UK: Contacting a Patientís Family - How Far Does the Right of Confidentiality Extend?

Last Updated: 10 June 2005
Article by Alexandra Johnstone

Originally published March 2005

RadcliffesLeBrasseur have recently represented a private sector mental healthcare provider in a successful defence of proceedings in which a patient sought judicial review of the decision of his Responsible Medical Officer (RMO) who wished to contact the patientís parents without his consent. The purpose was to obtain information relevant to the patientís risk assessment, treatment and for the purposes of considering issues concerning the patientís proposals to seek leave.

The patient is detained at a hospital as a result of his conviction for actual bodily harm on his father. He is held under Sections 37 and 41 of the Mental Health Act 1983 for the purposes of treatment and will remain detained unless and until the Home Secretary and/or the Mental Health Review Tribunal determine that there no longer exist grounds for him to continue to be subject to the statutory detention.

The patient sought to prevent the RMO (and any other members of the hospitalís clinical staff) from contacting his parents in order to seek information that the RMO considered necessary for a full diagnosis of the patientís mental condition and the preparation of an appropriate plan for treatment, including an assessment of the risk of releasing the patient, who had a history of violent offending.

The patient asserted that he was not suffering from any mental illness or disorder within the terms of the 1983 Act. This was not supported by the weight of the clinical evidence, both via the RMO, previous psychiatrists who had seen the patient and an expert psychiatrist who gave evidence at a hearing to determine whether the patient had sufficient capacity to instruct solicitors in this action.

The patient argued that the proposed enquiries, to which the patient took strong objection, were in breach of his rights under Article 8 of the Human Rights Act. Article 8 protects an individualís right "to respect for his private and family life, his home and his correspondence"; this has been interpreted to include to an individualís right to privacy and confidentiality.

It was argued on behalf of the hospital that the proposed contact with the patientís parents would not breach his Article 8 rights as it was only proposed to seek information from the patientís parents and this act would not itself involve disclosure of any confidential information concerning the patient. The only information that the hospital would provide would relate to the identity of the person seeking the information. It was not intending to make any disclosures as to the patientís clinical condition or as to the diagnosis of matters relating to his treatment.

Relationships between the patient and the RMO had broken down and the patientís objections to the RMO making contact with his parents were, on the evidence before the Court, motivated by the belief that the object of the RMO in seeking contact with his parents was to confirm that the patient was mentally ill. It was submitted on behalf of the patient that the information was not going to be used to form a considered opinion about the patientís treatment etc but in order for the RMO to keep the patient in detention under the Mental Health Act 1983. This belief was described by the expert psychiatrist who gave evidence at the Capacity Hearing as "delusionary".

The Courtís view

The Court held that, contrary to the patientís arguments, enquiries as proposed by the hospital did not constitute "treatment" under the terms of the Mental Health Act 1983. Treatment was something actually "done" to a person, all the more so when treatment was "medical treatment". Detention of a patient against his will, the force feeding of a patient, the administration of drugs to a patient against his will and with force all require legal authority, otherwise they will constitute a legal wrong. Contact with family members did not fall within this category.

The Judge acknowledged that communication by the RMO of confidential medical information about the patient without his consent would, prima facie, amount to an infringement of Article 8. However, having considered the questions to be put by the RMO and having no doubt that the RMO was conscious of his professional obligations not to disclose confidential information without the patientís consent, the Judge found that the object of the RMOís enquiries was to obtain information and not to communicate it to the patientís parents. The patient had not established that confidential information would be disclosed. Accordingly, the Court found that no Article 8 rights of the patient were infringed as a result of the RMO asking questions of the patientís parents. The mere contact by the RMO with the patientís parents could not itself infringe the patientís Article 8 rights.

The Judge pointed out that the patient had not made any claim alleging that his parents would communicate, if asked by his RMO, confidential information relating to the patientís family history. Had such a claim been clearly made that contact with his parents might be a breach of confidence the Court accepted that this would have given rise to an "interesting point and possibly difficult questions would have arisen".

Justification under Article 8(2)

The Judge went on to say that had he found that the patientís rights were engaged by Article 8 he would nevertheless have found that such enquiries were permitted under English law; there should be provision for such enquiries in a democratic society to prevent unnecessary detention and avoid premature discharge of those who are mentally ill. Those enquires should be made by the decision maker, in this case the RMO, with reference to proportionality and reasonableness. Accordingly, the Trust would have been successful in placing reliance on Article 8(2) to justify any breach of the patientís Article 8 rights. Article 8(2) provides justification for a breach of confidentiality if such a breach is undertaken with the aim of addressing a public interest, e.g. for the protection of health, provided the breach is proportionate to the aim sought and is in accordance with the law.

The Judge acknowledged the importance of the Mental Health Review Tribunal having information that had a material bearing on its decision regarding the patientís leave and possible discharge. The benefits of speaking to the patientís parents could not be predicted but the risks of doing so outweighed the consequences that the benefits could not be surmised.

© RadcliffesLeBrasseur

Radcliffes Mental Health Team Receives Plaudits

The latest edition of the Chambers Directory of the Legal Profession has ranked the RadcliffesLeBrasseur team as number one for advising mental healthcare providers. Andrew Parsons has been ranked as a leading individual lawyer in the country. The Directory recognises our "established reputation in mental health" and hails the team as "pragmatic and responsive".

© RadcliffesLeBrasseur

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.

Authors
 
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 youíve 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.comís content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltdís 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) Ė 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 ďno disclosureĒ 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 userís 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 friendís 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 usersí 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 userís 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 userís personal data provided to us. This can usually be done at the ďYour ProfileĒ 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.