Embryo research, cloning, assisted conception, neonatal care, savior siblings, organ transplants, drug trials – modern developments have transformed the field of medicine almost beyond recognition in recent decades and the law struggles to keep up. At the same time legal claims against doctors and the NHS has grown and doctors feel under siege. In this highly acclaimed and very accessible book, Margaret Brazier and Emma Cave provide an incisive survey of the legal situation in areas as diverse as fertility treatment, (...) surrogacy, patient consent, euthanasia and the definition of death, malpractice and medical privacy. (shrink)

If medical confidentiality is not observed patients may well be reluctant to disclose information to their doctors or even to seek medical advice. Therefore, argues the author, it is of the utmost importance that doctors strive to protect medical confidentiality, particularly now when it is under threat not only in this country but also overseas. The profession must cease to regard ethical issues to do with confidentiality, and indeed to do with all areas of medical practice, as abstract phenomena requiring (...) no justification. If it does not then it will come under increasing and justified criticism from the community it serves. (shrink)

British accounts of medical ethics concentrate on confidentiality to the exclusion of wider questions of privacy. This paper argues for consideration of privacy within medical ethics, and illustrates through the television series `Hospital', what may go awry when this wider concept is forgotten.

Clinicians' work depends on sincere and complete disclosures from their patients; they honour this candidness by confidentially safeguarding the information received. Breaching confidentiality causes harms that are not commensurable with the possible benefits gained. Limitations or exceptions put on confidentiality would destroy it, for the confider would become suspicious and un-co-operative, the confidant would become untrustworthy and the whole climate of the clinical encounter would suffer irreversible erosion. Excusing breaches of confidence on grounds of superior moral values introduces arbitrariness and (...) ethical unreliability into the medical context. Physicians who breach the agreement of confidentiality are being unfair, thus opening the way for, and becoming vulnerable to, the morally obtuse conduct of others. Confidentiality should not be seen as the cosy but dispensable atmosphere of clinical settings; rather, it constitutes a guarantee of fairness in medical actions. Possible perils that might accrue to society are no greater than those accepted when granting inviolable custody of information to priests, lawyers and bankers. To jeopardize the integrity of confidential medical relationships is too high a price to pay for the hypothetical benefits this might bring to the prevailing social order. (shrink)

The success of the health care system depends on the accuracy, correctness and trustworthiness of the information, and the privacy rights of individuals to control the disclosure of personal information. A national policy on health informational privacy should be guided by ethical principles that respect individual autonomy while recognizing the important collective interests in the use of health information. At present there are no adequate laws or constitutional principles to help guide a rational privacy policy. The laws are scattered and (...) fragmented across the states. Constitutional law is highly general, without important specific safeguards. Finally, a case study is provided showing the important trade-offs that exist between public health and privacy. For a model public health law, see www.critpath.org/msphpa/privacy. (shrink)

Doctors have an ethical and legal duty to respect patient confidentiality. We consider the basis for this duty, looking particularly at the meaning and value of autonomy in health care. Enabling patients to decide how information about them is disclosed is an important element in autonomy and helps patients engage as active partners in their care.Good quality data is, however, essential for research, education, public health monitoring, and for many other activities essential to provision of health care. We discuss whether (...) it is necessary to choose between individual rights and the wider public interest and conclude that this should only rarely be necessary. The paper makes some recommendations on practical steps which could help ensure that good quality information is available for work which benefits society and the public health, while still enabling patients’ autonomy to be respected. (shrink)

The issue of genetic inheritance, and particularly the contradictory rights of donors, recipients and donor offspring as to the disclosure of donor identities, is ethically complicated. Donors, donor offspring and parents of donor offspring may appeal to individual rights for confidentiality or disclosure within legal systems based on liberal rights discourse. This paper explores the ethical issues of non-disclosure of genetic inheritance by contrasting two principle models used to articulate the problem—liberal and communitarian ethical models. It argues that whilst the (...) latter provides a more constructive avenue to providing an ethics for donation than the competing and contradictory positions represented in a liberal rights approach, it raises issues of ethical judgement and authority that remain problematic. This ethical discussion is supported by a field study, funded by the Wellcome Trust, exploring the perceptions and experiences of recipients of donor sperm and their partners towards donor anonymity. The field study provides the empirical basis of an argument for making ethical judgements on the grounds of the community good rather than individual rights, that nevertheless recognises that both are inherently problematic. (shrink)

