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Confidentiality and Medical Information

Over the last few years there has been very considerable controversy within the Health Service, regarding the implementation of communications via computer systems, the degree of protection to be given to patients' privacy, and the methods by which such protection should be supported. In particular there has been disagreement about the balance between the collection of information, and the extent to which it must be anonymised to protect individual patients.

The case of The Department of Health ex parte Source Informatics Ltd (Times June 14th 1999) provides a guideline to those involved in this and similar debates, and also emphasises the growing vigour of the law of confidence in England.

Source Informatics Ltd (SI) proposed a computer system to examine the prescriptions filled by pharmacists, and provide information about the prescribing habits of individual doctors. The DoH recommended pharmacists not to co-operate with the scheme. SI suggested that this recommendation was unreasonable, and sought to challenge it.

What was at stake was not the privacy of the doctors, but that of the patients, for whom the prescriptions had been issued. Some voiced surprise that the DoH could claim to represent those interests without blushing, but Hey-ho. SI suggested that the degree of anonymisation, the extent to which references to individual patients had been removed from the data, meant that the privacy of no patient was breached. Those who have followed this debate over the years will recognise immediately that such promises have been made before (some by the DoH), and in the most of confident of terms, but that they have proved hollow.

In this case, the Judge held that the DoH could make this recommendation. The information disclosed was derived directly, and entirely, from material handed to the pharmacist; from material given in confidence. Any use of that information outside the purpose for which it was provided would inevitably be a breach of the patients' rights in confidence in it. The patients 'owned' this confidence, and it was not open to others to disregard it. The use of this confidential information for purposes other than that for which it was provided would be a betrayal of the confidence placed in the pharmacists.

The Judge said that to acquire the right to control the information, a patient would have to show potential loss flowing from the use. Although no actual patient could be found here to complain, the judge found that a loss could be assumed to flow from the fact that an unascertained number of patients may feel upset that their information could be used in this way. The information was particularly sensitive. No doubt pharmacists rely upon the confidence placed in them by patients, and they cannot allow a risk to that confidence (in both senses)

The medical context may suggest particularly high duties of confidence, but the judgement may have very much broader implications. Others receive confidential material, and many now are, for example, subject to external audits of one kind or another. Perhaps the correct lesson to learn is that those receiving confidential information must either respect the confidence or obtain a clear waiver - even where the anticipated disclosure might not appear directly to threaten any particular confidence.


This case was reversed in the Court of Appeal.

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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/ipMedConf.shtml 192 18 October 2013