Discuss about the Medical Confidentiality for Laws and Ethics.
The word confidentiality means defined limitation or restriction to access, communicate and disclose certain sensitive information under the guidance of laws and ethics. This confidentiality is highly dependent on laws that lead to formation of rules for confidentiality maintenance in any field. In terms of medical scenario, the relationship of communicating information between doctors and patients is managed by rules and regulations of medical confidentiality designed using legal norms. This legal formation and protection of confidentiality help to maintain a balance in the flow of information at the time of physician-patient discussion, treatment and communication processes .
The duty of confidentiality management and maintenance is considered as a non-negotiable principle of medical practices from viewpoint of practitioners, lawmakers, patients and other authorities, however, still, there are situations, norms, conditions and factors that challenge confidentiality leading to the development of complexity. One such issue of factors highlighted in the reading of Loughrey is vulnerability occurring towards the children’s rights of confidentiality compared to adult’s confidentiality in the medical scenario. The Loughrey’s statement “It seems….that competent children’s right to confidentiality is more vulnerable than that of competent adults” is been critically analysed in this study to understand this complexity of confidentiality. This statement indicates that children confidentiality is in medical scenario highly exploited when compared to adult confidentiality. Therefore, the learner in this study tries to deeply analyse and justify the rationale and veracity of this statement by Loughrey.
Medical Confidentiality and General Principles
In the medical scenario, confidentiality is the patient’s right and has to be respected in all possible manners by the professionals who are guided to maintain confidentiality. This is considered to be a very important part of trust bond between the professionals (doctors and nurses) and the patient. It is the legal and ethical duty of medical professional to maintain confidentiality and the failure to perform so can only be justified by the beneficence and non-maleficence ethics of medical practice. Therefore, professionals need to keep all the information related to the patient confidential and they could only reveal information about the involvement of patient consent.
In various literature studies performed by, confidentiality is a right of patient that should be respected by the entire medical team. The patient consent and willingness to share information is the most important and exploited part of confidentiality. According to the patient is required to be competent as per certain criteria to ensure his or her capability of providing consent. The patient needs to have a general understanding about their confidentiality decision, knowledge about the consequences of their decision, retain decision-related information and also be able to communicate their decision. These are competency criteria that make patient capable enough to provide consent and make decisions related to their confidential information. In contrast, various factors like age, mental status, intelligence, knowledge, awareness etc. affects this decision-making competency of patients that complexes the confidentiality processes in the medical scenario.
 Williams studied the zone of information considered to be confidential that involves medical records, personal details (name, age, address, sexuality, marital status etc.), health conditions, illnesses, appointment records, on-going treatments, audio/visual recordings, fact of a person being your patient. The legal and ethical mechanism principles of confidentiality involve Common Law, Statute law (Data Protection Act 1998), Rights and Regulatory bodies (roles, responsibilities, employment contract). Any kind of act to disclosure to confidential information persist a risk of legal action by the patient or the investigating body.
Professionals to address the confidentiality service in medical scenario follow the Confidentiality Model that is based on four steps that are Protect, Inform, Provide Choice and Improve. The principle of protect allows practitioner take care of information, inform ensure patient awareness about the use of information, provide choice helps in patient decision making process and improve involves choice of better options to maintain confidentiality.
Patient Rights and Vulnerability
The three most basic rights of patients or individuals regarding their confidentiality involve understanding about the use of their information and purpose of their information being processed, access to all information and getting their information corrected if inaccurate. These rights help the patient and professionals to maintain a balance of information flow until and unless affected by certain vulnerability factors.
In previous times, children and minors were not considered fit for making decisions related to healthcare and were considered incompetent due to age factor. The parents own authority to make decisions related to healthcare, however, in contemporary times this viewpoint is modified and the law considered children’s voice a major part of their treatment process considering maturity and competency as the potential of children as well. There are rights and laws that provide them with the authority to take a medical decision as per their will power. The competency power of minor or children is determined as per their age, experience, judgement skills, maturity level, separation from parent’s status, the demeanour of minor and their situation complexity.
studied that in normal situations parents have the right to make healthcare decisions including confidentiality for minors or children except the emancipated and mature children having the competency to take their own decision. However, except the life-threatening situations and treatments are considered out of their control. As per law, confidentiality decision is the right of pregnant minor, married minor, armed service minor, minor living independently and victim of sexual abuse or assault. However, confidentiality of minor’s or children is highly exploited compared to adults in the healthcare system. indicated that all the medical information of individual is protected as per state and federal regulations but the confusing state of children self-determination creates a challenge in confidentiality formation. Some of the states and regions collaborate the ability of medical decisions making with the ability of consent and confidentiality of minors, however, there are some states that exploit the confidentiality right of minor by allowing disclosure of information against the will of children. Therefore, there is no stability available for the children’s right to confidentiality.
