Medical Negligence and Malpractice - Essay Example

Medical Negligence and Malpractice Medical professionals function under a duty of confidentiality with regard to patients. This confidentiality relates to the professional relationship between the patient and the medical professionals. Such confidentiality arises if the medical professional has implicitly consented to keeping the information confidential, or the medical professional can reasonably be expected to know that the information provided is to remain confidential. However, the duty to maintain confidentiality is not absolute.1 Confidentiality issues generate a complex legal structure, which is a tangled network of statutes, case law and human rights law. Moreover, the provisions of several codes of practice are also to be considered, while establishing the occurrence of a breach of confidence. For instance, it is relevant from the legal perspective to refer to the guidance provided by the General Medical Council, while addressing such issues. This area is dynamic and has witnessed considerable growth and evolution.2 The interest of privacy is the fundamental interest with regard to personal confidences that is accorded protection. This interest is not the same as the right to privacy, and is protected by the common law action for breach of confidence, the Human Rights Act 1998 and statutory provisions. Violation of this interest of privacy provides the ethical stimulus for legal action.3 The 2500 odd years old Hippocratic Oath recognises confidentiality as a pillar of clinical practice. The Declaration of Geneva reiterated this commitment to confidentiality, by stating that the doctor was to maintain the confidentiality of secrets confided with him, even after the demise of the patient. Contemporary society is a melange of unprecedented social, technological and legal developments. 4 This in turn has resulted in intricate obligations and challenges for healthcare professionals, with regard to preserving patient confidentiality. The common law permits a patient whose confidentiality has been breached to claim damages in a civil court or to seek an injunction to enforce confidentiality. However, the patient will have to establish that he will be harmed, if he is to be awarded substantial damages. Moreover, civil claims are rare and mostly unsuccessful. 5 Medical confidentiality is accorded considerable importance among the Member States of the European Union. Thus, it is a crime to breach medical confidentiality in Belgium and France. Such clarity is absent in the UK, where it is difficult to identify an instance of breach of medical confidentiality, which resulted in criminal prosecution. Moreover, it is unclear whether such breach constitutes a civil offence in the UK. 6 Around two decades ago, the Law Commission had recommended to the government the importance of having a statutory offence of breach of confidence in place, and that it should include medical cases. This all important recommendation has not seen the light of day till date, requiring one to examine the relevant case law. 7 This makes it difficult to assess the contemporary situation obtaining with regard to the breach of confidentiality. In the case of Kaye v Robinson, the plaintiff was undergoing treatment for a serious head injury.8 Newspaper reporters entered the hospital room without obtaining permission and questioned the plaintiff. These members of the press ignored the fact that the plaintiff was not in a position to provide consent for the interview, on account of his head injury. The court did not grant a restraint order with regard to the publication of this unethically obtained interview. The law of the UK does not recognise the putative tort of privacy. 9 This is a serious drawback with the English law. In order to ensure the good of society as a whole, the courts recognise clinical confidentiality in common law. In the absence of such confidentiality, people would hesitate to furnish information relating to their health. This could be of significance with respect to psychiatric patients, some of whom could be dangerous.10 It cannot be gainsaid that the assessment, treatment and supervision of these patients necessitates their unstinted cooperation with the medical professionals attending upon them. As such, no patient should harbour the fear that their interests will be jeopardised, by disclosing their clinical information, consequent upon interacting professionally with a doctor. 11 It has been explicitly stated by the Court of Appeal that the common law, does not facilitate an unconditional entitlement to access one’s own medical records. Thus, in R v Mid Glamorgan FHSA ex parte Martin,12 access to clinical records with regard to a person with impaired mental health was denied to that individual. This refusal was on the grounds that such divulgence would prove to be harmful to him. Moreover, the court determined that it was the duty of a Health Authority to always act in the best interests of the patient, which could even be a denial of access of a patient’s medical records to that patient. 