Confidentiality Issues Between Patient and Midwife
This is a case involving confidentiality issues between patient and midwife. The details of the case are specifically detailed in the scenario below.
Justine was a 41-year old female expecting her second child, she was 38 weeks pregnant and had been admitted for elective caesarean section due to inter-uterine growth retardation. In the hospital, she was accompanied by her brother, Mark who appeared very supportive of Justine and was visibly worried about her and the baby. The baby girl was delivered at 11:20 that day weighing 800grames. She was transferred to the Neo-natal intensive care unit and Justine was transferred to the Ante-natal ward. As Mark was shocked at the size of the baby, he the midwife (Grace) if Justine could possibly breastfeed the baby. Grace explained that because of Justine’s immune status and the medication she was on, breastfeeding was not advisable.
Grace further explained that breastfeeding could increase the risk of transmission in HIV positive women. It was later discovered that Justine never consented to her HIV positive status being given to Mark. Grace merely assumed that as Mark is the patient’s brother, he “must” know her HIV status and that Justine presumably “must” have asked Mark to accompany her because she probably have had confided in him. As Justine was extremely distressed when she learnt of the breach of confidentiality, she demanded that the matter be investigated.
Identification of ethical and legal content
The primary ethical and legal content identified in the given scenario is the obligation of confidentiality which a midwife owes to her patient. To determine the importance of maintaining confidentiality and privacy, it is necessary to consider what it means. Many definitions of confidentiality are very wordy but they almost all contain the word ‘trust’. Relationships in midwifery, as in all areas of health care, are centred on trust. A woman entrusts a midwife with a great deal of personal and generally private information. When she does this she has the right to expect that this information will remain confidential and private, being passed on only with her consent, in order to maintain human dignity. Her right in this case is a moral one as there is no statutory right to confidentiality.
The privilege of confidentiality belongs to the client/patient and not to the healthcare professionals, as such a breach of confidentiality or privacy can lead to legal action in the civil courts. It can also lead to criminal action, but this is not for the breach itself, rather it is for the use to which the information is put and the harm that ensues, such as blackmail letters to well known women regarding their recent abortions, following theft of a general practitioner’s computer. In the case of midwifery/medical records, however, it is not considered reasonable to seek specific consent for the passage of information between professionals caring for each woman/patient. This is covered by ‘implied consent’ where, in giving information that is to be recorded in the woman’s/patient’s file, the person is implying consent for other healthcare professionals who will have contact with her/him, to have access to this information.
This, however, is considered to be on a ‘need to know’ basis in that only those professionals who need to know the information, in order to care for the individual concerned, will be given access to it. A number of ethical questions emerge with the demise of confidentiality in the context of given scenario. Some of these questions concern ethical decision making by the midwife, legal issues, purpose, fiscal matters, and professional status: Is more good extended to more people, and is the sacrifice of confidentiality necessary for this to occur? Do the ends justify the means? If a utilitarian philosophy rules the day, how might the most vulnerable members of society be protected (see Rawls, 1971)? Is confidentiality fundamentally good, and to what degree should it be extended or limited in a health enterprise? How much should the client bear the responsibility for his or her own decision about trading the right to confidentiality for services, and how much responsibility should the midwife bear? Are the customary consent to release information forms valid? To what degree is the midwife liable should an unforeseen outcome occur about which the client was given no warning? Is it always in clients’ best interests for midwives to attempt to explain the limits of confidentiality?
Ethical Analysis. Ethics is an essential component of life if we live in society with other individuals. The completely amoral individual is a very rare specimen; therefore the great majority of people are capable of recognising moral dilemmas and conflicts when they arise. They are recognised as a part of life, irrespective of a commitment to solving them — or success in doing so. In most situations people act intuitively if their upbringing and general socialisation have laid down good principles and values. There are situations, however, when conscious practical decisions need to be made, which are not intuitive and ethical theories tend to apply. The four (4) moral principles particularly relevant to the practice of medicine are autonomy, beneficence, non-maleficence and justice. Autonomy in this context may be defined as the right of individuals to make decisions on their own behalf. While most societies have long recognised a basic moral obligation to respect each person’s autonomy, it is only relatively recently that this ethical principle has evolved to be of such central importance in the doctor-patient relationship.
In the scenario, it is the right of the patient to make her own decision. Beneficence is defined as the duty to do the best for the individual patient. Even this relatively straightforward obligation is being challenged at various times and from different quarters. These challenges include such matters as who is to decide what is best, an issue of autonomy, and the availability of the required resources, an issue of justice. In the scenario, it refers to the duty of the midwife to fully and truthfully explain to the brother the cause of his concern. Non-maleficence is defined as the duty to do no harm. This also appears to be a relatively straightforward moral obligation and probably is the ethical principle best understood and most widely adhered to in clinical practice.
