Generally, rights can be said to protect our interests or our legitimate autonomy.11
When someone asserts a right, he seeks to demarcate a matter of sufficient importance that others have a duty either to meet his claim (a right to necessary medical care imposes a duty on the state to provide it), or not to interfere with his exercise of a liberty (a right to drink alcohol imposes a duty on others not to stop people from doing so). When someone asserts a right to confidentiality, he asserts a duty on those with knowledge not to share it.
This is exemplified by the patient with a cancer, perhaps colorectal or genital, who regards her condition as humiliating. Irrespective of the benefit that her relatives might derive from the knowledge of her cancer, and its details, she is resolute that her information should be kept confidential. If we are to be convinced that our duty to her is compelling, we need to know what interest it serves, or why it is entailed by an aspect of her autonomy.
suggests that whilst invasions of privacy vary, there is a ‘common foundation’ to the diverse matters that may constitute an invasion of privacy. An interest based on this foundation would demonstrate privacy's special source as the grounding of a right. Scanlon13
The interests to which an account of privacy must refer … include, in addition to specific interests in not being seen, overheard, etc., broader interests in having a zone of privacy in which we can carry out our activities without the necessity of being continually alert for possible observers, listeners, etc.
also believes there is a special interest that derives from privacy itself:
[T]he value of privacy [is] based on the idea that there is a close connection between our ability to control who has access to us and to information about us, and our ability to create and maintain different sorts of social relationships with different people.
Thus, a special interest can be seen to attach itself to privacy. By parallel reasoning, maintaining confidentiality when private information has been given in confidence provides the basis of a right.
From this general discussion, we can observe that there is a strong interest for each of us in sustaining privacy. This is as applicable to surgeons as it is to their patients. An HIV-positive dental surgeon was attempting to prevent a national newspaper from revealing his speciality, the health authority for which he worked, or the approximate time of his seroconversion.15
In considering the injunction that he sought to prevent publication, the court recognised the strong public interest in maintaining the confidentiality of health workers with HIV, since it was important that they were not deterred from reporting this to their employers. On the other hand, to constrain the paper from identifying him as a dentist would inhibit a legitimate public debate over the ability or otherwise of HIV-positive dentists to continue in practice. The injunction against naming the dentist or his employing authority was upheld.
Where we provide personal information in confidence, we can legitimately expect that confidence be maintained. This enables us to live fulfilling lives without concern about intrusion into our affairs. Furthermore, we have seen that in the healthcare context, this general rule is of particular salience: not only is health-related information considered to be ‘axiomatically private’;16
there are also good, consequence-based reasons for having a system in which patients expect confidentiality. Within marriage, each spouse retains this right. A husband has no more right to information about his wife's abortion than he has a right to veto it.17
Fifty years ago, at least one judge had no doubt that a surgeon should, in addition to obtaining the wife's consent, ‘approach the spouse in order to satisfy himself as to consent’ when considering sterilising a married woman.18
The dictum seems anachronistic now, although was equally applicable to vasectomy at the time.
Confidentiality promotes accurate consultations and, thereby, optimises the prospect of the best health outcomes. However, there are limits to this. Any right is qualified by all other rights. Sometimes, the interest supporting a right to confidentiality must bow to a greater interest supporting other rights.