The Duty of Confidentiality in Irish Medical Law: Individualistic and Communitarian Rationales

AuthorHilary Hogan
PositionLL.B. candidate and Scholar of Trinity College Dublin
© 2017 Hilary Hogan and Dublin University Law Society
The duty of confidentiality owed by a doctor to a patient is a core aspect
of the medical profession which presents a complex array of ethical
issues to be resolved by the legal system. It has been relatively well
established that a medical practitioner is permitted to disclose a serious
risk posed by a patient to a third party.
However, it remains unclear
whether a positive obligation can be imposed upon a practitioner to warn
a third party of a threat to their wellbeing. It is submitted that although it
may be justifiable to breach confidentiality in such instances, an Irish
court might be reluctant to impose an obligation to do so on policy
grounds. Additionally, there remains uncertainty as to whether it is
permissible to inform a third party of an underlying medical risk to their
health: can a physician, for example, share genetic information with the
relatives of a patient who refuses to tell his family of his medical
condition? It is argued that a practitioner should be able to do so, and
that wider communal considerations should be taken into account to
reflect the fact that the medical risk affects more than a single patient.
This article shall therefore outline the principles underpinning, and the
legal basis for, the duty of confidentiality. It will argue that the duty of
confidentiality is premised upon both liberal-individualistic and
communitarian rationales, and that such principles have moulded the
exceptions to the duty. It will assert that individual autonomy concerns
have been prioritised to the detriment of the wider public.
I. Legal Basis for the Duty of Confidentiality
* LL.B. candidate and Scholar of Trinity College Dublin. I would like to thank everyone who
commented on earlier drafts of this article, including my parents and Alannah Irwin.
See for example Medical Council, Ireland, Guide to Professional Conduct and Ethics (7th
edn, 2009) para 26.1.

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