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Medical Confidentiality:
Legal Protection of Medical Records
Prof Orla Sheils
Legal Definition of
Confidential Information
 CoCo Engineering v AN Clark (Engineers)
[1969] RPC 41
 “ ….if the circumstances are such that any
reasonable man standing in the shoes of the
recipient of the information would have
realised on reasonable grounds the
information was being given to him in
confidence, then this would suffice to impose
upon him the equitable obligation of
confidence.”
Legal Definition of
Confidential Information
Thomas Marshall v Guinle [1979]1 Ch.227
 “First, the information must be the information the
release of which the owner believes to be injurious
to him or of advantage to others.
 Second, the owner must believe the information is
confidential or secret.
 Third, the owner’s belief must be reasonable.
 Fourth, use of the information must be judged in
light of the usage and practice of the particular
industry.”
Categories of Confidential Information
 Personal Information:
• Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302
 Government Information:
• A-G v Guardian Newspapers Ltd [1990] AC 109
 Commercial Information:
• Thomas Marshall v Guinle [1979] 1 Ch 227
 Medical Information:
• Hunter v Mann [1974] QB 767
Action for Breach of Confidence
Stephens v Avery [1988] 1 Ch. 449
To be subject to the Legal Protection of an Action
for Breach of Confidence, the Information must
satisfy the following criteria:
•
•
•
Have the necessary character of Confidence;
Have been imparted in circumstances implying an
obligation of Confidence; and
Have been used in an unauthorised manner, to the
detriment of the Party (Patient)
The Defence of Public Interest to
Action for Breach of Confidence
X v Y & Others [1988] 2 AER 648
The public interest in preserving the Confidentiality
of Medical Records, from which actual or potential
HIV/AIDS sufferers could be identified, outweighed
the Public Interest in the freedom of the Press to
publish such Information.
The Defence of Public Interest to
Action for Breach of Confidence
Tarasoff v Regents of the University of California
[1976] 131 California Reporter 14
Here the Psychologist was counselling a Patient, who
threatened to kill a named person, i.e. Ex-Girlfriend. The
Psychologist had warned the University Hospital, but the
Hospital released the Patient. The Ex-Girlfriend was then
murdered.
“The Protective Privilege ends where the Public Peril
begins.”
The Defence of Public Interest to
Action for Breach of Confidence
Lipari v Spears [1980] US Supreme
Court:
There is a General Duty to predict danger and
protect Society.
Brady v Hopper [1983] US Supreme
Court:
The Legal Test is limited to Specific Threats to
Specified Individuals.
The Defence of Public Interest to
Action for Breach of Confidence
W v Egdell [1990] 1 AER 835
Dr Egdell was a Psychiatrist hired by Defence
Solicitors to do a Report on a Client Prisoner, a
Convicted Murderer. Report for Parole Board
Application. Dr Egdell considered “W” a danger to
the General Public. Dr Egdell informed Secretary of
State at the Home Office. Parole refused. Held to be
in Public Interest to keep “W” in Prison.
The Defence of Public Interest to
Action for Breach of Confidence
Palmer v Tees Health Authority
[1999] Lloyds Reports 351
A 4 year old Child was sexually assaulted and
murdered and mutilated by “A”. Here “A” had
indicated that he would kill a child. However, held
that the Defendants did not owe a duty of care, as
no proximity existed between the parties.
There has to be a Special Relationship with an
Identifiable Victim.
The Defence of Public Interest to
Action for Breach of Confidence
MQ v Gleeson and Dublin City VEC,
Chance and Eastern Health Board
[1999] High Court
Health Boards are not to be confined to acting in the
interests of Identifiable Children, but the Duty also
extends to children who are not readily identifiable
and who may be at risk in the future by reason of a
Specific Potential Hazard to which a Health Board
reasonably suspects may come about in the future.
Legal Principles of
Medical Confidentiality
W v Egdell [1990] 1 AER 835
“ It has never been doubted that the circumstances
here were such as to impose on Dr Egdell a Duty of
Confidence owed to W.
…He could not lawfully sell the contents of the Medical
Records/Report to the Media. Nor could he, without a
Breach of the Law as well as Professional Etiquette,
discuss the Case in a learned article, his memoirs, or
gossiping with friends.”
Legal Principles of
Medical Confidentiality
McInerney v McDonald [1992] 137 NR 35
“The relationship between Doctor and Patient is
one which is Fiduciary in nature, i.e. one based on
Mutual Trust and a Duty of Confidence.
• The Patient entrusts Personal Medical Details to the
Doctor on the understanding that they are to be
treated in the strictest Confidence, as he/she has a
Beneficial Interest in this Information stored in the
Medical Records.”
Ethical Principles of
Medical Confidentiality
Hippocratic Oath, 5th Century BC
“Whatever in connection with my Professional
Practice or not in connection with it, I see or
hear in the life of men, which ought not to be
spoken abroad, I will not divulge as reckoning
that all such should be kept secret.”
Ethical Principles of
Medical Confidentiality
Declaration of Geneva 1947
“I will respect the Secrets which are confided in me,
even after the Patient has died.”
Ethical Principles of
Medical Confidentiality
General Medical Council, 1995
“Duties of a Doctor:
Confidentiality.”
“There is a strict Ethical Duty on Registered
Medical Practitioners to refrain from
disclosing
voluntarily to any third party information
about a Patient which he/she has learnt
directly or indirectly in his/her own
Professional Capacity.”
Ethical Principles of
Medical Confidentiality
Irish Medical Council
A Guide to Ethical Conduct and Behaviour and
Fitness to Practice
Exceptions to Duty of Confidence:
(a) Where a Patient gives consent to the Disclosure of Information to
Third Parties;
(b) When Disclosure is required by a Judge in a Court of Law;
(c) When Disclosure is necessary to Protect the Interests of the
Patient;
(d) When Disclosure is necessary to Protect the Welfare of Society;
(e) When Disclosure is necessary to Safeguard the Welfare of another
Individual or Patient.
Ethical Principles of
Medical Confidentiality
Irish Medical Council
A Guide to Ethical Conduct and Behaviour and Fitness to
Practice - Issues to be Considered:
 The Doctor-Patient relationship should be respected at
all times;
 Where circumstances permit, the Patient’s own Doctor
should be informed;
 Documents containing Medical Details should always
be transmitted under Confidential Cover; and
 Medical Information obtained by a Doctor in the
process of Patient Examination should always be used
for the betterment of that Patient.
Constitutional Principles
of Confidentiality
Bunreacht na h-Eireann 1937
Article 40: Right to Privacy
 McGee v Attorney-General [1974] IR 284
 Norris v Attorney-General [1984] IR 36
 Kennedy & Arnold v Ireland [1987] IR 587
Exceptions to Ethical Duty of
Medical Confidentiality
The General Medical Council recognise the
following exceptions:
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




