Anaya Nolan
The common law duty of confidentiality is a legal obligation that protects confidential information shared between two parties. It is based on case law and judicial precedent rather than statutory law, and it applies regardless of age or mental capacity. This means that when someone shares personal information in confidence, it cannot be disclosed or used without legal authority, valid justification, or the consent of the disclosing party. The duty of confidentiality is particularly important in professions like law and healthcare, where sensitive information is handled, and breaches can result in legal action. The specific circumstances under which confidential information can be disclosed vary and may include public interest, statutory requirements, or safeguarding concerns.
| Characteristics | Values |
|---|---|
| Definition | The common law duty of confidentiality is a broad principle of law that a person who receives information from another party in confidence cannot take advantage of it. |
| Basis | Common law is not written out in one document like an Act of Parliament. It is a form of law based on previous court cases decided by judges. |
| Applicability | It is irrelevant whether the individual is old or has mental health issues or indeed lacks capacity: the duty still applies. |
| Conditions | There must be an unauthorised use of that information to the detriment of the party communicating it. |
| Legal action | If a disclosure is made which is not permitted under common law, the patient/client could possibly bring a legal action not only against the organisation but also against the individual responsible for the breach. |
| Exceptions | Disclosure of confidential information is lawful in certain circumstances, such as when the individual has consented, when it is necessary to safeguard the individual or others, or when it is in the public interest. |
| Protection | The common law duty of confidence might provide useful protection in the absence of a confidentiality or non-disclosure agreement. |
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What You'll Learn
Common law duty of confidentiality in the healthcare sector
Confidentiality is important in encouraging people to come forward with their issues and concerns. The common law duty of confidentiality, therefore, plays a significant role in the healthcare sector.
The common law duty of confidentiality means that when someone shares confidential or personal information in confidence, it must not be disclosed without some form of legal authority or justification. This means that all patient/client information, whether held on paper, digitally, audio-recorded, or visually recorded, or held in the memory of the professional, must not be disclosed without the consent of the patient/client. The duty to maintain confidentiality applies to all persons involved in the records management function, and employees should only have access to those parts of the record required to carry out their role.
There are, however, exceptions to this rule. The duty of confidentiality can be overridden if the patient or client is at risk of harm or poses a risk to someone else. In such cases, the duty of care may be overridden to protect the best interests of the patient/client or the interests of the public. For instance, if a girl has been a victim of Female Genital Mutilation (FGM), this is a criminal offence, and the appropriate authorities need to be informed. Similarly, if there is a serious safeguarding concern, then the information must be shared to keep people safe.
In addition to the above, there are three circumstances in which disclosure of confidential information is considered lawful:
- Where the individual to whom the information relates has consented
- Where disclosure is necessary to safeguard the individual, or others, or is in the public interest
- Where there is a statutory basis or legal duty to disclose
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Common law duty of confidentiality in the legal profession
The common law duty of confidentiality is a broad principle of law that a person who receives information from another party in confidence cannot take advantage of it. That person must not make use of it to the prejudice of the person who gave the information without obtaining their consent. The common law duty of confidentiality is complex and evolves as case law evolves.
In the context of the legal profession, the duty of confidentiality is an ethical obligation that lawyers owe to their clients, both during and after the lawyer-client relationship. This duty means that lawyers must not disclose information about their client's representation without their consent. The lawyer-client relationship has historically been characterised as one of confidence, and this duty forms part of the broader foundation for a lawyer's fiduciary duties to their clients.
The maintenance of full and frank disclosure between lawyers and their clients is the main justification for the duty of confidentiality. This allows clients to freely discuss intimate details without fear that the information could be subsequently disclosed to the general public. Confidentiality is also a prerequisite for legal professional privilege to hold.
There are, however, exceptions to this duty. For example, when the client gives informed consent, when the information is in the impliedly authorised category according to professional conduct rules, or when the information is "generally known". The "generally known" exception applies to the use but not the disclosure of former-client information. Information may be considered generally known if it is widely recognised by the public or within the former client's industry, profession, or trade.
In some jurisdictions, the duty of confidentiality is codified in legal professional rules, such as the Model Code of Professional Responsibility. The duty arises from a combination of contract law and equity due to the distinctive relationship between the lawyer and the client.
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Common law duty of confidentiality in business
The common law duty of confidentiality is a broad principle of law that applies to a wide range of situations, including business. It is based on the idea that when someone shares personal or confidential information with another party in confidence, that information must not be disclosed without some form of legal authority, valid justification, or the consent of the disclosing party. This is particularly important in business, where sensitive information is often shared during negotiations, collaborations, or employment relationships.
