Presentation on theme: "Medical Confidentiality: Legal Protection of Medical Records"— Presentation transcript:
1 Medical Confidentiality: Legal Protection of Medical Records Prof Orla Sheils
2 Legal Definition of Confidential Information CoCo Engineering v AN Clark (Engineers)  RPC 41“ ….if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised on reasonable grounds the information was being given to him in confidence, then this would suffice to impose upon him the equitable obligation of confidence.”
3 Legal Definition of Confidential Information Thomas Marshall v Guinle 1 Ch.227“First, the information must be the information the release of which the owner believes to be injurious to him or of advantage to others.Second, the owner must believe the information is confidential or secret.Third, the owner’s belief must be reasonable.Fourth, use of the information must be judged in light of the usage and practice of the particular industry.”
4 Categories of Confidential Information Personal Information:Duchess of Argyll v Duke of Argyll  1 Ch 302Government Information:A-G v Guardian Newspapers Ltd  AC 109Commercial Information:Thomas Marshall v Guinle  1 Ch 227Medical Information:Hunter v Mann  QB 767
5 Action for Breach of Confidence Stephens v Avery  1 Ch. 449To be subject to the Legal Protection of an Actionfor Breach of Confidence, the Information mustsatisfy the following criteria:Have the necessary character of Confidence;Have been imparted in circumstances implying an obligation of Confidence; andHave been used in an unauthorised manner, to the detriment of the Party (Patient)
6 The Defence of Public Interest to Action for Breach of Confidence X v Y & Others  2 AER 648The public interest in preserving the Confidentialityof Medical Records, from which actual or potentialHIV/AIDS sufferers could be identified, outweighedthe Public Interest in the freedom of the Press topublish such Information.
7 The Defence of Public Interest to Action for Breach of Confidence Tarasoff v Regents of the University of California  131 California Reporter 14Here the Psychologist was counselling a Patient, whothreatened to kill a named person, i.e. Ex-Girlfriend. ThePsychologist had warned the University Hospital, but theHospital released the Patient. The Ex-Girlfriend was thenmurdered.“The Protective Privilege ends where the Public Peril begins.”
8 The Defence of Public Interest to Action for Breach of Confidence Lipari v Spears  US Supreme Court:There is a General Duty to predict danger andprotect Society.Brady v Hopper  US Supreme Court:The Legal Test is limited to Specific Threats toSpecified Individuals.
9 The Defence of Public Interest to Action for Breach of Confidence W v Egdell  1 AER 835Dr Egdell was a Psychiatrist hired by DefenceSolicitors to do a Report on a Client Prisoner, aConvicted Murderer. Report for Parole BoardApplication. Dr Egdell considered “W” a danger tothe General Public. Dr Egdell informed Secretary ofState at the Home Office. Parole refused. Held to bein Public Interest to keep “W” in Prison.
10 The Defence of Public Interest to Action for Breach of Confidence Palmer v Tees Health Authority Lloyds Reports 351A 4 year old Child was sexually assaulted andmurdered and mutilated by “A”. Here “A” hadindicated that he would kill a child. However, heldthat the Defendants did not owe a duty of care, asno proximity existed between the parties.There has to be a Special Relationship with an Identifiable Victim.
11 The Defence of Public Interest to Action for Breach of Confidence MQ v Gleeson and Dublin City VEC, Chance and Eastern Health Board High CourtHealth Boards are not to be confined to acting in theinterests of Identifiable Children, but the Duty alsoextends to children who are not readily identifiableand who may be at risk in the future by reason of aSpecific Potential Hazard to which a Health Boardreasonably suspects may come about in the future.
12 Legal Principles of Medical Confidentiality W v Egdell  1 AER 835“ It has never been doubted that the circumstanceshere were such as to impose on Dr Egdell a Duty ofConfidence owed to W.…He could not lawfully sell the contents of the Medical Records/Report to the Media. Nor could he, without a Breach of the Law as well as Professional Etiquette, discuss the Case in a learned article, his memoirs, or gossiping with friends.”
13 Legal Principles of Medical Confidentiality McInerney v McDonald  137 NR 35“The relationship between Doctor and Patient isone which is Fiduciary in nature, i.e. one based onMutual Trust and a Duty of Confidence.The Patient entrusts Personal Medical Details to the Doctor on the understanding that they are to be treated in the strictest Confidence, as he/she has a Beneficial Interest in this Information stored in the Medical Records.”
