Duty of confidentiality | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 45 minutes
These Duty of confidentiality A-Level Law revision notes explain the domestic duty protecting confidential information and its relationship with Article 8 privacy and Article 10 freedom of expression. OCR specifically requires the duty of confidentiality to be studied in relation to both Convention rights. The central problem is often a conflict: one person wants sensitive information kept private while another wants to disclose it. This builds on privacy protection [Article 8], freedom of expression [Article 10] and the balancing principles in Restrictions on Convention rights [Restrictions on Convention rights].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain the elements required for a breach of confidence at the level required by OCR.
Explain what is meant by information having the quality of confidence.
Explain how a duty of confidence may arise.
Explain what amounts to unauthorised use or disclosure.
Explain the relevance of detriment.
Explain the principal grounds identified by OCR which may prevent liability, including information already being public and public-interest disclosure.
Analyse the relationship between confidentiality and Article 8.
Analyse the competing importance of Article 10.
Apply confidentiality principles to factual situations and reach balanced conclusions.
Revision Notes 📚
Duty of confidentiality and the OCR specification
OCR places the duty of confidentiality within Human rights and English law and requires it to be understood:
in relation to rights under Articles 8 and 10.
This means there are two connected levels to the topic:
Domestic law: Has there been a breach of confidence?
Human-rights law: How should the claimant's Article 8 privacy be balanced against the defendant's Article 10 freedom of expression?
The 2022 OCR examination directly tested breach of confidence through the disclosure of a patient's medical information.
Breach of confidence
The elements required by OCR
OCR's 2022 mark scheme identifies four elements when explaining breach of confidence:
the information was obtained in circumstances which give rise to a duty of confidence
the information has the quality of confidence
it is used in an unauthorised way
the claimant suffers detriment from the use.
This gives you a very useful examination structure:
Duty → Confidential information → Unauthorised use → Detriment
Apply each element separately rather than simply saying:
"The information was private, so there is a breach."
1. A duty of confidence
The first question is whether the information was obtained in a situation which creates a duty of confidence.
The circumstances surrounding the relationship are important.
OCR's 2022 scenario concerned a patient's medical information held by a health authority.
The mark scheme stated that there would be a clear duty on the doctor not to disclose the data.
This gives a strong OCR example:
doctor or health professional + patient's medical information → clear confidentiality relationship
The underlying point is that some information is given or obtained in circumstances where the recipient should understand that it is not free for unrestricted disclosure.
Confidential relationships
A duty of confidence is especially easy to recognise where the relationship itself involves an expectation that sensitive information will remain private.
For example, the OCR material clearly supports the duty attached to:
doctors
medical information
patient records.
For an examination scenario, do not simply identify the relationship.
Explain why the circumstances create an expectation of confidentiality.
2. Quality of confidence
The information must have the quality of confidence.
In simple terms, it must genuinely be confidential rather than ordinary information already freely available.
OCR's 2022 mark scheme expressly states that medical records between a patient and doctor satisfy the concept of quality of confidence.
This makes highly personal information an obvious starting point.
Examples supported by the OCR material include:
medical records
health information
personal data disclosed within a confidential medical relationship.
Medical information
Medical information is particularly strong because it is both:
inherently personal
normally communicated within a relationship involving confidentiality.
OCR's Tom scenario involved a diagnosis of early-stage dementia which Tom had told nobody about.
The mark scheme treated those medical records as clearly satisfying the quality-of-confidence requirement.
This also creates a powerful link with private life under [Article 8].
3. Unauthorised use
The confidential information must be used or disclosed in an unauthorised way.
Consent is therefore highly significant.
In OCR's Tom scenario, the health authority could argue that the information had been passed on in connection with further treatment.
However, the mark scheme emphasised that this happened without Tom's consent and therefore had to be considered unauthorised.
The key exam question is:
Did the claimant authorise this particular use or disclosure?
Do not assume that because information was originally supplied for one legitimate purpose it may automatically be used for every other purpose.
Purpose matters
Suppose a patient gives a doctor sensitive information for the purpose of receiving medical treatment.
That does not automatically mean the patient has agreed that the information may be passed to:
an employer
a newspaper
a commercial company
unrelated third parties.
The original confidential purpose and the later disclosure should be compared carefully.