Issues in Protecting and Maintaining Confidentiality of Children
As per Loughrey statement, it is true that children’s right f confidentiality is exploited or vulnerable compared to adults confidentiality right. This vulnerability occurs due to various complex issues that harness the protection and maintenance of children’s consent and right of confidentiality. The very first issue is the potential conflict between the autonomy of competent children rights of confidentiality and beneficence of professionals. There are studies that report cases where medical professionals are not able to recognise the line between children’s rights to confidentiality and their law of duty. The professional guidelines provide the practitioner with the guidelines to maintain and respect children’s right to confidentiality, however, the dilemma occurs when parents are willing to get involved in this decision-making process and opposing their children’s decision. In some cases, this is for children’s benefit and in some professional can suspect child abuse. Therefore, this situation creates exploitation of children confidentiality rights.
Another issue exploiting the children’s right of confidentiality is their parent’s access and right to get medical information of their kids which can’t be denied by professionals. The children competency is considered as secondary factor in this scenario because if professionals want they can share the medical information with the parents of children leading to vulnerability of children’s confidentiality. Further, studied that in more than 70% cases professionals generally, don’t take risk of hiding children’s medical information irrespective of their right to confidentiality. In maximum cases, this is done to provide best possible treatment irrespective of children’s will or desire.
The no legal consideration and regulations provided by English law regarding the patient-practitioner confidentiality relationship also leads to the vulnerability of children’s confidentiality. However, Common law determines the concept of confidential relationship where confidence duty is established once any confidential information is shared between patient and professional. But, this concept does not involve any legal consideration leading to confidentiality breaching issues. There are situations where professional need to share children medical information with other professionals or authorities like managers, counsellors etc. leading to exploitation of children’s confidentiality. However, the occurrence of this situation is very low in adult confidentiality because the legal considerations of adult confidentiality are clearly described and explained to professionals .
As per European Convention on Human Rights, Article -8 every individual including children and adults have right to confidentiality under a level of maturity. This maturity involves a person’s ability to express the view or communicate or take medical decisions. But, the confidentiality becomes a difficult phenomenon in case of harnessed maturity due to the occurrence of mental health issues. Generally, children in growing stage of life develop certain mental health issues like depression, learning disability etc. that remain unrecognised at this small age. But the medical professionals catch up these mental health issues as soon as they communicate with these children and to safeguard their duty of care for children, the exploitation of confidentiality has to occur. However, in case of adults this situation is rare because generally the mental health status or issues of adults are detected till that age.
studied that Health Insurance Portability and Accountability Act (HIPAA, 1996) consider parents as “personal representative” of their children allowing them right to access the minor information and records leading to the vulnerability of child’s privacy rights. However, HIPAA provides rules for parents regarding the access to children’s medical information but still this confirms the vulnerability of children’s right to confidentiality within lawful standards. In contrast, there is no such rule for adult confidentiality rights where adults own complete power to maintain their confidentiality. These are certain most common issues that affect the children’s right of confidentiality in the medical scenario.
Legal and Ethical Dilemmas in Children Confidentiality
There are various ethical and legal dilemmas that occur in maintaining children’s confidentiality due to the conflict between different laws and ethics. The professional duty of care is a major legal restriction that leads to the vulnerability of children’s confidentiality right. This duty of care is completely supported by beneficence and non-maleficence ethics to govern medical services. In contrast, this beneficence and non-maleficence affect the patient’s autonomy and right to treatment. This ethical dilemma is rare in case of adult confidentiality because adult patient’s autonomy is considered above beneficence and non-maleficence ethics except in the life-threatening situations.
The religious and philosophical rights of parents also exploit the confidentiality of competent adults and the medical professional needs to address these religious and philosophical rights of parents as a part of their professional standards. In the case of confidentiality relationship with a minor patient the professional needs to disclose information for the religious and philosophical interest of patient as per professional code of practice where it is mandatory to respect the cultural beliefs of patients and their families. However, this is not applicable for life-threatening treatment process .
Further, indicated that as per legal perspective and ground rules of confidentiality, the parents are considered to have legal authority regarding the minor treatment process that hinders the confidentiality rights of a minor. In the viewpoint of the practitioner as well as parents it is the legal right of parents to refer the medical information about children. There is no specific legal and ethical framework that can work to control the effect of this legal authority exploiting the confidentiality rights of children.
