CONFIDENTIALITY

A. Definition of Confidentiality
Confidentiality is a separate legal concept to privacy. Confidentiality applies to
information given to a person or organisation under an obligation not to disclose that
information to others unless there is a statutory requirement or duty of care obligation
to do so. Confidentiality also applies to organisational information which is not to be
used or disclosed by board members, staff, volunteers, contractors or students without
authorisation (1)
Confidentiality is central to the preservation of trust between doctors and their
patients. The moral basis is consequentialist, in that it is to improve patient welfare. There
is a wider communitarian public interest in the protection of confidences; thus,
preservation of confidentialityis necessary to secure public health (2)

Confidentiality refers to the ethical duty of the physician not to disclose

information learned from the patient to any other person or organization without the
consent of the patient or under proper legal compulsion. The Hippocratic Oath
describes the duty of confidentiality as follows: Confidentiality is essential to
psychiatric treatment. This is based in part on the special nature of psychiatric therapy
as well as on the traditional ethical relationship between physician and patient.
Growing concern between the civil rights of patients and the possible adverse effects
of computerization, duplication equipment, and data banks makes the dissemination
of confidential information an increasing hazard(3)

Confidentiality in the medical setting refers to “the principle of keeping secure

and secret from others, information given by or about an individual in the course of a
professional relationship,”
1. It is the right of every patient, even after death. Breaches of confidentiality are
common, albeit usually accidental.
2. Around a third of the calls received by the Medical Protection Society from
doctors are related to confidentiality, particularly in general It is the most common
reason for doctors, at any stage of their training, to seek advice from their
indemnity unions. Confidentiality lies at the heart of the relationship between
doctor and patient, and one survey suggests that the public view any breaches of
this as the most important reason for striking doctors off the medical register (4)
 Confidentiality is an important and shared human value in Western bioethics
and is included in international bioethical guidelines including the Helsinki
declaration, Belmont report, guidelines of the Council for the International
Organization of Medical Sciences(CIOMS), and many others.[1] The obligation of the
physician to preserveas confidential any information regarding his patient was first
mentioned in the Hippocratic Oath: ‘What I may see or hear in the course of the
treatment or even outside of the treatment in regard to the life of men, which on no
account one must spread abroad, I will keep to myself, holding such things shameful
to be spoken about (5)

Confidentiality is important for several reasons:

1. It benefits patients by providing a secure environment in which they are most

likely to seek medical care and to give a full and frank account of their illness
when they do;
2. It supports public confidence and trust in healthcare services more generally;
3. It expresses respect for patients’ autonomy: people have a right to choose who
will have access to information about them, and a rule of confidentiality for
medical practitioners reassures patients that they can determine who will be privy
to their secrets. These are three robust arguments for maintaining confidentiality,
but there are some circumstances in which breaches of confidentiality are
permissible, and sometimes even necessary (6)

All identifiable patient information, whether written, computerised, visually or audio

recorded or simply held in the memory of health professionals, is subject to the duty
of confidentiality.

It covers:
1. Any clinical information about an individual’s diagnosis or treatment;
2. A picture, photograph, video, audiotape or other images of the patient;
3. Who the patient’s doctor is and what clinics patients attend and when;
4. Anything else that may be used to identify patients directly or indirectly so that
any of the
5. Information above, combined with the patient’s name or address or full postcode
or the
 6. Patient’s date of birth, can identify them. Even where such obvious identifiers are
missing,
7. Rare diseases, drug treatments or statistical analyses which have very small
numbers
8. Within a small population may allow individuals to be identified. A combination
of items
9. Increases the chance of patient identification.
10. Whilst demographic information such as name and address are not legally
confidential, it is often given in the expectation of confidentiality. Health
professionals should therefore usually seek patient consent prior to sharing this
information with third parties.’

B. Confidentiality Is Important
Confidentiality is a core element of all human relationships and, so, is basic to
building trust between patients and health professionals. Keeping confidences is a
form of keeping a promise or bond. In effect, the health professional promises the
patient that they will keep a bond of trust – the patient trusts the health professional to
keep confidence and the health professional trusts the patient to tell the truth.
Secondly, the assurance of confidentiality enables patients to be open about personal
issues, concerns and questions and enhances their capacity to make decisions about
their health care. Respecting a patient’s choice to keep certain information about them
confidential, e.g., deciding not to tell a family member about their illness, recognizes
the patient’s right to autonomy and privacy (See Privacy). It also acknowledges that it
is the patient who must live with the consequences of their decision (not the health
professional).

Finally, not only is the keeping of confidentiality considered worthwhile because it is

viewed as an implicit part of the health professional/patient relationship, it is also seen
as a means of ensuring other important benefits. For example, the trust engendered
through confidentiality.
1. Creates an open and supportive environment that encourages patients to disclose
more of their symptoms and worries, fears and phobias.
2. Ensures a better diagnosis and a higher quality of care – secures greater
agreement and compliance with procedures and treatment.
 3. Encourages individuals, in particular, vulnerable individuals to seek help and
increases their contact with the health services.

