The Journal of Forensic PsychiatryISSN 0958-5184 print/ISSN 1469-9478 online © 2000 Taylor & Francis Ltdhttp://www.tandf.co.uk/journals

Con�dentiality and psychiatry:dilemmas of disclosure

JEAN McHALE

Patient con� dentiality has been one of the fundamental principles of healthcare practice since Hippocrates. It is re�ected in the ethical codes of numer-ous health care professional bodies. English law already requires health careprofessionals to maintain the con� dentiality through the application of theequitable remedy of breach of con�dence. Once the Human Rights Act 1998comes into force, however, Article 8 of the European Convention of HumanRights, which safeguards the privacy of home and family life, will becomejusticiable in the English courts. Recognition of a privacy right would encom-pass safeguarding the con� dentiality of personal information. How realisticis it to talk of maintaining con� dentiality in health care practice today?

English law currently safeguards the disclosure of con�dential healthinformation through the application of the equitable remedy of breach ofcon� dence. Where information is entrusted subject to an obligation of con-�dentiality, whether express or implied, then unauthorized disclosure of suchinformation is actionable in equity. The obligation applies within thedoctor–patient relationship (X v Y [1988] 2 All ER 648; W v Egdell [1990] 1All ER 835) and may arise in the context either of a physician involved inlong-term care or of one commissioned to compile a speci�c report. Wherethere has been unauthorized disclosure there may be an application for aninjunction to restrain any further disclosure. The award of damages foremotional distress consequent upon a breach of con� dence is more prob-lematic and the availability of such damages has been questioned (W v Egdell,per Scott, J.). In 1981 the Law Commission recommended that damages

EDITORIALS

The Journal of Forensic Psychiatry Vol 11 No 2 September 2000 255–259

should be awarded where mental distress resulted from breach of con�dence,but this report was never enacted (Law Commission, 1981).

Con�dential information may be disclosed with a patient’s consent, whichmay be express or implied. The precise scope of implied disclosure is thesubject of considerable debate. The Department of Health, for example, hassuggested that notices be displayed to inform patients that information maybe disclosed for NHS purposes (Department of Health, 1996). While the pro-vision of some information is a step along the way, perhaps the extent towhich this provides an adequate means of informing patients so that they cantruly be said to have impliedly consented to such a disclosure may beregarded as questionable.

Information may also be disclosed where this is sanctioned in the publicinterest. Disclosure may be explicitly sanctioned by statutory authority,whether in the context of the noti�cation of communicable diseases (PublicInterest (Control of Disease) Act 1984 and the Public Health (Infectious Dis-eases) Regulations 1988), in relation to road traf� c accidents (Road Traf� cAct 1988, s.172) or by the order of a court. The House of Lords in AttorneyGeneral v Guardian Newspapers ([1990] 1 AC 109) indicated that in Englishlaw the public interest in the maintenance of con�dentiality may be out-weighed by the public interest in disclosure.

Some judicial guidance has been given to the scope of public interest.Wood, V. C. stated in Gartside v. Outram ‘there is no con�dence as to thedisclosure of iniquity’.1 Iniquity goes beyond, for example, the disclosure ofinformation relating to a crime to include disclosure of information relatingto ‘matters medically dangerous to the public’ (Beloff v Pressdram [1973] 1All ER 241, at page 260). In Initial Services v Putterill ([1967] 3 All ER 145)Lord Denning held that disclosure would be permitted only if it was madeto someone who had a proper interest in receiving the information. In LionLaboratories v Evans ([1984] 2 All ER 47) Lord Wilberforce stated that therewas a difference between something that was of interest to the public andsomething that it was in the public interest to know. This is a matter to bedetermined on a case-by-case basis.

In ascertaining the boundaries of public interest the courts have madereference to guidelines issued by the professional bodies such as the GeneralMedical Council (X v Y [1988], W v Egdell [1989]) . In its 1995 statement oncon�dentiality the GMC provided that information might be disclosed in theinterests of others in limited situations:

Disclosure may be necessary in the public interest where a failure todisclose information may expose the patient or others to risk of deathor serious harm. In such circumstances you should disclose informationpromptly to an appropriate person or authority.

(GMC, 1995: clause 18)

JOURNAL OF FORENSIC PSYCHIATRY Vol. 11 No. 2256

It has been argued that to establish a public interest in disclosure it is notnecessary to show that there is danger to the public as a whole rather than toone speci�ed individual (Jones, 1990). The courts have been prepared touphold the risk assessment of the clinician in determining that disclosure isjusti� able in the public interest (see W v Egdell and R v Crozier [1990] TheGuardian, 8 May).

The legal situation in respect of children and incompetent adults is far fromcertain. In the case of the child patient it is generally assumed that an obli-gation of con� dence is owed to the competent minor (see Gillick v WestNorfolk and Wisbech AHA ([1986] AC 112)). As far as incompetent minorsare concerned it can be argued that there is a duty of con�dence by virtue ofthe particular relationship. But this approach has been questioned byKennedy and Grubb who argue that the relationship of con�dence will ariseonly in a situation in which a child is competent to form such a relationshipand that this is in line with the approach generally taken to this issue inEnglish law, such as the Gillick case and other provisions in the Children Act1989 (Kennedy and Grubb, 1994: 640). Other commentators, such as Mont-gomery, have expressed contrasting views, namely that when a childapproaches her or his doctor without telling parents, this means that she orhe is expecting that information will be treated as con� dential and that the‘very action evidences the maturity required before the law will recognise thisexpectation’ (Montgomery, 1987).

