Those scholars among you will immediately attribute this intriguing aphorism to Sir Francis Bacon, philosopher and the first Queen's Counsel in the time of Elizabeth I:
‘He who hath a secret to keep, must keep it a secret that he hath a secret to keep’.
Those of you who are, like me, devotees of Yes, Prime Minister will of course attribute it to Sir Humphrey Appleby in the episode entitled ‘A Question of Loyalty’.
I begin with a point about the accurate use of the English language. One does not keep confidentiality, one keeps a confidence. In the same way that you consider breaking a confidence when there appears to be a case for doing so. The moral principle in which such decisions are made is called ‘confidentiality’.
The word ‘principle’ is chosen deliberately. The value of confidentiality in healthcare practice does not consist of a rule-book telling you what, and what not, to divulge. Rules tend to apply in an all-or-nothing way, while principles have a dimension of weight and relative importance. Some readers might be surprised to learn that there is actually very little by way of legal rules in the realm of confidentiality. There is no litmus test showing you how to do it. What could, perhaps, be cause for concern in modern healthcare practice is that there is very little guidance from the law. On reflection, that this is the case should be cause for relief and not disappointment. There is no ‘legal way’ of doing anything. That applies to professional healthcare practice, as well as driving a car and making a rhubarb crumble.
One myth that must be debunked at the outset is that breaking a confidence leads to a claim in civil law for damages. It does not.
It is cheering to note that, by and large, nurses have a much better grasp of the moral principle of confidentiality than do many social workers. It would be invidious to make any specific reference to some of the materials that the author has seen presented to both trainee and practising social workers. Their content is proof-positive that their authors did not have the faintest clue about the fundamental moral principle from which they were purporting to draw reasoned conclusions. They abound with over-simplifications and misconceptions of law, which ride roughshod over the professional responsibility to make reasoned, informed and evidence-based decisions—normally referred to as ‘professional judgement’.
Learning by example
A useful port of entry into evidence-based healthcare is to look at some examples of practical problems that might present in practice. One memorable example appears frequently in ethics training in medical education. A general medical practitioner is about to board a train in London for the long journey to Edinburgh. He catches sight of the engine-driver, whom he recognises. The driver is, to the sure knowledge of the doctor, under medical care for a suspected aortic aneurism. Since aneurisms can puncture without prior warning, but especially when the person is under stress, and with potentially fatal results, the doctor is presented with a moral dilemma. Should he tell someone? If so, whom? He is unfamiliar with the running of a large railway station. Should he approach the driver and try to persuade him not to drive the train? Should he just miss the train? Or should he attempt physically to bar the driver from entry into the driver's cabin? There is actually no single solution to this conundrum, let alone a perfect one.
A practical problem closer to readers' practice would be that of a patient or client who has a terminal condition but insists that family members caring for their daily needs not be informed of its gravity. If the nurse in charge of this person's healthcare takes a professional view based on observation and experience that the carers should know, they could try to persuade the patient that telling their family would be better—particularly for the patient. But if the patient remains adamant that they should not know, what is the nurse to do?
Again, there is no perfect solution. So let us look at some of the values that the nurse might weigh in coming to a reasoned solution. To start with, there is a legal obligation to take reasonable care to advance the patient's health and welfare. It cannot be overstated that this legal duty is not to do the best there is nor even (probably) the best that the nurse can themselves do. It is a duty to take ‘reasonable care’, which, following the decision of the House of Lords (now Supreme Court) in Bolitho v City and Hackney [(1998) AC 232], means that the care path chosen should be reasoned and capable of standing up to fair argument.
Confidentiality and secrecy
The example of the terminally ill patient certainly looks like a problem of confidentiality. But in reality, it is actually a problem of consent to treatment—the treatment being, in this instance, the handling of available relevant information in the patient's best interests.
