UK: The Key To Disclosure: Safeguarding Patient Confidentiality

Last Updated: 30 September 2001

The problem of how to deal with patients’ confidentiality in the context of legal proceedings is a common one and the recent case of A Health Authority v X and Others1 is a helpful decision for solicitors, GPs and Legal Liaison Managers at Trusts and Health Authorities alike.

THE FACTS

An unnamed Health Authority applied for disclosure of medical records by the respondent GP (Dr X) and his partners in an NHS General Practice. The Health Authority wished to consider the extent of compliance by Dr X and his partners with their terms of service and accordingly sought disclosure of two categories of documents on grounds of public interest as follows:

  • Documents that had been produced to the court or generated forensically in the course of care proceedings heard last year by another judge of the Family Division (the individuals, mainly children, who were the subject of those proceedings, are or were patients of the practice). (‘List A documents’); and
  • The records of 17 named patients or former patients of the practice (‘List B documents’).

Dr X and his partners did not contest the application but sought the court’s guidance. They had attempted to obtain the appropriate consents from the patients, only two of whom did not consent. Dr X was concerned with the duty of confidentiality owed to his patients.

THE DECISION

Mr Justice Munby, in his judgment in the High Court of Justice, Family Division on 10th May 2001, considered the question of the confidentiality of a patient’s medical records and the impact of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which protects respect for the patient’s private and family life.

The judge was referred to two decisions of the European Court of Human Rights. In the case of Z v Finland 2 , two of the applicant’s doctors were compelled to give evidence of her medical history, and subsequently her medical records were seized by the police. The applicant claimed that her rights under Article 8 had been breached. The court considered that the interference with the applicant’s private and family life had been subjected to important limitations and was accompanied by effective and adequate safeguards. The questioning had taken place in camera with an order that the court’s file, including transcripts of witness statements, be kept confidential for 10 years.

Furthermore, seizure and use of the applicant’s medical records was supported by relevant and sufficient reasons. The weight of those reasons was such as to override the applicant’s interest in the information in question not being communicated.

The European Court did uphold one of the applicant’s complaints, which was that the period of 10 years prescribed was not long enough, although the court accepted that it is for the state itself to choose that aspect of a safeguard. The court also upheld a complaint of the applicant that the publication of the information concerned gave rise to a violation of the applicant’s right to respect for her private and family life as guaranteed by Article 8.

The second case considered by Munby J was MS v Sweden 3 . There, the applicant complained that disclosure of her medical notes to her Social Security Office breached Article 8. In that case, the European Court held that there was a legitimate need to investigate her benefits claim, and the measure taken was not disproportionate to that aim. The applicant’s claim was rejected.

Munby J held in the present case that there was compelling public interest requiring the disclosure of the List A documents, provided that disclosure was on the express conditions that:

  • the documents were to remain confidential; and
  • not merely the Authority, but every other public body or other person to whom the documents may properly be transmitted, was subject to the obligation to take effective and adequate safeguards against abuse.

Disclosure of the List B documents could only be given if:

  • the documents were bona fide and reasonably required for the proper exercise of one of the Health Authority’s functions;
  • there was a compelling public interest in their disclosure satisfying the criteria of necessity and proportionality; and
  • there were efficient and adequate safeguards against abuse.

In this case the judge decided that there was a compelling interest requiring disclosure of the List B documents. Disclosure of those documents was ordered on the same express conditions as applied to the List A documents.

The safeguards to be applied would depend on the particular circumstances, but would typically be (following Z and MS):

  • the maintenance of the confidentiality of the documents themselves.
  • the minimum public disclosure of any information derived from the documents; and
  • the protection of the patients’ anonymity.

IMPLICATIONS

This case clarifies that the onus of establishing that disclosure is necessary and proportionate has shifted from the patient to the person seeking disclosure of medical records. In light of the judgment in MS v Sweden and now this decision in the High Court, it may be that the rule in Hipwood v Gloucester Health Authority 4 will have to be reconsidered.

In Hipwood the defendants applied for an order requiring the claimant’s medical practitioner to produce medical records to the defendant’s solicitors. The deputy district judge refused the application and the judge in the County Court dismissed the defendant’s appeal. The Court of Appeal held, however, that the defendants were entitled to have the claimant’s medical records produced not only to their medical advisors but also to their legal advisors, because those records were likely to be relevant to litigation issues.

Since that case it has become widely accepted that a claimant should disclose the entirety of his or her medical records provided they are relevant to forensic issues in question. It now seems that if a Health Authority is faced with a patient in personal injury proceedings who refers to Article 8 as a means of withholding disclosure, the Authority would be entitled to refer to MS as authority for the proposition that protecting the public purse against unmeritorious claims is a legitimate interference with the right of a patient to the confidentiality of his medical records.

Those representing the claimant may counter-argue that in civil litigation the claimant does not have adequate safeguards in the way that the applicant in MS did. However, Munby J has indicated that the particular circumstances of each case will dictate the safeguards to be applied.

In summary, the court in A Health Authority v X and Others was clearly concerned, not only that any interference with Article 8 is justified by an overriding public interest in disclosure, but also that there are effective and adequate safeguards against abuse of information contained in otherwise confidential records. The order made by the judge was a detailed implementation of the safeguards to which he had referred. The decision will be a useful guide in the handling of future claims where patient confidentiality is in issue.

FOOTNOTES

  1. ILR 25/06/2001
  2. (1997) 25 EHRR 371
  3. (1997) 28 EHRR 313
  4. (1995) 6 Med LR 187

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.