Confidentiality is an ethical principle associated with several professions (e.g., medicine, law, religion, professional psychology, and journalism). In ethics Ethics is a branch of philosophy that addresses questions about morality—that is, concepts such as good vs. bad, noble vs. ignoble, right vs. wrong, and matters of justice, love, peace, and virtue, and (in some places) in law Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and and alternative forms of legal dispute resolution such as mediation Mediation, a form of alternative dispute resolution , is a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to third parties. In those jurisdictions in which the law makes provision for such confidentiality, there are usually penalties for its violation.
Confidentiality has also been defined by the International Organization for Standardization The International Organization for Standardization , widely known as ISO (pronounced /ˈaɪsoʊ/ EYE-soe), is an international-standard-setting body composed of representatives from various national standards organizations. Founded on 23 February 1947, the organization promulgates worldwide proprietary industrial and commercial standards. It has (ISO) in ISO-17799 [1] as "ensuring that information is accessible only to those authorized to have access" and is one of the cornerstones of information security Information security means protecting information and information systems from unauthorized access, use, disclosure, disruption, modification or destruction. Mainly the Information Security Consultants are associated with it. Confidentiality is one of the design goals for many cryptosystems In this meaning, the term cryptosystem is used as shorthand for "cryptographic system". A cryptographic system is any computer system that involves cryptography. Such systems include for instance, a system for secure electronic mail which might include methods for digital signatures, cryptographic hash functions, key management, made possible in practice by the techniques of modern cryptography Cryptography is the practice and study of hiding information. Modern cryptography intersects the disciplines of mathematics, computer science, and engineering. Applications of cryptography include ATM cards, computer passwords, and electronic commerce.
Confidentiality of information, enforced in an adaptation of the military's classic "need-to-know The term "need to know", when used by government and other organizations , describes the restriction of data which is considered very sensitive. Under need-to-know restrictions, even if one has all the necessary official approvals (such as a security clearance) to access certain information, one would not be given access to such" principle, forms the cornerstone of information security in today's corporations. The so called 'confidentiality bubble' restricts information flows, with both positive and negative consequences.[2]
Contents |
Legal confidentiality Privacy law is the area of law concerned with the protection and preservation of the privacy rights of individuals. Increasingly, governments and other public as well as private organizations collect vast amounts of personal information about individuals for a variety of purposes. The law of privacy regulates the type of information which may be
Lawyers A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political and social authority, and deliver are often required by law to keep confidential anything pertaining to the representation of a client. The duty of confidentiality is much broader than the attorney-client evidentiary privilege The policy underlying this privilege is that of encouraging open and honest communication between clients and attorneys, which is thought to promote obedience to law and reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorney-client privilege is considered as one of the strongest privileges available under, which only covers communications between the attorney and the client.
Both the privilege and the duty serve the purpose of encouraging clients to speak frankly about their cases. This way, lawyers will be able to carry out their duty to provide clients with zealous representation. Otherwise, the opposing side may be able to surprise the lawyer in court with something which he did not know about his client, which makes both lawyer and client look stupid. Also, a distrustful client might hide a relevant fact which he thinks is incriminating, but which a skilled lawyer could turn to the client's advantage (for example, by raising affirmative defenses An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions, or, more familiarly, a type of defense raised in criminal law by the defendant. Many affirmative defenses can be classified as justification defenses, or excuse defenses. Affirmative defenses operate to limit, excuse or avoid a like self-defense).
However, most jurisdictions have exceptions for situations where the lawyer has reason to believe that the client may kill or seriously injure someone, may cause substantial injury to the financial interest or property of another, or is using (or seeking to use) the lawyer's services to perpetrate a crime or fraud.
In such situations the lawyer has the discretion, but not the obligation, to disclose information designed to prevent the planned action. Most states have a version of this discretionary disclosure rule under Rules of Professional Conduct, Rule 1.6 (or its equivalent).
A few jurisdictions have made this traditionally discretionary duty mandatory. For example, see the New Jersey and Virginia Rules of Professional Conduct, Rule 1.6.
In some jurisdictions the lawyer must try to convince the client to conform his or her conduct to the boundaries of the law before disclosing any otherwise confidential information.
Note that these exceptions generally do not cover crimes that have already occurred, even in extreme cases where murderers have confessed the location of missing bodies to their lawyers but the police are still looking for those bodies. The U.S. Supreme Court Clerks · Reporter of Decisions and many state supreme courts In the United States, the state supreme court is the highest state court in the state court system have affirmed the right of a lawyer to withhold information in such situations. Otherwise, it would be impossible for any criminal defendant to obtain a zealous defense.
