Remedies against breaches of confidence

The GMC guidelines do not have legal force, although earlier versions have been referred to by the courts in deciding cases, and they can be considered as indicative of public policy. As such, any breaches could be seen as a breach of duty and/or evidence of negligence. In practice, allegations of breach of confidence are more likely to be dealt with as complaints or disciplinary matters than by resort to the courts, although the option of legal action is always open.

The main weapon available to a person seeking to prevent an unlawful breach of confidence is an injunction (in Scotland, ‘interdict’). It is possible to get an ‘interlocutory injunction’ (in Scotland, ‘interim interdict’), which is a provisional order before a permanent injunction is granted at a court hearing. These interlocutory injunctions can be applied for ex parte, that is without the person seeking to disclose the information being present.

Damages or compensation can be claimed where the breach of confidence has already occurred. If as the result of a breach of confidence, someone suffers economic loss (such as the loss of their job) that could have been foreseen, that person could claim damages.¹ Despite earlier doubt, damages for mental distress now appear to be available in such cases.²

It is unclear whether it would be possible to get damages for distress for a breach of confidence. The Law Commission has recommended that damages should be available for the mental stress caused by a breach of confidence,³ but its proposals have not been made law.

A declaration (in Scotland, ‘declarator’) is the method used by the court to declare the legal relationship between the parties. The court can therefore assert that certain information is confidential. Declarations are to an extent toothless; they cannot be enforced and nor do they carry any sanction. However, they are useful in breach of confidence cases as a means of identifying that the information threatened with disclosure is confidential.