Council [2002] EWCA Civ 388

Re C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 39

Tarasoff v Regents of the University of California, 551 P 2d 334 (Cal 1976)

Venables v News Group Newspapers [2001] 2 WLR 1038

W v Egdell [1990] 1 All ER 835

X v Y [1988] 2 All ER 648

Z v Finland (1997) 25 EHRR 371

WEBSITES
http://www.gmc-uk.org/standards/default.htm

http://www.dh.gov.uk/home/en/patient confidentialityandcaldicottgaurdians/index.htm

OTHER MATERIAL
GENERAL MEDICAL COUNCIL GUIDE ON CONFIDENTIALITY: PROTECTING AND PROVIDING INFORMATION (GMC 2004)

DEPARTMENT OF HEALTH GUIDE ON CONFIDENTIALITY: NHS CODE OF PRACTICE (DOH 2003)

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1. Hippocratic Oath cited inGrubb, A, Kennedy & Grubb Medical Law 3rd edn( London, Butterworths, 2000) p.1047
2. See generally the General Medical Council (GMC) guide on Confidentiality: Protecting and Providing Information (GMC 2004) available at http://www.gmc-uk.org/standards/default.htm. accessed on  07 /05/2009
3.   In Z v Finland (1997) 25 EHRR 371,  the European Court of Human Rights accepted that an order for seizure of medical records of the applicant was an infringement of her rights to private and family life under  Article 8(1) of the European Convention on Human Rights.
4. For instances, see the Health Act 1999; the Health Commissioners Act 1993; the Data Protection Act 1998; the Abortion Regulations 1991(SI 1991 No.499); the Human Fertilisation and Embryology Act 1990; and the National  Health Services (Venereal Diseases) Regulations 1974 (SI 1974  No.29)
5. A recommendation for the establishment of a statutory offence of breach of confidence which would further highlight the duty has not yet received governmental action. See Law Commission, Breach of Confidence (Cmnd 8388) para.6.1
6.  See Cornelius v De Taranto(2001) 68 BMLR 62
7. Stone, D, 'Confidentiality, Access to Health Records and The Human Rights Act 1988'in  Garwood-Gowers, A, Tingle, J, and Lewis, T, (eds)  Healthcare Law: The Impact of the Human Rights Act 1988 (Great Britain, Cavendish Publishing Ltd, 2001) p.129
8. Mason, J, McCall Smith, R, and Laurie, G, Law  and Medical Ethics 6th edn ( United Kingdom, Butterworths, 2002) p. 243
9.   For a historical analysis  and development of the obligation under English law and the effect of the EcHR and HRA 1998, see further Michalowski, S, Medical Confidentiality and Crime (England, Ashgate Publishing Limited, 2003) p.134
10. Davies, M, Textbook on Medical Law  2nd edn (United Kingdom, Blackstone Press Ltd, 1998) p.35 citing Gurry on Breach of Confidence.
11. See the statement of the court in this regard in Argyll v Argyll [1976] Ch.302 at 322; also see Grubb, A,n.1, p.1060;  and  Michalowski, S,n.9 p.129
12. Jackson, E, Medical Law, Text, Cases and Materials (Oxford, Oxford University Press, 2006) p.322
13. [1990] 1 AC  109, also known as the Spycatcher Case
14. Coco v  A N Clark (Engineers) Ltd [1969]  RPC 41 at 47
15. Harbour, A, 'The Limits of Confidentiality' Advances in Psychiatric Treatment  (4) (1998) 66-9 (66)
16. [1974] QB 767 at p.772
17. See also W v Egdell [1990] Ch 359
;X v Y [1988] 2 All  ER 648;
18. Grubb, A, n.1, p.1061
19. Wheat, K, 'Medical Confidentiality and The Law' in Tingle, J (ed) Patient Confidentiality (Hertfordshire,  EMIS Professional Publishing, 2002) p.4
20. Grubb, A, n.1,p.1073; with respect to the military institution,  see Gibson T,M, and Coker , W,J, 'Medical Confidentiality: The Right of A Commanding Officer to Know' J R Army Med Corps (148) (2002) 130-6  
21. Although strictly speaking certain categories of patients such as children, incompetent adults and the dead may lack, the 'status or capacity' to create a relationship capable of imposing a duty of confidentiality, or the expectation that information may be kept secret which gives rise to a duty of confidentiality; the obligation of confidentiality exists even in these cases of 'special' patients. For an analysis of the possible legal basis for the recognition of an obligation of confidentiality in these cases see Grubb, A, n.1, pp.1077-1080
22. [2001] 2 WLR 1038
23. Jackson, E,n.12, pp.332-3
24. Ibid. at p.333; see also Re C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 39; where it was held that in these circumstances, the parents equally owed the child a duty of confidentiality.
25. [2002] EWCA Civ  388
26. See also para. 28 GMC guide on Confidentiality: Protecting and Providing Information (GMC 2004)  
27. Law Commission  Breach of Confidence  Report No.110 (1981)
28. Toulson R, G,  and Phipps, C,M, Confidentiality cited in Grubb, A,  n.1, pp.1082-3
29. Berg, J, 'Grave Secrets : Legal and Ethical Analysis of Postmortem Confidentiality' cited in Jackson, E, n.12p.336
30. Para. 30 GMC guide on Confidentiality: Protecting and Providing Information (GMC 2004); and para. 28 DoH guide on Confidentiality: NHS Code of Practice (DoH, 2003) available at http://www.dh.gov.uk/home/en/patient confidentialityandcaldicottgaurdians/index.htm. accessed on 07/05/2009
31. Para. 5 GMC guide on Confidentiality: Protecting and Providing Information (GMC 2004)
32. C v C [1946] 1 All ER 562
33. Bradburn, N, 'Medical Privacy and Research' The Journal of Legal Studies (2001) 680-701(693); also Case, P, 'Confidence matters: the rise and fall of informational autonomy in medical law' Medical  Law Review  (11) (2003) 208-236 (213)
34. Jackson, E, n.12, p.317
35. Such is the relevance of this exception that  the American judiciary  in Tarasoff v Regents of the University of California, 551 P 2d 334 (Cal 1976) held that a positive duty to disclose existed in these circumstances and a doctor would be held liable in negligence for failing to warn a third party. This  duty however, does not  yet seem to have been accepted under English law,  as demonstrated in the decision in  C v Cairns [2003] Lloyd's Rep. Med.90
36. Jackson, E,n.12,p.342
37. X v Y [1988] 2 All ER  648
38. The guide is provided under Para's 22 -29, GMC guide on Confidentiality: Protecting and Providing Information (GMC 2004)
39. Ibid. para.27.
40.  DoH guide on Confidentiality: NHS Code of  Practice (DoH 2003) para's.30-32 
41. This is sometimes regarded as a subset of the justification of disclosure on grounds of harm or danger to the health or safety of others, however, the distinction is made that on this ground, there is a public interest in disclosure even where there is no immediate risk of reoffending, and even when the crime itself did not involve physical injury see Jackson, E, n.12, p.347
42. Michalowski, S,n.9, pp.28-9
43. Emphasis added
44. This is moreso where disclosure involves the use of medical records in epidemiological studies i.e. to identify the origin, development and characteristics of a specific disease, without the disclosure of a patient's identity. see Jackson, E, n.12,p.348
45. Personal Information in Medical Research (MRC 2000) para.2
46. Case, P, n.33 at p.214
47. [2001] QB 424
48. Case, P,  n.33 at pp.234-5
49. Bradburn, N, n.33, at p.695
50. Michalowski, S,N.9, p.21
51. Gibson T,M, and Coker , W,J, n.20,p.134