Medical Care and Protection of Confidentiality

Disclosure of Patient Information

World Health Organization considers health to be a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity WHO [9].

According to the Code of Medical Ethics (CME) of the American Medical Association (AMA), patient privacy encompasses a number of aspects, including personal space (physical privacy), personal data (informational privacy), personal choices including cultural and religious affiliations (decisional privacy), and personal relationships with family members and other intimates (associational privacy). Patients need to be able to trust that physicians will protect information shared in confidence. Physicians in turn have an ethical obligation to preserve the confidentiality of information gathered in association with the care of the patient. In general, patients are entitled to decide whether and to whom their personal health information is disclosed. However, specific consent is not required in all situations. CME recognizes certain situations when information on the patient can be disclosed:

• With the consent of the patient;
• Without the consent of the patient. Such information can be shared to other health care personal for the purpose of providing care; to the authorities when such is required by law; to other third parties situated to mitigate the threat when in the physician’s judgment there is a reasonable probability that the patient will seriously harm him/herself or the patient will inflict serious physical harm on an identifiable individual or individuals.

According to Article 7 of Principles of European Medical Ethics (PEME) of the European Council of Medical Orders (ECMO) the doctor must guarantee the complete secrecy of all the information collected and the findings made during his or her contact with the patient. The patient’s death does not exempt the doctor from medical confidentiality. The doctor must respect the patient’s privacy and take all necessary measures to render impossible the disclosure of all the information he or she has acquired while exercising his or her profession. If exceptions to medical confidentiality are provided for by national law, the doctor may ask for the prior opinion of his association or the professional body of similar competence CEOM [10].

While the provisions on medical confidentiality by the CME of the American Medical Association and the Principles of European Medical Ethics of the European Council of Medical Orders seem to give a general approach to such principle, the guidelines provided by United Kingdom’s General Medical Council (GMC) seem more pragmatic. Apart from the cases provided by CME and PEME, GMC also recognizes cases where disclosure of patient information is ordered by a court or where such disclosure is justified in the public interest GMC [11].

Case-law on Medical Confidentiality

Confidentiality in medical care has become such an important principle in medical care based also on the large case-law on the matter in all parts of the world. It must be stressed that medical law and ethics are becoming more and more important in medical care. In several cases the courts have opted for the protection of the confidentiality principle, in others for the protection of public interest.

In the case-law of the USA there are many cases on the protection or disclosure of patient information. Some of them are of particular importance with regard to patient confidentiality.

In Commonwealth v. Wiseman, 356 Mass. 251 [12] a filmmaker was sued for violating certain conditions he had agreed to in the filming of a state hospital. The court found that the First Amendment interest in having specialists in the fields of psychiatry and public health view the film was strong enough to outweigh patient privacy interest.

In Tarasoff v. Regents of the University of California, 17 Cal 3d 425 a therapist was held to have a duty to disclose private patient information to a third party in danger after his patient informed him of intention to murder a girl and then acted on it. Thus, public interest includes information that is relevant to public health or that is newsworthy and part of the public record.

In Doe v. Roe [13] the plaintiff sued her former psychiatrist, “Dr. Roe,” over a book that chronicled the treatment of herself and her late husband. Although the patients’ names were not included in the book and Dr. Roe had changed a number of facts, Doe argued that the inclusion of certain details revealed her identity to acquaintances. The New York Supreme Court held that Dr. Roe had entered into a contract with her patients to keep matters in confidence and had violated patient confidentiality with the publishing of her book.

In Jaffee v. Redmond, 518 U.S.1 [14], the Court ruled that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure.

In M.A.K. v. Rush-Presbyterian-St.-Luke’s Medical Center, 316 Ill. App. 3d 156 [15], the plaintiff filed suit against the hospital, complaining of this release of information to an insurance company on the time spent by him on a rehabilitation from alcoholism program. He asserted that the physician-patient relationship had been violated, that his privacy had been invaded, and that there had been a negligent infliction of emotional distress. The circuit court granted the defendant hospital a judgment on the pleadings.

In the case-law of the European Court of Human Rights (ECOHR) there have also been several cases on the confidentiality of medical data, which the Court held that felt within the protection guaranteed by Article 8 of the European Convention on Human Rights (The Convention)- ‘‘Private and family life’’.

In Z. v. Finland the applicant’s ex-husband had been convicted of manslaughter for having knowingly exposed his victims to the risk of HIV infection. During the proceedings, despite her disapproval, the applicant’s doctor and psychiatrist were called to give evidence about the applicant’s medical condition. The national courts ordered that the full judgment, which mentioned the applicant’s full name, and the case documents remain confidential for ten years. The Court found that the questioning of the applicant’s medical advisers had been justified in the circumstances, since it was crucial in establishing when her former husband had become aware of his HIV infection and whether he was to be tried for manslaughter or a less serious offence. On the other hand, the Court found that a violation of Article 8 would occur if the applicant’s medical data were made publicly accessible as early as ten years after her former husband’s conviction. Observing that the applicant’s medical data had become part of the criminal proceedings against her ex-husband without her consent, the decision to reveal the entire case-file so early on would not be supported by reasons which could be considered sufficient to override her interest in the data remaining confidential for a longer period.

In I. v. Finland the applicant, an HIV-positive nurse, suspected that unauthorized persons had accessed her medical records [16]. While the strict application of domestic law would have constituted a substantial safeguard in her case, the system at the hospital made it impossible to clarify retroactively the use of patient records or to determine whether information contained on the applicant and her family had been given to or accessed by unauthorized parties. Moreover, at the material time the records could also be read by staff not directly involved in her treatment. Although the hospital had subsequently taken ad hoc measures to protect the applicant against unauthorized disclosures by restricting access to treating personnel and registering her under a false name and social-security number, this had come too late. What had been required in the applicant’s situation was practical and effective protection to exclude any possibility of unauthorized access occurring in the first place. The Court therefore found a violation of Article 8.

In Biriuk v. Lithuania [17] the applicants sued a newspaper for breach of privacy after it published a front- page article quoting hospital staff as saying they were HIV

positive. The article went on to give other details about their private life. Although the domestic courts found in the applicants’ favor, they were unable to award more than the statutory maximum of EUR 2,900. The Court considered it crucial for domestic law to safeguard patient confidentiality and discourage any disclosures of personal data, especially bearing in mind the negative impact of such disclosures on the willingness of people at risk to take voluntary tests for HIV and seek treatment. In such cases of outrageous abuse of press freedom, the severe statutory limitations on judicial discretion in redressing the damage suffered thereby deterring recurrences had failed to provide the applicants with the protection of privacy they could have legitimately expected. There had thus been a violation of Article 8.

On the other hand, the Court has also acknowledged that the interests of a patient and the community as a whole in protecting the confidentiality of medical data may, in certain situations, be outweighed by the interests of investigating crime or of holding court proceedings in public.

In Avilkina and others v. Russia [18] a deputy prosecutor required medical institutions to report all refusals of a blood transfusion by Jehovah’s Witnesses. As a result, he was informed of the second applicant’s chemotherapy in a public hospital following a non-blood management treatment plan and of the fourth applicant’s refusal of the use of foreign blood for surgical treatment. The Court observed that the applicants were not suspects or accused in any criminal proceedings and the prosecutor was merely conducting an investigation into the activities of a religious organization in response to complaints received by his office. There had consequently been no pressing social need to request the disclosure of the confidential medical information concerning the applicants. In fact, other options had been available to the prosecutor to follow up on the complaints, such as seeking the applicants’ consent to disclosure or questioning them about the matter. The Court found a violation of Article 8 of the Convention.