ABSTRACT
The duty of confidentiality is protected by both the common law and statute law. In England and Wales, the primary common law action is based in equity (see below), but claims may also be brought in negligence (Furniss v Flitchett (1958)) and contract (W v Egdell (1990) (see below)). Statutory protection comes from a number of sources, including the Abortion Regulations 1991, the NHS (Venereal Diseases) Regulations 1974 and the NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions 2000, amongst others. The main statutes relevant to the protection of patient confidentiality are the Data Protection Act 1998 and the Human Rights Act (HRA) 1998. Under Article 8(1), Schedule 1 to the HRA 1998, there is a right ‘to respect for … private and family life’. This creates a right to privacy (see Peck v UK (2003)), which is a wider claim than a right to confidentiality since it does not require a relationship of confidentiality to exist. In Douglas v Hello! (2001), Sedley LJ explained:
However, despite the terms of Article 8, the courts have been reluctant to acknowledge breach of privacy as a distinct tort (A v B plc (2002)) and, in Wainwright v Home Office (2003), the House of Lords clearly denies the existence of a separate tort of breach of privacy.
