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Med Law Rev. 2013 Summer;21(3):415-47. doi: 10.1093/medlaw/fwt013. Epub 2013 Mar 29.

Disclosure of confidential patient information and the duty to consult: the role of the health and social care information centre.

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School of Law and Criminology, University of Derby, UK.


Before disclosing confidential patient information for purposes not directly related to his or her care and treatment, there is currently a responsibility upon health professionals to consult with a patient wherever practicable. The Health and Social Care Act 2012 has diluted that responsibility to consult, at least in relation to any information that the Health and Social Care Information Centre requires health professionals to disclose. This is at odds with other moves to support an individual's involvement in decisions that affect them. Moreover, a responsibility to consult can be shown to be a procedural aspect of the fundamental right to respect for private and family life as guaranteed by Article 8 of the European Convention on Human Rights (ECHR). The scope and nature of a procedural requirement for consultation can be revealed, at least in part, by considering the case law concerning disclosure in the field of criminality information sharing. If the Health and Social Care Act 2012 is to be adequately protected from a challenge for incompatibility with the ECHR, then practicable opportunities to provide information about the intended purposes of processing, and respect for any reasonable objection to disclosure, must be recognised beyond those explicitly provided for by the 2012 Act. The Code of Practice that the Information Centre is responsible for producing represents an opportunity to guarantee adequate levels of consultation will be preserved, consistent with proposed changes to the NHS Constitution.

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