Confidentiality

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Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access to or places restrictions on distribution of certain types of information.

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By law, lawyers are often required to keep confidential anything pertaining to the representation of a client. The duty of confidentiality is much broader than the attorney–client evidentiary privilege, which only covers communications between the attorney and the client. [1]

Both the privilege and the duty serve the purpose of encouraging clients to speak frankly about their cases. This way, lawyers can carry out their duty to provide clients with zealous representation. Otherwise, the opposing side may be able to surprise the lawyer in court with something he did not know about his client, which may weaken the client's position. Also, a distrustful client might hide a relevant fact he thinks is incriminating, but that a skilled lawyer could turn to the client's advantage (for example, by raising affirmative defenses like self-defense). However, most jurisdictions have exceptions for situations where the lawyer has reason to believe that the client may kill or seriously injure someone, may cause substantial injury to the financial interest or property of another, or is using (or seeking to use) the lawyer's services to perpetrate a crime or fraud. In such situations the lawyer has the discretion, but not the obligation, to disclose information designed to prevent the planned action. Most states have a version of this discretionary disclosure rule under Rules of Professional Conduct, Rule 1.6 (or its equivalent). A few jurisdictions have made this traditionally discretionary duty mandatory. For example, see the New Jersey and Virginia Rules of Professional Conduct, Rule 1.6.

In some jurisdictions, the lawyer must try to convince the client to conform his or her conduct to the boundaries of the law before disclosing any otherwise confidential information. These exceptions generally do not cover crimes that have already occurred, even in extreme cases where murderers have confessed the location of missing bodies to their lawyers but the police are still looking for those bodies. The U.S. Supreme Court and many state supreme courts have affirmed the right of a lawyer to withhold information in such situations. Otherwise, it would be impossible for any criminal defendant to obtain a zealous defense.

California is famous for having one of the strongest duties of confidentiality in the world; its lawyers must protect client confidences at "every peril to himself [or herself]" under former California Business and Professions Code section 6068(e). Until an amendment in 2004 (which turned subsection (e) into subsection (e)(1) and added subsection (e)(2) to section 6068), California lawyers were not even permitted to disclose that a client was about to commit murder or assault. The Supreme Court of California promptly amended the California Rules of Professional Conduct to conform to the new exception in the revised statute. Recent legislation in the UK curtails the confidentiality professionals like lawyers and accountants can maintain at the expense of the state. [2] Accountants, for example, are required to disclose to the state any suspicions of fraudulent accounting and, even, the legitimate use of tax saving schemes if those schemes are not already known to the tax authorities.

Breach of confidence in English law

The "three traditional requirements of the cause of action for breach of confidence" [3] : [19]  were identified by Megarry J in Coco v A N Clark (Engineers) Ltd (1968) in the following terms: [4]

In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.

The 1896 case featuring the royal accoucheur Dr William Smoult Playfair showed the difference between lay and medical views. Playfair was consulted by Linda Kitson; he ascertained that she had been pregnant while separated from her husband. He informed his wife, a relative of Kitson's, in order that she protect herself and their daughters from moral contagion. Kitson sued, and the case gained public notoriety, with huge damages awarded against the doctor. [5]

Medical confidentiality

Confidentiality is commonly applied to conversations between doctors and patients. Legal protections prevent physicians from revealing certain discussions with patients, even under oath in court. [6] This physician-patient privilege only applies to secrets shared between physician and patient during the course of providing medical care. [6] [7]

The rule dates back to at least the Hippocratic Oath, which reads in part: Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.

Traditionally, medical ethics has viewed the duty of confidentiality as a relatively non-negotiable tenet of medical practice. [8]

United States

Confidentiality is standard in the United States by HIPAA laws, specifically the Privacy Rule, and various state laws, some more rigorous than HIPAA. However, numerous exceptions to the rules have been carved out over the years. For example, many American states require physicians to report gunshot wounds to the police and impaired drivers to the Department of Motor Vehicles. Confidentiality is also challenged in cases involving the diagnosis of a sexually transmitted disease in a patient who refuses to reveal the diagnosis to a spouse, and in the termination of a pregnancy in an underage patient, without the knowledge of the patient's parents. Many states in the U.S. have laws governing parental notification in underage abortion. [9] Confidentiality can be protected in medical research via certificates of confidentiality.