Again there is no clear case-law concerning the applicability of the law ofcon� dentiality in the context of the incompetent adult. One approach is toargue that because the adult is incompetent, no obligation of con� dentialityarises at all in such a situation. Kennedy and Grubb have commented thatin the situation of the incompetent adult there is no duty of con�dence assuch an adult cannot enter into a relationship of con� dentiality. An alterna-tive view and, it is submitted, a preferable one, is that an obligation of con-� dence does arise implicitly from the doctor–patient relationship and thatdisclosure may be made where this is in the patient’s best interests. Thiswould follow the approach taken in relation to clinical decisions regardingincompetent adults by the House of Lords in Re F [1990] 1 AC 1.

The Richardson review (Department of Health, 1999) into the scope of theMental Health Act 1983 recommended that a code of practice be drafted togovern the sharing of information in relation to health care. These guidelineswere to incorporate principles whereby

wherever possible information should only be shared with the agree-ment of the service user; where the user lacks capacity to consent toinformation being shared any sharing should be on the following basis: – the level of need and dependency,– the nature and degree of assessed risk,

DILEMMAS OF DISCLOSURE 257

– the relevance of the information to ensuring that the user receives theappropriate level of care, treatment and support.

Where the user has capacity but disagrees, information-sharing will take placeonly on the following basis:

– there is a serious risk of harm to the user or to others,– the user will know who has made the decision, and the nature of and

reasons for that decision, unless this risks serious harm; – where signi� cant risk to self or others is indicated, information rel-

evant to managing such risk will be shared on a ‘need-to-know’ basis; – training on the principles governing the sharing of information

should be provided to all mental health practitioners.

The government has invited comments on this issue.These guidelines are to be welcomed, as are recommendations that train-

ing be provided on the sharing of information. The question of risk assess-ment is likely to be especially problematic, especially where the plaintiff doesnot have a history of acting violently. As Gostin (1983) asked previously,

Must the prospective harm be, real, immediate and serious? Must therebe identi�able individuals at risk of harm? Must disclosure signi� cantlyreduce the risk of harm? Is the damage to the public interest protectedby the duty of con�dentiality outweighed by the public interest in pro-tecting third persons?

(Gostin 1983, para 20: 32)

While the structured exercise of discretion regarding risk assessment is morelikely to be judicially defensible, dif�cult clinical judgements will remain.Mental health professionals frequently work in teams. Care may be providedby someone who is not a member of a professional organisation. It is par-ticularly important in such a situation that the boundaries of disclosure areclearly delineated.

A number of legal issues that require urgent clari�cation to aid health careprofessionals’ judgement regarding the sharing of health care information.The position of the incompetent adult and the child needs reconsideration.The question of disclosure in the public interest is something that is inher-ently uncertain. Ultimately it is the operation of an individual health care pro-fessional’s discretion that will be crucial. The law can go only so far in sucha calculation. It is likely that the whole question of health care con�dential-ity will be subject to further judicial scrutiny when the Human Rights Act1998 comes into force with courts being invited to consider the applicationof Article 8.

What can be done? One option is to strengthen the safeguards afforded topatient con� dentiality through the introduction of legislation. In 1995 such

JOURNAL OF FORENSIC PSYCHIATRY Vol. 11 No. 2258

legislation in the form of a Bill originally drafted under the auspices of theBMA was introduced into Parliament. Legislation can clarify some of theissues. However, it can go only so far in any particular situation. Without aradical reassessment of the boundaries of con�dentiality, at present any legis-lation, as with the 1995 Bill, will look very much as if it is simply legitimiz-ing the present scope of professional discretion in such a decision-makingprocess. Perhaps it is time for the whole question of health care con�den-tiality to be put under the spotlight once more and for a broader debateregarding the patient’s right to control access to her or his personal infor-mation and the boundaries of disclosure to be undertaken.

Jean McHale, LLB, MPhil, professor of law, Department of Law, University of Leicester,Leicester LE1 7RM

NOTE

1 (1857) 26 LJ Ch (NS) 113, 114.

REFERENCES

Department of Health (1996) Protection and Use of Personal Information. London:Department of Health.

Department of Health (1999) Review of the Mental Health Act 1983. London:Department of Health.

General Medical Council (1995) Doctors Duties: Con�dentiality. London: GMC.Gostin, L. (1985 and supplements) Mental Health Services Law and Practice. London:

Shaw & Sons.Jones, M. (1990) ‘Medical Con�dentiality and the Public Interest’. Professional Negli-

gence 6: 16.Kennedy, I and Grubb, A. (1994) Medical Law Text and Materials. London: Butter-

worth. Law Commission (1981) Breach of Con�dence. Cmnd 838, para 6.5 and para 6.114.Law Commission (1995) Mental Incapacity. London: HMSO.Montgomery, J. (1987) ‘Con�dentiality and the Immature Minor’, Family Law 17:

101–4.Report of the Review of Identi�able Patient Information (1997) London: DOH.Royal College of Psychiatrists (2000) Good Practice Guidance on Con�dentiality.

London: RCP.

DILEMMAS OF DISCLOSURE 259