California is famous for having one of the strongest duties of confidentiality in the world; its lawyers must protect client confidences at "every peril to himself or herself." Until an amendment in 2004, California lawyers were not even permitted to disclose that a client was about to commit murder.
Recent legislation in the UK curtails the confidentiality professionals like lawyers and accountants can maintain at the expense of the state. Accountants, for example, are required to disclose to the state any suspicions of fraudulent accounting and, even, the legitimate use of tax saving schemes if those schemes are not already known to the tax authorities.
History of the English law of confidentiality
The modern English law of confidence stems from the judgment of the Lord Chancellor The Lord High Chancellor of Great Britain, or Lord Chancellor is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign on the advice of the Prime Minister. Prior to the, Lord Cottenham,[3] in which he restrained the defendant from publishing a catalogue of private etchings made by Queen Victoria Victoria was the Queen regnant of the United Kingdom of Great Britain and Ireland from 20 June 1837, and the first Empress of India of the British Raj from 1 May 1876, until her death. Her reign as the Queen lasted 63 years and 7 months, longer than that of any other British monarch before or since, and her reign is the longest of any female and Prince Albert Prince Albert of Saxe-Coburg and Gotha was the husband of Queen Victoria of the United Kingdom of Great Britain and Ireland (Prince Albert v Strange Dating from 1849, Prince Albert v Strange is the first legal decision from which the modern law of confidence really began to develop in England. The court awarded Prince Albert an injunction, restraining Strange from publishing a catalogue describing Prince Albert’s etchings. Lord Cottenham LC noted that ‘this case by no means depends solely).
However, the jurisprudential basis of confidentiality remained largely unexamined until the case of Saltman Engineering Co. Ltd. v Campbell Engineering Co. Ltd.,[4] in which the Court of Appeal The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it. Established in 1875, the Court and its staff of 37 Lords Justices of Appeal hear both criminal appeals in the Criminal Division and civil appeals in the Civil Division, led by the Lord upheld the existence of an equitable Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in applying the code doctrine of confidence, independent of contract.
In Coco v A.N.Clark (Engineers) Ltd (1969) R.P.C. 41, Megarry J Sir Robert Edgar Megarry FBA PC QC was a British lawyer and judge developed an influential tri-partite analysis of the essential ingredients of the cause of action for breach of confidence: the information must be confidential in quality, it must be imparted so as to import an obligation of confidence, and there must be an unauthorised use of that information to the detriment of the party communicating it.
The law in its then current state of development was authoritatively summarised by Lord Goff Lord Goff, High Steward of the University of Oxford, retired in 1998 as Senior Law Lord after more than a decade as a Lord of Appeal in Ordinary in the House of Lords. Prior to being created a Law lord and receiving a life peerage as Baron Goff of Chieveley, of Chieveley in the County of Berkshire in 1986, Lord Goff studied at Eton College and at in the Spycatcher Spycatcher: The Candid Autobiography of a Senior Intelligence Officer , is a book written by Peter Wright, former MI5 secret service officer and Assistant Director, and co-author Paul Greengrass. It was published first in Australia. Its allegations proved scandalous on publication, but more so because the British Government attempted to ban it, case.[5] He identified three qualifications limiting the broad general principle that a duty of confidence arose when confidential information came to the knowledge of a person (the confidant) in circumstances where he had notice that the information was confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. First, once information had entered the public domain, it could no longer be protected as confidential. Secondly, the duty of confidence applied neither to useless information, nor to trivia. Thirdly, the public interest in the preservation of a confidence might be outweighed by a greater public interest favouring disclosure.
The incorporation into domestic law of Article 8 of the European Convention on Human Rights The European Convention on Human Rights (long title: Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe by the Human Rights Act 1998 The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of has since had a profound effect on the development of the English law of confidentiality. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. In Campbell v MGN Ltd,[6] the House of Lords held that the Daily Mirror The Daily Mirror is a British tabloid newspaper founded in 1903. Twice in its history, from 1985 to 1987, and from 1997 to 2002, the title on its masthead was changed to read simply The Mirror, which is how the paper is usually referred to in popular parlance had breached Naomi Campbell Naomi Campbell is a British supermodel. Discovered while shopping in London, Campbell started her career in the 1980s and soon appeared on the catwalks of Milan and Paris as well as on the cover pages of internationally renowned fashion magazines. She is also known for perfumes associated with her name, and for a series of legal issues’s confidentiality rights by publishing reports and pictures of her attendance at Narcotics Anonymous Narcotics Anonymous is a twelve-step program of recovery from drug addiction, modeled on Alcoholics Anonymous (AA). It describes itself as a nonprofit "fellowship or society of men and women for whom drugs had become a major problem", and it is the second-largest 12-step organization. As of 2007[update] there were more than 43,900 NA meetings. Although their lordships were divided 3-2 as to the result of the appeal and adopted slightly different formulations of the applicable principles, there was broad agreement that, in confidentiality cases involving issues of privacy, the focus shifted from the nature of the relationship between claimant and defendant to (a) an examination of the nature of the information itself and (b) a balancing exercise between the claimant’s rights under Article 8 and the defendant’s competing rights (for example, under Article 10, to free speech).