Context: The need to reinvigorate medical confidentiality protections is recognised as an important objective in building patient trust necessary for successful health outcomes. Little is known about patient understanding and expectations from medical confidentiality.Objective: To identify and describe patient views of medical confidentiality and to assess provisionally the range of these views.Design: Qualitative study using indepth, open ended face-to-face interviews.Setting: Southeastern Pennsylvania and southern New Jersey, USA.Participants: A total of 85 women interviewed at two clinical sites and three community/research centres.Main (...) outcome measures: Subjects’ understanding of medical confidentiality, beliefs about the handling of confidential information and concerns influencing disclosure of information to doctors.Results: The subjects defined medical confidentiality as the expectation that something done or said would be kept “private” but differed on what information was confidential and the basis and methods for protecting information. Some considered all medical information as confidential and thought confidentiality protections functioned to limit its circulation to medical uses and reimbursement needs. Others defined only sensitive or potentially stigmatising information as confidential. Many of these also defined medical confidentiality as a strict limit prohibiting information release, although some noted that specific permission or urgent need could override this limit.Conclusions: Patients share a basic understanding of confidentiality as protection of information, but some might have expectations that are likely not met by current practice nor anticipated by doctors. Doctors should recognise that patients might have their own medical confidentiality models. They should address divergences from current practice and provide support to those who face emotional or practical obstacles to self-revelation. (shrink)

Background: Medical confidentiality underpins the doctor–patient relationship and ensures privacy so that intimate information can be exchanged to improve, preserve, and protect the health of the patient. The right to information applies to the patient alone, and, only if expressly desired, can it be extended to family members. However, it must be remembered that one of the primary tenets of family medicine is precisely that patient care occurs ideally within the context of the family. There may be, then, certain occasions (...) when difficulties will arise as to the extent of the information provided to family members.Objectives: This study aimed to describe family doctors’ attitudes to confidentiality and providing patient information to relatives as well as their justifications for sharing information.Method: A descriptive postal questionnaire was self-administered by family doctors.Results: Of 227 doctors, 95.1% provided information to a patient’s family and over a third disclosed information to others without prior patient consent.Conclusions: The findings reveal that family doctors should pay more attention to their patients’ rights to information, privacy, and confidentiality, and reflect very carefully on the fine balance between this and the occasional need for the support and collaboration of family members in delivery of care. Emphasis should be placed on ethics and legal problems during undergraduate education and in-service training of doctors. (shrink)

Communicating genetic information to family members has been the subject of an extensive debate recently in bioethics and law. In this context, the extent of the relatives’ right to know and not to know is examined. The mainstream in the bioethical literature adopts a liberal perception of patient autonomy and offers a utilitarian mechanism for solving familial tensions over genetic information. This reflects a patient-centred approach in which disclosure without consent is justified only to prevent serious harm or death to (...) others. Based on a legal and bioethical analysis on the one hand, and an examination of empirical studies on the other, this paper advocates the adoption of a relational perception of autonomy, which, in the context of genetics, takes into account the effect that any decision—whether to disclose or not to disclose—will have on the familial relationship and the dynamics of the particular family. Adding this factor to the criteria usually advocated by lawyers and ethicists will facilitate reaching a sensitive decision, which recognises the various interests of family members beyond the risk to physical health. Taking this factor into account will require a process of deliberation both between doctors and patients, and in the family. It will also require a relaxation of medical confidentiality, as the family rather than the patient is gradually perceived as the unit of care. Moreover, adopting such a relational approach will accord with current views of doctors and patients who base their decision primarily on the nature of the familial relationship. (shrink)

Against a background of increasing regulation regarding access to medical information and the presentation of patients' confidentiality, the case of genetic information raises interesting questions about whether the application of general rules is appropriate in all situations. Whilst all genetic information is not equally sensitive, some of it is highly predictive. It also allows deductions to be made about other family members. It may not be regarded as particularly sensitive when compared to other types of medical information and those to (...) whom it applies may not be as anxious about preserving their confidentiality as compared with—for example, the prospect of seeing research into cause and cures for rare diseases put in hand. These distinctions also find resonance with the general public. Resolving conflicting tensions will require subtlety, not a blunt “one size fits all” model. (shrink)

The Data Protection Act 1998 presents a number of significant challenges to data controllers in the health sector. To assist data controllers in understanding their obligations under the act, the Information Commissioner has published guidance, The Use and Disclosure of Health Data, which is reproduced here. The guidance deals, among other things, with the steps that must be taken to obtain patient data fairly, the implied requirements of the act to use anonymised or psuedonymised data where possible, an exemption applicable (...) principally to records based research, the right of patients to object to the processing of their data, and the interface of the act and the common law duty of confidence. (shrink)

