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

• Author: Hilary Hogan
• Position: LL.B. candidate and Scholar of Trinity College Dublin
• Pages: 53-63

© 2017 Hilary Hogan and Dublin University Law Society

THE DUTY OF CONFIDENTIALITY IN IRISH

MEDICAL LAW: INDIVIDUALISTIC AND

COMMUNITARIAN RATIONALES

HILARY HOGAN*

Introduction

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.

1

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.

1

See for example Medical Council, Ireland, Guide to Professional Conduct and Ethics (7th

edn, 2009) para 26.1.