Confidentiality

If someone believes that their personal information is being unlawfully disclosed, they may be able to rely upon the civil law of confidentiality.

If someone tells, or attempts to tell, anyone about an individual’s HIV status without his or her consent after this had been confided in trust, then this is likely to be a ‘breach of confidence’.

In such circumstances, the person concerned may be able to get an injunction preventing disclosure and/or awarding damages. They may also be able to get a declaration from the court stating that the information is confidential (see Remedies).

In law, a duty of confidence arises “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 respected.”¹

The law of confidence does not only apply to professional and business relationships: the courts have been willing to protect highly personal information disclosed without authority by spouses and friends. ^2,3

The law of confidentiality does not provide absolute protection, however, and is subject to three important ‘limiting principles’:⁴

• It only applies to information which is actually confidential. Once information enters the public domain, it is no longer protected by confidentiality.

• It does not apply to useless or trivial information.

• Although it is in the public interest that confidential information should be protected, that public interest may sometimes be outweighed by another public interest favouring disclosure. In such cases, the public interest in confidentiality must be balanced against the public interest in disclosure.

An example of the third ‘limiting principle’ arose in W v. Egdell,⁵ where the Court of Appeal accepted that, in that particular case, it was in the public interest for a doctor to disclose details of an individual's health status to a third party. In that instance, a consultant had disclosed to the Home Secretary his medical report on a patient who was seeking release from a mental hospital. That medical report suggested that the patient may still have been dangerous and questioned whether he should be released.

The general principle is, however, that it is in the public interest to maintain confidentiality. Sometimes there are said to be competing public interests - i.e., the public right to know, as opposed to the public's interest in the maintenance of confidential information. This is best illustrated by the case of X v. Y.⁶ In that case, a newspaper wished to disclose the names of two HIV-positive doctors. The health authority sought a permanent injunction preventing the paper from publishing the names. The judge, in allowing the injunction, said:

“I keep in the forefront of my mind the very important public interest in freedom of the press. And I accept that there is some public interest in knowing that which the defendants seek to publish. But in my judgement those public interests are substantially outweighed when measured against the public interest in relation to loyalty and confidentiality both generally and with particular reference to AIDS patients' hospital records.”

A similar approach was taken in the more recent case of H (A Healthcare Worker) v. Associated Newspapers Ltd,⁷ where a dentist who had been diagnosed as HIV-positive was granted an injunction preventing a newspaper from publicly identifying either him or the health authority he worked for.

It would appear from such cases that there are three principles which justify, in the public interest, the disclosure of confidential information.⁸ These are:

• The disclosure is to be made only to those whom it is necessary to tell so as to protect the public interest.

• To justify the disclosure any risk must be real and not fanciful.

• It may be that only a risk involving physical safety of the public justifies disclosure.

Discussions of confidentiality in relation to HIV usually focus on the medical context, but it must be remembered that confidentiality is part of the general law and not specific to medicine.

Breaches of confidentiality by non-medical professionals might amount to a disciplinary offence under the code of any relevant professional body, or to something which could result in disciplinary action by their employer. The medical professional standards, discussed below, which discuss when confidentiality might be breached are based on the general law, and people outside the medical profession have no right to take any more lax an attitude to confidentiality than medical staff.

Any differences, therefore, are more practical than legal. Medical staff should be aware of the obligation of confidentiality, which is central to medical practice, at all times; other people may not. In practice, this could affect decisions to disclose, and also the manner of disclosure: is it necessary to emphasise, when disclosing, that there is an expectation that the information should be kept confidential?

The problem here is practical rather than legal – legal remedies are generally retrospective and cannot undo the harm done by improper disclosure.

Very different problems arise where somebody is asked a question which seems to require the disclosure of their own, or someone else’s, HIV status (such as that of a child). In a situation like this, the person asked may be worried that there could be legal consequences to not disclosing. Nonetheless, the circumstances in which a failure to disclose would have such consequences are very limited.

The criminal offence of fraud can be committed by ‘false representation’ or even failing to disclose information where there is a ‘legal duty to disclose’ (Fraud Act 2006 ss 2-3), but there can be no criminal liability unless there is an intention to gain money or other property, or to cause another person to lose money or property. A simple false representation or failure to disclose on its own is not a criminal offence.

In order to claim ‘civil liability’ (a debt or damages), all the following requirements need to be met:

• non-disclosure actually causing harm to somebody

• the person who did not disclose having a duty of care to prevent harm coming to that person

• the non-disclosure amounting to a failure to take reasonable care for that person’s safety

This is, other than in very exceptional cases, implausible. Take, for example, the parent who does not disclose to a school that their child is HIV-positive. First of all, there could be no possibility of liability unless there was a transmission, the chances of which are recognised as being exceptionally unlikely. Even if a transmission did somehow occur, it would still be impossible to describe the failure to disclose as ‘unreasonable’, given the extremely small chances of transmission.

As part of an insurance application, a false answer to a question relating to HIV is likely to invalidate the contract of insurance. This is particularly the case as the Association of British Insurers’ Statement of Best Practice for HIV and Insurance (2008) means that the use of such questions should be strictly limited to cases where they are clearly relevant. Consumer guidance is available via the ABI’s website (www.abi.org.uk).

In an employment context, disclosure poses more difficulty. The Equality Act 2010 treats anyone who is HIV-positive as ‘disabled’ for the purposes of the act, which means that an employer is legally barred from discriminating against somebody on the basis of their HIV-positive status. However, the act does not bar employers from asking whether a person is disabled once a provisional job offer has been made.

If the question is asked, disclosure should not (in law) have any discriminatory consequences. However, answering falsely may be regarded as deceiving the employer (problematic given that every employment contract has an implied term of mutual trust and confidence) and therefore have legal consequences. Non-disclosure may also create practical difficulties in arranging ‘reasonable adjustments’, such as flexible working to allow for medical appointments or time off to adjust to new medication.

For that reason, it is difficult to give general advice and decisions as to whether to disclose or not in the context of employment must always be considered on a case-by-case basis. More detailed advice is available in the chapter on employment and on the National AIDS Trust’s website, at www.nat.org.uk/Living-with-HIV/Useful-information/Employment-advice.aspx.