However, as medical inventiveness yields new techniques and new diagnostic tests, subtle potential breaches of this obligation are not readily identified by enthusiastic innovators, as may be seen with the premature promotion of new tests for population screening or ‘earlier’ diagnosis for a variety of ailments. Here, the midwife could explain that she meant no harm when she disclosed the information but arguably only to protect the best interest of the infant. Justice is more difficult to define but incorporates notions of equity and fair distribution. While it may be tempting for doctors to shun this obligation, leaving it to managers, administrators and government, this is neither realistic nor desirable.
Increasingly, however, the latter groups will be seen to arbitrate between the claims and counter-claims for resources of various specialist groups. This ethical principle emphasises that the health care professionals have a responsibility to the community at large as well as to individual patients. Here, the patient can argue that the midwife does not only have responsibility to the infant and her brother but more importantly to the her patient as well. These four ethical ‘pillars’ do not stand on their own, but are interpreted and applied using two broad systems of reasoning or thinking about ethical principles which have been evolved by philosophers: Kuhse, 1997.
Health professionals trained in the scientific method, where hypothesis is refuted by factual observation, are often uncomfortable with the approaches of moral philosophers, although subconsciously or unknowingly they themselves use these approaches to problems: Mason and McCall Smith, 2005. The two major schools of reasoning are the consequentialist and the deontological. When applied to medical ethical problems, they can be regarded as frameworks for making value judgments. Their importance in the study of medical ethics is to clarify how value judgments are being made and by whom, i.e. in its starkest relief, are midwives applying their own value judgments and ignoring those of patients or the community? The best known consequentialist school of moral thinking is utilitarianism, expressed crudely as the end justifying the means.
Utilitarianism. This is the most prominent of the consequentialist ethical theories which has, in its purist form, a monist belief in the principle of utility. It is believed that all human beings have one thing in common: they seek pleasure and avoid pain. Individuals therefore pursue those activities that will, in the end, at least bring them pleasure and avoid those that will cause them pain. If this is true of all individuals, then a moral individual should have regard not only for their own pleasures and pains, but also for those of others. When making choices they should seek to maximise pleasure and minimise pain for all involved. Thus, the general principle on which utilitarianism is based is that a moral action is that which creates the greatest happiness for the greatest number. This principle has a certain appeal at a basic level because, whatever our moral stance, most of us take some account of the probable effects of our actions on others.
It is necessary to distinguish between the two forms of utilitarianism available: act-utilitarianism and rule-utilitarianism. Act-utilitarianism is the classic or traditional form supported and developed, for instance, by Bentham, Mill and Sidgwick in the eighteenth and nineteenth centuries. In this form of utilitarianism every single action is judged by its consequences. The principle is simple and easy to grasp, as every action is assessed in terms of the benefit it will produce: the greater the degree of anticipated benefit, the greater the chance that the act will be right. It is a method of seeking answers to questions in an objectively calculable way, the only acceptable solutions being those that create maximum good. Efficiency is often sought by decision-makers, and act-utilitarianism can provide this too, in that conflicting interests can be compared and assessed in terms of their capacity for producing good. Rule-utilitarianism is a modification of act-utilitarianism assessing an act according to moral rules, the right rule being that which would produce the maximum benefit.
Therefore, instead of individual actions being assessed according to the principle of utility, they are assessed according to moral rules of conduct to enable them to comply with the principle of utility. This means that an act is right if it falls under the right rule; the rule is right if general observance of it would maximise utility. There is the need to determine the consequential differences in order to determine the validity of the rules, but with caution to prevent the rules from becoming too specific, and therefore ridiculous, or in fact creating a slide-back to the act itself. In the given problem, it can be explained that the midwife disclosed information to the brother because the midwife thought that disclosing such information would create the greatest happiness for the greatest number – the infant, the patient, the patient’s brother and even the midwife’s happiness. (Dimond, 2005)
Deontological Theory. Deon is the Greek word for duty, and, as the term suggests, deontological theory considers duty to be the central issue, as opposed to teleological considerations of deontology, which consider that everything has been created by God to serve humankind. Deontologists believe that what is good in the world stems from people doing their duty. They consider duty first, regardless of the consequences, with the notion of happiness fitting in where, and if, it can. Perhaps this can be illustrated by considering the men who, despite personal risk to themselves and the knowledge that they may never return to their families, enlisted with the armed forces in the two World Wars. In the given situation, it can be explained that the midwife chose to disclose such information because she believe that what is good in the world stems from people doing their duty and she consider disclosing information to a relative as her duty first regardless of the consequences. (Dimond, 2005)
Nature of Legal Liability of Confidentiality. A person ought to keep a secret if he has said that he will do so. English courts have translated this simple moral precept into a form of civil legal , liability which is of considerable breadth. The development runs counter to the judges’ traditional reluctance to adopt broad propositions as ground rules for the imposition of liability, and they are now having to face some of the difficulties inherent in their unusual course. All sorts of information may be imparted or gathered in confidence but the degree of secrecy required may be partial or total. The fashioning of the law into more specific rules is accordingly difficult and may appear as imprecise as the subject-matter is ephemeral.
