Medical Confidentiality: Legal Considerations

CONTRIBUTED BY JOHNSON ABIOLA OLUGBADE

INTRODUCTION

The aspiration for good health and well-being, free from any illness or ailment is universally acknowledged. Nevertheless, individuals may succumb to illness either through natural causes or due to their negligence. In such circumstances, they typically turn to healthcare providers for treatment.

During the provision of medical services, patients are obligated to disclose all relevant information regarding their health and medical history to the healthcare provider. This information is shared under the premise of confidentiality and is generally expected to be safeguarded by medical personnel; a principle commonly referred to as “Medical Confidentiality.”

Several questions arise regarding medical confidentiality, including:

• Is the consent of the patient required before their information can be shared?
• Are there circumstances where such consent is not necessary?

This article explores these complex questions surrounding medical confidentiality and seeks to provide clarity on the matter.

Defining Patients and Healthcare Providers in the Medical Context
In legal terms, a patient is defined as any individual who is experiencing physical or mental illness and seeks the assistance of a healthcare provider. Conversely, a healthcare provider refers to any individual who delivers professional medical services to a patient with the primary objective of restoring the patient’s health to a state of normalcy.

It is noteworthy that healthcare providers encompass not only physicians and nurses but also various other medical specialists. These may include rescue and emergency specialists, technical specialists, social workers, hospital administrators, and others whose primary focus is the recovery and well-being of the patient. This comprehensive approach to healthcare, as described by Balint,^[1] is often referred to as “the drug doctor” approach.

Legal Framework and Parameters of Medical Confidentiality

Medical Confidentiality in the medical setting therefore refers to the principle of keeping secret and secure from others, information given by or about an individual in the process of getting medical services.

Just as it is peculiar of every other professional service to be rendered, the patient is expected to reveal to the doctor, the nurse or any other healthcare provider all information pertaining to his health which includes but is not limited to, any ailment he may have been diagnosed of, and the treatment he has taken so far if any.

Generally, the applicable law to this discourse includes but is not limited to:

1. The Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. The National Health Act 2014
3. The Medical and Dental Practitioners Act 2004
4. The Rules of Professional Conduct for Medical and Dental Practitioners etc.

At this point, it is worth considering whether all information is confidential, and what criteria are used to use to define confidential information.

In the legal precedent set by Coco v. A.N. Clark Engineers Ltd,^[2] Megarry, J^[3] delineated the fundamental components of confidential information as follows:

1. The information must be of a confidential nature and must be of a Personal Nature.
2. The information must be rendered in a situation implying or suggesting the existence of an obligation of confidence.
3. There must be the likelihood that the patient will suffer or is prone to suffering from the disclosure of the information.

When can there be said to be a breach of Medical Confidentiality?

By the authority in R V. Department of Health ex p. Source Information Ltd,^[4] the following are the requirements that must be present before there can be said to be a breach of medical confidentiality:

1. The information must possess the necessary quality of confidence,
2. The information must be given out in circumstances where there is an obligation of confidence
3. The information must be given to another person without the prior permission of the person from whom that information came from and the information must be at his detriment.
4. The information must not already be accessible in the public domain
5. Such information must also be protected in the interest of the public.

Where the aforementioned elements have been satisfied, it can be concluded that the information in question is confidential. In such cases, the patient may then enforce their right against the healthcare professional who disclosed the confidential information to seek redress.

Furthermore, it is noteworthy that, according to the authority in A G v. Guadian,^[5] the information between the Patient and the Medical Practitioner exists primarily based on public interest and hence, the medical practitioner can only reveal such information after prior consent has been given. Confidentiality is so pivotal that the Court in Lewis v. Secretary of State for Health^[6] stated that; “an obligation of confidence is capable of surviving the patient.” This implies that even if the person whose confidential information or report has been disclosed passes away, the legal action can still proceed because the offence is criminal.

The Constitution of the Federal Republic of Nigeria 1999 (as amended), which is the fons et origo of our laws, also guarantees the privacy of every citizen. Specifically, S.37^[7] provides that:

“The privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communication is hereby guaranteed and protected.”

A further cursory look at some specific laws regulating confidential information in the healthcare sector is imperative as these laws provide a framework through which a patient who feels that their rights in this regard have been breached can seek redress.

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Regulatory and Statutory Framework for Confidential Rights:

Nigeria being an independent country has a National Health Act 2014(NHA) which provides a legal framework for the regulation, development, and management of national health systems and sets standards for rendering health services in Nigeria and for related matters.

Under the Act, section 26(1) clearly states what confidentiality is with respect to patients and states that:

1. All information concerning a user, including information relating to his or her status, treatment or stay in a health establishment is confidential.

Furthermore, section 27 of the National Health Act, of 2014 went further to itemize the conditions that must be fulfilled before any information can be disclosed, which states;

Subject to section 27 of the Act, no person may disclose any information contemplated in subsection (1) unless-

1. The user consents to that disclosure in writing
2. A court order or any law requires that disclosure or
3. In the case of a minor with the request of a parent or guardian or
4. In the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative.
5. Non-disclosure of the information represents a serious threat to public health.

