Confidentiality
Encyclopedia
Confidentiality is an ethical principle associated with several professions (e.g., medicine, law). In ethics
, and (in some places) in law
and alternative forms of legal resolution such as mediation
, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to third parties.
Confidentiality of information, enforced in an adaptation of the military's classic "need to know
" principle, forms the cornerstone of information security in today's corporations. The so called 'confidentiality bubble' restricts information flows, with both positive and negative consequences.
Legal confidentiality
Lawyer
s are often required by law to keep confidential anything pertaining to the representation of a client. The duty of confidentiality is much broader than the attorney-client evidentiary privilege, which only covers communications between the attorney and the client.
Both the privilege and the duty serve the purpose of encouraging clients to speak frankly about their cases. This way, lawyers will be able to carry out their duty to provide clients with zealous representation. Otherwise, the opposing side may be able to surprise the lawyer in court with something which he did not know about his client, which may weaken the client's position. Also, a distrustful client might hide a relevant fact which he thinks is incriminating, but which a skilled lawyer could turn to the client's advantage (for example, by raising affirmative defense
s like self-defense).
However, most jurisdictions have exceptions for situations where the lawyer has reason to believe that the client may kill or seriously injure someone, may cause substantial injury to the financial interest or property of another, or is using (or seeking to use) the lawyer's services to perpetrate a crime or fraud.
In such situations the lawyer has the discretion, but not the obligation, to disclose information designed to prevent the planned action. Most states have a version of this discretionary disclosure rule under Rules of Professional Conduct, Rule 1.6 (or its equivalent).
A few jurisdictions have made this traditionally discretionary duty mandatory. For example, see the New Jersey and Virginia Rules of Professional Conduct, Rule 1.6.
In some jurisdictions the lawyer must try to convince the client to conform his or her conduct to the boundaries of the law before disclosing any otherwise confidential information.
Note that these exceptions generally do not cover crimes that have already occurred, even in extreme cases where murderers have confessed the location of missing bodies to their lawyers but the police are still looking for those bodies. The U.S. Supreme Court and many state supreme court
s have affirmed the right of a lawyer to withhold information in such situations. Otherwise, it would be impossible for any criminal defendant to obtain a zealous defense.
California is famous for having one of the strongest duties of confidentiality in the world; its lawyers must protect client confidences at "every peril to himself or herself." Until an amendment in 2004, California lawyers were not even permitted to disclose that a client was about to commit murder.
Recent legislation in the UK curtails the confidentiality professionals like lawyers and accountants can maintain at the expense of the state. Accountants, for example, are required to disclose to the state any suspicions of fraudulent accounting and, even, the legitimate use of tax saving schemes if those schemes are not already known to the tax authorities.
, Lord Cottenham
, in which he restrained the defendant from publishing a catalogue of private etchings made by Queen Victoria
and Prince Albert (Prince Albert v Strange
).
However, the jurisprudential basis of confidentiality remained largely unexamined until the case of Saltman Engineering Co. Ltd. v Campbell Engineering Co. Ltd., in which the Court of Appeal
upheld the existence of an equitable doctrine of confidence, independent of contract.
In Coco v A.N.Clark (Engineers) Ltd [1969] R.P.C. 41, Megarry J
developed an influential tri-partite analysis of the essential ingredients of the cause of action for breach of confidence: the information must be confidential in quality, it must be imparted so as to import an obligation of confidence, and there must be an unauthorised use of that information to the detriment of the party communicating it.
The law in its then current state of development was authoritatively summarised by Lord Goff
in the Spycatcher
case. He identified three qualifications limiting the broad general principle that a duty of confidence arose when confidential information came to the knowledge of a person (the confidant) in circumstances where he had notice that the information was confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. First, once information had entered the public domain, it could no longer be protected as confidential. Secondly, the duty of confidence applied neither to useless information, nor to trivia. Thirdly, the public interest in the preservation of a confidence might be outweighed by a greater public interest favouring disclosure.
