Water Week

EWN Publishing

Aus legal duty of confidentiality extends to those who “happen to come across” information

Posted by waterweek on 20 September 2007

In Australia, the law relating to confidential information became well-established over the past 40 years, and it was now settled that a legal duty of confidence was not limited to a person who received information confidentially, reported The Courier Mail (4/9/2007, p.18). Legal test: Rather, the duty extended to anyone into whose hands the information may come, in circumstances which made it reasonably apparent that the information was and remained confidential. The test of confidentiality was simply stated by Justice (Sir William) Deane in the 1984 Moorgate Tobacco case as being whether “the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff”.

Clear legal duty: It was difficult to imagine any situation where it would not be apparent to a person, who “happens to come across” a patient’s medical records, that the patient was likely to be concerned about their secrecy. It followed, as a general proposition, that a person who “happens to come across” another person’s medical re­cords had a positive legal duty to protect their confidentiality.

The Courier Mail, 4/9/2007, p. 18

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