March-13-2018 in Healthcare Law
In a recent case[1] the High Court considered in what circumstances a doctor can breach his or her duty of patient confidentiality.
The proceedings were issued by the Child and Family Agency ('CFA') against 'A', a minor (seventeen years old at the time) who was HIV positive and had been in the statutory care of the CFA. The CFA applied to the High Court to allow it to breach patient confidentiality so it could warn A's 'girlfriend', 'B', to take precautions. The matter was complicated somewhat by the fact that there was a factual dispute between the parties and 'A' denied having ever engaged in sexual intercourse with 'B'.
While the CFA brought the proceedings in this case because it had the relevant information regarding the HIV status of ‘A’ and the alleged sexual relationship between ‘A’ and ‘B’, the court made it clear that it could just as easily have been a doctor who had the same information and who was seeking an order from the court clarifying the extent of patient confidentiality.
The Order sought in this case to breach patient 'confidentiality' for the benefit of a third party was unprecedented in the Irish courts.
The test the court applied was whether 'on the balance of probabilities, the failure to breach patient confidentiality creates a significant risk of death or very serious harm to an innocent third party'.
The court concluded that the circumstances in this case did not justify breach of patient confidentiality. It ruled that the CFA had not proven on the balance of probabilities that ‘A’ was engaging in sexual intercourse with ‘B’ and that even if they were, it was unlikely to be unprotected. It ruled that even if the parties were engaging in unprotected sexual intercourse, the medical evidence was that the risks of HIV infection were low, further noting that HIV was 'no longer a terminal condition, but rather a chronic and lifelong condition that can be managed'.
In refusing the Order sought, the court considered that, if granted, it would put 'an intolerable burden' on doctors to consider whether patient confidentiality needed to be breached whenever a patient had a communicable disease.
In considering whether the threshold of a 'significant risk of death or very serious harm' had been crossed, the court had regard to the balancing of interests between ‘A’, whose privacy was at issue, ‘B’, the individual at risk of harm, and the public interest in ensuring continuing confidence in disclosing private details about health to doctors and remaining honest and frank in doing so.
Exceptional circumstances allowing a breach of confidentiality have been found in a small number of cases[2] in other jurisdictions such as where there was a stated intention to kill a named individual. The court in this case acknowledged that although a risk of 'serious harm' short of death could justify a breach of patient confidentiality in favour of a third party, this risk was not established in this matter.
The case demonstrates the importance of patient confidentiality which must be absolutely observed save for the most exceptional of circumstances. Confidentiality is key in maintaining trust and ensuring a healthy doctor-patient relationship. It has long been recognised by the courts and is acknowledged explicitly in the Medical Council Guidelines[3].
[1] The Child and Family Agency v A.A. & Anor [2018] IEHC 112
[2] See W v. Edgell [1990] WLR 471 and Z v. Finland (1998) 25 EHRR 371
[3] See Medical Council of Ireland Guide to Professional Conduct and Ethics for Doctors, 2016
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