The incorporation into domestic law of Article 8 of the European Convention on Human Rights
by the Human Rights Act 1998
has since had a profound effect on the development of the English law of confidentiality. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. In Campbell v MGN Ltd, the House of Lords held that the Daily Mirror
had breached Naomi Campbell
’s confidentiality rights by publishing reports and pictures of her attendance at Narcotics Anonymous
meetings.
Although their lordships were divided 3-2 as to the result of the appeal and adopted slightly different formulations of the applicable principles, there was broad agreement that, in confidentiality cases involving issues of privacy, the focus shifted from the nature of the relationship between claimant and defendant to (a) an examination of the nature of the information itself and (b) a balancing exercise between the claimant’s rights under Article 8 and the defendant’s competing rights (for example, under Article 10, to free speech).
It presently remains unclear to what extent and how this judge-led development of a partial law of privacy will impact on the equitable principles of confidentiality as traditionally understood.
only applies to secrets shared between physician and patient during the course of providing medical care.
The rule dates back to at least the Hippocratic Oath
, which reads: Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.
Traditionally, medical ethics has viewed the duty of confidentiality as a relatively non-negotiable tenet of medical practice. More recently, critics like Jacob Appel
have argued for a more nuanced approach to the duty that acknowledges the need for flexibility in many cases.
Confidentiality is mandated in America
by HIPAA laws, specifically the Privacy Rule, and various state laws, some more rigorous than HIPAA. However, numerous exceptions to the rules have been carved out over the years. For example, many American states require physicians to report gunshot wounds to the police and impaired drivers to the Department of Motor Vehicles. Confidentiality is also challenged in cases involving the diagnosis of a sexually transmitted disease in a patient who refuses to reveal the diagnosis to a spouse, and in the termination of a pregnancy in an underage patient, without the knowledge of the patient's parents. Many states in the U.S. have laws governing parental notification in underage abortion.
or duty to protect
. This includes instances of suicidal behavior or homicidal
plans, child abuse
, elder abuse
and dependent adult abuse.
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
, and (in some places) in law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and alternative forms of legal resolution such as mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to third parties.
Confidentiality of information, enforced in an adaptation of the military's classic "need to know
Need to know
The term "need to know", when used by government and other organizations , describes the restriction of data which is considered very sensitive...
" principle, forms the cornerstone of information security in today's corporations. The so called 'confidentiality bubble' restricts information flows, with both positive and negative consequences.
Legal confidentialityPrivacy lawPrivacy law refers to the laws which deal with the regulation of personal information about individuals which can be collected by governments and other public as well as private organizations and its storage and use....
LawyerLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s are often required by law to keep confidential anything pertaining to the representation of a client. The duty of confidentiality is much broader than the attorney-client evidentiary privilege, which only covers communications between the attorney and the client.
Both the privilege and the duty serve the purpose of encouraging clients to speak frankly about their cases. This way, lawyers will be able to carry out their duty to provide clients with zealous representation. Otherwise, the opposing side may be able to surprise the lawyer in court with something which he did not know about his client, which may weaken the client's position. Also, a distrustful client might hide a relevant fact which he thinks is incriminating, but which a skilled lawyer could turn to the client's advantage (for example, by raising affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
s like self-defense).
However, most jurisdictions have exceptions for situations where the lawyer has reason to believe that the client may kill or seriously injure someone, may cause substantial injury to the financial interest or property of another, or is using (or seeking to use) the lawyer's services to perpetrate a crime or fraud.
In such situations the lawyer has the discretion, but not the obligation, to disclose information designed to prevent the planned action. Most states have a version of this discretionary disclosure rule under Rules of Professional Conduct, Rule 1.6 (or its equivalent).
A few jurisdictions have made this traditionally discretionary duty mandatory. For example, see the New Jersey and Virginia Rules of Professional Conduct, Rule 1.6.
In some jurisdictions the lawyer must try to convince the client to conform his or her conduct to the boundaries of the law before disclosing any otherwise confidential information.
