The legal position

From a legal perspective there are two main questions. Is a doctor in breach of the duty of confidence owed to a patient by disclosing information about the patient to a third party, such as the Driver and Vehicle Licensing Agency or the patient's employer? May a doctor be liable in negligence, to a person injured by a patient, for not having disclosed information about the patient to, for example, the licensing agency or the patient's employer?

As regards the first question, doctors have a legal duty to respect the confidence of a patient. But that duty is not absolute. Clearly, the information may be disclosed to a third party if the patient consents. Moreover, there is a defence where disclosure to the third party is in the public interest. What falls within this defence is a matter for the courts to determine on a case by case basis. It is clear, however, that a doctor who discloses information about a patient's alcohol abuse to the licensing agency or the patient's employer, with a view to avoiding injury to others, would have a public interest defence to a claim by the patient for breach of confidence. The interest in maintaining confidentiality is here outweighed by the interest in public safety.

In legal terminology, the central issue in relation to the second question is whether a doctor owes a “duty of care” to someone who it is reasonable to foresee may be injured by a patient. The tradition in Anglo-American tort law is that there is generally no duty of care to take steps to prevent a person causing harm to another.

Nevertheless, in one celebrated case in the United States, a psychiatrist was held to have a duty to warn a person who was named by his patient as his intended victim. In England the emphasis has often been on the need for the defendant to have control of the “dangerous” person—for example, the duty of care in guarding prisoners is owed by prison officers to those whose property is likely to be damaged by escaping prisoners. A doctor does not have control over a patient who is misusing alcohol and, at this stage in the development of English law, it seems very unlikely that a duty of care to those who may be harmed by a patient would be imposed on a doctor. But courts are influenced by the ethical standards of the medical profession. As the leading legal textbook on torts concludes: “Unless the profession itself starts to regard failure to warn as a breach of ethical standards, the courts are highly unlikely to impose a legal duty.” 1