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Medical information, confidentiality and a child’s right to privacy

Published online by Cambridge University Press:  02 January 2018

Joan Loughrey
Joan Loughrey*
Affiliation:
University of Central Lancashire
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Abstract

Following the Gillick case in 1986, it was recognised that mature minors were owed a duty of confidentiality in respect of their medical information. Subsequent cases confirmed that the duty was also owed to non-competent children, including infants, but without explaining the basis for finding the existence of such a duty and its scope. It is particularly unclear when and upon what legal basis a doctor could disclose information to parents when their child wished to keep it confidential. This paper will examine the law of confidentiality as it applies to children, identifying issues which are problematic. Developments in the law of personal confidences which have taken place as a result of the Human Rights Act 1998, and the recognition of Article 8 rights as part of the law, will be reviewed and analysed from the perspective of the duty of confidence owed to children in respect of their medical information. Finally, the paper will offer an explanation of a basis for disclosure to parents which minimises violations of a minor's autonomy.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 3 , September 2003 , pp. 510 - 535
Copyright
Copyright © Society of Legal Scholars 2003

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References

1. [1995] 4 All ER 961 at 979.

2. In the interests of brevity, the masculine form has been adopted throughout, both in relation to the doctor and the child. No gender characterisation is intended.

3. [1986] AC 112.

4. Professor Kennedy advocated this controversial approach in the aftermath of Gillick, arguing that non-competent minors had no right to confidentiality and indeed that there was a duty to pass information to parents: Kennedy, I ‘The Doctor, the Pill and the Fifteen Year Old Girl’ in Kennedy, I (ed) Treat Me Right (Oxford: Clarendon Press, 1988) pp 63–65, 111–117Google Scholar. See also Grubb, A and Pearl, D ‘Medicine, Health, the Family and the Law’ [1986] Fam Law 227 at 240Google Scholar, although the authors thought that equity could intervene to prevent disclosure to newspapers; Mason, J K, McCall-Smith, R A and Laurie, G T Law and Medical Ethics (London: Butterworths, 6th edn, 2002) p 255 Google Scholar.

5. J Montgomery ‘Confidentiality and the immature minor’ [1987] Fam Law 101: Montgomery did not seek to exclude the infant from the protection of the law of confidentiality, but in fact his arguments support the existence of a duty in respect of the older child only.

6. Kennedy, n 4 above, p 113. There is a body of thought which links confidentiality to autonomy interests or to privacy and thence to autonomy interests, see eg Phillipson, G and Fenwick, H ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63 MLR 660 CrossRefGoogle Scholar; E Beardsley ‘Privacy: Autonomy and Selective Disclosure’ Ch 3 Nomos XIII; S McLean and G Maher Medicine, Morals and the Law (Aldershot: Cower, 1983) pp 176–177.

7. Kennedy, Grubb and Pearl, n 4 above.

8. [1986] AC 112: ‘emergency, parental neglect, abandonment of the child or inability to find the parent’ at 189, per Lord Scarman: he suggested that there might be other exceptional circumstances not dealt with in this list. Lord Templeman at 200, made exceptions for emergencies and, at 204–205, for where parental rights have been abandoned, abused, in the sense of sexual or physical abuse, and again left open the possibility that there might be other exceptional cases.

9. Lord Fraser and Lord Templeman made some comments which may have had a bearing on this issue which will be examined subsequently: see under Best Interests below.

10. [1986] AC 112 at 204.

11. [1989] 2 All ER 791.

12. [1989] 2 All ER 791 at 795, per Lord Donaldson of Lymington, at 798, per Balcombe LJ, at 800, per Nicholls LJ. A duty of confidentiality was also recognised as being owed by a doctor to a child patient in Re A (disclosure of medical records to the GMC) [1998] 2 FLR 641 at 646.

13. [1989] 2 All ER 791 at 795, per Lord Donaldson of Lymington.

14. [1989] 2 All ER 791 at 795, per Lord Donaldson of Lymington, at 800, per Nicholls LJ.

15. [1995] 4 All ER 961.

16. [1995] 4 All ER 961 at 979.

17. Venables v News Group Newspapers Ltd [2001] 1 All ER 908 at 939; the President also included social services department case records. See also Re A (disclosure of medical records to the GMC) [1998] 2 FLR 641 at 646; R (on the application of Stevens) v Plymouth City Council [2002] 1 WLR 2583 at 2599.