14 Ethical Principles of Medical Confidentiality Hippocratic Oath, 5th Century BC“Whatever in connection with my ProfessionalPractice or not in connection with it, I see or hear in the life of men, which ought not to be spoken abroad, I will not divulge as reckoning that all such should be kept secret.”
15 Ethical Principles of Medical Confidentiality Declaration of Geneva 1947“I will respect the Secrets which are confided in me, even after the Patient has died.”
16 Ethical Principles of Medical Confidentiality General Medical Council, 1995“Duties of a Doctor: Confidentiality.”“There is a strict Ethical Duty on RegisteredMedical Practitioners to refrain from disclosingvoluntarily to any third party information about a Patient which he/she has learnt directly or indirectly in his/her own Professional Capacity.”
17 Ethical Principles of Medical Confidentiality Irish Medical CouncilA Guide to Ethical Conduct and Behaviour andFitness to PracticeExceptions to Duty of Confidence:(a) Where a Patient gives consent to the Disclosure of Information to Third Parties;(b) When Disclosure is required by a Judge in a Court of Law;(c) When Disclosure is necessary to Protect the Interests of the Patient;(d) When Disclosure is necessary to Protect the Welfare of Society;(e) When Disclosure is necessary to Safeguard the Welfare of another Individual or Patient.
18 Ethical Principles of Medical Confidentiality Irish Medical CouncilA Guide to Ethical Conduct and Behaviour and Fitness to Practice - Issues to be Considered:The Doctor-Patient relationship should be respected at all times;Where circumstances permit, the Patient’s own Doctor should be informed;Documents containing Medical Details should always be transmitted under Confidential Cover; andMedical Information obtained by a Doctor in the process of Patient Examination should always be used for the betterment of that Patient.
19 Constitutional Principles of Confidentiality Bunreacht na h-Eireann 1937Article 40: Right to PrivacyMcGee v Attorney-General  IR 284Norris v Attorney-General  IR 36Kennedy & Arnold v Ireland  IR 587
20 Exceptions to Ethical Duty of Medical Confidentiality The General Medical Council recognise the following exceptions:Consent to Publish;Patient’s Interests;Duty to Society;HIV/AIDS;Family Confidentiality;Special Interest Groups;Medical Research.
21 Human Rights Principles in Medical Confidentiality The European Convention on Human RightsThe Human Rights Act 2003The Right to Respect for Family and Private Life:ECHR Article 8 (1)Exception where Non-observance of Privacy isIn Accordance with Law and Democratic Society:ECHR Article 8 (2) Z v Finland  45 BMLR 107
22 Access to Medical Records: Ownership of Medical Records Private Patients:Subject to Contract between Private Clinic andDoctor. If no Contract between Private Clinic andDoctor, owned by the clinic itself.If there is a Contract in place , Medical RecordsStatus depends on relationship between Doctor andPatient. However, usually ownership is vested in theClinic itself.
23 Access to Medical Records: Ownership of Medical Records Public Patients:Medical Records held by a Hospital are the propertyof the National Health Service, NHS, while thoseheld by general practitioners belong to the FamilyHealth Services Authority, FHSA in the UK. InIreland, they are the Health Safety Executive, HSE orthe General Medical Service, GMS, in the case of GPMedical Records.
24 Access to Medical Records: Common Law Principles McInerney v McDonald  2 MLR 267“Of primary significance is the fact that the MedicalRecords consist of Information that is highly Privateand Personal to the Individual. It is Information thatgoes to the Personal Integrity and Autonomy of thePatient. This Clinical Information remains in afundamental sense one’s own, for the IndividualPatient in question to communicate or retain ashe/she sees fit.”
25 Access to Medical Records: Common Law Principles R v Martin Unreported “In the court’s opinion there is a distinction to bemade between the Information conveyed by aPatient for the benefit of the Doctor’s considerationand the conclusion to which the Doctor comes tobased on that Information. The Opinion of theDoctor is wholly the property of the Doctor. It doesnot appear to the Court that the fact the Patientprovides the original Information, entitles him/her toaccess.”
26 Access to Medical Records: Legislative Principles Data Protection ActsFreedom of Information ActsHealth Information Bill 2008
27 Access to Medical Records: Legislative Principles Data Protection ActsRegistration with Data Protection Agency;Patient Information to be accurate and stored for specified and lawful purposes;Appropriate Security Measures to be put in place against unauthorised access to or alteration disclosure or destruction of the Patient Information held on file;
28 Access to Medical Records: Legislative Principles Data Protection ActsDisclosure of Patient Information is only permissible if required as a matter of urgency to safeguard a Patient’s health;As far as the matter of Access to Patient Medical Records is concerned the Patient has the right to be informed of any Clinical Information held on Computer, and is entitled to a copy thereof. If the Clinical Information is unintelligible, for example through the use of Medical Terminology, then the Patient is entitled to an explanatory note of such terms.