13 The majority of the medical professionals do not regard their duty of confidentiality towards patients as being absolute in nature. Article 8 of the European Convention on Human Rights (ECHR) provides for a right to private and family life. However this right is not unconditional. As such, this right is subject to a number of restrictions, such as, protection of public order, morals or health, and interests of public safety. In the UK there is due recognition of specific exceptions to the duty of confidentiality.14 In Hunter v Mann,15 two persons stole a car and were involved in an accident with that vehicle. They left the scene of the accident, prior to the arrival of the police, and were treated by Dr. Hunter. The latter refused to divulge the identity of these persons to the police, on the grounds that he was duty bound to maintain their personal information confidential. 16 This attitude of Hunter was decried by the court which found him guilty of violating section 168 of the Road Traffic Act 1972. This section requires any person with information regarding the driver of a vehicle allegedly guilty of an offence, to furnish such information to the relevant authorities when called upon to do so. This conviction was upheld by the Divisional Court. This doctor’s refusal to provide the necessary information regarding the persons who had committed the crime, on grounds of duty of confidentiality towards patients, was not viewed in favourable light by the court. In fact, the latter held the doctor guilty of violating the provisions of the Road Traffic Act 1972. 17 Statutory obligations in the UK necessitate the divulgement of confidential information regarding a patient by medical professionals. Instances are requirements to disclose information under the Road Traffic Act 1972 and the necessity to provide information regarding persons afflicted with certain infectious diseases. In such instances, the courts discount patient confidentiality as a defence to suppression of information. In the words of Veatch, physicians are first and foremost citizens of the land, and therefore subject to its laws. 18 Consequently, notwithstanding any professional code of ethics that advocates a contrary course of action, there can be no justification for breaching the law. This perspective has been opposed by several scholars, who contend that under certain circumstances, the physician should not disclose confidential information of a patient. Such refusal to provide information could even violate some extant statute.19 For example, with regard to the dread HIV, there is no indication that a law requiring identification of patients with this ailment will be enacted. As such, the UK courts have made it very clear that the patient’s confidentiality is to be maintained to the extent feasible. The law merely requires the disclosure of information that would serve to identify an individual. Over and above that medical or other personal information regarding a patient is not to be disclosed.20 Furthermore, a doctor is justified in providing confidential information about a patient to the relevant authorities, under certain circumstances. This usually pertains to promoting the interest of the public. For example, a doctor would be justified in informing a wife that her husband is HIV positive, if the husband refuses to inform her about it. Another example relates to providing enforcement authorities the details of a patient who issues threats to others and who is potentially violent.21 This also holds good with regard to informing the police about a patient with gunshot injuries. The relationship between a health professional and a patient is founded on a relationship of confidentiality. In this association, the patient usually trusts the health professional to keep sensitive personal information or medical details secret. Moreover, the patient expects such information to be restricted to the professional setting. 22 In the absence of such trust, patients could avoid seeking medical advice and could even fail to disclose crucial information. This in turn could lead to an imperfect diagnosis of the ailment or medical condition. Moreover, where trust is lacking, the patient may decline therapeutic interventions, in order to avoid discomfiture resulting from revelation to others. 23 In the case of Stephens v Avery,24 the court held that information conveyed to a friend, with the intention that the latter was to keep it secret, invoked a duty of confidentiality with regard to that piece of information. Moreover, Attorney – General v Guardian Newspapers Ltd, related to the publication of the memoirs of Peter Wright who had worked for MI5, as the book Spycatcher. The Attorney General of the UK procured an interlocutory injunction, against the publication of information by Wright.25 Subsequently, extracts were published by the Sunday Times from the book, prior to its publication in the US. This was opposed by the Attorney General who sought an injunction in this regard, which was dismissed by the Court of Appeal. However, the House of Lords upheld the appeal made by the Attorney General, holding the Sunday Times in breach of its duty of confidence. 