18. Coco v AN Clark (Engineers) Ltd [1969] RPC 41; Duchess of Argyll v Duke of Argyll [1967] Ch 302; Stephens v Avery [1988] Ch 449; W v Egdell [1990] Ch 359; Re Z (a minor) (identification: restrictions on publication) [1995] 4 All ER 961 at 979; A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 255, per Lord Keith, at 268, per Lord Griffiths; Ashworth Hospital Authority v MGN Ltd [2001] 1 All ER 991; Douglas, Zeta-Jones, Northern & Shell PLC v Hello! Ltd [2001] QB 967.

19. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47.

20. [1990] 1 AC 109.

21. [1990] 1 AC 109 at 281.

22. Hunter v Mann [1974] 1 QB 767 at 772; W v Egdell [1990] Ch 359;A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 255, per Lord Keith; X v Y [1988] 2 All ER 648.

23. Ashworth Hospital Authority v MGN Ltd [2001] All ER 991 at 1003, per Lord Phillips of Worth Matravers MR.

24. Toulson, R G and Phipps, C M Confidentiality (London: Sweet & Maxwell, 1996) ch XIII, para 13–02Google Scholar; Davies, M Medical Law (London: Blackstone, 2nd edn, 1998) pp 33–34 Google Scholar.

25. Curry, F Breach of Confidence (Oxford: Clarendon Press, 1984) p 148 Google Scholar; Toulson and Phipps, n 24 above, ch XIII, para 13–02.

26. [1989] 2 All ER 791 at 795.

27. Kennedy, I and Grubb, A Medical Law (London: Butterworths, 3rd edn, 2000) p 1077 Google Scholar.

28. Re C (a minor) (wardship: medical treatment) (No 2) [1989] 2 All ER 791 and Venables v News Group Newspapers Ltd [2001] 1 All ER 908 at 939 involved challenges by newspapers to injunctions prohibiting the publication of confidential information about, in the first case, a ward of court and, in the second, adults who would be exposed to serious risk if publication occurred; Re Z (a Minor) (identification: restrictions on publication) [1995] 4 All ER 961 was an application to lift an injunction prohibiting the media from publishing information about the child. Although it was initiated by the mother, the aim of the application was to permit broadcasting of the information by a media company to the public. No question arose concerning the mother gaining access to the information.

29. Cf Mason, McCall, and Laurie, n 4 above, p 244; the GMC indicates that disclosure of information without consent may take place to protect the patient from death or serious harm, but does not indicate what course should be adopted in the face of a refusal: GMC Confidentiality: Protecting and Providing Information (September 2000) para 36.

30. The argument to the contrary was rejected by Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal and the Maudsley Hospital [1985] 1 AC 871 at 884.

31. Eg under the Data Protection Act 1998, s 2, Sch 1, Pt 1, Sch 3, health information is defined as sensitive personal information and is subject to additional controls on processing.

32. Mason, McCall and Laurie, n 4 above, p 239.

33. Gurry, n 25 above, pp 33, 113, 121.

34. [1990] 1 AC 109 at 282.

35. [1988] Ch 449.

36. [1988] Ch 449 at 456; see also Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134.

37. Thompson, M ‘Breach of Confidence and Privacy’ in Clarke, L (ed) Confidentiality and the Law (London: Lloyds of London Press, 1990) p 73 Google ScholarPubMed.

38. See Toulson and Phipps, n 24 above, ch I; Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807, per Laws J.

39. Z v Finland(1998) 25 EHRR 371; MS v Sweden (1999) 28 EHRR 313; R v Secretary of State for the Home Department, ex p Amnesty International (No 3) (1 5 February 2000, unreported), QBD.

40. Douglas, Zeta-Jones, Northern & Shell PLC v Hello! Ltd [2001] QB 967; A v B Plc [2002] 2 All ER 545 at 549. See commentary in R Singh QC and J Strachan ‘The Right to Privacy in English Law’ [2002] 2 EHRLR 129; Phillipson and Fenwick, n 6 above.

41. [2001] QB 967.

42. [2001] QB 967 at 1001.

43. [2001] QB 967 at 1012. Brooke LJ based his judgment on s 12(4) of the Human Rights Act 1998.

44. [2001] 1 All ER 908.

45. [2001] 1 All ER 908 at 933.

46. [2002] 2 All ER 545

47. [2002] 2 All ER 545 at 554.

