PRIVACY AND CONFIDENTIALITY

1. PRIVACY AND CONFIDENTIALITY AN OVERVIEW

2. Campbell v MGN Ltd, [2004] UKHL 22 “There is no overarching, all-embracing cause of action for “invasion of privacy” Lord Nicholls Several ways in which tort may protect privacy but no separate overarching tort.

3. Tort and privacy • Trespass to land • Trespass to the person • Nuisance • Defamation • Breach of confidence

4. Tort of Breach of Confidence Has a respectable history since 1865 Note also: • Confidentiality clauses in contracts • Statutory provisions – Official secrets • Possible involvement of Equity - R v Department of Health, ex parte Source Informatics [2001] QB 424

5. A tale of two Campbells • Naomi – successful House of Lords case to protect medical confidentiality • Penny – died because medical records not accessible over Bank Holiday

6. Who is entitled to protection?

7. Judicial attitudes to the media • A developing law of privacy? • Campbell v MGN 2004 "It has always been accepted that information about a person's health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor-patient relationship, but from the nature of the information itself." Baroness Hale

8. Need to achieve a balance between confidentiality and practicality

9. Patients’ records need to be accessible Penny Campbell died aged 41 in 2005 of septicaemia. Consulted eight out of hours doctors over bank holiday Six consultations over telephone, two face to face Diagnosis ranged from food poisoning to flu The Coroner said although crucial medical information on Ms Campbell's case was missing and it "was not always readily available to the last doctor in the chain", there has not been a gross lack of medical attention.

10. Verdict Coroner Doctor Andrew Reid said: • "My finding is that Penelope Ann Campbell died as a result of an accidental adverse healthcare event to which the non-recognition of the seriousness of her condition contributed."

11. CURRENT CONFUSION • Undue emphasis in codes of ethics on privacy and autonomy, leading to an over-cautious approach by regulatory bodies in their guidance • Complexities of the law – common law, the Data Protection Act 1998 and the Human Rights framework • Confusion about the concept of consent in the light of the developing common law and new statutory provisions in the Human Tissue Act and Mental Capacity Act • Fear of litigation and adverse publicity

12. PROFESSIONAL ETHICS – e.g. “Patients have a right to expect that you will not disclose any personal information which you learn during the course of your professional duties, unless they give permission. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care”. GMC “Duties of a Doctor”

13. ETHICAL BASIS “I will respect the secrets which are confided in me, even after the patient has died” Declaration of Geneva, as amended Sydney 1968

14. Data Protection Act: Consent • Consent to keeping and disclosing information should be sought from the data subject as a matter of course – but many exceptions and special rules under DPA. Data Protection Act 1998

15. Data Protection Act 1998 • Section 13. • An individual who suffers damage and distress by reason of any contravention by the data controller of any requirement of the Act, is entitled to compensation • Defence of reasonable care

16. Common Law – Long series of authorities Prince Albert v Strange (1849) Hunter v Mann 1974 “The doctor is under a duty not to disclose, without the consent of the patient, information which he, the doctor, has gained in his professional capacity.”

17. Saltman Engineering Co v Campbell Engineering Co [1963] 3 All ER 413 • The information must have the necessary quality of confidence • It must be imparted in circumstances which imply confidentiality • It must have been imparted to a third person without consent • It must not have been in the public domain (Spy Catcher case) Lord Greene

18. COMPLEX AREA OF LAW Involves: - Ethics - Common law - Data Protection legislation - Human Rights Act and ECHR

19. Human Rights Act 1998 • Became law in October 2000 • Public authorities in the UK must act in accordance with convention rights • Led to the potential broadening of the common law of confidentiality to give tort a role in protecting privacy beyind confidential situations?

20. Article 8 • Everyone has the right to his home, privacy and family life • No interference is permitted by a public authority unless in accordance with law, and necessary in a democratic society in the interests of national security, public safety, economic wellbeing of the country, prevention of crime or disorder, the protection of health or morals, or the rights and freedoms of others..