Note that these exceptions generally do not cover crimes that have already occurred, even in extreme cases where murderers have confessed the location of missing bodies to their lawyers but the police are still looking for those bodies. The U.S. Supreme Court and many state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....
s have affirmed the right of a lawyer to withhold information in such situations. Otherwise, it would be impossible for any criminal defendant to obtain a zealous defense.
California is famous for having one of the strongest duties of confidentiality in the world; its lawyers must protect client confidences at "every peril to himself or herself." Until an amendment in 2004, California lawyers were not even permitted to disclose that a client was about to commit murder.
Recent legislation in the UK curtails the confidentiality professionals like lawyers and accountants can maintain at the expense of the state. Accountants, for example, are required to disclose to the state any suspicions of fraudulent accounting and, even, the legitimate use of tax saving schemes if those schemes are not already known to the tax authorities.
History of the English law of confidentiality
The modern English law of confidence stems from the judgment of the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, Lord Cottenham
Charles Pepys, 1st Earl of Cottenham
Charles Christopher Pepys, 1st Earl of Cottenham PC KC was a British lawyer, judge and politician. He was twice Lord Chancellor of Great Britain.-Background and education:...
, in which he restrained the defendant from publishing a catalogue of private etchings made by Queen Victoria
Victoria of the United Kingdom
Victoria was the monarch of the United Kingdom of Great Britain and Ireland from 20 June 1837 until her death. From 1 May 1876, she used the additional title of Empress of India....
and Prince Albert (Prince Albert v Strange
Prince Albert v Strange
Prince Albert v Strange was a court decision made by the High Court of Chancery in 1849, and began the development of confidence law in England. The court awarded Prince Albert an injunction, restraining Strange from publishing a catalogue describing Prince Albert’s etchings...
).
However, the jurisprudential basis of confidentiality remained largely unexamined until the case of Saltman Engineering Co. Ltd. v Campbell Engineering Co. Ltd., in which the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
upheld the existence of an equitable doctrine of confidence, independent of contract.
In Coco v A.N.Clark (Engineers) Ltd [1969] R.P.C. 41, Megarry J
Robert Megarry
Sir Robert Edgar Megarry FBA PC QC was a British lawyer and judge.Originally a solicitor, he requalified as a barrister and also pursued a parallel career as a legal academic. He later became a High Court judge and served as Vice-Chancellor of the Chancery Division from 1976 to 1981...
developed an influential tri-partite analysis of the essential ingredients of the cause of action for breach of confidence: the information must be confidential in quality, it must be imparted so as to import an obligation of confidence, and there must be an unauthorised use of that information to the detriment of the party communicating it.
The law in its then current state of development was authoritatively summarised by Lord Goff
Robert Goff, Baron Goff of Chieveley
Robert Lionel Archibald Goff, Baron Goff of Chieveley PC DCL FBA is a retired British Judge.Lord Goff, High Steward of the University of Oxford, retired in 1998 as Senior Law Lord after more than a decade as a Lord of Appeal in Ordinary in the House of Lords...
in the Spycatcher
Spycatcher
Spycatcher: The Candid Autobiography of a Senior Intelligence Officer , is a book written by Peter Wright, former MI5 officer and Assistant Director, and co-author Paul Greengrass. It was published first in Australia...
case. He identified three qualifications limiting the broad general principle that a duty of confidence arose when confidential information came to the knowledge of a person (the confidant) in circumstances where he had notice that the information was confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. First, once information had entered the public domain, it could no longer be protected as confidential. Secondly, the duty of confidence applied neither to useless information, nor to trivia. Thirdly, the public interest in the preservation of a confidence might be outweighed by a greater public interest favouring disclosure.
The incorporation into domestic law of Article 8 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
by the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
has since had a profound effect on the development of the English law of confidentiality. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. In Campbell v MGN Ltd, the House of Lords held that the Daily Mirror
The Daily Mirror
The Daily Mirror is a British national daily tabloid newspaper which was founded in 1903. Twice in its history, from 1985 to 1987, and from 1997 to 2002, the title on its masthead was changed to read simply The Mirror, which is how the paper is often referred to in popular parlance. It had an...
had breached Naomi Campbell
Naomi Campbell
Naomi Campbell is a British model. Scouted at the age of 15, she established herself among the top three most recognisable and in-demand models of the late 1980s and early 1990s, and she was one of six models of her generation declared "supermodels" by the fashion world...
