Medical Confidentiality and Crime

Sabine Michalowski

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351918763
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Medical confidentiality is universally recognised as a value worth protecting. However, difficulties arise when confidential medical information becomes relevant in the context of crime prevention and criminal prosecution. Should medical confidentiality be upheld where the physician holds information which is essential for the investigation of a serious crime; for establishing the truth in a criminal trial; for an accused's defence; or for the prevention of a criminal offence? And according to which criteria should such decisions be made? Based on an examination of different approaches in medical ethics and a comparison of the relevant law of France, Germany, England and Wales and the US, this book analyses how a balance of the competing interests can best be struck.

Chapter 1

Introduction

 

 

Medical confidentiality lies at the very heart of the physician-patient relationship and is relevant to all areas of medical law. It is universally recognised as a value worth protecting, and there is widespread agreement that physicians should not, in principle, announce to the world that which the patients have confided in them. This principle was already recognised by the Hippocratic Oath which provided that:

Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets.

The concept of medical confidentiality is now an integral part of International Conventions, such as the Declaration of Geneva of 1994, and an obligation to maintain medical confidentiality is imposed on physicians by the rules of their profession. Many legal systems guarantee the protection of medical confidentiality in various ways. At the European level, the importance of medical confidentiality was recently confirmed by the European Convention on Human Rights and Biomedicine, and by the Data Protection Directive 1995 addressing the particular threats to the confidentiality of personal (including medical) data which are being processed by automatic or non-automatic means; in the U.S., the significance of patient privacy has been stressed by the Privacy Rule.¹

As with many other areas in which there is a general consensus that a particular interest deserves protection, the principle of medical confidentiality is uncontroversial as long as it does not conflict with other interests. Such conflicts, however, frequently arise where the physician holds confidential patient information which may be relevant for the purposes of crime prevention or criminal prosecution. A physician may, for example, receive information in confidence that the patient has committed a serious crime, or that the patient intends to commit such a crime. It is also possible that the physician holds confidential information that would exonerate a person who is accused in criminal proceedings, or at least assist that person’s defence. In these cases, the interest in medical confidentiality can compete with a number of other interests: that of finding the truth in the course of criminal proceedings; the general public interest in crime prevention and criminal prosecution; the interests of parties who are wrongly accused in criminal proceedings; and defence rights. To resolve such conflicts of interests, a balance must be struck to decide how to accommodate the competing interests. The outcome of such a balancing exercise is largely based on policy considerations and deeply rooted moral concepts. In order to resolve these conflicts of interests, it is thus essential to be clear about the reasons for which the various interests that are at stake receive legal protection.

Despite the general agreement that medical confidentiality should, in principle, be guaranteed, opinions differ when it comes to explaining why exactly medical confidentiality should be protected. Is medical confidentiality mainly protected in the interests of the patient, and if so, how, exactly, can the patient’s interest in medical confidentiality be defined? Or is medical confidentiality mainly protected in the interests of the physician? The physician’s job may be made much easier if he/she has the right to refuse any disclosure of confidential patient information, as many patients will only be willing to reveal all information necessary for diagnosis and treatment if they can rely on the physician’s silence. Alternatively, is medical confidentiality mainly protected in the public interest, as patients might, for example, be deterred from seeking medical advice and treatment if they fear the disclosure of their medical secrets? It can easily be seen that the answers to these questions are of more than academic relevance, as the approach adopted towards potential conflicts depends largely on the reasons for which the different interests receive protection. If, for example, the main emphasis were to be placed on the protection of the physician’s interests, it would be sensible to give the physician discretion in deciding whether or not to disclose certain confidential patient information, regardless of the wishes of the patient. If, on the other hand, medical confidentiality is mainly protected to pay heed to the interests of the patient, the existence or absence of the patient’s consent to disclosure would have a decisive role to play. If the public interest were to be the most significant consideration behind the protection of medical confidentiality, the scope and limits of confidentiality protection would mainly depend on an analysis of how these public interests could best be secured.

The idea for this book was born when the author, who had trained as a German lawyer and took it for granted that confidential patient information should receive protection from disclosure in criminal proceedings, realised that English lawyers find it just as natural that the interests in the administration of justice in principle prevail over medical confidentiality. This raised academic questions about the reasons behind such a difference in approach, such as whether this can be explained by a different legal tradition, a divergence in moral thinking, or whether it is just accidental that the two systems have developed differently. Moreover, it raises the question of which of the approaches, if any, reflects sounder legal and moral principles. From a German perspective, the main interest in comparing different approaches to medical confidentiality in the context of crime prevention and criminal prosecution would be to identify better and more consistent ways of balancing the competing interests in certain problem areas. From an English perspective, until the coming into force of the Human Rights Act 1998, a discussion of the potential merits of introducing a medical privilege in criminal court, giving the physician the right to remain silent about confidential patient information and the right to refuse the production of medical records, might have seemed like a pointless exercise. The legal situation was clear - no such privilege existed for confidential information which is relevant to the proceedings.² However, English law nevertheless has to resolve conflicts, particularly where confidential patient information is to be disclosed outside of court proceedings. No clear legal principles exist to deal with this problem apart from the provisions of the Police and Criminal Evidence Act 1984 which govern the specific question of the search for and seizure of medical records. A comparative analysis can thus assist in identifying criteria for the solution of such problems. Furthermore, in the light of the HRA, it needs to be reconsidered whether the recognition of the right to private life under Article 8(1) of the ECHR requires a difference in approach to medical privilege in court, and if not, whether changes are nevertheless desirable.