4. Detriment
OCR's mark scheme identifies detriment to the claimant as the fourth element of breach of confidence.
For examination purposes, therefore, consider the negative effect which follows from the unauthorised use.
Depending upon the facts, detriment might arise because the disclosure:
causes distress
exposes sensitive information
affects the claimant's personal life
removes the claimant's control over confidential information.
The important skill is to connect the actual disclosure in the scenario with its effect upon the claimant.
The elements together
A useful application table is:
Element | Question to ask |
Duty of confidence | Was the information obtained in circumstances requiring confidentiality? |
Quality of confidence | Is the information genuinely confidential? |
Unauthorised use | Was this use or disclosure permitted by the claimant? |
Detriment | Has the claimant suffered a negative consequence from the use? |
In a scenario, move through all four.
Grounds which may prevent liability
OCR's 2022 mark scheme identifies three principal matters which may answer a breach-of-confidence claim:
the information is already in the public domain
the information was not confidential
there is a public interest in disclosure.
These should be tested against the facts rather than merely listed.
Information already in the public domain
Information which is already genuinely public presents a much weaker confidentiality claim.
The logic is straightforward:
If information is already freely available, it is difficult to argue that the defendant has revealed something which remained confidential.
However, do not assume information is public merely because:
several people know it
the claimant is famous
rumours exist.
The question is whether the relevant information has actually lost its confidential character.
Information was not confidential
A claimant must establish that the material has the quality of confidence.
Ordinary information which was never private or confidential will not satisfy that element.
This makes the nature of the information central to the claim.
Compare:
A private medical diagnosis: very strong confidentiality argument.
A fact openly announced by the claimant: much weaker confidentiality argument.
Public interest in disclosure
The most important competing justification
OCR expressly identifies public interest in disclosure as a possible answer to a breach-of-confidence claim.
This connects confidentiality directly with Article 10.
Sometimes society benefits from information being disclosed even though it was originally confidential.
The key question becomes:
Is there a genuine public interest strong enough to justify disclosure?
Public interest is not the same as public curiosity
This distinction is crucial.
OCR's 2022 examiner report praised candidates who distinguished between:
information which is in the public interest
information which the public would simply be interested in.
These are very different.
Public interested: People would enjoy reading gossip about somebody's private medical condition.
Public interest: Disclosure reveals serious wrongdoing or another matter of genuine importance to society.
A strong answer should explain why publication serves a legitimate public purpose.
Article 8 and confidentiality
Article 8 protects private life
Article 8 protects:
private life
family life
home
correspondence.
Confidential information, particularly personal or medical information, can therefore fall within the privacy interests protected by Article 8.
OCR's 2022 mark scheme specifically connects medical records with a reasonable expectation of privacy.
This means breach of confidence can provide domestic legal protection which reinforces a person's Article 8 interests.
Reasonable expectation of privacy
In a confidentiality scenario, ask:
Could the claimant reasonably expect this information to remain private?
Medical records provide a strong example.
Tom had told nobody about his dementia diagnosis.
The information was held within the medical system.
OCR concluded that he would have a reasonable expectation of privacy regarding those records.
This makes the case for confidentiality particularly strong.
Article 8 strengthens the privacy side of the balance
Where disclosure involves:
health
intimate personal matters
family information
other genuinely private information
Article 8 gives constitutional and human-rights importance to maintaining confidentiality.
However, Article 8 is a qualified right.
It does not automatically defeat every competing claim to disclosure.
This is where Article 10 becomes important.
Article 10 and confidentiality
Freedom of expression
Article 10 protects the right to:
hold opinions
receive information
impart information and ideas.
Disclosure of confidential material can therefore fall within freedom of expression.
A newspaper or other publisher may argue:
Preventing publication interferes with our Article 10 rights.
This creates a direct conflict:
Article 8 claimant: "Protect my private and confidential information."
Article 10 publisher: "Protect my freedom to communicate information."
Neither Article should automatically be ignored.
Article 10(2) and confidential information
Article 10 itself recognises that freedom of expression can be restricted.
OCR's 2023 and 2025 mark schemes specifically identify:
preventing disclosure of confidential information
as one of the recognised Article 10(2) grounds for limiting expression.
This is a very important connection.
The domestic duty of confidentiality can therefore operate as a restriction upon Article 10 where preventing disclosure is legally justified.