European Union

Due to the EU Directive 2001/20/EC, inspectors appointed by the Member States have to maintain confidentiality whenever they gain access to confidential information as a result of the good clinical practice inspections in accordance with applicable national and international requirements. [10]

A typical patient declaration might read:

I have been informed of the benefit that I gain from the protection and the rights granted by the European Union Data Protection Directive and other national laws on the protection of my personal data. I agree that the representatives of the sponsor or possibly the health authorities can have access to my medical records. My participation in the study will be treated as confidential. I will not be referred to by my name in any report of the study. My identity will not be disclosed to any person, except for the purposes described above and in the event of a medical emergency or if required by the law. My data will be processed electronically to determine the outcome of this study, and to provide it to the health authorities. My data may be transferred to other countries (such as the USA). For these purposes the sponsor has to protect my personal information even in countries whose data privacy laws are less strict than those of this country.

HIV confidentiality

In the United Kingdom information about an individual's HIV status is kept confidential within the National Health Service. This is based in law, in the NHS Constitution, and in key NHS rules and procedures. It is also outlined in every NHS employee's contract of employment and in professional standards set by regulatory bodies. [11] The National AIDS Trust's Confidentiality in the NHS: Your Information, Your Rights [12] outlines these rights. All registered healthcare professionals must abide by these standards and if they are found to have breached confidentiality, they can face disciplinary action.

A healthcare worker shares confidential information with someone else who is, or is about to, provide the patient directly with healthcare to make sure they get the best possible treatment. They only share information that is relevant to their care in that instance, and with consent.

There are two ways to give consent: explicit consent or implied consent. Explicit consent is when a patient clearly communicates to a healthcare worker, verbally or in writing or in some other way, that relevant confidential information can be shared. Implied consent means that a patient's consent to share personal confidential information is assumed. When personal confidential information is shared between healthcare workers, consent is taken as implied.

If a patient doesn't want a healthcare worker to share confidential health information, they need to make this clear and discuss the matter with healthcare staff. Patients have the right, in most situations, to refuse permission for a health care professional to share their information with another healthcare professional, even one giving them care—but are advised, where appropriate, about the dangers of this course of action, due to possible drug interactions.

However, in a few limited instances, a healthcare worker can share personal information without consent if it is in the public interest. These instances are set out in guidance from the General Medical Council, [13] which is the regulatory body for doctors. Sometimes the healthcare worker has to provide the information – if required by law or in response to a court order.

The National AIDS Trust has written a guide for people living with HIV to confidentiality in the NHS. [14]

Clinical and counseling psychology

The ethical principle of confidentiality requires that information shared by a client with a therapist isn't shared without consent, and that the sharing of information would be guided by ETHIC Model: Examining professional values, after thinking about ethical standards of the certifying association, hypothesize about different courses of action and possible consequences, identifying how it and to whom will it be beneficial per professional standards, and after consulting with supervisor and colleagues. [15] Confidentiality principle bolsters the therapeutic alliance, as it promotes an environment of trust. There are important exceptions to confidentiality, namely where it conflicts with the clinician's duty to warn or duty to protect. This includes instances of suicidal behavior or homicidal plans, child abuse, elder abuse and dependent adult abuse. Information shared by a client with a therapist is considered as privileged communication, however in certain cases and based on certain provinces and states they are negated, it is determined by the use of negative and positive freedom. [16]

Commercial confidentiality

Some legal jurisdictions recognise a category of commercial confidentiality whereby a business may withhold information on the basis of perceived harm to "commercial interests". [17] For example: soft drink giant Coca-Cola's main syrup formula remains a trade secret.

