The duty owed by doctors to keep confidentiality is an aspect of their 'responsibility' towards those who consult them professionally. Just as clinicians are properly held responsible in the technical clinical arena they are also held responsible for their guardianship of the patient's civil right of privacy. Indeed, they owe a more general duty to patients to be effective guardians of their civil rights, including, for example, in relation to medical detention and/or compulsory treatment of their patients, and this can sometimes operate even against a doctor's own paternalistic inclinations and medical model view of what is in the patient's interest.

The requirement of confidentiality is defined by both doctors' own self-regulatory professional bodies and the law, and there is, in fact, a high degree of congruence between law and medicine in this field. For example, there are very similar professional ethical and legal exceptions to the requirement of keeping confidentiality. However, in this arena doctors are using ethical, not medical or psychiatric, constructs, and ethical constructs often bear a natural and congruent relationship with legal ones.

The exceptions to the requirement of keeping confidentiality include both the right and the duty of breach of confidence where it is required by dint of 'due legal process', the right to breach 'in the public interest', and the more commonly exercised right to breach which is embedded in the clinical 'need to know' principle. The ethical (and legal) justification for the latter lies in utilitarian ethics in that, without breach, the patient will not fully benefit from treatment. Essentially, patients give up their right of privacy in favour of their health advantage. In exercising their right to breach confidentiality, doctors must have particular regard to the distinction between 'need to know' and 'public protection' justifications. The former reflects a relatively low threshold for breach and is constrained within the bounds of needing to know for the patient's own benefit (from treatment); whereas the latter reflects a much higher threshold(36> where breach is solely for the benefit of others. The importance of making what may otherwise seem an obvious distinction is that, certainly in the United Kingdom, it has come to be somewhat blurred in relation to the care of MDOs (or even patients who are potentially MDOs), where there is an extolling of 'inter-agency' working, which includes (non-welfare, but justice-oriented) criminal justice agencies such as the probation service and the police. Thus, the 'need to know' becomes (wrongly) extended to those who are charged together with achieving public protection welfare (even though it might result in injustice to MDOs).

This tension between patient and public welfare arises essentially through data being collected for one purpose and then potentially being used for another, and we shall return to this problem specifically in relation to the operation of professional ethics where public protection or MDO punishment is at stake.

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