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This is an account of the talk that I gave at the BCP conference on confidentiality. It is personal and, at times, journalistic, and concerns itself with much that is political.
My own experience started some eight years ago at the Portman Clinic - an NHS psychotherapy clinic for people who have committed criminal or sexually deviant acts and are troubled by it. Paedophilia, for example, is a common reason for being referred. Not surprisingly, issues of confidentiality are crucial for such patients - most would like the assurance of absolute confidentiality. The extent to which we could (or should) provide such assurances was unclear to us. We therefore decided to consult two lawyers who gave us largely dramatically opposed opinions. This was the first lesson - that the law is not always clear and that it is subject to interpretation. The second is that there was often room for manoeuvre within the law, and hence the need for the professions to take an active (or proactive) role.
In this consultation we were made aware of the crucial difference between (i) statute law which is laid down by Act of Parliament, an infringement of which has specified punishment attached, and (ii) common law in which an individual (patient) who has a grievance against a professional asks a court to decide whether that professional has discharged his/her professional duty. Such a judgment would largely take into account the opinions of other members of that profession. The result would be that, if successful, the complainant would be awarded damages and the professional might be reported to his/her professional registration body.
The sanction of a professional body would be to deny the professional the right to work (being struck off or suspended from a register). An employing authority equally may decide that an employee has contravened its code of practice and terminate employment. Both registration authorities and employing authorities will have codes of practice. These are not law but ma