In sum, the keeping of patient confidentiality is considered important because it is

basic to a relationship built on trust and respect. It is important also because the
consequences of keeping confidentiality are generally beneficial to patients in that it
ensures better outcomes for them.

C. Principles
The general principles of what is considered confidential have been outlined in
common law. A duty of confidence arises when one person discloses information to
another (e.g. a patient to a doctor) in circumstances where it is reasonable to expect
that the information be held in confidence (2)

Confidentiality in the medical setting refers to “the principle of keeping secure

and secret from others, information given by or about an individual in the course of a
professional relationship,” and it is the right of every patient, even after death.
confidentiality preserves individualdignity, prevents information misuse, and
protectsautonomous decision making by the patient.

Confidentiality, consent, and children under 16 yearsBroadly speaking,

patients under 16 should be afforded the same respect as adults where confidentiality
is concerned. However, unlike people over 16, they areconsidered to lack capacity to
consent unless provedotherwise. Complications can arise when patientsunder 16 don’t
want their parents told of what theydisclose.

The law views confidentiality as a balance of public Interestsratherthana“

Right “ affordedtotheindividual,and this potentially conflicts with the medical
definition. Rarely, it is compulsory to disclose confidentialinformation. Instances
include disclosure to protectothers, disclosure of information to the police, disclosure
of notifiable diseases, and disclosure ofinformation about a patient’s fitness to drive.
Confidentiality is the cornerstone of medical ethics. We seldom choose to ignore this
duty, but we can in advertently let its lip but above all, ensure that your patients can
have confidence in your confidence (4).
 Eight principles of confidentiality : (7)
1. Use the minimum necessary personal information. Use anonymised
information if it is practicable to do so and if it will serve the purpose.
2. Manage and protect information. Make sure any personal information you hold
or control is effectively protected at all times against improper access, disclosure
or loss.
3. Be aware of your responsibilities. Develop and maintain an understanding of
information governance that is appropriate to your role.
4. Comply with the law. Be satisfied that you are handling personal information
lawfully.
5. Share relevant information for direct care in line with the principles in this
guidance unless the patient has objected.
6. Ask for explicit consent to disclose identifiable information about patients for
purposes other than their care or local clinical audit, unless the disclosure is
required by law or can be justified in the public interest.
7. Tell patients about disclosures of personal information you make that they would
not reasonably expect, or check they have received information about such
disclosures, unless that is not practicable or would undermine the purpose of the
disclosure. Keep a record of your decisions to disclose, or not to disclose,
information.
8. Support patients to access their information. Respect, and help patients
exercise, their legal rights to be informed about how their information will be used
and to have access to, or copies of, their health records.

D. The Right and Responsibility

Doctors’ duty to respect confidentiality has been with us for a long time—the
Hippocratic Oath was probably written in the 5th Century BC—but it seems to be
causing us more trouble than ever before. The General Medical Council (GMC), in its
struggle to publish new guidance1 was challenged with legal action by patients’
groups on the grounds that its new guidance was too permissive about the use of data,
and by general practitioners (GPs) and other doctors for undermining patients’ trust in
the confidentiality of medical records. But the final guidance, which requires
doctors to seek consent “where practicable”, and to inform patients about the use of
their data,was greeted with anger by researchers, epidemiologists, and doctors
working in public health, who fear it will damage research and epidemiology.

The advice that patients must always be informed about disclosures to cancer
registries was particularly reviled. Confidentiality is rarely challenged in itself. It is
accepted by most doctors and patients as one of the main planks of a relationship of
trust between doctors and patients. But close examination of what confidentiality is
for, why it is necessary, and what it means in practice, reveals some deep and
fundamental divisions in understanding and expectations.

Rights Of The Individual

Society as a whole is moving towards a “rights based” approach to citizenship. This is
reflected in many aspects of our way of life, including our increasing desire to
participate in decisions which affect us directly, and increasingly to express
our desire for control through making complaints. We are no longer willing to put
ourselves—as individuals or families—in second place to the needs of society. More
encouragingly, we are not prepared to condone the suffering of, or discrimination
against, minorities for the benefit of the majority. In our society we give a high value
to the rights of the individual and consequently to autonomy. As Doyal5 and others6
have said, respect for the autonomy of patients is a form of cognition of the attributes
that give humans their moral iqueness. Humans, unlike animals, formulate aims and
beliefs, reason about them, make choices on their basis, and tempt to plan for the
future. This means that respect for tonomy—for the attributes which define
humanity—goes nd in hand with human dignity. Atonomy encompasses not just the
right to self determination out our bodies and how they are treated, but also to
information about ourselves, our lifestyles, and our health.The right to control who
knows the things about us which we regard as private is integral to our sense of self
and sense of dentity. The Medical Research Council (MRC) begins its guidance on
confidentiality with a clear expression of this:
Keeping control over facts about one’s self can have an important role in a person’s
sense of security, freedom of action, and self respect
So the law, and society, seem to be moving towards a view of autonomy, and privacy
as a corollary of that, as a right. As a right it establishes one of the governing
principles in interactions between doctors and patients (8).

