Medical Confidentiality and Crime

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ISBN: 9780754622949 | 0754622940
Cover: Hardcover
Copyright: 9/28/2003

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Medical confidentiality is universally recognised as a value worth protecting. However, difficulties arise when confidential medical information becomes relevant in the context of crime prevention and criminal prosecution. Based on an examination of different approaches in medical ethics and a comparison of the relevant law of France, Germany, England and Wales and the US, this book analyses how a balance of the competing interests can best be struck.

Acknowledgements

Table of Cases

xiii

Table of Legislation

xxv

List of Abbreviations

xxxi

CHAPTER 1: INTRODUCTION

(1)

CHAPTER 2: ETHICAL CONSIDERATIONS

(33)

1 Main schools of medical ethics

(4)

1.1 Utilitarianism

(1)

1.2 Deontological theories

(3)

1.2.1 A duty-based approach

(1)

1.2.2 A rights-based approach

(1)

1.2.3 A principle-based approach

(1)

2 Autonomy, privacy and confidentiality

(8)

2.1 Principle of autonomy

(1)

2.2 Privacy

(3)

2.3 Medical confidentiality

(4)

3 Conflicts of interests in the context of criminal prosecution and crime prevention

(11)

3.1 Strict confidentiality?

(1)

3.2 Medical confidentiality and the administration of criminal justice

(7)

3.2.1 Utilitarian approaches

(3)

3.2.2 Deontological approaches

(3)

3.3 Medical confidentiality and the interests of third parties

(6)

3.3.1 Crime prevention

(3)

3.3.2 Defence rights

(1)

4 Conclusion

(3)

CHAPTER 3: EUROPEAN LAW

(13)

Part 1 Protection of medical confidentiality

(4)

1 European Convention on Human Rights

(3)

2 European Convention on Human Rights and Biomedicine

(1)

3 Data Protection Directive 95/46/EC

(1)

4 European Charter of Fundamental Rights

(1)

Part 2 Disclosure in the context of crime prevention and criminal prosecution

(9)

1 Criminal prosecution

(3)

2 Conflicting defence rights

(2)

3 Crime prevention

(2)

4 Summary

(1)

CHAPTER 4: FRENCH LAW

(43)

Part 1 Protection of medical confidentiality

(13)

1 Medical confidentiality as a fundamental right

1.1 Constitutional right

(2)

1.2 European Convention on Human Rights

(1)

2 Protection under criminal law

(7)

3 Protection under private law

(2)

3.1 Article 9 of the Civil Code

(1)

3.2 Obligation under contract and tort law

(1)

4 Professional obligation

(1)

5 Summary

(1)

Part 2 Disclosure in the context of crime prevention and criminal prosecution

(30)

1 General and absolute obligation of medical confidentiality

(2)

2 Obligation to give testimony

(1)

3 Defence rights of the physician

(5)

4 Effects of the patient's consent

(6)

5 Obligation to disclose certain information

(6)

5.1 Crime prevention

(2)

5.2 Child abuse

(2)

5.3 Protection of the innocent

(2)

6 Admissibility of the physician's testimony

(1)

7 Search for and seizure of medical records

(1)

8 Summary and conclusion

(9)

CHAPTER 5: GERMAN LAW

(37)

Part 1 Protection of medical confidentiality

(12)

1 Medical confidentiality as a fundamental right

(6)

1.1 Protection under the German Constitution

(5)

1.2 European Convention on Human Rights

(1)

2 Protection under criminal law

(3)

3 Protection under contract and tort law

(1)

4 Professional obligation

100

(1)

5 Summary

101

(1)

Part 2 Disclosure in the context of crime prevention and criminal prosecution

102

(25)

1 A physician's testimony in criminal court

102

(12)

1.1 Refusal to testify - right or obligation?

105

(3)

1.2 Effects of the patient's consent

108

(1)

1.3 Disclosure for the purpose of criminal prosecution

109

(2)

1.4 Testimony to establish the innocence of an accused

111

(3)

2 Crime prevention

114

(3)

3 Confidential material exempt from search and seizure

117

(8)

3.1 Protection of the accused

119

(4)

3.2 Custody requirement

123

(1)

3.3 Effect of the patient's consent

124

(1)

3.4 The physician's right to submit confidential material

125

(1)

4 Summary and conclusion

125

(2)

CHAPTER 6: ENGLISH LAW

127

(71)

Part 1 Protection of medical confidentiality

127

(30)

1 Medical confidentiality as a fundamental right

127

(2)

2 Contractual obligation

129

(1)