Article 8 versus Article 10
The central balancing exercise
Many confidentiality problems become a balance between two protected interests.
Article 8 | Article 10 |
Privacy | Expression |
Control over personal information | Ability to communicate information |
Confidential medical or personal data | Journalistic or other publication |
Reasonable expectation of privacy | Public interest and freedom to inform |
The correct question is not:
"Which Article is more important in general?"
It is:
Which right has the stronger claim on these particular facts?
Balancing the rights
You studied balancing of rights in [Restrictions on Convention rights].
In a confidentiality problem, consider factors such as:
On the Article 8 side
How private is the information?
Was there a clear duty of confidence?
Is it medical or otherwise sensitive?
Did the claimant consent?
What detriment may disclosure cause?
On the Article 10 side
What type of expression is involved?
Is there a genuine public interest?
Is the information already publicly known?
Is disclosure necessary to expose wrongdoing or inform an important debate?
The strength of each side depends on the facts.
Proportionality
Even where some disclosure is justified, ask whether the extent of disclosure is proportionate.
For example, suppose confidential information reveals genuine wrongdoing.
There may be a strong public-interest argument for disclosing the wrongdoing.
But does that require publishing:
every private medical detail?
unrelated family information?
intimate photographs?
Possibly not.
This demonstrates an important principle:
A justification for some disclosure does not necessarily justify unlimited disclosure.
Proportionality therefore helps determine how much information may properly be revealed.
HRH Prince of Wales v Associated Newspapers
OCR's 2022 mark scheme identifies HRH Prince of Wales v Associated Newspapers as relevant authority for breach of confidence.
For OCR revision, use the case as support for the law protecting information communicated or held in circumstances of confidence.
Mosley v News Group Newspapers
OCR's 2022 breach-of-confidence mark scheme also identifies Mosley v News Group Newspapers as relevant authority.
OCR's Article 10 mark schemes separately use Mosley when discussing press freedom, making it particularly useful for understanding the relationship between privacy and expression.
This demonstrates why confidentiality can create a genuine human-rights conflict:
privacy/confidentiality
versus
press freedom/expression.
Again, apply the principle to the factual situation rather than simply listing the case name.
Medical confidentiality
A particularly strong example
Medical information provides the clearest OCR example of confidentiality.
The 2022 mark scheme states that:
medical records have the quality of confidence
the patient has a reasonable expectation of privacy
there is a clear duty not to disclose the data
disclosure without consent is unauthorised.
This gives you an excellent model for applying all the elements.
Example: doctor discloses diagnosis
Imagine Amara tells her doctor that she has been diagnosed with a serious condition.
Without Amara's permission, the doctor gives her identifiable records to a private company which then contacts her about a commercial product.
Apply:
Duty
The doctor-patient relationship clearly indicates confidentiality.
Quality of confidence
A private medical diagnosis is highly confidential.
Unauthorised use
Amara has not consented to the disclosure.
Detriment
She has lost control over sensitive personal information and may suffer distress.
Possible justification
Ask whether any genuine public interest supports the disclosure.
If the purpose is merely commercial marketing, that would appear weak.
A breach of confidence is strongly indicated.
Disclosure for treatment purposes
The fact that information is used for a health-related purpose does not automatically settle the issue.
In Tom's case, OCR acknowledged an argument that the information might have been disclosed to further his treatment.
However:
Tom did not consent
the disclosure remained unauthorised
the facts did not strongly support a public-interest justification.
This teaches an important application lesson:
Do not accept the defendant's stated reason without comparing it carefully with the confidentiality requirements.
Anonymisation
The 2022 question stated that the health authority claimed patient data was always anonymised before release.
However, Tom began receiving calls specifically inviting him to take part in dementia drug trials shortly after his private diagnosis.
This creates a factual problem with the claim that his identity had genuinely been protected.
A strong AO2 answer should notice the inference:
If the company could identify Tom and connect him with a particular medical condition, the factual circumstances cast doubt on whether his confidentiality was effectively preserved.
This is a good example of using the facts critically rather than simply accepting what one party says.
Confidentiality and famous people
Being well known does not automatically remove confidentiality.
A celebrity or public figure can still possess:
private medical information
confidential correspondence
private personal information.
However, their public role may affect the public-interest analysis if the information genuinely relates to matters of public importance.