Profesional Responsibilities
1. Health professionals have an obligation to respect patient confidentiality which
extends beyond the patient’s death.
2. Consideration should be given to the wishes of the patient prior to their death in
relation to the confidentiality of information relating to them if these are known or
can be otherwise determined.
3. The sensitivity of the information sought should be taken into account.
4. Health professionals also have a duty of care in relation the wellbeing and welfare
of those who are bereaved.
5. Access to patient information should not be considered as an automatic right. In
deciding access to patient information professionals should be aware of legislation
pertaining to Freedom of Information.
6. Health professionals should consider carefully the particular circumstances that
give rise to ta relatives request for access to the patient’s records.
7. Health professionals have a duty of care towards the living as well as the dead. In
response to requests for information about deceased persons, health professionals
need to determine whether or not the disclosure of that information has any
implications for the health and wellbeing of others.
8. In order to avoid situations where health professionals are torn between the duty
of confidentialty and the duty to warn or protect others, those who treat HIV
positive patient should discuss with them as early as possible the limits of patient
confidentiality.
9. Such a discussion could include making a plan for what might happen should the
patient lose their capacity to make decisions about their care and who might be
involved (and, perhaps, informed) about their status in order that their best
interests are preserved.
10. Balance has to be struck between respect for confidentiality and the legitimate
interests of others.
E. Confidentiality Conflic Around Health Care
Medical confidentiality is not absolute in modern medicine. There are
occasions when there pis a need to breach this idealism. The legitimate exceptions are
specified by the GpMC’s professional code of conduct :
1. Disclosures with consent;
2. Disclosures required by law;
3. Disclosures in the public interest.
4. Have the necessary quality of confidence,
5. Be imparted in circumstances importing anobligation of confidence,
6. Be disclosed without the permission and tothe detriment of the person originally
com municating it,
7. Not already be in the public domain,
8. Be in the public interest to protect it.

Breaching patient confidentiality

In advertent breaches are potentially common place on wards if medical notes are left
visible or patient consultations and preoperative assessments are conducted in an open
environment. The increased use of computerized documentation results in faster and
wider distribution of information with an increased risk of unauthorized access (2).

F. Legal Duty Of Confidentiality

The existence of a legal obligation to protect the confidentiality of
communications arising from the physician-patient relationship has evolved primarily
through court decisions, although statutory regulations also may be pertinent.
Successful lawsuits ppagainst physicians for breach of confidentiality have been
based on the following legal theories:
1. Implied contract to keep information
2. confidential
3. Invasion of privacy
4. Tortious breach of duty of confidentiality
5. Statutory regulations.

Courts have awarded damages for breach of confidentiality based on the

contractual relationship between the physician and patient, which was determined to
include an implied agreement that the physician would keep confidential any
information received from the patient. Recovery also has been based on invasion of
privacy, which has been defined as an unjustified disclosure of a person’s private
affairs with which the public has no legitimate concern in such a fashion as to cause
humiliation and/or emotional suffering to ordinary persons. The nature of the
physician-patient relationship has been determined to create for the physician a
fiduciary duty (i.e., to act primarily for the benefit of another) to keep information
obtained through such a relationship confidential. Therefore, a tort action can be used
to recover damages. A tort is a civil wrong, other than breach of contract, for which
the court will provide a remedy in the form of an action for damages. Finally, courts
occasionally have allowed recovery based on licensing statutes that focus
on issues of privileged communications (3)
 DAFTAR PUSTAKA

1. Staff V, Agreement VC. Privacy and Confidentiality Policy.

2. Blightman K, Griffiths SE, Danbury C. Patient confidentiality: when can a breach be
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3. Metzner jL. confidentiality and privilege. 2011.
4. Bourke J, Wessely S. Confidentiality. BMJ. 2008;336(7649):888-91.
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training programme. South African Journal of Bioethics and Law. 2016;9(1):31-4.
6. Braunack-Mayer AJ, Mulligan EC. Sharing patient information between professionals:
confidentiality and ethics. Medical journal of Australia. 2003;178(6):277-9.
7. council gm. Confidentiality. 2017.
8. O’Brien J, Chantler C. Confidentiality and the duties of care. Journal of Medical Ethics.
2003;29(1):36-40.