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Consent to Publish;
Patient’s Interests;
Duty to Society;
HIV/AIDS;
Family Confidentiality;
Special Interest Groups;
Medical Research.
Human Rights Principles in
Medical Confidentiality
The European Convention on Human Rights
The Human Rights Act 2003
The Right to Respect for Family and Private Life:
ECHR Article 8 (1)
Exception where Non-observance of Privacy is
In Accordance with Law and Democratic Society:
ECHR Article 8 (2) Z v Finland [1997] 45 BMLR 107
Access to Medical Records:
Ownership of Medical Records
Private Patients:
Subject to Contract between Private Clinic and
Doctor. If no Contract between Private Clinic and
Doctor, owned by the clinic itself.
If there is a Contract in place , Medical Records
Status depends on relationship between Doctor and
Patient. However, usually ownership is vested in the
Clinic itself.
Access to Medical Records:
Ownership of Medical Records
Public Patients:
Medical Records held by a Hospital are the property
of the National Health Service, NHS, while those
held by general practitioners belong to the Family
Health Services Authority, FHSA in the UK. In
Ireland, they are the Health Safety Executive, HSE or
the General Medical Service, GMS, in the case of GP
Medical Records.
Access to Medical Records:
Common Law Principles
McInerney v McDonald [1992] 2 MLR
267
“Of primary significance is the fact that the Medical
Records consist of Information that is highly Private
and Personal to the Individual. It is Information that
goes to the Personal Integrity and Autonomy of the
Patient. This Clinical Information remains in a
fundamental sense one’s own, for the Individual
Patient in question to communicate or retain as
he/she sees fit.”
Access to Medical Records:
Common Law Principles
R v Martin Unreported [1993]
“In the court’s opinion there is a distinction to be
made between the Information conveyed by a
Patient for the benefit of the Doctor’s consideration
and the conclusion to which the Doctor comes to
based on that Information. The Opinion of the
Doctor is wholly the property of the Doctor. It does
not appear to the Court that the fact the Patient
provides the original Information, entitles him/her to
access.”
Access to Medical Records:
Legislative Principles
Data Protection Acts 1988-2003
Freedom of Information Acts 1997-2003
Health Information Bill 2008
Access to Medical Records:
Legislative Principles
Data Protection Acts 1988-2003
 Registration with Data Protection Agency;
 Patient Information to be accurate and
stored for specified and lawful purposes;
 Appropriate Security Measures to be put in
place against unauthorised access to or
alteration disclosure or destruction of the
Patient Information held on file;
Access to Medical Records:
Legislative Principles
Data Protection Acts 1988-2003
 Disclosure of Patient Information is only permissible if
required as a matter of urgency to safeguard a
Patient’s health;
 As far as the matter of Access to Patient Medical
Records is concerned the Patient has the right to be
informed of any Clinical Information held on
Computer, and is entitled to a copy thereof. If the
Clinical Information is unintelligible, for example
through the use of Medical Terminology, then the
Patient is entitled to an explanatory note of such
terms.
Access to Medical Records:
Legislative Principles
Data Protection Acts 1988-2003
 The Patient may request alteration to any inaccurate
information held on file, although this has to be done
within forty (40) days;
 The Minister for Justice is empowered to modify the
Right of Patient Access to Medical Records if it is in
the Patient’s interests;
 Under the terms of the Data Protection (Access
Modification) (Health) Regulations SI 82 of 1989
Clinical Information will not be supplied if likely to
cause the Patient serious harm.
Access to Medical Records:
Legislative Principles
Freedom of Information Acts 1997-2003
The 1997-2003 Acts have a two fold purpose which
are as follows:
To provide a general right of access to information in
the possession of Public Bodies; and
To afford Private Citizens access the right to access and
possible correction of Personal Information held about
them by a Public Body. The term “Public Body” includes
the Department of Health and Children, the Blood
Transfusion Board and the Irish Medicines Board.
Access to Medical Records:
Legislative Principles
Freedom of Information Acts 1997-2003
The relevant legal provisions of the 1997-2003 Acts are:

Decisions on Patient Access to publicly held Records are made by
the Head of the Public Body, and in the case of Medical Records it
is the Health Services Executive;

While Patient Access may be permitted by the HSE through a
transcript of the Patient Information held on the Medical Records,
such access may be denied if access would be detrimental to the
record, infringe copyright or conflict with a legal obligation of the
HSE;
Access to Medical Records:
Legislative Principles
Freedom of Information Acts 1997-2003

A Patient may instruct the Chief Executive Officer of the
HSE to correct any personal information, for example,
information held on Medical Records, which are incomplete,
incorrect or misleading. In the event that the request for
alteration or correction is refused by the HSE then the
Patient is entitled to have a note attached to the file
outlining their objections and the fact that the application
had been made;

A Patient may receive information about “acts” of the HSE
that affect the individual. Here the term “acts” refers to any
decision of the HSE, for example, the decision not to issue a
Medical Card.
Access to Medical Records:
Legislative Principles
Freedom of Information Acts 1997-2003
Certain Public Records are exempt from the
provisions of the 1997-2003 Acts:
Records used in deliberations by a Public Body are
exempt unless it is a factual or scientific Report;
Records which if accessed would interfere with the
proper management of the HSE;
Records which are subject to Legal Privilege;
Records entrusted to the HSE in confidence; and
Records from which an individual may be identified.
Access to Medical Records:
Legislative Principles
Freedom of Information Acts 1997-2003
 Records which if accessed would divulge personal
information of a deceased Patient;
 Records which if accessed by the Patient as the
requesting party would prejudice the physical and
mental health of the individual Patient in question.
Access may be permitted through a nominated Health
Care Professional who has the relevant clinical
expertise in respect of the subject matter stored on
the Medical Records.
Access to Medical Records:
Legislative Principles
Health Information Bill 2008
According to Minister Harney:
“The objective of the current Health Reform
Programme is to deliver better Patient care and safety.
This includes using information, both in manual and
electronic form, more effectively than previously to
improve healthcare outcomes while ensuring that the
privacy of Personal health Information is appropriately
respected.”
Access to Medical Records:
Legislative Principles
Health Information Bill 2008
The main purposes of the proposed 2008 Bill are:
 To establish a legislative framework to enable
information, in whatever form, to be used to best
effect to enhance medical care and Patient safety
throughout the Irish Healthcare System;
 To facilitate the greater use of information
technologies for better delivery of Patient Services;
and
 To underpin the effective Information Governance
Structure for the Irish Healthcare System generally.
Access to Medical Records:
Legislative Principles
Health Information Bill 2008
Health Information Management Principles:
Personal Health Information shall be:
 Accurate, complete and kept up to date;
 Obtained for one or more specified, explicit, and
legitimate purposes;
 Not used, shared, or disclosed in a manner
incompatible with these principles;
Access to Medical Records:
Legislative Principles
Health Information Bill 2008
Health Information Management Principles:
Personal Health Information shall be:
 Adequate, relevant and not excessive;
 Not be kept for longer than necessary; and
 Safeguarded by appropriate Security Measures
against unauthorised access, alteration, disclosure or
destruction and against all other forms of processing.
Access to Medical Records:
Judicial Requirements
Coroner Court:
The Coroner has powers to investigate sudden, suspicious
or unexplained deaths. Information should be disclosed to
Coroners to enable them to determine whether an Inquest
should be held.
Court of Law:
A Medical Professional cannot claim Professional Privilege as a
Witness.
The Medical Practitioner may appeal to the Judge but if
directed answer a question, and he/she refuses to do so, may be
found in contempt of Court.
A Subpoena to attend Court, or produce documents, must be
obeyed.