Another legal restriction that lead to children confidentiality vulnerability is The Freedom of Information Act 2000/2012 where professionals need to share information for proper management in healthcare scenario. However, information sharing process also affects the confidentiality of adults in an equal manner but it causes exploitation of children’s confidentiality in cases such as minor pregnancy, rape, sexual abuse, sexually transmitted disease or HIV. For example- The information sharing related to abortion od a married or adult women would not cause any personal or mental harassment to that patient but a minor involved in the similar situation would become a victim of harassment if their information is shared in the medical scenario. However, there are legal frameworks like Children and Young People Bill (Scotland), National Child Protection Guidance 2010 etc. that protect minors from information sharing vulnerability but still it cause negative effect when compared to confidentiality of adults in medical scenario .
Confidentiality is derived from case law being a legal obligation within professional codes of conduct. The Case law or Common law or judge-made law is basically based on precedent or previous cases describe confidentiality as the client or patient information held on computer, paper, audio or visual record and memory of professional can never be disclosed irrespective of patient consent or clinically applicable circumstances. Therefore, professional needs to provide a solid justification regarding any act of disclosure made by them. This solid justification needs to overrule the individual’s right of confidentiality. However, case law provides an equal right of confidentiality to children and adults in clinical circumstances but still vulnerability of children’s right to confidentiality is high compared to adult’s confidentiality due to the existence of other legal obligations that overrule the case law for children confidentiality. The Ethical standards and State laws make the children confidentiality right a flexible one where it is ethically correct to disclose children medical information and exploit their autonomy for providing best treatment irrespective of the patient consent .
There are certain state laws and regulations that hinder the pathway of case law functionality especially in regards with children confidentiality. This could be explained with example – There are states who provide authority to professionals to make the decision for informing the parents of children involves in substance abuse or alcoholism irrespective of patients consent and make decisions that are best for treatment interest of a particular child. In contrast, some states do not allow disclosure of such information without the patient consent. Therefore, the functionality of case law is disrupted as per the state law present in particular region.
Another legal consideration that leads to the vulnerability of children confidentiality rights is “Gillick competence” that persist origination in England Medical Law. As per this Gillick competence provides an opportunity to decide wheather 16 years or younger child is competent enough to provide consent and make medical decisions. This Gillick competence clashes with the Fraser Guidelines creating vulnerability and confusion regarding the competency of minors involved in the consent process for treatment. The Fraser Guidelines favour permission for minor consent only for issues related to contraception, pregnancy and unprotected sex. However, Gillick competence favours the determination of minor competency by professionals in all health related matter. Hence, this confusion is another reason leading to vulnerability of minor confidentiality rights in healthcare scenario .
The clinical practices and professional guidelines also lead to the vulnerability of minor’s confidentiality rights. There are factors, situations and circumstances creating vulnerability hindering the minor confidentiality pathway. The very first duty of professional is to “Structure the therapeutic relationship” and to establish this relationship there is sharing of information between patients and professional that is confidential in some cases. However, there are situations where therapist or professionals need to disclose such information for the best interest of the patient leading to exploitation of minor confidentiality as well as the breach in a therapeutic relationship also breaking the trust of the patient.
Another professional standard is to maintain “Confidentiality and Privacy” that conflicts with standard of “disclosing confidential information to provide professional services” in regards with minor treatment also leads to vulnerability of minor confidentiality as well as privacy in healthcare scenario. This standard conflict creates major vulnerability in confidentiality of adolescence involved in immature pregnancy, abortion, and sexual abuse, HIV etc. 
Further, studied that professional standards meant to provide confidentiality actually, creates confusion and vulnerability to the minor confidentiality. Some of the most controversial standards involve sharing information with the healthcare team, providing a duty of care, disclosure to protect patient or others, research purposes and other secondary utilisation of information. However, the terms and conditions related to each standard is properly defined but still it creates more vulnerability to the competent minor’s right of confidentiality compared to adult confidentiality in healthcare scenario under various circumstances.
Laws, regulations, ethical guidance, clinical judgement and agency policies directly challenge the confidentiality right in minors creating conflict and dilemma. There is still much more need to refine the confidentiality case law with respect to these legal, state and ethical considerations for providing confidentiality. The medical professional considers themselves on horns facing such controversial situation in everyday practice because the scenario of minor confidentiality still remains disorderly managed in medical practice. However, this situation or vulnerability is not confronted in adult confidentiality because there are certain other rights, medical directorate, consent rights, psychological and cognitive development factors that consider adult patient perfect enough to make their medical decision without arose of the dilemma. Thus, as per Loughrey’s statement “It seems….that competent children’s right to confidentiality is more vulnerable than that of competent adults” .