Which takes us to another reality behind what appears, on its face, to be a question of confidentiality: the matter of secrecy. Is the nurse in this situation keeping a secret from the patient's carers? Would a practical alternative be to give the carers the facts, with the suggestion that they dissemble and pretend to the patient that they do not know the true facts? That presupposes that the carers are pretty good at acting as well as caring, and may add to their burden. Or maybe just have done with it, and tell the patient that the information will be shared with the carers—and that is it. No easy way.
Secrecy and non-disclosure agreements
This brings us to non-disclosure agreements, commonly referred to as ‘gagging clauses’. A gagging clause in a contract of employment is a potentially enforceable term of the contract that is designed to prevent the employee, whether during the course of employment or after it has finished, from disclosing information gained in that employment that the employer, or former employer, does not wish to be disclosed—wishes to be kept secret.
Gagging clauses in the NHS have had an unhappy history. But things are beginning to look a bit better. On 21 July 2019, the UK Government announced plans to legislate against gagging clauses and couched the announcement in broad terms. Over the past 20 years or so, the courts have repeatedly struck down non-disclosure agreements when what is at issue not to be disclosed would harm the public interest were secrecy to be allowed. It is fundamental to the law of contract that the courts will declare void contractual clauses that they consider to be ‘against public policy’. The ‘public’ in question is, of course, the courts themselves, and however much some might take the private-eye view of certain judges, there is seldom, if ever, any argument about disallowing the ‘secret’ withholding of information pointing to a deficiency or danger in the delivery of personal healthcare. In making its recent announcement, the Government pointed to the Mid-Staffordshire Foundation Healthcare Trust scandal, which resulted in many avoidable deaths. While it remains to be seen whether ensuing legislation will do anything to alter the current state of the law, at least it will serve the salutary purpose of drawing specific attention to a practice that should rightly be deplored.
‘A silly little document’
During the early 1990s, there was a health circular extant in the NHS, which, although entitled ‘Confidentiality’, concentrated solely on the (alleged although unsubstantiated) duty of healthcare practitioners in the public sector to keep their mouths shut about any situation or practice that they considered inimical to patient safety and welfare. There was no legal basis whatsoever for this scandalous assertion. Its content was not what its title implied. The Government has now made a complete U-turn, effectively condemning its earlier stance—without actually admitting as much, of course. Now, 25 years later, things are beginning to look better. It is remarkable what a big scandal or two can do for dusting off the law books and getting national healthcare guidance right.
What are legitimate non-disclosure agreements?
In the worlds of commerce and manufacturing, it can be perfectly legitimate to get an employee's or partner's agreement not to share trade secrets with a competitor, whether during, or for a certain period, after the employment or partnership. After all, to do this is little different from patenting a product. Other gagging clauses that have been in the news recently include agreements—for money—not to disclose harassment or assault. The payment received in return is called ‘hush-money’. While ostensibly legal, some of the more newsworthy instances lack the cloak of legitimacy in the proper sense of moral persuasion. There is neither legitimacy nor legal enforceability in the case of NHS employment agreements. There may be legally enforceable non-disclosure agreements relating to the development of certain products or devices; but if their objectives were to suppress or to skew data at the point of patient delivery, they would be very closely scrutinised, if not actually struck down, by the courts.
The Law Commission Report on Confidentiality
In October 1981, the Law Commission, a body created by an Act of Parliament, published what is probably the most extensive study ever of UK law relating to confidentiality (Law Commission, 1981). Of particular relevance to the subject of this article is the conclusion of the Law Commission as to whether an action for damages exists for breach of confidence. The report concluded that there is not.
While there have indeed been cases where damages have been awarded and where, somewhere along the line, there has been a breach of confidence, the award of damages has, in fact, been for another ‘cause of action’—for instance, breach of a condition or a term in a contract. Enough has been said to indicate that the courts look at these with extreme care. Or one party, in the course of breaking a confidence, may have defamed the other. An award of damages would not be for breach of confidence but for slander (spoken) or libel (written).