48. See also B v H Bauer Publishing [2002] EMLR 8: the defendants escaped liability because these conditions had not been met rather than because they were not in a relationship of confidence.

49. Ashworth v Security Hospital v MGN Ltd [2002] 4 All ER 193 at 211, per Lord Woolf, with whom the other Law Lords agreed. See also the Master of the Roll’ s discussion in the Court of Appeal [2001] 1 All ER 991 at 1012.

50. [2001] 1 All ER 908.

51. [2001] 1 All ER 908 at 933. See also R v Secretary of State for the Home Department, exp Amnesty International (No 3) (15 February 2000, unreported), QBD: Simon Brown LJ commented that ‘medical information was intrinsically confidential’.

52. Although the development of the law in this manner has been criticised as a distortion of both the law of confidence and the right to privacy: in Campbell v MGN Limited [2003] QB 633, Lord Phillips, giving the judgment of the court, commented on ‘the shoe homing into the tort of breach of confidence publication of information that would, more happily, be described as breach of privacy’: at 663; Singh and Strachan, n 40 above; P Kearns ‘Privacy and the Human Rights Act 1998’ (2001) NLJ 377.

53. Both Gurry and Toulson and Phipps consider that detriment is not required: Curry, n 25 above, p 407; Toulson and Phipps, n 24 above, ch VI, para 6–04.

54. Gurry, n 25 above, p 5 n 8, pp 407–408.

55. A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.

56. [1990] 1 AC 109 at 255–256.

57. [1990] 1 AC 109 at 281–282.

58. [1990] 1 AC 109 at 270.

59. [1990] 1 AC 109 at 255.

60. [1988] 2 All ER 648.

61. [1988] 2 All ER 648 at 657.

62. [1989] 2 All ER 791.

63. [1989] 2 All ER 791 at 794, per Lord Donaldson.

64. [1989] 2 All ER 791 at 794–795, per Lord Donaldson, at 797, per Balcombe LJ, at 800, per Nicholls LJ.

65. J Montgomery Health Cure Law (Oxford: Oxford University Press, 2nd edn, 2002) p 257. In support of this position are Lord Keith's comments in A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 255.

66. [2001] EMLR 12.

67. [2001] EMLR 12 at [347].

68. [2002] EMLR 6.

69. Applying these arguments, an older child or adult who is unaware that a breach of confidence had occurred has an interest in privacy, as they possess self-consciousness, but will not have suffered an injury to their sensibilities and so, if this is required, will not have suffered detriment.

70. [2001] QB 885.

71. [2001] QB 885 at 901.

72. [2001] QB 885 at 901.

73. [2001] QB 885 at 899.

74. Lord Mustill’ s words could be interpreted as implying that to establish a breach of confidentiality does not require any offence to the sensibilities, but simply the disclosure of private information. This would suggest that an infant could have secrets and an interest in confidentiality even if the child had none in privacy. However, different rationales underpin the protection of confidentiality in personal and commercial contexts. In the latter, the function of the law is economic, to protect commercial positions and reward commercial investment, whereas in the former, it is the safeguarding of trust. It does not follow therefore that because a company is deemed to have an interest in confidentiality despite its lack of human sensibility, that an infant has a similar interest. A company has an interest in preserving confidentiality on the basis of its interest in preserving its economic position, but an infant has no parallel interest in avoiding a betrayal of trust: for a discussion of the role of the law of commercial confidentiality, see H J Glasbeek ‘Limitations on the Action of Breach of Confidence’ in D Gibson (ed) Aspects of Privacy Law (Toronto: Butterworths, 1980) p 217.

75. Gaskin v United Kingdom [1990] 1 FLR 167; Costello-Roberts v United Kingdom [1994] 1 FCR 65; Stubbings v United Kingdom [1997] 1 FLR 105; B v United Kingdom [2002] 34 EHRR 34; Mikulic v Croatia [2002] 1 FCR 720.

76. R (on the application of Addinell) v Sheffield City Council [2001] ACD 61; B (disclosure to other parries) [2001] 2 FLR 1017; R (on the application of Rose) v Secretary of State for Health [2002] 2 FLR 962; R (on the application of Stevens) v Plymouth City Council [2002] 1 WLR 2583, discussed further below; L Teaching Hospitals NHS Trust v A [2003] 1 FCR 599.

77. A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 256. This leaves open the possibility that disclosures which are in the best interests of an infant would not give rise to any actionable detriment to that infant, given that no question of the infant's wishes would arise.