21. Article 8: Covers medical records • Medical records fall within “sphere of private life” – Charre (nee Jullien) v France • Covers right of confidentiality Z v Finland (1998) Medical advisor ordered to disclose details from the applicant’s medical file during the trial of her husband for manslaughter “Any state measures compelling communication or disclosure of such information without the consent of the patient call for the most careful scrutiny”

22. Positive Obligations • There is a positive obligation to protect Article 8 rights. • But Art.8 rights are not absolute • Exceptions may be permitted

23. Art.8

24. Douglas v Hello • By a 3:2 majority of the House of Lords decided was that confidentiality attached to the wedding. "What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information." Lord Hoffmann • Decided under common law of confidentiality rather than Art.8

25. Numerous exceptions to consent rule in confidentiality • Common law exceptions • Statutory exceptions • ECHR jurisprudence

26. Some Statutory Exceptions • s 60 Health and Social Care Act 2001 – special exemption for certain medical registers under strict controls • Prevention of Terrorism legislation • Judicial proceedings • Notifiable diseases • Abortion statistics • Police and Criminal Evidence Act 1984 • Police Reform Act 2002 • Health Act 1999 • Health Service Commissioner Act 1993

27. R (on the application of B) v Stafford Combined Court [2006] EWHC 1645 (Admin • Lower court had ordered T to disclose her records. But High Court held that medical records are confidential as between medical practitioners and patients, and patients undoubtedly have a right of privacy under the Human Rights Act 1998 Sch 1, Pt I, art 8. Particular importance should be attached to the confidentiality of psychiatric records (Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 4 All ER 193), but in any event, the duty of confidence owed by medical professionals to competent young persons was of a very high order, and should not be overridden unless there were very powerful reasons for so doing

28. Remedies for breach • Damages at common law for breach of confidence (Saltman Engineering case). • Injunction at common law (Prince Albert v Strange) • Data Protection Act - section 13 • Damages for breach of Art.8

29. Undercover researchers in GP surgeries • “Dozens” of details about patients overheard • Telephone conversations by surgery staff • Patients asking questions at reception desks (Pulse 07/06/07)

30. Information Commissioner 2002 “The Data Protection Act presents a number of significant challenges to data controllers in the health section….It is clear that many practitioners are confused between the requirements of the Data Protection Act and the various regulatory and representative bodies within the section”.

31. Elizabeth France, continued “To some extent the advice issued may reflect misunderstandings of the requirements of the Act. It is a common misconception, for instance, that the Act always requires consent of data subjects to the processing of their data”

32. McKennit v Ash [2005] EWHC 3003 (QB) • "There is no English domestic law tort of invasion of privacy. Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be 'shoehorned.” • Lord Buxton

33. Art.8 • Von Hannover v Germany (2005) 40 EHRR 1 Positive obligation on States to ensure that the privacy of individuals can be protected from interference by other private individuals, including the media. BUT ‘the courts will not invent a new cause of action to cover types of activity which were not previously covered’. (Baroness Hale)

34. BALANCE REQUIRED Courts are required to balance the potentially conflicting Article 8 rights (the right to privacy and family life) with Article 10 rights (the right to freedom of expression.

35. What is private information? Campbell v MGN Lord Hope: ‘a duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected’. Cross-over with the law of confidentiality?

36. Factors to indicate reasonable expectation of privacy • The nature of the information. • The form in which the information was held. • The relationship between the parties. • The means by which the information was obtained. • The results of publication

37. CASE LAW • Douglas v Hello [2005] EWCA Civ 595 • HRH Prince of Wales v Associate Newspapers [2006] EWCA Civ 1776 • Campbell v MGN Ltd [2004] UKHL 22 • McKennit v Ash [2005] EWHC 3003 (QB)

38. FUTURE DEVELOPMENTS • In line with European Human Rights law • Further expansion of the common law to include greater protection of privacy • Unlikely that there will be a separate tort of invasion of privacy