This book has the threefold aim of (1) describing different legal approaches to medical confidentiality, in general, and to the conflict between medical confidentiality and competing interests in the context of crime prevention and criminal prosecution, in particular; (2) identifying the factors which might cause these differences; and (3) suggesting criteria for an ethically and legally convincing approach to the different conflicts of interests. Given that at the outset of the study fundamental differences in approach between Germany and England had already been identified, it seemed undesirable to restrict the comparison to these two countries. It would have been too easy to explain arising differences based on the fact that one of the countries has a civil law tradition, the other being a common law country, and that one country has a written constitution and a rights-based culture while the other does not. To avoid this risk, two more countries have been chosen as comparators. Two common law countries (England and the U.S.) and two civil law countries (France and Germany) will be examined to see whether and how the fundamental differences between those two types of legal systems influence the approach in the area under examination. At the same time, two systems providing extensive constitutional protection for privacy (the U.S. and Germany) will be compared with two systems that do not provide such protection (England and France). These differences among the legal systems under examination will help to identify the factors influencing the approach towards the protection of medical confidentiality and to the resolution of conflicts between medical confidentiality and other interests. Given its importance for three of the four legal systems under examination, the relevant law of the European Union and of the Council of Europe will also be examined briefly.

A comparative study faces many problems, not the least of which is that of how to structure the outline of the different legal systems so as to make a comparison possible, without losing the authenticity of each legal system. The resolution of conflicts between medical confidentiality and competing interests in the context of criminal proceedings and crime prevention requires that a balancing exercise be performed. To understand how the different legal systems approach the balancing test, it is essential to undertake a detailed analysis of the law of each legal system, and, in particular, of the interplay of different legal provisions and concepts within each system. Even though all legal systems are faced with similar problems and therefore have to consider comparable conflicts, they all start from very different premises. The legal protection of medical confidentiality in France, for example, is mainly based on the provisions of the Criminal Code, and the conflicts arising are mostly dealt with by the provisions of the Code of Criminal Procedure. The approach is thus determined by principles and concepts of criminal law. In German law, the main focus equally lies on the provisions of the Code of Criminal Procedure and of the Criminal Code. However, the German approach cannot be understood without reference to constitutional principles which have a decisive influence on the interpretation and application of the legal provisions by German courts. In the U.S., medical confidentiality similarly has a strong constitutional basis which has widely influenced the legal approach towards the conflict of interests in the context of crime prevention and criminal prosecution. However, in the U.S. medical confidentiality is not protected by substantive criminal law, but rather by particular statutes conferring privilege and providing very detailed provisions expressly regulating many of the conflicts between medical confidentiality and the interests of justice. Complicating the inquiry is the fact that the content of these statutes will vary from State to State, and even identically worded statutes may be interpreted differently in different States. In England, on the other hand, the protection of medical confidentiality is a creature of case-law and has been mainly developed in the context of private law actions for breach of confidence. It is therefore based on private law principles and concepts. Because of these conceptual differences, a meaningful comparison of the different legal systems can only be performed once the relevant law of each country has been explained comprehensively. This approach, as opposed to an entirely problem-based comparison, has the advantage that in addition to providing a comparative analysis of specific problems, this book also presents a detailed description and analysis of the relevant law of four different countries.

The examination of each legal system which takes place in separate chapters will adopt, as far as practicable, the same structure, in order to facilitate the subsequent comparative analysis. The analysis of each legal system will be divided into two parts. The first part of each of these chapters will examine the way in which the interest in medical confidentiality is protected. This includes, for example, the question of whether only embarrassing or otherwise particularly sensitive information deserves legal protection, whether the protection is limited to confidences expressly communicated to physicians by their patients, or whether everything the physician learns in the course of the physician-patient relationship is covered by medical confidentiality. The legal mechanisms used to guarantee this protection will also be looked at, for example by examining whether medical confidentiality is protected by private law and/or criminal law provisions; whether it is a constitutional right; and what remedies are available in case of a breach of medical confidentiality. The author by no means claims to present a complete picture of the legal protection of medical confidentiality in each country. The first part of each chapter rather concentrates on those features of confidentiality protection encountered in each country which might help to explain the approach adopted towards the balancing of interests. Important aspects of the legal protection of medical confidentiality which did not seem relevant for this particular purpose, for example the approaches to the protection of medical data in the different Data Protection Acts, have therefore been neglected.