26 The relevance of these decisions to the duty of confidentiality among medical professionals lies in the fact that what constituted public interest in this context was clarified. As such, the circumstances under which the duty of confidentiality was breached was specified as follows. First, the disclosed information should possess the characteristics of confidential information. 27 Second, the information in question should have been given under circumstances that made it very clear that this information was to be kept confidential. Finally, this information should have been subjected to unauthorised use, and such use should have proved detrimental to the patient providing the information. 28 These conditions are obviously significant to medical practice. Moreover, there is an automatic invasion of personal privacy, whenever medical information is disclosed. This situation generates a legal duty, in addition to ethical or professional duty, in the context of healthcare. It is important to realise at this juncture that the legal duty in these instances, is not of an absolute nature. A careful analysis of the relevant case law indicates that public interest has been accorded primary importance; and the private interest of the patient has been considered, albeit with far less significance. 29 This has been clearly demonstrated in W v Egdell, wherein the plaintiff was interned in a special institution, after killing five people and severely injuring several persons. The rigorous conditions of this institution compelled this dangerous and deranged person to seek a transfer to a regional secure hospital. To this end he invited Dr. Egdell, through his legal advisers, to examine him and provide a report regarding his transfer application. The good doctor clearly realised the danger posed by the plaintiff to society at large and indicated the same in his report.30 The plaintiff came to know, in the meanwhile, that he was due for a periodic review by the Mental Health Review Tribunal. Accordingly, he withdrew his transfer application, as the medical report was unfavourable. The defendant, taking due cognisance of the danger of his opinion not being sought by the tribunal, forwarded a copy of his report in this regard. 31 A disgruntled plaintiff approached the court and brought an action for breach of confidentiality. His contention was that maintaining secrecy about his medical condition was integral to the contract between him and Dr. Egdell. The court conceded that there was such a duty towards the plaintiff; however, it stressed that this duty was subservient to the duty to protect the public from potential danger. 32 This judgement demonstrated that the occurrence of an actionable breach was to be determined on the basis of the precise nature of the breach and not on general principles. The court balanced the private right to confidentiality of the plaintiff against that of the public’s right to information, and decided in favour of the latter. 33 When it comes to the preservation of medical records in a confidential manner, the courts tend to take a very serious view of any unwarranted disclosure of such records. Thus, in Ashworth Hospital Authority v MGN Ltd, a newspaper obtained the medical records of the murderer Ian Brady and published them without any alteration.34 The House of Lords discounted the claim of the newspaper that the identity of its source was to be kept secret. In fact, the House of Lords opined that the source was to be identified and punished. This makes it incumbent upon healthcare professionals to preserve the confidentiality of medical records, unless called upon by suitably empowered authorities to disclose the same. 35 In the absence of informed consent from the patient, there should be no infringement of a patient’s right to privacy. Thus, information that could identify a patient should not be published in photographs and written descriptions, unless it is indispensable for scientific objectives and written consent has been procured from the patient or the patient’s parent or guardian. 36 In this context, informed consent connotes that the matter to be published has been shown to the patient. Furthermore, particulars that could help in the identification of the patient should not be provided, unless they are essential. However, there should be no falsification or alteration of the data relating to a patient, in order to achieve anonymity. 37 The good faith that subsists between a doctor and a patient consists of preserving confidentiality. If the patient’s right to confidentiality is disregarded, then there is every possibility of the patient losing trust in the healthcare professionals and could even dissuade a patient from seeking medical assistance. It is to be understood that individual dignity is preserved, misuse of information is prevented and the autonomous decision making of patients is protected, whenever confidentiality is safeguarded. 