3 Equitable duty

129

(25)

3.1 Obligation of confidence

130

(6)

3.2 Confidential quality of the information

136

(9)

3.3 Breach of duty

145

(2)

3.4 Detriment

147

(1)

3.5 Remedies

148

(1)

3.6 Purpose behind equitable protection of medical confidentiality

149

(5)

4 Statutory obligations and criminal offences

154

(1)

5 Professional obligation

155

(1)

6 Summary

156

(1)

Part 2 Disclosure in the context of crime prevention and criminal prosecution

157

(41)

1 State access to confidential medical information

158

(18)

1.1 Medical privilege in criminal court

158

(12)

1.2 Legal professional privilege

170

(2)

1.3 Police access to confidential medical information

172

(4)

1.3.1 Definition of excluded material

173

(1)

1.3.2 Application for an order giving access to excluded material

174

(1)

1.3.3 Access to excluded material without court order

175

(1)

2 Voluntary disclosure by the physician

176

(19)

2.1 Submission of medical records to the police

177

(2)

2.2 Disclosure for the purpose of criminal prosecution

179

(5)

2.3 Disclosure to assist the defence

184

(4)

2.4 Disclosure for the purpose of crime prevention

188

(7)

3 Summary and conclusion

195

(3)

CHAPTER 7: AMERICAN LAW

198

(76)

Part 1 Protection of medical confidentiality

198

(31)

1 Constitutional privacy protection

198

(15)

1.1 Fifth Amendment (Self-Incrimination Clause)

199

(2)

1.2 Fourth Amendment (Unreasonable search and seizure)

201

(3)

1.3 Fourteenth Amendment (Substantive due process)

204

(8)

1.4 Privacy protection under State constitutions

212

(1)

2 Statutory obligations

213

(10)

2.1 Privilege statutes

213

(10)

2.2 Licensing statutes

223

(1)

3 Private law actions for breach of medical confidentiality

223

(4)

3.1 Obligation of medical confidentiality

223

(1)

3.2 Obligation under contract law

224

(1)

3.3 Action under tort law

225

(2)

4 Professional obligation

227

(1)

5 Summary

227

(2)

Part 2 Disclosure in the context of crime prevention and criminal prosecution

229

(45)

1 Federal law

229

(6)

2 State law

235

(35)

2.1 Reasons behind the recognition of privilege

235

(5)

2.2 Limitations to medical privilege

240

(44)

2.2.1 General considerations

240

(1)

2.2.2 Interests in criminal prosecution and the administration of justice

241

(8)

2.2.3 A special problem: child abuse

249

(1)

2.2.4 A special problem: drunk driving

250

(1)

2.2.5 Investigations against the physician

251

(2)

2.2.6 Conflicting defence rights

253

(13)

2.2.7 Crime prevention

266

(4)

3 Summary and conclusion

270

(4)

CHAPTER 8: COMPARATIVE CONCLUSIONS

274

(59)

Part 1 Protection of medical confidentiality

275

(9)

1 Constitutional protection

275

(4)

2 Scope and means of protection

279

(4)

3 Differences between common law and civil law approaches

283

(1)

Part 2 Disclosure in the context of crime prevention and criminal prosecution

284

(46)

1 Medical privilege in criminal courts

284

(22)

1.1 Recognition of medical privilege

284

(9)

1.2 Medical privilege only for minor offences?

293

(4)

1.3 Psychotherapist patient privilege

297

(1)

1.4 Medical privilege at the discretion of the physician?

298

(3)

1.5 Effect of the patient's consent

301

(1)

1.6 Medical records

302

(2)

1.7 Prosecution of the physician

304

(1)

1.8 Conclusion

305

(1)

2 Defence rights

306

(12)

2.1 Defence rights of the patient

306

(1)

2.2 Defence rights of third parties

306

(7)

2.3 Defence rights of the physician

313

(1)

2.4 Protection of the innocent

314

(3)

2.5 Conclusion

317

(1)

3 Crime prevention

318

(12)

3.1 Obligation to disclose

318

(1)

3.2 Justification of disclosure

319

(2)

3.3 Balancing of interests

321

(8)

3.3.1 Weight of the conflicting interests

322

(1)

3.3.2 Danger, imminence of the risk and general risks of life

323

(3)

3.3.3 Avoidability of the risk

326

(1)

3.3.4 Proportionality of disclosure

327

(2)

3.4 Conclusion

329

(1)

Part 3 Concluding remarks

330

(3)

Bibliography

333

(10)

Index

343

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Medical Confidentiality and Crime

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