The second part of these chapters will focus on conflicts between medical confidentiality and the interests in crime prevention and criminal prosecution. Different questions will be discussed, such as that of whether the physician has a right or is even under an obligation to refuse to give testimony in court regarding confidential patient information; and whether or not he/she can be justified when disclosing confidential patient information outside of court proceedings. Particular emphasis will be placed on the resolution of conflicts between medical confidentiality, on the one hand, and the interest in the administration of justice; the interest in criminal prosecution; the interests of a person who is wrongly accused in criminal proceedings, be it the physician or a third party; the interest in the guarantee of defence rights; and the interest in crime prevention, on the other. Specific problems regarding the disclosure of medical records will also be introduced. In this context, it is of particular importance whether the police can lawfully seize such material for the purpose of criminal prosecution, whether it must be made available as evidence in criminal proceedings, and whether the physician has the right voluntarily to submit material to the police or the court for the purposes of criminal investigations or prosecutions. While an attempt will be made to discuss the same issues from the perspective of each of the four legal systems, this will not always be appropriate. Frequently, a problem which is of particular importance for one legal system and requires a detailed discussion, does not cause any specific difficulties in another legal system and therefore does not merit detailed attention.

It cannot be overlooked that the law in the area of medical confidentiality is largely based on policy considerations and ethical principles. Resolutions of a conflict between different interests require a balancing of the interest involved which can only be carried out satisfactorily if the interests at stake and their respective values are clearly defined. Therefore, the weight to be accorded to the principle of medical confidentiality as well as the importance of the competing interests will have to be assessed. For a critical assessment of the law’s approach to medical confidentiality in general, and to the protection of medical confidentiality in the context of crime prevention and criminal prosecution in particular, it is therefore essential to introduce philosophical principles which justify or even demand the protection of medical confidentiality, and which affect the weight to be given to the competing interests that need to be balanced. This is particularly important in the context of a comparative study, since moral conflicts are the same in all legal systems, and philosophical debate considers these problems in an attempt to find a universally acceptable moral solution, detached from the constraints of any one legal system. Before the law of the different legal systems is explained in chapters three to seven, chapter two will therefore introduce the theoretical and philosophical discussion of the different values, interests and conflicts involved by the two predominant approaches to medical ethics: the deontological and the utilitarian schools of thought. Based on this theoretical outline, chapters three to seven which contain the analysis of the law of the different legal systems will examine to what extent the law of each country is influenced by deontological or utilitarian considerations, and identify the impact of the philosophical approach endorsed by each country on the legal solutions favoured.

The ethical and legal analyses will be followed by comparative reflections in chapter eight. Selected legal problems that were introduced in the preceding chapters will be discussed from a comparative perspective, and the solutions promoted by different legal systems will be evaluated. The main emphasis is placed upon a comparison of the practical solutions reached in each legal system, rather than on theoretical differences in approach. This is important for an assessment of whether or not apparent similarities will lead to similar results, and apparent differences to different results. The comparative analysis of the different approaches will help to identify the strengths and weaknesses of different legal approaches, and to develop a more objective and satisfactory attitude towards the balancing of interests. Comparative and ethical reflections will be combined in order to develop workable and ethically justifiable criteria to resolve the conflicts between medical confidentiality, on the one hand, and the interests in criminal prosecution, defence rights and crime prevention, on the other.

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Notes

¹ Standards for Privacy Protection of Individually Identifiable Health Information (65 FR 82462).

² Attorney-General v Mulholland [1963] 2 QB 477 (CA), at 489 per Lord Denning; Nuttall v Nuttall and Twynan [1964] 108 Sol J 605, per Edgedale J; Hunter v Mann [1974] 2 All ER 414, at 417 per Boreham J; Goddard v Nationwide Building Society [ 1986] 3 All ER 264, at 271 per Nourse LJ.

Chapter 2

Ethical Considerations

Medical confidentiality is the term commonly used to describe the concept that a relationship of trust exists between physicians and their patients, generating an expectation that all communications taking place in the course of this relationship remain confidential. Medical privilege, on the other hand, refers to the specific situation that physicians are exempt from giving testimony in court with regard to confidential patient information and from submitting medical records of the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Table of Cases
• Table of Legislation
• List of Abbreviations
• Chapter 1: Introduction
• Chapter 2: Ethical Considerations
• Chapter 3: European Law
• Chapter 4: French Law
• Chapter 5: German Law
• Chapter 6: English Law
• Chapter 7: American Law
• Chapter 8: Comparative Conclusions
• Bibliography
• Index