It presently remains unclear to what extent and how this judge-led development of a partial law of privacy will impact on the equitable principles of confidentiality as traditionally understood.
Medical confidentiality
Confidentiality is commonly applied to conversations between doctors and patients. Legal protections prevent physicians from revealing certain discussions with patients, even under oath in court.[7] The rule only applies to secrets shared between physician and patient during the course of providing medical care.[8]
The rule dates back to at least the Hippocratic Oath The Hippocratic Oath is an oath historically taken by doctors swearing to practice medicine ethically. It is widely believed to have been written by Hippocrates, the father of western medicine, in Ionic Greek , or by one of his students, and is usually included in the Hippocratic Corpus. Classical scholar Ludwig Edelstein proposed that the oath, which reads: Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.
Confidentiality is mandated in America ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language by HIPAA The Health Insurance Portability and Accountability Act of 1996 (P.L.104-191) [HIPAA] was enacted by the U.S. Congress in 1996. It was originally sponsored by Sen. Edward Kennedy (D-Mass.) and Sen. Nancy Kassebaum (R-Kan.). According to the Centers for Medicare and Medicaid Services (CMS) website, Title I of HIPAA protects health insurance laws, specifically the Privacy Rule, and various state laws, some more rigorous than HIPAA. However, numerous exceptions to the rules have been carved out over the years. For example, many states require physicians to report gunshot wounds to the police and impaired drivers to the Department of Motor Vehicles. Confidentiality is also challenged in cases involving the diagnosis of a sexually transmitted disease in a patient who refuses to reveal the diagnosis to a spouse, and in the termination of a pregnancy in an underage patient, without the knowledge of the patient's parents. Many states in the U.S. have laws governing parental notification in underage abortion.[9]
Traditionally, medical ethics has viewed the duty of confidentiality as a relatively non-negotiable tenet of medical practice. More recently, critics like Jacob Appel Jacob M. Appel is an American author, bioethicist and social critic. He is best known for his short stories, his work as a playwright, and his writing in the fields of reproductive ethics, organ donation, neuroethics and euthanasia have argued for a more nuanced approach to the duty that acknowledges the need for flexibility in many cases.[10]
Clinical psychology
The ethical principle of confidentiality requires that information shared by the client with the therapist in the course of treatment is not shared with others. This is important for the therapeutic alliance The therapeutic relationship, also called the helping alliance, the therapeutic alliance, and the working alliance, refers to the relationship between a mental health professional and a patient. It is the means by which the professional hopes to engage with, and effect change in, a patient, as it promotes an environment of trust. However, there are important exceptions to confidentiality, namely where it conflicts with the clinician's duty to warn A duty to warn is a concept that arises in the law of torts in a number of circumstances, indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so or duty to protect The duty to protect is the responsibility of a mental health professional to protect patients and others from foreseeable harm. If a client makes statements that suggest suicidal or homicidal ideation, the clinician has the responsibility to take steps to warn intended victims, and if necessary, initiate involuntary commitment. This includes instances of suicidal A suicide crisis, suicidal crisis, or potential suicide, is a situation in which a person is attempting to kill him or herself or is seriously contemplating or planning to do so. It is considered by some public safety authorities, medical practice, and emergency services to be a medical emergency, requiring immediate suicide intervention and or homicidal Homicidal is a 1961 thriller film produced and directed by the self-proclaimed "King of Showmanship", William Castle. Written by Robb White, the film stars Glenn Corbett, Patricia Breslin, Eugenie Leontovich, Alan Bunce, Richard Rust, and the enigmatic Joan Marshall . It was released with a "fright break" that allowed patrons ideation, child abuse Child abuse is the physical, sexual or emotional mistreatment of children. In the United States, the Centers for Disease Control and Prevention define child maltreatment as any act or series of acts of commission or omission by a parent or other caregiver that results in harm, potential for harm, or threat of harm to a child. Most child abuse, elder abuse Elder abuse is a general term used to describe certain types of harm to older adults. Other terms commonly used include: "elder mistreatment", "senior abuse", "abuse in later life", "abuse of older adults", "abuse of older women", and "abuse of older men" and dependent adult abuse. [11]
