Confidentiality

More than any other area of health care the delivery of sexual health nursing is bound by the broad principles of patient confidentiality. The need for public trust is a foundation of any nurse-patient relationship. To elicit a deeply personal sexual history without complete confidence would be a difficult and stressful task. In a wider context the need for confidentiality is implicit, and without the trust and confidence of the public few people would come forward for testing within sexual health clinics for fear of being identified.

Sexual health or genito-urinary medicine clinics, as they are also known, are bound by legislation that ensures confidentiality and governs the operation of the clinic. The National Health Service Act (1977) provides a legal framework that imposes upon the Secretary of State a number of obligations to provide free health care. As with accident and emergency services, treatment for sexually transmitted infections is free in the United Kingdom. All consultations are treated in the strictest confidence, and patients may use a pseudonym or give no name at all.

The Venereal Disease Regulations (1974) 'place a duty on health authorities to ensure that any information capable of identifying an individual examined or treated for any sexually transmitted disease shall not be disclosed'.The 1974 regulation has now been updated under The NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions (2000). Sexual health clinics are quite unique in having this specific legislation put in place to maintain the confidentiality of those attending for treatment. There is no other specific NHS service that has this provision in addition to the normal frameworks for maintaining patient confidentiality.

DEFINITIONS OF CONFIDENTIALITY

When using the law, and specifically case law, to test and challenge notions it is common to use examples that although at first seem far removed from health care have the same core principles in their argument. It is important to ascertain what information is confidential and what constitutes a breach thereof. In the case of Marshall v Guinle Ltd (1979), an industrial case that examined employees using confidential business information to set themselves up in competition, a definition of confidential information was provided:

'The information must be of such a nature that its release would be injurious to the owner or of advantage to others. The owner must believe the information is confidential or secret. The owner's belief under these headings must be reasonable. The information must be judged in the light of usages and practices in the particular industry concerned' (cited in Kennedy & Grubb 2000).

It would therefore be reasonable to argue that similar principles could be applied to the belief of patients with reference to information held about them. Also it should be safe to assume that the healthcare worker is aware that the information is of a confidential nature and that to pass such information on would be a breach of such confidentiality.

In England and Wales there is generally a common law duty of confidentiality imposed upon doctors and nurses, the reasons for which are manifold. The obligation for confidentiality was discussed in A-G v Guardian Newspa pers Ltd (No. 2) (1988).This judgement 'affirmed that there was a public interest in a legally enforceable protection of confidences received under notice of confidentiality' (Mason & McCall Smith 1999). In this case the judge, Lord Goff, summarised the law in the following way:

I start with the broad general principle. . . . That a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others (A-G v Guardian Newspapers Ltd (No. 2) 1988).

This statement appears quite clear; and if executed in the business setting where sensitive commercial information is passed around and contracts exchanged it is indeed reasonably straightforward. However, in the context of the doctor-patient relationship in the NHS there is no such contractual relationship existing between the two parties Kennedy and Grubb (2000, p. 1060).

SO HOW THEN DOES THE COMMON LAW OF CONFIDENTIALITY GOVERN HEALTHCARE WORKERS?

It is a basic responsibility of medical and nursing practice that the confidentiality of all patients is maintained in the course of one's duty and as stipulated in Mason and McCall Smith (1999, p. 191): 'A general common law duty is imposed on a doctor to respect the confidences of his patients.' This would therefore suggest that the responsibility of the duty of confidentiality is rigid, and that there is no option other than to maintain it no matter what the circumstances.

BREACHING CONFIDENTIALITY

Having considered the duty of confidentiality and its importance and rigidity, when may there be a circumstance when the need for confidentiality can be challenged? Perhaps in a climate where knowingly passing on the HIV virus has become a criminal act (R v Adaye (2004), R v Dica (2003), R v Konzani (2004)), this absolute view of the confidential nurse-patient relationship must be brought into question. As a nurse engaging patients in the process of testing for HIV, what should one do when the scenario arises where you, the healthcare professional, are fully aware of a client's HIV diagnosis and also have the knowledge that they are having unprotected sex with their regular partner. To some, this scenario may sound extreme and far-fetched; yet to many who work in sexual health clinics it is a situation that seems to arise with greater and greater frequency. The recent emergence of successful prosecutions for knowingly passing on the HIV virus is considered a worrying trend in some quarters. Perhaps the same legal principles could be applied to other Sexually

Transmitted Infections, thus opening up the floodgates for multiple court cases, and as a result damaging the reputation of the sexual health services.

UNDER WHAT CIRCUMSTANCES CAN CONFIDENTIALITY BE BREACHED OR CHALLENGED?

Having given consideration to the broad principles that protect confidentiality in the clinical setting, it is relevant also to explore circumstances in which the normal boundaries of patient confidentiality may be encroached upon or challenged. Let's consider what are probably the only two straightforward situations where a healthcare professional may justify passing on confidential information. The first may be when the patient gives their consent to do so, and the second when it is in the public interest to do so.

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