What Constitutes a Breach of Confidentiality?
What constitutes a breach of confidentiality? A breach of confidentiality is the unauthorized disclosure of confidential information.3 min read
Updated October 23, 2020:
What constitutes a breach of confidentiality? A breach of confidentiality, or violation of confidentiality, is the unauthorized disclosure of confidential information. It may happen in writing, orally, or during an informal meeting between the parties. A breach of confidentiality is especially significant in the medical field, the legal profession, the military, or matters of state security. It is a common law offense, meaning it can be brought as a civil lawsuit against the person who broke the agreement.
Confidentiality of data guarantees that only authorized people can access information. It is the basis of information security. It also raises the ethical principle that what is communicated between a professional and an individual can't be disclosed to anyone else, even to the police. Except in specific situations, these professionals are obliged by law to keep the information private.
Legally speaking, the issue of confidentiality of data arises when an obligation of confidence exists between a data collector and a data subject.
Privacy laws could cover breaches of confidentiality, as “confidentiality” and “privacy” almost have the same meaning. Among other sanctions, the convicted risks monetary damages and an injunction to stop revealing protected information.
Breach of Confidentiality in the Legal Profession
It is considered a breach of confidentiality when a lawyer reveals the information he received during professional conversations. It is prohibited by federal law. To obtain legal advice from their lawyer, the clients must divulge accurate and confidential information. They will do so if they trust their secret won't be revealed. This principle is known as attorney-client privilege, and it guarantees that even if the clients confess their guilt, their confessions won't be disclosed or used against them. Lawyers are not allowed to speak to the media or the police or testify in court concerning these confessions.
Exceptions to Breach of Confidentiality in the Legal Profession
In most jurisdictions, the protection of attorney-client privilege won't apply if any of the following are true:
- The client confesses his intention to commit a crime or the attorney thinks he might do so.
- He uses/seek to use the attorney services to perpetrate fraud. In that case, the attorney may disclose that information to prevent the crime from happening, but he is not obligated to do so.
- Someone other than the client and attorney is voluntarily present during their conversation.
Breach of Confidentiality in Medical Professions
It constitutes a breach of confidentiality if doctors, physicians, psychologists, and psychiatrists expose anything they were informed of by the patient during the treatment process, even after the deaths of their patient. Doing so is illegal and punishable under federal laws. To provide the best treatment, physicians need private information from their patients. Patients will only share it if they know it won't be disclosed. Confidentiality is fundamental in the medical sphere. Therefore, the person responsible for the breach may face sanctions from his employer or the board that approved his professional license.
Exceptions to Breach of Confidentiality in the Medical Profession
Some circumstances allow a disclosure by the professional:
- The patient freely agrees to the breach and is fully informed of the disclosure.
- When the patient is not able to give his consent. For example, if his conscious level is affected, disclosure can be justified on the presumption of implied consent.
- The patient represents a threat to himself or others.
- A judge orders the disclosure.
When medical staff needs to breach confidentiality, it should follow what is called the Caldicott Principles.
Breach of Confidentiality by an Employer
It is against federal laws for employers to sell or divulge the personal information their employees provide, such as Social Security or bank account numbers, home addresses, or credit card information. Employees risk identity theft or robbery if employers don't respect the confidentiality of their details. Employers should protect sensitive information in the workplace.
Breach of Confidentiality by the Employee
Companies that create and distribute innovative products keep the manufacturing details confidential to protect the ideas from stealing or duplicating by competitors. If an employee is terminated from one of these companies and discloses the secrets, he could cause substantial harm to its former employer. Therefore, many companies ask employees to sign a confidentiality agreement in which they consent not to disclose the company secrets if their contract ends.
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