Banking confidentiality

Public policy concerns

Confidentiality agreements that "seal" litigation settlements are not uncommon, but this can leave regulators and society ignorant of public hazards. In the U.S. state of Washington, for example, journalists discovered that about two dozen medical malpractice cases had been improperly sealed by judges, leading to improperly weak discipline by the state Department of Health. [18] In the 1990s and early 2000s, the Catholic sexual abuse scandal involved a number of confidentiality agreements with victims. [19] Some states have passed laws that limit confidentiality. For example, in 1990 Florida passed a 'Sunshine in Litigation' law that limits confidentiality from concealing public hazards. [20] Washington state, Texas, Arkansas, and Louisiana have laws limiting confidentiality as well, although judicial interpretation has weakened the application of these types of laws. [21] In the U.S. Congress, a similar federal Sunshine in Litigation Act has been proposed but not passed in 2009, 2011, 2014, and 2015. [22]

See also

Related Research Articles

<span class="mw-page-title-main">Non-disclosure agreement</span> Contractual agreement not to disclose specified information

A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement (SA), is a legal contract or part of a contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to. Doctor–patient confidentiality, attorney–client privilege, priest–penitent privilege and bank–client confidentiality agreements are examples of NDAs, which are often not enshrined in a written contract between the parties.

<span class="mw-page-title-main">Informed consent</span> Need and process for obtaining subject approval prior to treatment or research

Informed consent is a principle in medical ethics, medical law and media studies, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatments, alternative treatments, the patient's role in treatment, and their right to refuse treatment. In most systems, healthcare providers have a legal and ethical responsibility to ensure that a patient's consent is informed. This principle applies more broadly than healthcare intervention, for example to conduct research and to disclose a person's medical information.

A conflict of interest (COI) is a situation in which a person or organization is involved in multiple interests, financial or otherwise, and serving one interest could involve working against another. Typically, this relates to situations in which the personal interest of an individual or organization might adversely affect a duty owed to make decisions for the benefit of a third party.

Attorney–client privilege or lawyer–client privilege is the common law doctrine of legal professional privilege in the United States. Attorney–client privilege is "[a] client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

Medical privacy, or health privacy, is the practice of maintaining the security and confidentiality of patient records. It involves both the conversational discretion of health care providers and the security of medical records. The terms can also refer to the physical privacy of patients from other patients and providers while in a medical facility, and to modesty in medical settings. Modern concerns include the degree of disclosure to insurance companies, employers, and other third parties. The advent of electronic medical records (EMR) and patient care management systems (PCMS) have raised new concerns about privacy, balanced with efforts to reduce duplication of services and medical errors.

In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. A collective settlement is a settlement of multiple similar legal cases. The term also has other meanings in the context of law. Structured settlements provide for future periodic payments, instead of a one time cash payment.

<span class="mw-page-title-main">Medical record</span> Medical term

The terms medical record, health record and medical chart are used somewhat interchangeably to describe the systematic documentation of a single patient's medical history and care across time within one particular health care provider's jurisdiction. A medical record includes a variety of types of "notes" entered over time by healthcare professionals, recording observations and administration of drugs and therapies, orders for the administration of drugs and therapies, test results, X-rays, reports, etc. The maintenance of complete and accurate medical records is a requirement of health care providers and is generally enforced as a licensing or certification prerequisite.

Physician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and their doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions. Almost every jurisdiction that recognizes physician–patient privilege not to testify in court, either by statute or through case law, limits the privilege to knowledge acquired during the course of providing medical services. In some jurisdictions, conversations between a patient and physician may be privileged in both criminal and civil courts.

The clergy–penitent privilege, clergy privilege, confessional privilege, priest–penitent privilege, pastor–penitent privilege, clergyman–communicant privilege, or ecclesiastical privilege, is a rule of evidence that forbids judicial inquiry into certain communications between clergy and members of their congregation. This rule recognises certain communication as privileged and not subject to otherwise obligatory disclosure; for example, this often applies to communications between lawyers and clients. In many jurisdictions certain communications between a member of the clergy of some or all religious faiths and a person consulting them in confidence are privileged in law. In particular, Catholics, Lutherans and Anglicans, among adherents of other Christian denominations, confess their sins to priests, who are unconditionally forbidden by Church canon law from making any disclosure, a position supported by the law of many countries, although in conflict with civil (secular) law in some jurisdictions. It is a distinct concept from that of confidentiality.