78. Capper, D ‘Damages for breach of the equitable duty of confidence’ (1994) 14 LS 313 Google Scholar; see also discussion in Toulson and Phipps, n 24 above, ch II, paras 2-062-11, 2-17-2-20; and Curry, n 25 above, ch XXIII.

79. W v Egdell [1990] Ch 359 at 398, per Scott J: although this case was based in contract and therefore faced the rule in Addis v Gramophone Records [1909] AC 488 that compensation for mental distress is not available in contract. The Law Commission considered that there was no basis for awards for mental distress for breach of confidence even in non-contractual cases: Breach of Confidence (Law Com no 110, 1981) paras 4.79–4.82.

80. (1998) 25 EHRR CD 105.

81. [2001] QB 967.

82. [1990] 1 AC 109 at 286.

83. [2001] QB 967 at 1000–1001. Sedley LJ was giving judgment on an interlocutory application. At trial, judgment was given for the claimants but on the basis of commercial, rather than personal, confidentiality: Douglas, Zeta-Jones, Northern & Shell PLC v Hello! Ltd (11 April 2003, unreported), Ch D.

84. [2001] EMLR 12.

85. [2001] EMLR 12 at [348]. The sum was modest, £3,000: at [349].

86. [2001] EMLR 12 at [344]. As the breach had already occurred and was not to be repeated an injunction was not appropriate and nor, on the facts, was an order for delivery up nor an account of profits.

87. [1990] Ch 359.

88. [1909] AC 488.

89. [2002] EMLR 6.

90. Lord Keith of Kinkel in A-G v Guardian Newspapers Ltd (No 2) appeared to accept the possibility that such damages might be available: [1990] 1 AC 109 at 255.

91. Kennedy and Grubb, n 27 above, p 1077. See also Toulson and Phipps, n 24 above, ch XIII, para 13–14, who argue that disclosure to the parents to facilitate treatment for a child should ordinarily occur and would not involve a breach of duty.

92. GMC, n 29 above, para 38. Admittedly the paragraph is ambiguous and could be read as saying disclosure can be made either where the child cannot consent to treatment or cannot consent to disclosure: but if a child cannot consent to disclosure then it is highly unlikely it would be in a position to consent to treatment and it therefore makes little sense to mention both capacities.

93. Data Protection (Subject Access Modification) (Health) Order 2000, SI 2000/413, art 5(3).

94. Hamilton, C and Hopegood, L ‘Offering Children Confidentiality: Law and Guidance’ (1997) 140 Childright 9 Google Scholar; Dalrymple, J ‘Safeguarding young people through confidential advocacy services’ (2001) 6 Child and Family Social Work 149 CrossRefGoogle Scholar; Daniels, D and Jenkins, P Therapy with Children: Children's Rights, Confidentiality and the Law (London: Sage, 2000)Google Scholar.

95. Montgomery, n 5 above.

96. Kennedy, n 4 above. Cf Montgomery, n 65 above, pp 309–310.

97. Smith, A McCall ‘Is Anything Left of Parental Rights?’ in Sutherland, E and Smith, A McCall (eds) Family Rights: Family Law and Medical Ethics (Edinburgh: Edinburgh University Press, 1990) pp 10 and 17Google Scholar.

98. See eg Eekelaar's argument that where the exercise of a child's autonomy does not harm his basic and developmental interests, it has a strong case to be respected: J Eekelaar ‘The Emergence of Children's Rights' (****) 6 OJLS 161.

99. Re E (a minor) (1990) 9 BMLR 1; Re S (a minor) (consent to medical treatment) [1994] 2 FLR 1065; Re L (Gillick competency) [1998] 2 FLR 810.

100. Kennedy and Grubb, n 27 above, pp 649–650; J Bridgeman ‘Because We Care’ in S Sheldon and M Thomson (eds) Feminist Perspectives on Health Care Law (London: Cavendish, 1998); J Fortin Children's Rights and the Developing Law (London: Butterworths, 1998) pp 108–109; A Morris ‘Treating children properly: law, ethics and practice’ (1999) 15 PN 249.

101. Assuming that the capacity to make decisions to withhold information is less than that needed to make treatment decisions, children may possess this capacity at a very young age. For a discussion of children's capabilities, see P Alderson Children's Consent to Surgery (Buckingham: Open University Press, 1993).

102. [2002] 1 WLR 2583.