In the context of business, the common law duty of confidentiality can apply to relationships between employers and employees, businesses and their clients or customers, and even between businesses themselves during commercial transactions. For example, an employer may be expected to keep an employee's personal information confidential, and a business may be expected to keep a client's sensitive financial information private.
The duty of confidentiality in business is not absolute and there may be circumstances where it can be breached. For instance, if there is a court order or a statutory basis requiring disclosure, or if disclosure is necessary to safeguard an individual or the public interest. Additionally, in the absence of a confidentiality agreement or non-disclosure agreement (NDA), the common law duty of confidence may provide protection for commercially sensitive materials and information that is not protected by intellectual property rights.
To establish a breach of the common law duty of confidentiality, three elements must be present: the information must have the necessary quality of confidence, there must be an unauthorized use or disclosure of that information, and this use or disclosure must be to the detriment of the party communicating the information. It is important to note that the definition of ""necessary quality of confidence" can vary depending on the specific circumstances of each case.
Overall, the common law duty of confidentiality in business helps to promote trust and protect sensitive information. Businesses should be aware of their legal obligations regarding confidentiality and ensure that they have the necessary procedures in place to maintain the privacy of their employees, clients, and business partners.
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Common law duty of confidentiality in research
The common law duty of confidentiality is a broad principle of law that a person who receives information from another party in confidence cannot take advantage of it. It is a key principle that underpins trust in many professional and personal relationships. It serves as a crucial element in maintaining discretion and privacy across various sectors. The duty of confidentiality protects individuals and entities from having their confidential matters revealed to unauthorised parties.
In the context of research, the common law duty of confidentiality is particularly relevant in the healthcare sector. Healthcare organisations must have clear policies and procedures in place for handling patient information to ensure compliance with the common law duty of confidentiality. This includes addressing issues such as data security, access controls, and the disclosure of information to third parties. For example, the NHS has guidelines in place for the use of confidential patient information for research purposes under Section 251 of the NHS Act 2006.
In some cases, it may be necessary to obtain explicit consent from patients to share their information for research purposes. However, there are also exceptions where obtaining consent is not practicable, and the public interest outweighs the need for individual consent. In such cases, approval from a research ethics committee may be required.
The common law duty of confidentiality also extends to other sectors, such as banking and legal services. For instance, banks have a duty to maintain the secrecy of their customers' account information, with certain exceptions prescribed by law. Similarly, attorneys and solicitors have a legal and ethical obligation to maintain confidentiality with their clients, known as client-attorney privilege.
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Common law duty of confidentiality in statutory provision
Common law, or case law, is derived from decisions made in court cases, which are then used as precedents for future cases. It is distinct from statutory law, which is determined by acts of parliament. Common law is used to fill gaps in statutory provisions or to interpret what a statute might mean in specific contexts.
The common law duty of confidentiality is a complex principle that applies to various fields, including healthcare and legal practice. It essentially means that when someone shares personal information in confidence, it must not be disclosed without legal authority or justification. This usually means that the information cannot be shared without the explicit consent of the individual unless there is another valid legal basis.
In the context of healthcare, common law duty of confidentiality protects patient information. Before receiving confidential patient information, healthcare providers must ensure they meet specific legal bases. Consent may be implicit or explicit. Implicit consent is relevant when an individual is part of a direct care team, and there is a reasonable expectation of their confidential information being accessed. Explicit consent, on the other hand, is required when a patient agrees to share their information for research purposes.
Other legal bases for disclosing confidential patient information include a statutory basis or legal duty, such as a court order. Additionally, in rare circumstances, overwhelming public interest may justify disclosure, but this is exceptional and typically does not apply to large volumes of information.
In the legal profession, the duty of confidentiality is crucial. Solicitors and attorneys are obligated to respect the confidentiality of their clients' affairs. This duty is derived from contract law and equity, arising from the unique lawyer-client relationship. Confidentiality ensures that clients can discuss sensitive matters without fear of subsequent disclosure to the public.
While there is no specific statutory provision for the duty of confidentiality, statutory abrogation of this duty exists in limited circumstances. For example, lawyers must comply with parliamentary requirements that necessitate breaching confidentiality, as in the case of Parry-Jones v Law Society, where Lord Denning stated that solicitors must "comply with the rules made under the authority of statute for the conduct of the profession." However, such requirements are not blanket decrees for revealing confidential information but are instead based on upholding the public interest, where it overrides client interests in maintaining confidentiality.
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