Views and reviews
Medical Confidentiality and Legal Privilege
The fact that the confidentiality of the doctor-patient relationship cannot be guaranteed in a court of law may be news to some patients, but doctors have become injured to the increasing number of occasions on which access to sensitive medical information is demanded and many would expect no better from the courts. The dilemmas presented by HIV disease high-light potential challenges to patient's privacy and expose the inadequate protection offered to it.The recent attention given by the media to several doctor patients with HIV disease caused anger in the medical profession- articulated in the letter pages of this journal- and hammered home the "free for all" that now exists.Should the courts not offer some bulwark to the confidentiality on which patients, even doctor patients, ought to be able to rely? What has happened to the precedent set in the 1988 of X and Y, in which the identity of two general practitioners was prevented from being published in the press by a court injunction? It is difficult not to conclude that medical confidentiality is merely rhetoric, an outdated reminder of the Hippocratic tradition.
In considering how much protection ought to be given to doctor-patient communications Jean McHale assesses whether the absence of legal privilege or, a statute on confidentiality, has fatally undermined medical confidentiality and goes on to make a case for granting such a privilege.
McHale, a lawyer, compares the grounds on which privilege is available to her own profession in order to validate the claims of the medical profession for a similar right. She argues that it would not be justifiable to grant a privilege simply on the grounds that doctors, like lawyers, are professionals and as such need confidentiality for their medical practice.Proof that a lack of privilege hinders doctors' practice is difficult to find. The privilege given to information between client and lawyer is, after all, not the lawyer's privilege but that of a client. Similarly, privilege for medical confidences should exist because we believe that patients have fundamental rights which must be safeguarded. McHale sees the right to stop disclosure as part of the patient's right to privacy. In her carefully argued text she explores the concept of privacy of the individual and the grounds on which a legal privilege might be based, and assesses the situation in the different jurisdictions that already have legislation and considers its practical implications.
The book will widen doctors'perspectives on medical confidentiality through the analysis of its historical development, the carefully selected illustrative court cases, and the interesting selections from medical publications. Seigler's description from the New England Journal of Medicine of a "decrepit concept" prompted by his study of who had access to the medical records of patients in his local hospital seems entirely appropriate. He discovered that the figure was between 75 and 100 medical staff.
The analysis is thorough and the arguments persuasive, but do they convince? Not entirely. The problems raised by a legal privilege for medical information include increased costs of legal process, difficulties in defining the boundaries of the confidential, and the persisting burden of discretion still vested with judges in assessing when the privilege should be overruled or tempered. While most will support McHale's call for scrutiny of the many statutes which currently require disclosure of evidence to ascertain to what extent they are really necessary, I suspect that evidential privilege for medical information may simply replace dissatisfaction with the status quo with a different set of complaints. McHale does not adequately rebut such a conclusion but acknowledges that her proposals are no panacea. Nevertheless, her considered analysis is an excellent starting point to finding some way of preserving the vestiges of medical confidentiality.
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