38 It is possible for confidentiality dilemmas to emerge due to the concern exhibited by the relatives of a patient. Although, relatives have been known to furnish invaluable information regarding patients, the latter on several occasions have been seen to be reluctant to provide their relatives with all the details relating to their medical condition. Therefore, the doctor or healthcare professional is duty bound to respect the patient’s request, as long as it does not violate the law of the land. Some of the more important examples of this are, according protection to others, provision of information to the police, disclosure of notifiable diseases, and disclosure regarding the fitness of a patient to drive a vehicle. 39 As such, the duty of confidentiality is overridden by the duty to protect a third party from serious harm. The laws of the UK enjoin that a healthcare professional should not ignore the threat posed by a patient to society at large. Thus, there is a duty to balance the duty towards a patient against the duty to society and the general public. The ruling in W v Egdell case made this point very clear. 40 At the same time, it would constitute professional misconduct on the part of the doctor, if information regarding less serious crimes were to be disclosed. The NHS code provides the proper guidance in this regard and states that personal information of a patient can be disclosed, if such disclosure were to prevent and support the detection, investigation and punishment of serious crime, prevent abuse or serious harm to others. 41 Moreover, activity that could be related to terrorism has to perforce be reported to the police. Another important area where disclosure is mandatory is that of road traffic accidents. In such instances, healthcare professionals and other members of the public have to provide details that could help in the identification of people involved in road traffic accidents. Significantly, in the absence of a court order of the express consent of the patient, there is no necessity to provide such details. Whenever, such information is deemed to be crucial, the police access the relevant medical records after procuring a search warrant. 42 The healthcare professional does not enjoy the same privileges as a lawyer, with regard to furnishing evidence about a patient. As the final arbiter of patient confidentiality, the court is fully empowered to call for the medical records of the patient, and it is incumbent upon the healthcare professional to comply with such court directions. 43 Moreover, it is obligatory to provide information regarding notifiable and highly infectious diseases. In this context, the Data Protection Act 1998 permits the disclosure of such information, under preventable medicine. In the area of sexually transmitted infections, it is necessary under the provisions of the law to protect the identity of contacts and patients. 44 From the legal perspective, patient confidentiality is nothing more than the striking of a balance between public interests and the private interests of the patient. There is no recognition of patient confidentiality as a right accorded to individuals. On occasion, it becomes mandatory to disclose the confidential information of a patient. As such, it can be surmised that although medical confidentiality is an important obligation imposed upon healthcare providers by the medical ethics, it is not absolute. Under certain circumstances it can be lawfully breached by the medical professionals. As per the foregoing discussion, a fine balance has to be maintained between public interest and the patient’s privacy rights. On many occasions, courts favoured breach of confidentiality when the latter was affecting the interests of others. Moreover, the judges accord the utmost importance to the best interests of the public at large, when dealing with these confidentiality issues. Bibliography A. Books McLean, S and Mason, JK, Legal and Ethical Aspects of Healthcare, Greenwich Medical Media, 2003. Mohindra, R, Medical Law Handbook, Radcliffe Pub, 2008. Payne – James, J, Wall, I and Dean, P, Medicolegal Essentials in Healthcare, Cambridge University Press, 2004. Walrond, ER, Ethical Practice in Everyday Health Care, University of West Indies Press, 2005. B. Articles Bourke, J and Wessely, S, ‘Competent Novice’ British Medical Journal, vol. 336, no. 7649, 2008, pp. 888 – 891. Boyle, C, ‘Hunter v. Mann’ The Modern Law Review, vol. 38, no. 1, 1975, pp. 69 – 72. Dimond, B, ‘Comment.’ Nursing Ethics, vol. 13, no. 6, 2006, pp. 580 – 582. Dolan, B, ‘Medical records: Disclosing confidential clinical information.’ Psychiatric Bulletin, vol. 28, no. 2, 2004, pp. 53 – 56. Frampton, A, ‘Reporting of gunshot wounds by doctors in emergency departments: A duty or a right? Some legal and ethical issues surrounding breaking patient confidentiality.’ Emergency Medicine Journal, vol. 22, no. 2, 2005, pp. 84 – 86. Rogers, WA and Draper, H, ‘Confidentiality and the ethics of medical ethics’ Journal of Medical Ethics, vol. 29, no. 4, 2003, pp. 220 – 224. C. Case Law Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29. Attorney General v Observer Ltd [1990] 1 AC 109. Hunter v Mann [1974] All ER 414. Kaye v Robertson [1991] FSR 62. R v Mid Glamorgan FHSA and another, ex parte Martin (1995) 1 WLR 110. Stephens v Avery [1988] 2 All ER 477. W v Egdell [1989] 1 All ER 1089. D. Statutes Data Protection Act 1998. European Convention on Human Rights 1950. Road Traffic Act (c.20) 1972. Read More