29 Access to Medical Records: Legislative Principles Data Protection ActsThe Patient may request alteration to any inaccurate information held on file, although this has to be done within forty (40) days;The Minister for Justice is empowered to modify the Right of Patient Access to Medical Records if it is in the Patient’s interests;Under the terms of the Data Protection (Access Modification) (Health) Regulations SI 82 of 1989 Clinical Information will not be supplied if likely to cause the Patient serious harm.
30 Access to Medical Records: Legislative Principles Freedom of Information ActsThe Acts have a two fold purpose which are as follows:To provide a general right of access to information in the possession of Public Bodies; andTo afford Private Citizens access the right to access and possible correction of Personal Information held about them by a Public Body. The term “Public Body” includes the Department of Health and Children, the Blood Transfusion Board and the Irish Medicines Board.
31 Access to Medical Records: Legislative Principles Freedom of Information ActsThe relevant legal provisions of the Acts are:Decisions on Patient Access to publicly held Records are made bythe Head of the Public Body, and in the case of Medical Records itis the Health Services Executive;While Patient Access may be permitted by the HSE through atranscript of the Patient Information held on the Medical Records,such access may be denied if access would be detrimental to therecord, infringe copyright or conflict with a legal obligation of theHSE;
32 Access to Medical Records: Legislative Principles Freedom of Information ActsA Patient may instruct the Chief Executive Officer of the HSE to correct any personal information, for example, information held on Medical Records, which are incomplete, incorrect or misleading. In the event that the request for alteration or correction is refused by the HSE then the Patient is entitled to have a note attached to the file outlining their objections and the fact that the application had been made;A Patient may receive information about “acts” of the HSE that affect the individual. Here the term “acts” refers to any decision of the HSE, for example, the decision not to issue a Medical Card.
33 Access to Medical Records: Legislative Principles Freedom of Information ActsCertain Public Records are exempt from the provisions of the Acts:Records used in deliberations by a Public Body are exempt unless it is a factual or scientific Report;Records which if accessed would interfere with the proper management of the HSE;Records which are subject to Legal Privilege;Records entrusted to the HSE in confidence; andRecords from which an individual may be identified.
34 Access to Medical Records: Legislative Principles Freedom of Information ActsRecords which if accessed would divulge personal information of a deceased Patient;Records which if accessed by the Patient as the requesting party would prejudice the physical and mental health of the individual Patient in question. Access may be permitted through a nominated Health Care Professional who has the relevant clinical expertise in respect of the subject matter stored on the Medical Records.
35 Access to Medical Records: Legislative Principles Health Information Bill 2008According to Minister Harney:“The objective of the current Health ReformProgramme is to deliver better Patient care and safety.This includes using information, both in manual andelectronic form, more effectively than previously toimprove healthcare outcomes while ensuring that theprivacy of Personal health Information is appropriatelyrespected.”
36 Access to Medical Records: Legislative Principles Health Information Bill 2008The main purposes of the proposed 2008 Bill are:To establish a legislative framework to enable information, in whatever form, to be used to best effect to enhance medical care and Patient safety throughout the Irish Healthcare System;To facilitate the greater use of information technologies for better delivery of Patient Services; andTo underpin the effective Information Governance Structure for the Irish Healthcare System generally.
37 Access to Medical Records: Legislative Principles Health Information Bill 2008Health Information Management Principles:Personal Health Information shall be:Accurate, complete and kept up to date;Obtained for one or more specified, explicit, and legitimate purposes;Not used, shared, or disclosed in a manner incompatible with these principles;
38 Access to Medical Records: Legislative Principles Health Information Bill 2008Health Information Management Principles:Personal Health Information shall be:Adequate, relevant and not excessive;Not be kept for longer than necessary; andSafeguarded by appropriate Security Measures against unauthorised access, alteration, disclosure or destruction and against all other forms of processing.
39 Access to Medical Records: Judicial Requirements Coroner Court:The Coroner has powers to investigate sudden, suspiciousor unexplained deaths. Information should be disclosed toCoroners to enable them to determine whether an Inquestshould be held.Court of Law:A Medical Professional cannot claim Professional Privilege as aWitness.The Medical Practitioner may appeal to the Judge but ifdirected answer a question, and he/she refuses to do so, may befound in contempt of Court.A Subpoena to attend Court, or produce documents, must be obeyed.