The key distinction remains:
public interest
not merely
public curiosity.
This links directly to the privacy analysis in [Article 8].
Confidentiality and wrongdoing
A public-interest justification is potentially stronger where confidential information reveals genuine wrongdoing.
Suppose an employee possesses confidential documents demonstrating serious unlawful conduct by a powerful organisation.
The organisation may rely upon confidentiality.
The person wishing to disclose the information may rely upon:
public interest
Article 10 freedom of expression.
The correct answer requires balancing.
Do not state either:
"Confidential means it can never be published."
or:
"Public interest means confidentiality never matters."
Instead consider the strength and relevance of the disclosure.
Confidentiality and journalism
Journalistic expression has particular significance under Article 10.
OCR's Article 10 mark schemes recognise journalistic expression as important in a democracy and identify the public's right to receive information as part of Article 10 protection.
This may strengthen a publisher's case where confidential information exposes a genuinely important issue.
But Article 10(2) also expressly recognises preventing disclosure of confidential information as a legitimate restriction.
This creates a genuine balance rather than an automatic victory for either privacy or journalism.
Public interest versus personal exposure
Compare these situations.
Scenario A
A newspaper publishes a person's private medical diagnosis because readers will find it entertaining.
Article 8/confidentiality: very strong.
Article 10 public-interest argument: weak.
Scenario B
Confidential documents provide reliable evidence that a senior public official has committed serious wrongdoing.
Confidentiality: still relevant.
Article 10/public interest: much stronger.
The same legal principles can therefore produce different results depending upon the content and purpose of disclosure.
Duty of confidence versus interception
Do not confuse this lesson with Interception of communications [Interception of communications].
Interception
The issue is how private information or communications are obtained or monitored.
Confidentiality
The issue is whether information already possessed in circumstances of confidence is used or disclosed improperly.
Tom's 2022 scenario deliberately tested both:
hospital disclosure → breach of confidence
employer's secret telephone monitoring → surveillance law.
This distinction is highly examinable.
Duty of confidence versus Article 8
Do not treat breach of confidence and Article 8 as exactly the same legal claim.
Breach of confidence
A domestic legal doctrine requiring you to apply the elements identified by OCR.
Article 8
A Convention right protecting private and family life, home and correspondence.
They are closely connected because confidential information may also be private.
But a question specifically asking:
"Has there been a breach of confidence?"
requires the breach-of-confidence elements, not merely a general Article 8 explanation.
Duty of confidence versus Article 10
Likewise, Article 10 does not automatically remove the duty.
Freedom of expression may provide an important competing interest.
However, Article 10 itself permits justified restrictions to prevent disclosure of confidential information.
So the correct reasoning is:
Article 10 engaged → confidentiality restricts expression → public interest and proportionality considered → conclusion
Confidentiality problem-solving method
OCR's 2022 examiner report noted that Question 4 had a narrow focus, and candidates who knew the specific elements of breach of confidence were able to answer successfully.
Use this structure.
Step 1: Identify the information
What precisely has been disclosed?
For example:
medical diagnosis
medical records
private personal data.
Step 2: Establish the duty
Was the information obtained in circumstances giving rise to a duty of confidence?
Step 3: Establish quality of confidence
Was the material actually confidential?
Step 4: Identify unauthorised use
Did the claimant consent to this disclosure or use?
Step 5: Explain detriment
What negative effect has the use had on the claimant?
Step 6: Consider possible answers to the claim
Is the information:
already public?
not genuinely confidential?
disclosed in the public interest?
Step 7: Apply Articles 8 and 10 where relevant
What weight does privacy receive?
What weight does expression receive?
Step 8: Balance and apply proportionality
Does the justification support this particular disclosure?
Step 9: Reach a clear conclusion
For example:
"The medical records have the quality of confidence and were disclosed without consent. As there is little evidence of a genuine public interest, a breach of confidence is strongly indicated."
