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I am not going to attempt in these remarks to set out the law on confidentiality, but rather to offer one or two reflections from the perspective of a sympathetic outsider on the way in which the civil courts might approach issues relating to confidentiality in this area. Dr Hale and Mrs Garvey have given examples of what the law does and how it can operate in this field and, while some of what follows will touch on the law itself, I have necessarily simplified my account of the law and it should not be treated as legal advice. I shall confine my remarks to the common law and not attempt to grapple with issues such as data protection and access to medical records which have their own statutory regimes.
In general, English law will protect communications from disclosure if they have been made in circumstances of confidence. This applies if information is imparted confidentially or in circumstances which are such as implicitly to give rise to a relationship of confidence - such as would be inherent in a relationship between a psychoanalytic psychotherapist and a patient. There really is no doubt or argument about whether a patient's communications with a psychotherapist are confidential. They plainly are. The difficulties come in defining the boundaries of the confidentiality and, of particular concern, the circumstances in which the confidentiality will be over-ridden and disclosure will be required.
The paradigm case will involve a civil dispute in which the psychotherapist is called upon to disclose or confirm information or communications which he or she has received from a patient in the course of psychotherapy, or even the fact that a particular person has been receiving psychotherapy. This is perhaps the most likely context in which these issues will arise. But there are many others. It may unfortunately be a claim against, or even by, the psychotherapist. More usually, it will be a claim by or against the patient, but it could equally be a criminal prosecution a