PRIVACY AND CONFIDENTIALITY. AN OVERVIEW. Campbell v MGN Ltd,  UKHL 22 . “There is no overarching, all-embracing cause of action for “invasion of privacy” Lord Nicholls Several ways in which tort may protect privacy but no separate overarching tort. Tort and privacy.
“There is no overarching, all-embracing
cause of action for “invasion of privacy”
Several ways in which tort may protect privacy but no separate overarching tort.
Has a respectable history since 1865
"It has always been accepted that information about a person's health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor-patient relationship, but from the nature of the information itself."
Penny Campbell died aged 41 in 2005 of septicaemia.
Consulted eight out of hours doctors over bank holiday
Six consultations over telephone, two face to face
Diagnosis ranged from food poisoning to flu
The Coroner said although crucial medical information on Ms Campbell's case was missing and it "was not always readily available to the last doctor in the chain", there has not been a gross lack of medical attention.
Coroner Doctor Andrew Reid said:
“Patients have a right to expect that you will not disclose any personal information which you learn during the course of your professional duties, unless they give permission. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care”.
GMC “Duties of a Doctor”
“I will respect the secrets which are confided in me, even after the patient has died”
Declaration of Geneva, as amended Sydney 1968
Data Protection Act 1998
Prince Albert v Strange (1849)
Hunter v Mann 1974
“The doctor is under a duty not to disclose, without the consent of the patient, information which he, the doctor, has gained in his professional capacity.”
- Common law
- Data Protection legislation
- Human Rights Act and ECHR
“Any state measures compelling communication or disclosure of such information without the consent of the patient call for the most careful scrutiny”
"What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information." Lord Hoffmann
“The Data Protection Act presents a number of significant challenges to data controllers in the health section….It is clear that many practitioners are confused between the requirements of the Data Protection Act and the various regulatory and representative bodies within the section”.
“To some extent the advice issued may reflect misunderstandings of the requirements of the Act. It is a common misconception, for instance, that the Act always requires consent of data subjects to the processing of their data”
Positive obligation on States to ensure that the privacy of individuals can be protected from interference by other private individuals, including the media.
‘the courts will not invent a new cause of action to cover types of activity which were not previously covered’. (Baroness Hale)
Courts are required to balance the potentially conflicting Article 8 rights (the right to privacy and family life) with Article 10 rights (the right to freedom of expression.
Campbell v MGN Lord Hope:
‘a duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected’.
Cross-over with the law of confidentiality?