Confidentiality and the venereal diseases regulations

Although, as noted earlier, the protection of confidentiality is not an absolute one, that does not settle the matter. This is because there is specific legislation concerning confidentiality with respect to STIs, in the shape of the National Health Service (Venereal Diseases) Regulations 1974, which apply to England and Wales only.

The Regulations – applicable to Strategic Health Authorities, NHS Trusts, NHS Foundation Trusts and Primary Care Trusts – state that information about anybody diagnosed with a sexually transmitted infection shall not be disclosed except:

“(a) for the purpose of communicating that information to a medical practitioner, or to a person employed under the direction of a medical practitioner in connection with the treatment of persons suffering from such disease or the prevention of the spread thereof, and

(b) for the purpose of such treatment and prevention.”

The provisions of the regulations are replicated in the NHS Trusts and PCTs (Sexually Transmitted Diseases) Directions 2000, which apply to members and employees of all NHS trusts and primary care trusts.

These regulations are often regarded as providing a special, heightened level of confidentiality with respect to STIs. They may – arguably – have this effect, but that appears to be an accidental consequence of bad drafting rather than a deliberate outcome. Their history is not well documented, but can be traced through files in the National Archives (primarily MH55/1367 on the 1948 regulations and MH154/203 on the 1968 regulations).

VD clinics were established under the control of local authorities in 1916 by the Public Health (Venereal Diseases) Regulations 1916. These regulations included a provision that any information obtained by local authorities through such clinics should be treated as confidential. When the NHS was established and took over responsibility for VD clinics, the 1916 regulations were repealed as unnecessary. That led to public concern that information about VD diagnoses was no longer confidential. The Ministry of Health was adamant that this concern was unjustified as the normal rules of medical confidentiality were applicable, but eventually gave in and made a regulation in 1948 to the effect that such information should be treated as confidential. It is clear that the Ministry thought this was a redundant and unnecessary regulation, which no doubt explains why no equivalent regulations were made in Scotland then or since.

In the 1960s, concern developed that confidentiality might inhibit effective contact tracing (partner notification), for which the Ministry was attempting to develop national standards. This is because it was felt that for contact tracing to be fully successful, it was necessary for the index patient’s clinic to know whether contacts had been traced and what diagnoses, if any, had been made.

Accordingly, the National Health Service (Venereal Diseases) Regulations 1968 were made. The purpose of these regulations was to allow staff at one clinic, once a contact had been traced and tested for STIs, to pass back their results to the clinic at which the index patient had been diagnosed without any need to obtain consent for this. (It is notable that the Ministry seemed to think there was no problem of confidentiality where both patients were tested at the same clinic.) There was some difficulty in finding appropriate wording for the regulations, but eventually it was decided to say that information obtained by clinics “shall be treated as confidential except” where the criteria set out in paragraphs (a) and (b) (quoted above) applied.

In 1974, the Regulations were re-enacted as a result of NHS reorganisation, amended in order that they would apply to all STIs and not just the narrow category of venereal diseases (defined in the earlier regulations as gonorrhoea, syphilis and soft chancre). Additionally, the phrase “shall be treated as confidential except” was replaced with “shall not be disclosed except”. It is not clear why the wording was changed in this way, and the explanatory note to the regulations gives no indication of any intention to strengthen the protection against disclosure which they provided.

The history of the regulations is important because it demonstrates that their purpose is often badly misunderstood. They were intended to weaken confidentiality (to assist in contact tracing) and not to strengthen it. The 1968 wording made this clear, because criteria (a) and (b) were simply presented as an exception to confidentiality, which would have meant that the other, general, exceptions to confidentiality remained available. The 1974 rewording, however, suggests that there is an absolute prohibition on disclosure except where criteria (a) and (b) are satisfied. This has caused confusion as to both the purpose and effect of the regulations.

In August 2006, the Department of Health published a consultation on the Regulations¹. The consultation paper noted that the proper interpretation of the regulations had recently been a contentious subject in a High Court decision involving the Health Protection Agency (HPA).

The HPA had sought advice from the court on the action it should take involving an identified HIV-positive patient who the HPA was concerned might be putting multiple partners at risk through unprotected intercourse. The judge did not make a decision in that case – stressing that, although the court would be prepared to rule on the legality of specific action which the HPA intended to take, the HPA had not put forward any such proposals, and it was not the court’s function to act as an advisory body on hypothetical questions. This meant that the proper scope of the Regulations remained unresolved.²

The consultation paper noted:

• that the common-law duty of confidentiality can be breached in the public interest in limited circumstances

• the importance of confidential information to public health monitoring

• the importance of confidentiality (and patient confidence that confidentiality will be maintained) in the effective provision of sexual health services.

Against that background, the paper posed questions about whether a breach of confidentiality to protect a third party could ever be justified, and who should take any decisions about such disclosure. The consultation closed at the end of October 2006. At the time of writing, no announcement has been made about any changes to the Regulations as a result of the consultation. In the meantime, the GMC has stated that its view “is that the Regulations and Directions do not preclude disclosure if it would otherwise be lawful at common law, for example with the patient’s consent or in the public interest without consent”.³