’s confidentiality rights by publishing reports and pictures of her attendance at Narcotics Anonymous
Narcotics Anonymous
Narcotics Anonymous is a twelve-step program modeled after Alcoholics Anonymous describing itself as a "fellowship or society of men and women for whom drugs had become a major problem," and it is the second-largest 12-step organization...
meetings.
Although their lordships were divided 3-2 as to the result of the appeal and adopted slightly different formulations of the applicable principles, there was broad agreement that, in confidentiality cases involving issues of privacy, the focus shifted from the nature of the relationship between claimant and defendant to (a) an examination of the nature of the information itself and (b) a balancing exercise between the claimant’s rights under Article 8 and the defendant’s competing rights (for example, under Article 10, to free speech).
It presently remains unclear to what extent and how this judge-led development of a partial law of privacy will impact on the equitable principles of confidentiality as traditionally understood.
Medical confidentiality
Confidentiality is commonly applied to conversations between doctors and patients. Legal protections prevent physicians from revealing certain discussions with patients, even under oath in court. This physician-patient privilegePhysician-patient privilege
Physician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions...
only applies to secrets shared between physician and patient during the course of providing medical care.
The rule dates back to at least the Hippocratic Oath
Hippocratic Oath
The Hippocratic Oath is an oath historically taken by physicians and other healthcare professionals swearing to practice medicine ethically. It is widely believed to have been written by Hippocrates, often regarded as the father of western medicine, or by one of his students. The oath is written in...
, which reads: Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.
Traditionally, medical ethics has viewed the duty of confidentiality as a relatively non-negotiable tenet of medical practice. More recently, critics like Jacob Appel
Jacob M. Appel
Jacob M. Appel is an American author, bioethicist and social critic. He is best known for his short stories, his work as a playwright, and his writing in the fields of reproductive ethics, organ donation, neuroethics and euthanasia....
have argued for a more nuanced approach to the duty that acknowledges the need for flexibility in many cases.
Confidentiality is mandated in America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
by HIPAA laws, specifically the Privacy Rule, and various state laws, some more rigorous than HIPAA. However, numerous exceptions to the rules have been carved out over the years. For example, many American states require physicians to report gunshot wounds to the police and impaired drivers to the Department of Motor Vehicles. Confidentiality is also challenged in cases involving the diagnosis of a sexually transmitted disease in a patient who refuses to reveal the diagnosis to a spouse, and in the termination of a pregnancy in an underage patient, without the knowledge of the patient's parents. Many states in the U.S. have laws governing parental notification in underage abortion.
Clinical and counseling psychology
The ethical principle of confidentiality requires that information shared by the client with the therapist in the course of treatment is not shared with others. This is important for the therapeutic alliance, as it promotes an environment of trust. There are important exceptions to confidentiality, namely where it conflicts with the clinician's duty to warnDuty to warn
A duty to warn is a concept that arises in the law of torts in a number of circumstances, indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so....
or duty to protect
Duty to protect
The duty to protect is the responsibility of a mental health professional to protect patients and others from foreseeable harm. If a client makes statements that suggest suicidal or homicidal ideation, the clinician has the responsibility to take steps to warn intended victims, and if necessary,...
. This includes instances of suicidal behavior or homicidal
Homicidal
Homicidal is a 1961 thriller film produced and directed by the self-proclaimed "King of Showmanship", William Castle. Written by Robb White, the film stars Glenn Corbett, Patricia Breslin, Eugenie Leontovich, Alan Bunce, Richard Rust, and Joan Marshall...
plans, child abuse
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
, elder abuse
Elder abuse
Elder abuse is a general term used to describe certain types of harm to older adults. Other terms commonly used include: "elder mistreatment," "senior abuse," "abuse in later life," "abuse of older adults," "abuse of older women," and "abuse of older men."...
and dependent adult abuse.