In common law jurisdictions, the duty of confidentiality obliges solicitors to respect the confidentiality of their clients' affairs. Information that solicitors obtain about their clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client. Confidentiality is a prerequisite for legal professional privilege to hold.

In common law jurisdictions and some civil law jurisdictions, legal professional privilege protects all communications between a professional legal adviser and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.

HIV exceptionalism is the term given to the trend to treat HIV/AIDS in law and policy differently from other diseases, including other sexually transmitted, infectious, lethal diseases. The term first appeared in print in an article in the New England Journal of Medicine in 1991.

Therapeutic privilege refers to the decision of a healthcare practitioner to withhold information from a patient when there is a justified belief that disclosure may cause serious mental or physical harm to them. As of 2022, this defence is permissible in countries such as Australia, Canada, England, Netherlands and Wales as an exception to the standard consent process. Despite this, there are very limited cases in which therapeutic privilege has been upheld. This is mainly due to the complex ethical and legal ramifications in withholding information from a patient and how to define someone as being at sufficient risk to fall into this category wherein therapeutic privilege should prevail. Another challenge in enacting therapeutic privilege is the consideration of other professionals involved in patient care, such as where there is a multidisciplinary care team. However, in withholding information, there is also a denial of patient autonomy

In Australia, legal professional privilege is a rule of law protecting communications between legal practitioners and their clients from disclosure under compulsion of court or statute. While the rule of legal professional privilege in Australia largely mirrors that of other Commonwealth jurisdictions, there are a number of notable qualifications and modifications to the privilege specific to Australia and its states, and contentious issues about the direction of the privilege.

In U.S. legal procedure, each party to a lawsuit has the duty to disclose certain information, such as the names and addresses of witnesses, and copies of any documents that it intends to use as evidence, to the opposing party. This duty is subject to certain exceptions, as outlined in the Federal Rules of Civil Procedure; furthermore, the rules applicable in state courts vary from state to state.

In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client and so may only be waived by the client.

<span class="mw-page-title-main">Patient Safety and Quality Improvement Act</span> US law

The Patient Safety and Quality Improvement Act of 2005 (PSQIA): Pub. L.Tooltip Public Law  109–41 (text)(PDF), 42 U.S.C. ch. 6A subch. VII part C, established a system of patient safety organizations and a national patient safety database. To encourage reporting and broad discussion of adverse events, near misses, and dangerous conditions, it also established privilege and confidentiality protections for Patient Safety Work Product. The PSQIA was introduced by Sen. Jim Jeffords [I-VT]. It passed in the Senate July 21, 2005 by unanimous consent, and passed the House of Representatives on July 27, 2005, with 428 Ayes, 3 Nays, and 2 Present/Not Voting.

The Buried Bodies Case, also known as the Lake Pleasant Bodies Case, is a mid-1970s upstate New York court case where defense attorneys Frank H. Armani and Francis Belge kept secret the location of the bodies of two women murdered by their client, Robert Garrow, Sr.

The joint defense privilege, or common-interest rule, is an extension of attorney–client privilege. Under “common interest” or “joint defense” doctrine, parties with shared interest in actual or potential litigation against a common adversary may share privileged information without waiving their right to assert attorney–client privilege. Because the joint defense, "privilege sometimes may apply outside the context of actual litigation, what the parties call a ‘joint defense’ privilege is more aptly termed the ‘common interest’ rule.”

<i>Attorney General v Jonathan Cape Ltd</i>

Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484 is a UK constitutional law case, concerning the rule of law.

