Driver Trainers & Confidentiality Tom Harrington LL B
This article is to remind professional instructors of the importance of confidentiality in relation to their client’s training matters – some of which may be sensitive. The main text – which is a synopsis – of this article comes from a medical law essay which was a requirement to complete a 5,000 word dissertation as part of his post graduate law degree in University College Cork. Even though the article it is based on medical law practice, it nevertheless applies to most other professionals e.g. lawyers, accountants, priests etc.
The action for breach of confidence is concerned with the defendant’s (instructor) disclosure or misuse of confidential information received from or about the plaintiff (pupil). It is an equitable wrong, straddling the borders between contract, tort and restitution. Since its origins are in equity, and the origins of torts are in common law, it is not, strictly speaking, a tort at all; but, since equitable remedies have crept into use in respect of torts and have introduced variations in the criteria to some torts (such as nuisance and passing off), the distinction between torts and purely equitable obligations have become somewhat blurred.
An obligation to treat information as confidential arises in a number of circumstances: it may be specified in a contract between parties, such as a licensing agreement for the exploitation of a patent; it may arise out of a special relationship, independent of contract, such as that of professional and client, or it may arise in the context of negotiation of a transaction, even though the negotiations may ultimately fail. The information must have some characteristic of secrecy or privacy in order to be protected against disclosure, though the dividing line between confidential and non-confidential information is not easy to draw.
Where the relationship is contractual, an action for breach of contract may be employed to redress the harm suffered as a result of the misuse or disclosure. In the absence of a contract, a restitutionary claim may be used to to recover any profit or reward the the defendant has made from the breach of confidence. A claim for damages may be made where the plaintiff has suffered a loss as a result of the breach, independent of the question of benefit to the defendant. The third type of action is substantially similar to a tort action for interference with the plaintiff’s rights. The rights covered may be either personal or economic in nature, as may be seen from the range of circumstances in which the obligation of confidence arises.
When people decide to take up driver training, they sometimes initially feel quite nervous and embarrassed and some may want their new undertaking be kept secret. Over the years this scribe found this approach quite common especially by rural folk who would not want their relations and especially their neighbours or work colleagues to know their “business”. ‘L’ plates would only adorn the vehicle on arrival at the commencement of the lesson (at then at the insistence of the professional instructor – many instructors conducted lessons illegally without ‘L’ plates) and then against advice, subsequently removed them before driving home, giving all and sundry the impression that they were the holder of a full licence.
One one occasion a lady pupil insisted the roof sign be removed but agreed to proceed with ‘L’ plate’s front and rear. Some may not want to be seen for fear of being recognised in their own area of residence so other more “secret” locations had to be sourced. Pupils may also suffer from some form of illness or disability and would not want others to know of. These are just some of the things that must be kept confidential and not disclosed.
Much sensitive information was disclosed to this writer over the past 40 years. This includes information regarding marital disharmony, domestic (abuse) financial problems family and medical problems etc. Whilst a sympathetic ear was given, pursuing the relevant issue was side-stepped and the purpose of the appointment (lesson) was never forgotten. These problems were never discussed with anybody – not even in the confines of home. Dealing with these ultra sensitive problems required the special skills of the great escapologist Harry Houdini and even then one had to tread extremely carefully. Driving Instructors have the same duty of care as other professionals to protect their client’s disclosures and information and records kept for training purposes should be guarded with care.
Most people treat medical information as sensitive and when given to a doctor the understanding is it will remain confidential. If this trust wasn’t there, many patients would not divulge such personal and sensitive information and therefore would not be treated. A doctor is ethically obliged to maintain records about the care of his patients and may well have a duty to do so under tort law.
At common law a patient wishing to access his medical records could argue on a number of grounds. The patient has a constitutional right to privacy as in Kennedy v Ireland. Here the State tapped the telephones of two journalists and as a result, a number of conversations between the plaintiffs and third parties were recorded. While the first two plaintiffs were the intended targets of the tapping, conversations of the third plaintiff (the second plaintiff’s wife) were also recorded. However, this right (constitutional) is not absolute and exists in relation to marriage and does not appear to cover doctor/patient relationship.
