Confidentiality between a doctor and a patient is significant since it protects their dignity and helps build trust in a healthcare organization. Medical confidentiality has its origin in the Common law system that remedied patients in case their privacy and confidence rights were violated. The British legal system is crucial in the development of medical confidentiality in the global context. I agree with the statement that ‘nothing should justify disclosure without consent.’ Therefore, this paper explores the concept of medical confidentiality, proving why sharing of medical information should only be done with the patients’ consent.
Meaning of Medical Confidentiality
Medical confidentiality is a multifaceted concept that involves actions and inactions among doctors among other practitioners in the healthcare field. Treatment involves the doctors tracking patients’ reactions to medicine and how their healthcare record is fairing (Barak et al., 2021). Various scholars have defined medical confidentiality under the pretext of privacy. Confidentiality in the medical context means keeping secure, and secret from others any information given by or about a patient in the course of treatment (Zhang, Chen, and Lin, 2021). The information protected is two-fold: that which the patients give and that which the doctor knows about them (Wu et al., 2022). Therefore, medical confidentiality is the act of practitioners ensuring that information about their patients is not shared without their context.
Confidential Information in The Age of Technology
Technological advancements have led to the development of smarts medical systems that utilize patients’ information. Although those systems are beneficial in treating complicated medical conditions, they involved breaching confidentiality. Smart medical systems utilize information such as patients’ illnesses, ages, and heights, among others that help in the treatment of other patients (Awotunde et al., 2021). Moreover, healthcare organizations share their patients’ information with third-party corporations that help develop smart medical systems (Jabarulla and Lee, 2021). While such actions are justified since the information is shared for the public good, patients must be involved before sharing their information (Awotunde et al., 2021). Developments in medical technology have led to the treatment of complex health conditions but increased breaches of confidentiality.
History of Medical Confidentiality
Medical confidentiality is an ethical principle that has a significant legal history. In the late 19th century, medical confidentiality was an issue of consideration in the medico-legal and political debates (Ray 2022). The issues were widely discussed in Western countries due to the increased complaints among patients. For instance, in Germany medical confidentiality was crucial among stakeholders in the profession (Ray 2022). Therefore, professional secrecy was a legal obligation and was remedied by the courts. However, there was no statutory recognition of professional secrecy among doctors in England. Medical confidentiality was recognized in England in the 20th century. Angus McLaren’s 1993 article on the Kitson v Playfair case was England’s first serious discussion on medical confidentiality (Sharafi, 2021). The case involved a medical practitioner who was found liable for disclosing her patient’s miscarriage information (Sharafi, 2021). Although medical confidentiality has a controversial historical background, it has been enhanced by many countries and global organizations.
Medical Confidentiality: an Ethical Concept
Historically, medical confidentiality is recognized as an ethical principle. Therefore, the concept is widely discussed in the field of medical ethics. While medical confidentiality and ethics seem similar concepts, they are different. Medical ethics involves the obligations of doctors and health organizations to the patients (Chervenak and McCullough, 2021). Therefore, practitioners are required to act in the interest of their patients when delivering medical services. Keeping secret any information shared by the patients is one significant principle of medical ethics. Consequently, various healthcare organizations have adopted ethical codes that guide their doctors. Although ethics is dynamic, the various codes observe three major principles: autonomy, non-maleficence, and beneficence (Aggarwal and Nayak, 2022). Medical ethics play a significant role in enhancing confidentiality among physicians and patients through the concepts of autonomy, non-maleficence, and beneficence.
Patients, like any other human being, have the right to make an informed decision without any form of coercion. Some of the decisions include the sharing of their medical information with various parties. Immanuel Kant, a philosopher, defined autonomy as a three-dimensional ethical concept. First, he defined autonomy as the right of an individual to make their decisions without any interference from others (Hindocha and Badea, 2022). Second, Kant propounded that an individual should be allowed to make decisions through their independence of mind and after a thorough personal reflection (Elgat, 2021). Last, Kant opined that ideal life is that in which people live and make decisions autonomously. Owing to Immanuel Kant’s definition of autonomy, the patients should be allowed to only share the information that they feel comfortable with. Therefore, the principle of autonomy grants the patients the primary role of deciding whether their information should be shared or not.
Inflicting harm on others, whether physical or psychological, is against natural human rights. Non-maleficence is a principle that holds that everyone, including medical professionals, has an obligation not to cause harm to others (John and Wu, 2022). Consequently, physicians are required to act in such a manner that benefits their patients, rather than harming them. Sharing private information about patients can psychologically injure them. Moreover, some of the private information shared without patients’ consent could lead to discrimination and physical harm as a result of stigmatization (Akour et al., 2021). Therefore, breaching the rule of medical confidentiality is against the ethical principle of non-maleficence. Physicians and other medical practitioners should avoid any form of harm to their patients due to mishandling and unnecessarily sharing their information.
