Introduction

Confidential information may be protected by law. The House of Lords, the highest court in the land, confirmed in 2004 that “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 respected.”

But a ruling from 1990 set out limitations to this principle:

• 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.

The last one of these exceptions is probably the most important in the context of HIV.

Confidentiality and HIV

As early as 1988 a case involving two doctors showed that HIV was covered by confidentiality. An unknown health authority employee (or employees) passed information regarding these doctors' HIV status to a newspaper reporter. The newspaper intended to publish an article identifying the doctors concerned and describing their condition. The health authority sought a court order preventing the newspaper from publishing the information, or using it in any other way, which was granted.

The court noted that there was a public interest in the freedom of the press, and also accepted that there was some public interest in the information which the newspaper sought to publish. However, “those public interests [were] substantially outweighed when measured against the public interests in relation to loyalty and confidentiality both generally and with particular reference to AIDS patients' hospital records.”

Confidentiality and HIV/AIDS

As early as 1988 a case involving two doctors showed that HIV was covered by confidentiality. An unknown health authority employee (or employees) passed that information regarding the doctors’ HIV status to a newspaper reporter. The newspaper intended to publish an article identifying the doctors concerned and describing their condition. The health authority sought a court order preventing the newspaper from publishing the information, or using it in any other way, which was granted.

The court noted that there was a public interest in the freedom of the press, and also accepted that there was some public interest in the information which the newspaper sought to publish. However, “those public interests [were] substantially outweighed when measured against the public interests in relation to loyalty and confidentiality both generally and with particular reference to AIDS patients' hospital records.”

Disclosure of confidential medical information in the public interest

Confidential medical information may sometimes be disclosed in the public interest. For example, in 1990 a court considered the case of a patient detained in a mental hospital, whose psychiatrist had sent a report on his condition to the Secretary of State suggesting that he should not be released. The court decided that the public interest in protecting the safety of others outweighed the public interest in preserving an individual’s right to confidentiality.

In certain circumstances, this principle may be relied upon to justify the disclosure of information about a person’s HIV-positive status without their consent. The General Medical Council’s Guidance to Doctors on Serious Communicable Diseases (1997) states as follows (paras 26-27):

“You may disclose information about a patient, whether living or dead, in order to protect a person from risk of death or serious harm. For example, you may disclose information to a known sexual contact of a patient with HIV where you have reason to think that the patient has not informed that person, and cannot be persuaded to do so. In such circumstances you should tell the patient before you make the disclosure, and you must be prepared to justify a decision to disclose information. You must not disclose information to others, for example relatives, who have not been, and are not, at risk of infection.”

The guidance also notes that confidential medical information may be disclosed to other health care workers if failure to disclose would put them at a serious risk of death or serious harm (para 19).

There are specific provisions about the confidentiality which attaches to a diagnosis of infection with a sexually transmitted infection: the National Health Service (Venereal Diseases) Regulations 1974. There is some doubt about the exact meaning and effect of these regulations, and as this book went to press, the Department of Health was undertaking a consultation exercise on their future.