In contrast with many other legal systems, English law does not distinguish between types of information that may be protected against breach of confidence: technological secrets, such as chemical formulae and mechanical techniques, patient records, commercial records such as customer lists and sales figures, marketing, professional and managerial procedures, and equally information of political significance and about personal relationships, such as the Duchess of Argyll’s tales to the Duke of her earlier sentimental journeys – all have been treated as protectable. English law has proved unwilling to include a “right to privacy” among its pantheon of protectable values, fearing that so broad a concept would unduly prejudice competing interests in freedom of information and expression and in a free press.
Some of the potential territory is covered by a breach of confidence action, which extends to personal as well as economic subject-matter. But even so, its keystone is the undertaking to preserve confidence, which is either given directly by the defendant, or by someone from whom the defendant derives his information. Invasions of privacy which lie outside this limit remain open to civil or criminal redress only if some general tort, crime or other wrong has been committed. Confidence protection thus plays an important role in achieving a sensitive political balance.
In the United States, as in many Continental countries, in that branch of the subject which is concerned with trade secrets, the criminal law operates alongside the civil to provide sanctions against the most serious breaches of confidence and industrial spying. Under pressure from the Confederation of British Industry and others, the Law Commission has put out a Discussion Paper on the subject and there is some prospect that Britain may take an equivalent step. The concerns which the proposal evokes are also best reviewed after the scope and difficulties of civil liability in this sphere have been considered.
Historical and doctrinal origins. The jurisdiction to restrain breach of confidence has its roots in equity, partly because the remedy most often sought has been the injunction, and partly because the subject-matter occupies the same moral terrain as breach of trust. The scope of the modern law began to be settled around 1850 with Prince Albert v. Strange (literary material, at once royal and private, of on the borders of copyright) and Morison v. Moat (recipe for a medicine). In both cases, injunctions were granted against indirect recipients of the confidential information, and the jurisdiction was said, rather prodigally, to arise by virtue of property, agreement, confidence, trust and bailment. But it was left uncertain then (as it remains now) in what circumstances direct and indirect recipients of information would have liability imposed upon them.
In the period after the Judicature Acts, there were some attempts to confine the equitable wrong to cases in which the original disclosee agreed by contract, express or implied, to respect confidence, with the apparent consequence that an indirect recipient, not being privy to the contract, would be liable only if he deliberately or recklessly induced breach of that contract. Contract and tort would thus subsume the whole field between them. More recently, contract has ceased to be treated as the universal touchstone of liability (though its role in determining what obligations of confidence exist may still be crucial). Starting with Saltman v. Campbell, the courts have recognised a wider equitable jurisdiction, based, it is said, “not so much on property or on contract, but rather on good faith”, and this approach is now reasonably well entrenched among the judiciary.
As a justification for intervening, particularly at this intermediate stage of legal development, “good faith” has a certain forthrightness that is attractive. The issue is not hedged behind conceptual dogma which all too readily states legal results without properly considering their justification. But if the true measure is a simple moral yardstick, the courts have been tantalisingly vague in the matter of how it is calibrated. This casualness has excited; scientifically-minded jurists to a rash of disputation: in favour of working out the implications of “good faith” more exactly; in favour of a new tort of breach of confidence; in favour of “equitable property” as the true basis of protection.
It is thus material to determine the following matters: (1) the liability of those who in some sense act innocently; (2) the circumstances in which damages may awarded for breach; (3) the possibility of awarding damages for injury to feelings as distinct from economic loss; (4) the liability of indirect recipients; and (5) the effect of dealings that treat the information as property. The most pertinent question to ask about these sub-issues is whether the answers so far given justify basing the jurisdiction on “good faith”; or whether one of the other explanations, although enjoying little popularity with the judges at present, is in fact truer to the results which they wish to procure.