As noted above, it is expected by virtue of the aforementioned Act that the information of the patient should be kept secret and confidential at all times. Such information can only be revealed with the consent of the patient first sought and obtained. Where the patient is a lunatic for instance, then the consent of the parent, guardian or representative must be sought and obtained before such information can go out to the public and generally, where the health care professional fails to adhere strictly to this, he will be liable to the patient.

In the same light, where the patient is a child, then the consent of the parent, guardian or even the state must first had and obtained before such information can be in the public domain.

A child is defined in the Child’s Rights Act (2023) as ‘every human being below the age of 18’ and to determine whether or not a person is a child, then recourse can be made to his birth certificate, medical examination etc.

Exception To Medical Confidentiality

Section. 27,^[8] provides that:

“a health worker or any health care provider that has access to the health records of a user may disclose such personal information to any other person, health care provider or health establishment as is necessary for any legitimate purpose within the ordinary course and scope of his or her duties where such access or disclosure is in the interest of the user”.

Firstly, where there are compelling reasons which are in favour of the patient, the healthcare provider can be permitted by law to reveal confidential information.

The very important point to note from the above is that a healthcare provider may reveal confidential information without the consent of the patient.

However, it must be on the strength and belief that revealing such information will be in the interest of the patient such that non-disclosure of the information may even be to the detriment of the patient.

Secondly, where the Court has ordered that the information be revealed.

Where a competent Court of Justice orders that confidential information about the patient be revealed, then there will be no need for the consent of the Patient to be sought and obtained.

Rule 44^[9] also states that,

“The profession takes very seriously the ethic of professional secrecy whereby any information about the patient that comes to the knowledge of the practitioner in the course of the patient-doctor relationship constitutes a secret and privileged information which must in no way be divulged by him to a third party.”

Penalties for Revealing Privilege Information:

Where a health care provider fails to seek and obtain the consent of the patient before revealing the confidential information or records and the circumstances are such that it cannot be reasonably and honestly said that it was done in the interest of the patient, then such a health care provider will be liable. Specifically, by virtue of s.29 (2):^[10]

‘’…Such a health care provider will be liable on conviction to imprisonment for a period not exceeding two years or to a fine of #250,000 or both’’.

Procedures for Laying Complaints:

The procedures for laying complaints have been provided for in the National Health Act 2014. Hence, where a patient feels he or she has been wronged, then he can follow the laid down procedures to seek redress.

Specifically, s.30 (footnote- Child’s Right Act) in respect of the procedures to be followed provides as follows:

1. A person may lay a complaint about the manner in which he or she was treated at a health establishment and have the complaint investigated.
2. The Minister, Commissioner or any other appropriate authority shall establish a procedure for the laying of complaints within the areas of the national health system for which the Federal or State Ministry is responsible.
3. The procedure for laying complaints shall:
4. Be displayed by all health establishments in a manner that is visible to any person entering the establishment and the procedure shall be communicated to users on a regular basis.
5. In the case of a private health establishment, allow for the lodging of the complaints with the head of the respective establishment.
6. Include provision for the acceptance and acknowledgement of every complaint directed to a health establishment, whether or not it falls within the jurisdiction or authority of that establishment and,
7. Allow for the referral of any complaint that is not within the jurisdiction or authority of that establishment and,
8. In laying a complaint, a person shall follow the procedure established by the Minister or Commissioner as the case may be.

Conclusion

It is safe to say at this point that, the right of the patient to privacy is constitutionally and statutorily provided for and such right can only be waived where the patient himself or through his parent or guardian as the case may be gives prior consent. Where such consent is given, then the patient cannot then complain of a breach of confidentiality because volenti non fit injuria which means that a person who knowingly and voluntarily risks danger cannot recover any damages thereof.

The Court of Appeal has affirmed the right to privacy of information in the case of Digital Rights Lawyers Initiative (DRLI) v. National Identity Management Commission (NIMC)^[11] wherein the court affirmed that data privacy (which of course includes medical information) is a constitutional right.

1. Balint M., The Doctor, his Patient and the Illness (Churchill Livingstone 1957 reprinted 1986) quoted in Meza J.p & Fahoome G.F “The Development of an Instrument of Measuring Healings” (2008) 6 Ann Fam med. Journal 355 ↑
2. [1968] F.S.R. 415 ↑
3. Justice of the High Court, Chancery Division UK ↑
4. (2000) 1 All ER 786 (CA) ↑
5. 1988 3 All ER 545 ↑
6. (2000)1 All ER 786 (CA) ↑
7. CFRN 1999(as amended) ↑
8. Ibid ↑
9. Ibid

   of Medical Ethics for Medical Practitioners ↑

10. National Health Act 2014 ↑
11. (2021) LPELR-55623(CA) ↑