References

  1. ↑ Morgan, Thomas D. (1980). "Conflicts of Interests and the Former Client in the Model Rules of Professional Conduct". American Bar Foundation Research Journal. 5 (4): 993–1002. doi:10.1111/j.1747-4469.1980.tb01046.x. ISSN   0361-9486.
  2. ↑ International Bar Association. "IBA International Principles on Conduct for the Legal Profession" (PDF). Retrieved 9 March 2021.
  3. ↑ Campbell v MGN Ltd [2004] UKHL 22 , [2004] 2 AC 457.
  4. ↑ Coco v A N Clark (Engineers) Ltd [1969] RPC 41; [1968] FSR 415.
  5. ↑ Dally, Ann. "Playfair, William Smoult". Oxford Dictionary of National Biography (online ed.). Oxford University Press. doi:10.1093/ref:odnb/35541.(Subscription or UK public library membership required.)
  6. 1 2 Dr. Coburn's Peculiar Privilege, 2 October 2009
  7. ↑ Beltran-Aroca, Cristina M.; Girela-Lopez, Eloy; Collazo-Chao, Eliseo; Montero-Pérez-Barquero, Manuel; Muñoz-Villanueva, Maria C. (2 September 2016). "Confidentiality breaches in clinical practice: what happens in hospitals?". BMC Medical Ethics. 17 (1): 52. doi: 10.1186/s12910-016-0136-y . ISSN   1472-6939. PMC   5009672 . PMID   27590300.
  8. ↑ Mallis, Adam (6 March 2023). "Confidentiality In Healthcare - Medicine Interview Hot Topic Questions". The UKCAT People. Retrieved 6 March 2023.
  9. ↑ Notification Laws Archived 29 April 2009 at the Library of Congress Web Archives
  10. ↑ AR Waladkhani. (2008). Conducting clinical trials. A theoretical and practical guide. ISBN   978-3-940934-00-0
  11. ↑ "Professional Standards Authority – Home". nhs.uk. Retrieved 17 March 2018.
  12. ↑ "Publications – National AIDS Trust – NAT" (PDF). nat.org.uk. Retrieved 17 March 2018.
  13. ↑ "GMC – Confidentiality". gmc-uk.org.
  14. ↑ "Confidentiality in the NHS: Your Information, Your Rights" (PDF). National Aids Trust. British HIV Association. July 2014. Archived from the original (PDF) on 11 September 2014. Retrieved 9 November 2022.
  15. ↑ Sheperis, Donna S.; Henning, Stacy L.; Kocet, Michael M. (16 September 2015). Ethical Decision Making for the 21st Century Counselor. SAGE Publications. pp. 53+. ISBN   978-1-4833-1150-0.
  16. ↑ Berlin, Isaiah (1997). The Proper Study of Mankind. London: Chatto & Windus. ISBN   978-0-7011-6527-7.
  17. ↑ For example: Paradissis, Jean-Jacques; Purdue, Michael (2007). "Access to Environmental Justice in United Kingdom Law". In Harding, Andrew (ed.). Access to Environmental Justice: A Comparative Study. The London-Leiden Series on Law, Administration and Development. Vol. 11. Martinus Nijhoff Publishers. p. 293. ISBN   9789004157835 . Retrieved 20 October 2015. Commercial confidentiality is usually defined by reference to commercial interests of the person concerned: if disclosure can 'prejudice to an unreasonable degree' commercial interests, then it must not be permitted.
  18. ↑ "What the state didn't know about doctor, malpractice suit". The Seattle Times. 13 December 2006. Retrieved 20 March 2016.
  19. ↑ Goodstein, Laurie (27 June 2002). "Albany Diocese Settled Abuse Case for Almost $1 Million". The New York Times. ISSN   0362-4331.
  20. ↑ "Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice". americanbar.org. Retrieved 20 March 2016.
  21. ↑ Lothes, Alison (December 2005). ""Quality, Not Quantity: An Analysis of Confidential Settlements and Lit" by Alison Lothes". University of Pennsylvania Law Review. 154 (2): 433. doi:10.2307/25047592. JSTOR   25047592 . Retrieved 20 March 2016.
  22. ↑ Fan, Mary D. (18 September 2015). "Private Data, Public Safety: A Bounded Access Model of Disclosure". SSRN   2662678.{{cite journal}}: Cite journal requires |journal= (help)

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