If the patient is private and he had a contract with the doctor, the express terms of the contract would determine who owned the records. In cases where there is no contract there may well be an equitable duty.
An equitable remedy for breach of confidence was also recognised in the English case of A/G v Guardian Newspapers (Spy Catcher case) and the Irish case of House of Spring Gardens where Costello J. held that an action for breach of confidence must have the following three elements:
1. There must be an obligation of confidence
2. The information must be confidential
3. There must have been a breach of duty of good faith
Doctors are also ethically required under the Hippocratic Oath not to divulge patient’s medical information as contained in the guidelines of the Medical Council.
In McInerney, the Canadian S/C considered the fiduciary relationship between doctor and patient. The doctor would not release medical records to Mrs McDonald in relation to treatment she had received from previous doctors on ethical grounds. La Forest J held that the doctor, clinic or institution that compiles the records owns the physical records but the patient has a vital interest in the information contained in them. He also compared the relationship between doctor and patient to priest and confessor, or lawyer and client. He added that he did not wish to apply fixed rules and principles to all situations of this kind; the rules are shaped by the demands of the situation.
In Hunter v Mann case, the doctor treated a man and a girl for injuries following a road accident in a car that was stolen in the East Croydon area. Dr. Hunter advised them to go to police but he did not seek their consent before reporting it himself. He refused an oral and written request for the names and addresses of the injured couple under Section (168) (2) (b) of the RTA 1972. He was later charged and convicted under the relevant section which required “any person” to give the relevant information. He was fined €5.00, a sum which suggests that the justices felt a certain amount of sympathy with him. He appealed and lost. This case highlights one aspect of a doctor’s legal obligation to maintain confidentiality, namely, whether he can be obliged to divulge confidential information which will help to identify a person or persons who are alleged to have committed a criminal offence.
There are exceptions to the duty of confidentiality. In the case of a mentally ill patient they must understand the nature of the disclosure and must not be under any undue influence. In the absence of consent of the patient, exceptions to the duty may apply e.g.
1. When a judge orders it e.g. discovery in personal injury claims
2. To protect the patient – patient must be endangered in some way
3. To protect the welfare of society – W v Edgell – owed a duty to the public
4. To protect the welfare of another person or patient – Tarasoff – duty to warn
5. Statutory exceptions: Notifiable infectious diseases, gunshot wounds and public interest.
Edgell and Duncan are two opposite cases. Edgell only told the prison governor and Home Office whereas Duncan told everyone and even got up a petition to stop Mr. Henry from driving a bus. In relation to minors, it was held in Gillick that a child is competent to consent if he understands the nature and consequences of the treatment. (Law Reform Commission recommends age 16) +
In confidentiality in medicine, Sieger argues that confidentially no longer exists. He takes the case of an admission to a hospital where up to 75 different people have access to the patient’s records including medical students.
Other protections for the patient are the Data Protection Act, 1988, the European Data Protection Directive 1995 published in 2002 and the patient has a right to information under the Freedom of Information Act. In the 7th edition of the Medical Councils Guide the new Section 18 deals with disclosure after an adverse event. Under Section C – confidentiality – 24 to 30 deals with disclosure of medical information. Under Art.8 of the European Convention of Human Rights (ECHR) a person has a right to respect for his private and family life, his home and correspondence. In Golder V UK a prisoner requested a lawyer because he said he wanted to sue a prison guard for defamation. Access was denied. This violated his right to a fair trial (Art.6 ECHR) and client confidentiality.
Finally, client confidentiality is privileged and of paramount importance because it is an ethical principle associated with several professions. A normal conversation within a driving school to discuss a pupil’s progress is understandable and can be beneficial. However, loose tongues at test centres or elsewhere should be avoided. A client is your most important asset and privileged information relating to them should be kept in strict confidence. Remember, they have placed their trust in you to teach/coach them in the art and science of driving/road safety matters and it is they who recommend you to their family, friends and colleagues from where extra business flows. Confidential information is “ensuring that information is accessible only to those authorised to have access and is one of the cornerstones of information security.”
Tom Harrington BCL F Inst. MTD M Inst. CILT M AIRSO
19 May 2011