103. Prior to the hearing in the Court of Appeal the authority agreed to allow the experts instructed by C's mother access to his mental health records, psychological assessments, approved social worker reports, minutes of case conferences and professional network meetings, summaries from staff and his key worker, but continued to resist disclosure to the mother or her solicitor. Her son, C, consented to the disclosure of his files, but was deemed to be non-competent and his consent was therefore ineffective: (2002] 1 WLR 2583 at 2589.

104. Kennedy LJ agreed with Hale LJ's analysis of the law but disagreed on the outcome of the balancing exercise (discussed subsequently): [2002] 1 WLR 2583 at 2600.

105. [2002] 1 WLR 2583 at 2594.

106. [2002] 1 WLR 2583 at 2599.

107. [2002] 1 WLR 2583 at 2599.

108. This parental right is established at Convention level: see Mc Michael v United Kingdom (1995) 20 EHRR 205.

109. [2002] 1 WLR 2583 at 2598–2599.

110. [2002] 1 WLR 2583 at 2599.

111. See also the first instance decision of Addinell v Sheffield City Council [2001] ACD 61 in which the judge accepted that a dead teenage boy had Art 8 rights of privacy exercisable against his father so as to prevent the father accessing the boy's social services records.

112. The cases commonly concern a conflict between parental rights and children's interests. The precise weight to be accorded to a child's welfare is a little uncertain. In Yousef v Netherlands [2003] 1 FLR 210 at 221–222, the European Court indicated that the rights of the child are paramount and in cases of conflict the child's interests must prevail over the parents' Art 8 rights. Other cases have indicated that a child's interests are of crucial importance: Scott v United Kingdom [2000] 2 FCR 560 at 572; K v Finland [2001] 2 FLR 707 at 734; TP v United Kingdom [2001] 2 FLR 549 at 568. In Johansen v Norway [1997] 23 EHRR 33 at 72 and P v United Kingdom [2002] 2 FLR 631 the court stated that particular importance is to be attached to the interests of the child and depending on the nature and seriousness of those interests, they may outweigh the parents' interests. See A Opromolla ‘Children's Rights under Articles 3 and 8 of the European Convention: recent case law’ (2001) 26 Supp EL Rev 46; J Herring Family Law (Harlow: Longman, 2001) p 347.

113. The text of Art 8(2) reads: ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

114. See Johansen v Norway [1997] 23 EHRR 33; TP v United Kingdom [2001] 2 FLR 549; K v Finland [2001] 2 FLR 707.

115. Olssnn v Sweden (No 1) (1988) 11 EHRR 259; Hoffman v Austria (1993) 17 EHRR 293.

116. Dawson v Wearmouth [1999] 2 AC 308 at 321, per Lord Mackay of Clashfern, at 329, per Lord Hobhouse of Woodborough; Payne v Payne [2001] 1 FLR 1052 at 1064–1065, per Thorpe LJ, and at 1077, per Butler-Sloss P.

117. Kennedy and Grubb, n 27 above, p 1079; GMC, n 29 above, para 38.

118. TP v United Kingdom [2001] 2 FLR 549 at 570–571.

119. [1991] 4 All ER 177.

120. [1992] 4 All ER 627.

121. Rights which were recognised in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: see, in particular, the judgment of Lord Scarman.

122. [1992] 4 All ER 627 at 643.

123. A Grubb ‘Treatment Decisions: Keeping it in the Family’ in A Grubb (ed) Choices and Decisions in Health Care (Chichester: Wiley, 1994) p 64.

124. [1992] 4 All ER 627 at 643.

125. [1992] 4 All ER 627 at 648.

126. [1992] 4 All ER 627 at 638.

127. An argument made by Kennedy and Grubb, n 27 above, p 1079. The disclosures which could be permitted under this are broader than those where parental consent is required to obtain treatment for the child and would include disclosures of information which indicate that a child is at serious risk of harm from themselves or a third party, providing the parents could take action to reduce the risk.

128. See discussion in Kennedy and Grubb, n 27 above, pp 984–989.

129. [2002] 1 WLR 2583.

130. [1986] AC 112.

131. [1986] AC 112 at 203.

132. [1986] AC 112 at 174.

133. [1986] AC 112 at 173.

134. This leaves open, of course, the vexed questions of how a child's best interests should be assessed and whether it is ever justifiable to overrule an autonomous child's decision in their best interests. It is clear that the current law permits the latter. Should this alter, then, in relation to the autonomous child, it would follow that it would not be possible to justify breaches of their confidentiality by reference to best interests any more than it would be possible to do so with an adult.

