Using and disclosing confidential patient information and the English common law: What are the information requirements of a valid consent?

Abstract

The National Health Service in England and Wales is dependent upon the flow of confidential patient data. In the context of consent to the use of patient health data, insistence on the requirements of an 'informed' consent that are difficult to achieve will drive reliance on alternatives to consent. Here we argue that one can obtain a valid consent to the disclosure of confidential patient data, such that this disclosure would not amount to a breach of the common law duty of confidentiality, having provided less information than would typically be associated with an 'informed consent'. This position protects consent as a practicable legal basis for disclosure from debilitating uncertainty or impracticability and, perhaps counter-intuitively, promotes patient autonomy.