Education And Debate

Wider public interest may come before issues of confidentiality

BMJ 1998; 316 doi: (Published 03 January 1998) Cite this as: BMJ 1998;316:57
  1. Margaret Brazier, professora
  1. a Faculty of Law, University of Manchester, Manchester M13 9PL

    “Must I let this patient to see her records?” is the question a lawyer would generally expect to be asked. Some doctors are wary of allowing patients unrestricted access to their records, but this paediatrician offered his former patient open access. He sought to ensure that she would understand what she read and that she had support in dealing with the potential distress caused by discovering a childhood trauma. Since the Access to Health Records Act 1990 applies only to notes compiled after November 1991, he was under no legal obligation; none the less, he chose to recognise his ethical obligation to share information with his former patient.

    What ensued was not, as the doctor feared, some possible trauma to his former patient caused by recall of her injury or the allegations of parental abuse. Instead he found himself torn between his obligation of confidentiality to her and his duty to protect other children from abuse. This dilemma was triggered not by what was disclosed in the records but by what the records caused the patient to disclose.

    The paediatrician does owe a duty of confidentiality with regard to this woman's disturbing disclosures. She may no longer be his patient, but a duty of confidentiality arises whenever one person gives information to another in circumstances where it is clear that that information is proffered on the understanding that confidence will be assured. The doctor-patient relationship is just one example of a much wider category of confidential relationships protected by law, a category wide enough to embrace confidences between friends.1

    None the less, in English law the obligation of confidence is not absolute. The law recognises a public interest in medical confidentiality, as well as the patient's private interest in protecting her secrets. But the wider public interest in preventing harm to others and preventing crime can exceptionally outweigh both the private and public interest of confidentiality. The courts are rightly wary of claims to justify breach of confidence.2 There must be a real and serious risk of some other person or persons suffering harm if the confidence is not broken. Breaking confidence must be shown to be the only effective means of avoiding or minimising that harm. Where a mentally disordered patient was judged to continue to pose a threat to life if released from high security accommodation, the courts held that a breach of confidence was justifiable.3 The patient's claim to privacy was of a lesser order than the life and health of others.

    This case, however, is one of extraordinary difficulty. The paediatrician has to balance not just his former patient's privacy against the welfare of other children whom her abuser may abuse, but her health and welfare as well. There is clearly a risk that the woman's physical and emotional health will be seriously damaged if she is forced to re-live the miseries of her past. Set against that risk to her, is the fear that the abuser is continuing to subject children, including his own child, to physical and sexual abuse accompanied by vicious intimidation.

    Ideally, the doctor should try to find a way to ensure children at risk from this man are assessed without disclosing the details of his former patient's story or identity. If that is not possible, this is a tragic example of a case where the interests of an individual patient should be subordinated to the interests of others.


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