From the study on critical analysis the mentioned Loughrey statement it is true that competent children right of confidentiality are exploited in the healthcare system when compared to adult confidentiality rights and conditions. There are various positive and negative factors, situations, circumstances as well as law and ethics that favour this vulnerability either for the benefit of minor patients, clinical judgement or professional practice. The most critical factor leading to vulnerability is the authority and right of parents to get information about their children’s treatment that works against the confidentiality will of children. Further, legal and ethical dilemma or clashes also lead to this vulnerability that is not so common in adult confidentiality.
It is also been denoted in this study that there is lacking formula or process to determine abilities and decision-making capabilities of children in healthcare standards. There is some law that favour minor participation in the decision-making process related to medical information but still the conflict occurs because of drought on minor competency. However, fortunately, these issues and conditions are rare creating vulnerability but if they occur the professionals involved have to bear the responsibility of outcomes. Therefore, professionals and administration placed in the centre of conflict must be aware of the minor interest, parent’s interest and the state to avoid the vulnerability of minor confidentiality rights.
Barr J and Dowding L, Leadership In Health Care (SAGE 2012)
Biggs H, Healthcare Research Ethics And Law (Routledge-Cavendish 2010)
Brann M, 'Health Care Providers' Confidentiality Practices And Perceptions: Expanding A Typology Of Confidentiality Breaches In Health Care Communication' (2007) 8 Qualitative Research Reports in Communication
Confidentiality In Adolescent Health Care' (2010) 14 Nursing for Women's Health.
Cox C and Hill M, Professional Issues In Primary Care Nursing (Blackwell Pub 2010)
Davidson G, 'The Ethics Of Confidentiality: Introduction' (2015) 30 Australian Psychologist
Gilbert A, Rickert V and Aalsma M, 'Clinical Conversations About Health: The Impact Of Confidentiality In Preventive Adolescent Care' (2014) 55 Journal of Adolescent Health
Gill M and Jordan P, 'UK Conference Report: Confidentiality And Collaboration—The Ethics Of Information Sharing In Health And Social Care' (2012) 6 Ethics and Social Welfare
Gustafsson S and others, 'Self-Care For Minor Illness' (2014) 16 Primary Health Care Research & Development
Harris A, 'The Ethics And Confidentiality Committee And Research Ethics Committees' (2010) 6 Research Ethics
Hastings A, Redsell S and Stephenson T, Listening To Children And Young People In Health Care Consultations (Radcliffe Publishing 2010)
Helgesson G, 'Informants A Potential Threat To Confidentiality In Small Studies' (2014) 18 Medicine, Health Care and Philosophy
Jackson M, Burns K and Richter M, 'Confidentiality And Treatment Decisions Of Minor Clients: A Health Professional’S Dilemma & Policy Makers Challenge' (2014) 3 SpringerPlus
Jaruseviciene L, Zaborskis A and Lazarus J, 'Public Expectations Concerning Confidentiality Protection Of Adolescents’ Sexual And Reproductive Health Care In Lithuania: Findings Of The Surveys Conducted In 2005 And 2012' (2014) 19 The European Journal of Contraception & Reproductive Health Care
Joly Y and Knoppers B, Routledge Handbook Of Medical Law And Ethics (Taylor and Francis 2014)
Liégeois A and Eneman M, 'Conditional Shared Confidentiality In Mental Health Care' (2014) 18 Medicine, Health Care and Philosophy
Loughrey, J, ‘Can you keep a secret? Children, human rights, and the law of medical confidentiality’  CFLQ 312
Lowrance W, Privacy, Confidentiality, And Health Research (Cambridge University Press 2012)
Magnusson R, 'Privacy, Confidentiality And HIV/AIDS Health Care' (2010) 18 Australian Journal of Public Health
McGowan C, 'Patients' Confidentiality' (2012) 32 Critical Care Nurse
Ryan C, Callaghan S and Large M, 'Communication, Confidentiality And Consent In Mental Health Care' (2014) 200 The Medical Journal of Australia
Sanders C, 'Discussing The Limits Of Confidentiality: The Impact Of Criminalizing HIV Nondisclosure On Public Health Nurses' Counseling Practices' (2014) 7 Public Health Ethics
Stirrat G, 'Teaching And Learning Medical Ethics And Law In UK Medical Schools' (2010) 5 Clinical Ethics
Van Liew J, 'Balancing Confidentiality And Collaboration Within Multidisciplinary Health Care Teams' (2012) 19 Journal of Clinical Psychology in Medical Settings