Requirements For Liability. Megarry J.’s listing of the requirements for an actionable breach of confidence makes a convenient starting-point for analysis: “First, the information itself . . . must ‘have the necessary quality of confidence about it.’ Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
(1) Subject-matter capable of protection
(a) Types of information. The breach of confidence action, as already stated, lies in respect of technical, commercial, personal and other information without distinction by subject. A general reservation has been expressed against covering “trivial tittle-tattle”; and it has recently been accepted that scandalous or immoral material may be disqualified from protection, just as it is not ‘accorded copyright.
(b) Information and observation. Typically, the subject of protection exists as information before the obligation of confidence is assumed. Some cases, however, have concerned events which the person bound by confidence has observed for himself. So far the courts have shown no inclination to treat the two cases differently; and indeed to do so would be highly artificial. The consequence, however, is to broaden the role of the confidence action in the field of privacy.
(c) Public knowledge. If information has been made freely and entirely public, either before it was given to the defendant in confidence, or else in the interval between that time and the trial of the action, then in many cases nothing protectable will remain, at least if the defendant’s breach of confidence is not the cause. The possibility of publication occurring after the court’s order goes to the scope of remedies and is discussed below). Where the revelation is by the defendant himself, he has been held to remain liable. However, this problem has yet to receive the full judicial analysis it deserves. It may well be that even in this situation no subject-matter then subsists which can subsequently be the subject of obligation. But there still remains the question of liability arising from the act of revelation, which is itself a breach. It will be seen later that relief may be granted against wrongful use quite independently of wrongful disclosure, and accordingly an injunction to prevent future use may be appropriate. In addition, any pecuniary relief by way of damages, account or constructive trust should bring in the continuing consequences of the unjustified revelation.
The issue is difficult when the relevation is in some sense only partial. If not all the relevant information has been made public, the rest (if it can adequately specified) remains capable of protection. If the information has been given to some of those interested but not to others, there may remain some “relative secrecy”; whether a Court will grant any form of relief in such cases seems to depend on the circumstances as a whole. In this context, the “springboard” metaphor has enjoyed a vogue: “A person who has obtained information in confidence is not allowed to use it as a springboard for activities detrimental to the person who made the confidential communication, and springboard it remains even when all the features have been published or can be ascertained by actual inspection by any member of the public.
The possessor of the confidential information still has a long start over any member of the public.” But this is not an invariable rule which takes no account of subsequent developments and other circumstances: the “springboard does not last for ever”. Among other factors that a Court is likely to take into account are the following: (1) How truly did the information become public? (2) How likely was it that the defendant would in any event have discovered the information without impropriety, had he not received it in confidence from the plaintiff? If it is in fact available in a third party’s patent specification, the issue ought to be whether the defendant would have been likely to search for and discover specification. (3) Did the plaintiff believe that he would be injured by release of the information, and that it was not yet in the public domain? According to Megarry J., if this belief was reasonable, the plaintiff ought to be entitled to protect it. This approach may commend itself to future courts for dealing with cases where information has already got into’ a limited number of hands. There is some danger, however, that this will unduly favour plaintiffs.
d) Public interests. Free speech and freedom for the media are not under English law directly guaranteed as fundamental legal rights. They exist as political freedoms because censorship and fiscal inhibitions on the press were not able to survive the emergence of democracy, and they remain circumscribed by such limits as the law of defamation, the Official Secrets Act and proscriptions upon contempt of court. Breach of confidence, now extended into the field of political and personal information, is the latest weapon in the armoury of those who wish to suppress items of embarrassing news. This development opens up a fundamental conflict of policies which the courts are still searching to resolve. It is well-settled that “there can be no confidence which can be relied on to restrain a disclosure of inquiry”, and in this context “inquity” probably covers criminal, tortuous and other legally wrongful conduct, at least if it is serious. Some judges, clearly, consider that, save where the information concerns “misdeeds of a serious nature and importance to the country”, they should intervene to preserve confidential obligations.
There is now a broader approach which treats “iniquity” as merely one instance of just cause for allowing confidence to be broken in the public interest. Lord Denning M.R., a principal proponent of this view, has, for instance, held that, where pop-stars have deliberately promoted a glamorous image of themselves, it is permissible to present the less savoury truth about their style of life to the public, even if confidence has to be broken in the process. This approach has much in common with the freedom of speech defence to invasions of privacy in the United States: that by putting himself forward as a public figure, a celebrity must be prepared to suffer the exposure of truths about his personal life. Other circumstances in which public interest may justify at least limited publication to an appropriate person to take action might include matters of public safety and the due administration of justice. Thus, in Lion Laboratories v. Evans, a newspaper came by knowledge that a breathalyser used by the police on suspected drunken drivers gave inaccurate readings.