See also
- Bank secrecy Bank secrecy is a legal principle under which banks are allowed to protect personal information about their customers, through the use of numbered bank accounts or otherwise. Effective bank secrecy is better achieved in certain countries, such as Switzerland or in tax havens, where offshore banks adhere to voluntary or statutory levels of privacy
- Classified information Classified information is sensitive information to which access is restricted by law or regulation to particular classes of persons. A formal security clearance is required to handle classified documents or access classified data. The clearance process requires a satisfactory background investigation. There are typically several levels of
- Data Protection Act 1998 The Data Protection Act 1998 is a United Kingdom Act of Parliament which defines UK law on the processing of data on identifiable living people. It is the main piece of legislation that governs the protection of personal data in the UK. Although the Act itself does not mention privacy, it was enacted to bring UK law into line with the European
- Fiduciary A fiduciary duty is a legal or ethical relationship of confidence or trust regarding the management of money or property between two or more parties, most commonly a fiduciary and a principal. One party, for example a corporate trust company or the trust department of a bank, holds a fiduciary relation or acts in a fiduciary capacity to another,
- Integrity Integrity is a concept of consistency of actions, values, methods, measures, principles, expectations and outcomes. In western ethics, integrity is regarded as the quality of having an intuitive sense of honesty and truthfulness in regard to the motivations for one's actions.[citation needed] Integrity can be regarded as the opposite of hypocrisy,
- Media transparency This is a specific case of the topic, Transparency . As used in the humanities, it implies openness and accountability. It is a metaphorical extension of the meaning used a “transparent” object is one that can be seen through
- Non-disclosure agreement A non-disclosure agreement , also known as a confidentiality agreement, confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain, also called confidentiality agreement
- Mental reservation The doctrine of mental reservation, or the doctrine of mental equivocation, was a special branch of casuistry developed in the late Middle Ages and the Renaissance, and most often associated with the Jesuits (a form of deception which does not involve outright lying)
- Physician-patient privilege In the laws of many common law jurisdictions, the concept of legal privilege, or the rule that certain conversations are so private and confidential that they cannot be used as evidence in court, extends to communication between a patient and physician. Although the rule is sometimes thought to apply only to situations such as admissions made to a for Medical confidentiality
- Privacy law
- Privilege (evidence)
- Protection of sources, also called confidentiality of (journalistic) sources
- Secrecy
- Trade secret
References
- ^ ISO/IEC 17799, Jan 4, 2009
- ^ Harwood, I.A. (2006). Confidentiality constraints within mergers and acquisitions: gaining insights through a 'bubble' metaphor, British Journal of Management, Vol. 17, Issue 4., 347–359.
- ^ Prince Albert v Strange (1848) 1 Mac. & G. 25
- ^ Saltman Engineering Co. Ltd. v Campbell Engineering Co. Ltd. (1948) 65 R.P.C. 203
- ^ Attorney-General v Observer Ltd [1990] 1 A.C. 109
- ^ Campbell v MGN Ltd [2004] 2 A.C. 457
- ^ Dr. Coburn's Peculiar Privilege, Oct 2, 2009
- ^ Dr. Coburn's Peculiar Privilege, Oct 2, 2009
- ^ Notification Laws
- ^ Appel, JM. Must My Doctor Tell My Partner? Rethinking Confidentiality In the HIV Era, Medicine and Health Rhode Island, Jun 2006
- ^ More recently, the confidentiality laws have been changed so that doctors and nurses are under strict penalties if confidentiality is broken.
External links
Categories: Applications of cryptography | Journalism sourcing | Secrecy | Professional ethics
Personal tools
- New features
- Log in / create account
Namespaces
- Article
- Discussion
Variants
Views
- Read
- Edit
- View history
Actions
Navigation
- Main page
- Contents
- Featured content
- Current events
- Random article
Interaction
- About Wikipedia
- Community portal
- Recent changes
- Contact Wikipedia
- Donate to Wikipedia
- Help
Toolbox
- What links here
- Related changes
- Upload file
- Special pages
- Permanent link
- Cite this page
Print/export
- Create a book
- Download as PDF
- Printable version
Languages
- Deutsch
- Español
- Français
- Italiano
- Nederlands
- 日本語
- Polski
- Português
- Suomi
- Svenska
- Русский
- ไทย
- Українська