Introduction to, and overview of, the contents of the Symposium on consent and confidentialityThe papers in this symposium are based on a meeting held by the Academy of Medical Sciences in London on 12 February 2002. The decision to hold this meeting, and to explore in detail these important and contentious issues, arose from a number of concerns that the Academy felt about what may reasonably be called “impediments to medical research”.These include: The regulations arising from the implementation of the (...) European data protection directive and their effect on the gathering and holding of data needed for disease surveillance as well as for research. Phil Boyd, in his paper, presents the views and the work of the Information Commission, the responsible UK body in this area. The “Source Informatics” case where the Department of Health requested a judicial review on the use, by this company, of anonymised prescribing data from general practitioner records for informing the pharmaceutical industry about patterns of drug use. Mr Justice Latham ruled that the use of even this anonymised data for commercial purposes could be a breach of patients' rights to confidentiality. The Court of Appeal, however, emphatically reversed his decision and, no further appeal having been made to the House of Lords, the law of the land is now clear that there is no breach of confidentiality in the use of anonymised data. It did seem to us, …. (shrink)

Over the course of its first seven editions, Principles of Biomedical Ethics has proved to be, globally, the most widely used, authored work in biomedical ethics. It is unique in being a book in bioethics used in numerous disciplines for purposes of instruction in bioethics. Its framework of moral principles is authoritative for many professional associations and biomedical institutions-for instruction in both clinical ethics and research ethics. It has been widely used in several disciplines for purposes of teaching in the (...) classroom, during conferences, etc. (shrink)

It is broadly held that confidentiality may be breached when doing so can avert grave harm to a third party. This essay challenges the conventional wisdom. Neither legal duties, personal morality nor personal values are sufficient to ground professional obligations. A methodology is developed drawing on core professional values, the nature of professions, and the justification for distinct professional obligations. Though doctors have a professional obligation to prevent public peril, they do not honor it by breaching confidentiality. It is shown (...) how the protective purpose to be furthered by reporting is defeated by the practice of reporting. Hence there is no conflict between confidentiality and the professional responsibility to protect endangered third parties. (shrink)

In his deftly argued, “A Defense of Unqualified Confidentiality” (Kipnis 2006), Kenneth Kipnis challenges the received view that a physician's duty of confidentiality must be balanced against a dut...

Kenneth Kipnis (2006) presents a normative defense of strict confidentiality, but it follows from an empirical claim that allowing breach would result in all parties being worse off, including, par...

This new edition of Law and Medical Ethics continues to chart the ever-widening field that the topics cover. The interplay between the health caring professions and the public during the period intervening since the last edition has, perhaps, been mainly dominated by wide-ranging changes in the administration of the National Health Service and of the professions themselves but these have been paralleled by important developments in medical jurisprudence.

Book reviewed in this article: Principles of Biomedical Ethics. By Tom L. Beauchamp and James F. Childress.

Objective: To determine under what conditions lay people and health professionals find it acceptable for a physician to breach confidentiality to protect the wife of a patient with a sexually transmitted disease .Methods: In a study in France, breaching confidentiality in 48 scenarios were accepted by 144 lay people, 10 psychologists and 7 physicians. The scenarios were all possible combinations of five factors: severity of the disease ; time taken to discuss this with ; intent to inform the spouse about (...) the disease ; intent to adopt protective behaviours ; and decision to consult an expert in STDs , 2×2×3×2×2. The importance and interactions of each factor were determined, at the group level, by performing analyses of variance and constructing graphs.Results: The concept of breaching confidentiality to protect a wife from her husband’s STD was favoured much more by lay people and psychologists than by physicians . The patient’s stated intentions to protect his wife and to inform her of the disease had the greatest impact on acceptability. A cluster analysis showed groups of lay participants who found breaching confidentiality “always acceptable” , “depending on the many circumstances” , requiring “consultation with an expert” and “never acceptable ”.Conclusions: Most people in France are influenced by situational factors when deciding if a physician should breach confidentiality to protect the spouse of a patient infected with STD. (shrink)

Objectives: To develop and pilot a questionnaire based assessment of the importance patients place on medical confidentiality, whether they support disclosure of confidential information to protect third parties, and whether they consider that this would impair full disclosure in medical consultations.Design: Questionnaire administered to 30 consecutive patients attending a GP surgery.Results: Overall patients valued confidentiality, felt that other patients might be deterred from seeking treatment if it were not guaranteed, but did not think that they would withhold information for this (...) reason themselves.Conclusions: When presented with brief details of five clinical situations in which a breach of confidentiality might be considered, a clear majority of subjects believed that doctors should disclose information in two of the situations, but subjects were not confident that doctors would do so. In three situations, about half felt that disclosure was justified—these included the only scenario in which disclosure was clearly mandated by statute. There was little change in patients’ general attitude to confidentiality after considering the scenarios. However, the views expressed were often inconsistent with responses to the clinical scenarios, suggesting that complex opinions were not accurately reflected in the responses. The format of the questionnaire has been amended, and the study will be repeated with other groups of patients. (shrink)