Common law duty of confidentiality

Common law is not written out in one document like an Act of Parliament. It is a form of law based on previous court cases decided by judges and is also referred to as ‘judge-made’ or case law. The law is applied by reference to previous cases and is said to be ‘based on precedent’.

The general position is that, if information is given in circumstances where it is expected that a duty of confidence applies, that information cannot normally be disclosed without the information provider’s consent. In practice this means that all patient/service user information, whether held on paper, computer, visually, by audio recording or held in the memory of the professional, must not normally be disclosed without the consent of the patient/ service user.

It should be noted that the duty:

  • Applies regardless of the patient/ service user’s age
  • Applies regardless of the patient/ service user’s mental or physical health or condition
  • Continues when staff are no longer employees of the Trust.