Confidentiality

It is a long established principle of the common law of confidence that private information provided by a patient to a medical professional is held by the medical professional in confidence. The obligation of confidence means that information can be lawfully disclosed only if the patient consents or if there is a public interest of sufficient force to take precedence over the professional’s duty.

Whether or not there is a sufficient public interest to justify disclosure is something which must be judged by the professional (and ultimately the courts) on the facts of each case.

The key NHS publication on confidentiality¹ sets out a very limited range of circumstances which may justify disclosure of confidential patient information in the public interest: “in order to prevent and support detection, investigation and punishment of serious crime and/or to prevent abuse or serious harm to others”.

Moreover professional standards and guidance adopted by medical bodies pay considerable attention to confidentiality. The General Medical Council (GMC) publishes both general guidance on Confidentiality and supplementary guidance on Disclosing Information about Serious Communicable Diseases.²,³

The GMC’s guidance on confidentiality stresses the importance of protecting confidentiality and of obtaining consent to disclosure. The guidance is described in more detail in NAM’s Social & legal issues for people with HIV.

Other guidelines, employing a similar approach, are published for nurses and health advisers.

Moreover, there is specific legislation concerning confidentiality in respect of sexually transmitted infections, 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 – provide that information about persons diagnosed with sexually transmitted infections 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.”

In other words, identifying information about a patient being tested or treated for HIV should not be disclosed, except to a medical practitioner (or to a person employed under the direction of a medical practitioner) in connection with and for the purpose of either the treatment of the patient or the prevention of the spread of the disease. (The way the regulations were drafted was shaped by a desire for partner notification to be feasible.)

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.