It was held proper for the newspaper to publish this generally, because merely reporting the information to the police or the Home Office might have led to its suppression. However, it is not to be supposed that English Courts readily accept that there is a sufficient public interest, particularly to justify publication through the media, even if it is produced by a “whistleblower” from inside an organisation who is moved by moral outrage and who may well be jeopardising a career rather than seeking any payment in return. In every case, whether the basis is “iniquity” or some other ground, the court has to balance the competing interests. For instance, the Court of Appeal restrained a newspaper from publishing allegations about a leading jockey’s involvement in misleading the Jockey Club because the information had been obtained by private and unauthorised wire-tapping of a telephone conversation: the dissemination would be too wide, the breach confidence too serious. It is clear that Peter Wright could never have justified his “treacherous” breaches of confidence about his service in MI5 by a public interest in knowing that he and other officers attempted to prevent Harold Wilson’s re-election and other unscrupulous operations. Many cases to do with newsworthy information are founded in copyright as well as confidence. In England, the tendency has been to treat public interest as having the same impact in respect of either cause of action.
(2) Confidential obligation
(a) Confidence in the receipt of information. In the usual case, one person supplies information to another on condition that he will keep it secret. Equally the obligation to do so may arise where the first person employs, commissions, or even requests, the second person to acquire information and hold it in confidence for him. But—and here arises the whole case for founding the jurisdiction upon the requirements of “good faith”—whether recipient or acquirer, the second is bound only if he accepts that the information is to be treated confidentially. And yet this is tested objectively: “if the circumstances are such that any reasonable main standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.” Add to this that, once the obligation is assumed, it may be broken by conduct that is neither ill-motivated nor deliberate. It becomes apparent that a somewhat diffuse notion of “good faith” is being employed.
There is no need to search for an implied contract, if none has been reached expressly: matrimonial and other personal confidences may give rise to obligations; so equally when one party gives another information during negotiations towards a commercial agreement that is never reached; or in circumstances where statute negates the existence of all contract. On the other hand, it is unlikely that one person could oblige another to respect confidence by sending him unsolicited information in a letter marked “Confidential”. This is a practical problem of some importance: it is even said that one enterprise may try to foist confidential material on another in order to put difficulties in the way of the latter using it (or something similar), should it be discovered independently.” The recipient of an unsolicited confidence should, for his own protection, return the material at once, making it plain that he regards himself as being under no obligation. If he goes on to use the information he is likely, under the objective test, to be held bound. Of course, contracts continue to be of great importance.
The circumstances may be such that the reasonable man may freely use the information supplied to him in the absence of an express agreement to the contrary. Thus, where a news agency provided stock-exchange and horses’ racing results to its subscribers, it was able to prevent the information being passed on to non-subscribers precisely because the subscription contract E, forbade this being done. Equally, contract may prescribe the extent of the obligation. The purpose of a “know-how” licence is to permit the licensee to make use of the information provided for the purposes of his own business, but normally the agreement will limit the degree to which the “know-how” can be imparted to others, and use by the licensee after termination of the licence may also be circumscribed. Again, contract may settle that the plaintiff is not owed any duty of confidence, but instead owes such a duty himself to a third party; in which case he has no qualification to sue.
b) Fiduciary duties. The relationship between two persons may be such that equity imposes a duty upon one to act in the interests of the other rather than of himself. As with, contract, the proof of a fiduciary relationship may be the necessary foundation of an obligation of confidence. This fiduciary duty may, for instance, exist between trustee and beneficiary, agent and principal, individual partner and partnership, director and company, responsible employee and employer,” secret service agent and government.” The list of relationships is not closed; but there is a reluctance to find it in commercial relationships, for example from franchisor to franchisee, or licensee to licensor.Nor are the circumstances in which such fiduciaries are obliged to prefer the interests of their beneficiaries precisely defined. The moral impulse from which this fiduciary duty stems is very similar to that which requires confidence to be respected and often there is an overlap between the principles.
But the difference needs to be observed. In the first place, a fiduciary responsibility may be the source of the duty to preserve confidence: the employee who removes a confidential report from his’ mployer’s desk’ will break the confidence that already exists from his duty of fidelity; an outsider who did the same thing would commit a trespass, but he would not be in breach of confidence. gain, the fiduciary duty may be wider in scope than a simple obligation to observe confidence: the fiduciary my, for example, be expected to continue using information for his’ beneficiary’s advantage only, even after it has become public; equally he may be obliged to hold the profits of his breach on trust for his beneficiary. Equity’s intervention is to prevent the fiduciary from taking a personal advantage from the possible conflict of interest and duty.
In the given scenario, it very clear that the midwife violated the duty of confidentiality
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