Beneficence is the third principle of medical ethics that encumbers unnecessary sharing of patients’ information. The principle requires physicians to provide, and to the best of their ability, positive benefits including the removal of harmful conditions from patients (Bifarin and Stonehouse, 2022). Medical information is regarded as personal, and people with ill intentions may use it to the detriment of patients’ reputations (Pel-Littel et al., 2021). Consequently, doctors among other medical officers are obliged to ensure that any personal information is beyond human reach. Although medical confidentiality is within the purview of ethics, it has a legal basis. Therefore, protecting patients’ information is an ethical and legal requirement. Physicians should be guided by the ethical principles of autonomy, non-maleficence, and beneficence when dealing with private information about their patients.
Legal Context of Medical Confidentiality
The ethical principles of medical confidentiality have informed the formulation of different legislation that protects patients. As society advances towards complex technologies and efficient medical services, patients’ information is becoming crucial. The information help tech companies develop new smart medical systems. Additionally, medical researchers use the information to invent and discover new treatment methodologies. Many patients have their private information at risk of exploitation by healthcare organizations and their stakeholders (Liu, Gupta, and Patel, 2021). Therefore, various governments have taken the mandate of formulating legislation that helps protect patients’ information. Although the statutes inform required actions among physicians when treating people, Common law has played a significant role in providing legal precedents on the same. Therefore, the ethical perspective on medical confidentiality has legal backing.
The Common Law
The English Common law uses case precedents to determine matters. Therefore, past decisions are alluded to when making legal decisions. Common law is defined as the judge-made law that is similar to quasi-judicial tribunals since it is based on written opinions (Pfander, 2021). Medical law and ethics owe much of their principles to the Common law’s judicial precedents. The concept of medical confidentiality developed as a Common law. The guiding principles of ethics and confidentiality in medicine are based on past decided cases. Although the Common law is not written like the statutory one, the judges make improvements to the cases and decisions made in the past based on the prevailing social circumstances (Gluck, 2021). Therefore, Common law, unlike statutes, is solely based on the opinions of judicial officers.
The Common Law Duty of Confidentiality
Common law, through judicial precedents, has set several principles that guide the handling of personal information by physicians. The law’s general position is that if the information is given in circumstances where it is expected, the duty of confidentiality is applicable (Yu, 2021). For instance, patients give their personal information to doctors, allowing them to provide effective medical services. Additionally, it is Common law stand that any confidential information is shared within a concerned individual’s reasonable expectations (Bush, Heck, and Liff, 2022). Therefore, the Common law duty of confidentiality requires doctors to treat patients’ information with care and without any breach. However, such information can be shared under limited circumstances: through patients’ consent, a legal obligation, and overwhelming public interest.
Exceptions of Medical Confidentiality
While the Common law restricts the sharing of personal information, it permits so with the patient’s consent. Legally, consent is defined as the person’s agreement to have their information shared or used (Jackson, 2021). In the case of McInerney v. MacDonald  2 SCR 138, the Canadian Supreme Court stated that it is a Common law principle for medical professionals to share patients’ medical records only with their consent (Jackson, 2021). The consent under the Common law can either be implied or expressed. Implied consent involves the sharing of information by physicians with a close relationship with patients. Additionally, implied consent occurs when it is within a reasonable expectation that relevant information will be shared between practitioners with a legitimate and clinical relationship with the patients. Such consent is given for direct medical services only.
Additionally, patients’ information can be shared when they give express consent. Healthcare organizations prepare written documents that the patients can read before giving consent to the sharing of their information (Kwame and Petrucka, 2021). In the Common law case of Montgomery v Lanarkshire Health Board  UKSC 11, it was stated that informed consent is the one when the patient is aware of the consequences of their agreement to share personal information (Milo, 2022). Therefore, when seeking express consent from patients, healthcare organizations should ensure that the patients understand: who will see the information, what is being disclosed, the disclosure purpose, and the significant foreseeable consequences (Jackson, 2021). Implied or express consent is significant when sharing individuals’ information.
Although it is within the patients’ ambit to decide with whom and when to share their personal information, physicians may be under a legal obligation to do so. A legal obligation can be described as a duty to act as enforced by law (Nugmanovna, 2022). Common law allows the sharing of information under a legal obligation. Although there is confusion on whether obeying the law is a moral or legal duty, various statutes require physicians to share information for national planning. In England, section 3(4) of the Health Service (Control of Patient Information) Regulations 2002 allows sharing of patients’ information purely for COVID-19 purposes (Andrews et al., 2022). Additionally, the Health Protections (Notification) Regulations 2010, requires sharing information on notifiable infectious diseases. Therefore, medical stakeholders can share patients’ information as directed by various legal instruments.