135. A duty of confidence ‘affects the conscience of the person who receives the information with the knowledge that it has originally been communicated in confidence’, per Sir Nicholas Browne-Wilkinson V-C in A-G v Guardian Newspapers Ltd (No 2) [1987] 1 WLR 1248 at 1265, cited by Bingham LJ in A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 215; Stephens v Avery [1988] 2 All ER 477 at 492.

136. [2001] QB 424 at 443–444.

137. [2001] QB 424 at 439.

138. [2001] QB 424 at 439.

139. There is, however, some support for Sedley LJ's approach in a passage in the first instance decision of W v Egdell [1990] Ch 359 at 392, which was cited on appeal by Sir Stephen Brown P at 414.

140. [2001] QB 424 at 440.

141. See R (on the application of Stevens) v Plymouth City Council [2002] 1 WLR 2583; MS v Sweden (1999) 28 EHRR 313.

142. [1969] RPC 41 at 47.

143. See review of authorities in Gurry, n 25 above, pp 113–120; cf Kennedy and Grubb, n 27 above, p 1063, who argue that only a disclosure of information can amount to a breach of confidence and that to say that misuse is a breach of confidence is to confuse the action for breach of confidence with a more general action for infringement of privacy: this may be so but, as Gurry shows, misuse of information has long been an element of a breach of confidence action. In addition such misuse may very well involve a breach of trust rather than an invasion of privacy such as where an employee uses his employer's customer database to solicit custom for himself.

144. Toulson and Phipps, n 24 above, ch III, paras 3-14-3-15.

145. Eg Misuse of Drugs (Notification of Supply to Addicts) Regulations 1973, SI 1973/799; Public Health Act 1984, s 11: notification of notifiable diseases.

146. Toulson and Phipps, n 24 above, ch III, para 3–02 n 5.

147. See Kennedy and Grubb, n 27 above, p 1073. The authors argue that Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 is authority for the proposition that information can be used for the purposes for which it was taken, even in the face of a’ confider's' objections, without this being a breach of confidence. This case may be better read, however, as being based upon the defence of public interest.

148. See R (on the application of Stevens) v Plymouth City Council [2002] 1 WLR 2583 at 2595.

149. Where disclosure is made in the public interest however, it is suggested that such disclosures are prima facie a breach of confidence which require justification (see W v Egdell [1990] Ch 359; X v Y [1988] 2 All ER 649) and that this is the correct approach for the same reasons which are advanced in relation to the best interests test. There is, however, some uncertainty as to whether the public interest operates in this manner or whether, if there is a public interest in the communication of information, it eliminates the confidentiality of the information: Gurry, n 25 above, ch XV; Toulson and Phipps, n 24 above, ch VI; Y Cripps ‘The Public Interest Defence to the Action for Breach of Confidence and the Law Commission's Proposals on Disclosure in the Public Interest’ (1984) 4 OJLS 361.

150. [2002] 1 WLR 2583.

151. [2002] 1 WLR 2583 at 2595.

152. There are conceivably cases where a doctor may obtain information the disclosure of which would not be authorised, eg where the result of a test for a genetic condition reveals that the male parent is not the biological father of the child. Disclosure of such information arguably does not fall within the purpose of the visit. A further issue regards the limitations on parental powers of authorisation, other than where a competent child objects to the proposed disclosure: in Re Z (a minor) (freedom of publication) [1995] 4 All ER 961, Ward LJ identified disclosure by parents of confidential information relating to a child as an exercise of parental responsibility which was carried out on the child's behalf. However, he stated that parents had no right to waive confidentiality where it was contrary to the welfare of the child: at 983–984.

153. The criteria a child must meet in order to be deemed competent to authorise disclosures will depend upon how willing the courts are to allow children to make their own decisions. In Re Z (a minor) (freedom of publication) [1995] 4 All ER 961 at 983, Ward LJ considered, in an obiter aside, that a child would have to be Gillick competent but it has been argued elsewhere in this paper that this ought not to be necessary.

154. Many theories of children's rights accept that paternalistic interventions can be justified, serving those rights and interests which are not to do with the child's autonomy. There is a lack of consensus however in relation to when particular interferences with a child's autonomy are legitimate. For an overview, see A Bainham Children: The Modern Law (Bristol: Family Law, 2nd edn, 1998) ch 3.