Overwhelming Public Interest
Some medical information is significant in saving the lives of other people. The Common law doctrine of necessity is applicable when the confining information may endanger the public in general. Although the doctrine of necessity, in Common law, started from a non-medical context, it is applicable in healthcare situations. The doctrine was first mentioned in the criminal case of Regina v. Dudley & Stephens 14 QBD 273, where the stranded sailors survived by eating a cabin boy (Singh, 2020). The doctrine has a legal basis under section 47 of the Children’s Act 1989. Moreover, the UK’s General Medical Council (GMC) allows physicians to share genetic information whose non-disclosure could potentially harm others or lead to their death (GMC, n.d.). Therefore, it is in the public interest that information about patients can be shared by physicians.
Breach of Medical Confidentiality
Although medical confidentiality is for the benefit of patients, physicians often breach it and share their information. Breach of medical confidentiality involves any commission or omission by the physicians, exposing their patients’ information. Therefore, any patient whose information is unnecessarily shared by medical practitioners can seek relief from a court of law. However, the victims must prove that the information was shared without their consent and that the sharing was harmful to them. While the courts are ready to remedy victims, there are exceptions in various circumstances such as disclosure to state officials, public interest, and where there was a court order requiring the production of medical records (Andrews et al., 2022). Therefore, a breach of medical confidentiality by medical practitioners would potentially lead to a lawsuit by victims.
Common law has set various rules in determining what constitutes a breach of confidence. First, in the Common law case of Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, the court stated that the information shared must have “necessary quality of confidence about it”. Second, in the case of Campbell v MGN Ltd  UKHL 22, it was the court’s opinion that a duty of confidence would arise where information was communicated in circumstances importing an obligation of confidence. Last, the victim must prove that there was a will to use or disseminate the disclosed information. Therefore, the courts are ready to remedy victims who prove the three rules of breach of confidence.
Common Law Remedies
Various remedies are available for patients whose right to confidence is breached. While the remedies are circumstantial, the common ones are injunction, damages, and constructive trust. An injunction is a court order that instructs the defendant to stop sharing confidential information with third parties (Bush, Heck, and Liff, 2022). Breach of confidence can potentially lead to loss or damage to the victim. Therefore, courts award damages to the victims to compensate for the loss suffered. Meanwhile, constructive trusts are equitable remedies awarded to patients for whom they were deprived of a right relating to the confidential information disclosed (Andrews et al., 2022). The remedy prevails where the defendant’s gain of sharing information is held in the trust of the victims. The choice of a Common law remedy is dependent on the circumstances prevailing the breach of confidence.
Medical Confidentiality in Human Rights Context
Human rights are considered universal and inherent, requiring respect from various societal institutions. Breach of medical confidentiality leads to harm to the victims, physical and psychological. The right to privacy is among the identified universal human rights. Consequently, any action that breaches the right to privacy is considered a violation of human rights. The global community has, therefore, adopted universal laws that protect personal information (Akour et al., 2021). The Universal Declaration of Human Rights recognizes the right to privacy as inherent. Meanwhile, regional organizations such as the African Union and the European Union, have integrated the right to privacy within their legal systems. Observing medical confidentiality owes global legal systems that are universal.
Significance of Maintaining Medical Confidentiality
Observing medical confidentiality is beneficial to patients and healthcare organizations. The patients feel safer in organizations that do not unnecessarily share their personal information. Therefore, the patients effectively respond to treatment if their information is kept private. Moreover, they are at liberty of associating with other people without fear of discrimination against their medical conditions. Meanwhile, healthcare organizations benefit from the trust built among their clients. Additionally, observing medical confidentiality saves the hospitals legal costs associated with lawsuits for breach of confidence. Respecting the right to patients’ privacy and duty of confidence creates a friendly relationship between patients and healthcare organizations.
Problems in Medical Confidentiality Laws
Although medical confidentiality is significant among patients and healthcare organizations, it is associated with various problems. First, there is no clear stand on what extent should the duty of confidence applicable. For instance, many hospitals have flimsy curtains that demarcate patients’ beds’ boundaries. Therefore, it is easy for other patients to overhear any information shared with visiting doctors. Second, despite many legal rules, there is no specific law that solely provides for medical confidentiality. Instead, the concept is highly dependent on the Common law that is based on judges’ opinions. Last, the existing statutes do not specifically deal with medical information, instead, they have generalized personal information. Addressing the existing problems of medical confidentiality would lead to a dependable legal system.
Medical confidentiality is a multidimensional concept that involves doctors and patients. Physicians have a legal obligation not to unnecessarily share patients’ information. Therefore, consent is crucial when planning to use any medical information given by patients or that which the physicians have determined upon assessing the patient. Common law has set various judicial precedents that help in solving any breach of confidence. The courts strictly follow the rules set in Common law when determining and remedying a breach of confidence. However, medical confidentiality is subject to several limitations. Therefore, effective medical law systems could be enhanced by addressing issues on the extent of protecting a patient’s privacy and unifying the various legal provisions on the same.
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