Application grid
Scenario fact | Main confidentiality issue |
Doctor discloses a patient's diagnosis | Clear duty and quality of confidence |
Claimant expressly consented | Use may be authorised |
Information is already genuinely public | Confidentiality argument weakened |
Newspaper publishes confidential medical information | Article 8 versus Article 10 |
Disclosure reveals serious wrongdoing | Potential public-interest justification |
Publisher says people want to know | Public curiosity is not necessarily public interest |
Private data given to a commercial company | Consider duty, consent and purpose |
Claimant suffers distress or loss of privacy | Detriment |
Information obtained through surveillance | Consider Interception of communications separately |
Publisher wants to reveal confidential material | Article 10 engaged, but confidentiality is a recognised restriction |
Applying the Tom scenario
OCR's 2022 Tom problem is the best model for this lesson.
Information
Tom's diagnosis of dementia.
Duty
The information arose in a doctor-patient/medical context.
Quality of confidence
OCR states that the medical records clearly possess the quality of confidence.
Unauthorised disclosure
Tom had not consented to the release.
Privacy
He had a strong reasonable expectation that the diagnosis would remain private.
Justification
The authority might argue that disclosure supported further treatment.
However, OCR concluded that the public-interest argument was not strongly supported by the facts.
Likely outcome
The disclosure was therefore strongly capable of amounting to a breach of confidence.
Why factual application matters
A weak answer might write:
"Doctors owe confidentiality, so Tom wins."
A stronger answer explains:
"Tom's dementia diagnosis is contained within medical records, which OCR treats as having the quality of confidence. The medical relationship creates a clear duty not to disclose the information. Tom had not consented to the release, yet a private company was able to identify him and contact him about dementia treatment. The disclosure therefore appears unauthorised, while the facts provide little support for a genuine public-interest justification."
The difference is application.
Relationship with later OCR topics
Confidentiality is one of several domestic rules which may restrict expression.
OCR separately requires:
Obscenity [Obscenity]
Defamation [Defamation]
harassment.
Each limits Article 10 for a different reason.
For confidentiality, the focus is specifically upon information which should remain confidential and the balance with Articles 8 and 10.
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Duty of confidence | An obligation arising where information is obtained in circumstances requiring it to be kept confidential. | Identify the relationship and explain why the recipient should not freely disclose the information. |
Quality of confidence | The requirement that the information is genuinely confidential rather than already public or ordinary information. | Apply particularly to medical records and sensitive personal information. |
Unauthorised use | Use or disclosure of confidential material without permission or other sufficient authority. | Consider whether the claimant consented to the particular disclosure. |
Detriment | A negative effect suffered by the claimant because of the use of the confidential information. | Link the disclosure to distress, loss of privacy or other harm shown by the facts. |
Public interest | A genuine societal reason which may justify disclosure of otherwise confidential information. | Distinguish a disclosure serving an important public purpose from information which merely attracts public curiosity. |
Hints from the Examiner Reports 💡
Examiner hint: Learn the specific elements of breach of confidence. OCR's 2022 report states that candidates who knew these elements and supporting authority were able to make strong attempts at the confidentiality question.
Examiner hint: Prepare the domestic restrictions, not simply Articles 8 and 10. OCR warned that candidates must revise topics such as confidentiality separately rather than trying to solve every problem using only general Convention principles.
Examiner hint: Stay tightly focused on the precise area tested. The 2022 confidentiality question had a narrow focus, so detailed knowledge of the relevant doctrine was more useful than reproducing everything learnt about privacy.
Examiner hint: Distinguish public interest from what the public is interested in. OCR specifically identified this distinction as a strength in privacy-related application.
Examiner hint: Build the legal rule into the application. Strong answers should explain why the information has the quality of confidence, why the relationship creates a duty and why the particular use was unauthorised, rather than merely repeating the scenario.
Common Mistakes ⚠️
Mistake: Writing only about Article 8
Why this is incorrect: A question asking whether there has been a breach of confidence tests the domestic elements of that doctrine.
How to improve: Begin with:
duty → quality of confidence → unauthorised use → detriment
Then add the Article 8 connection.
Mistake: Assuming all personal information is automatically confidential
Why this is incorrect: OCR requires the information to have the quality of confidence.
How to improve: Consider what the information is, how it was obtained and whether it is already public.
Mistake: Forgetting consent
Why this is incorrect: Unauthorised use is one of the OCR elements.
How to improve: Ask whether the claimant agreed to this particular disclosure or use.
Mistake: Assuming medical information can always be shared if the purpose is health-related
Why this is incorrect: OCR's Tom mark scheme recognised the treatment argument but still emphasised that disclosure without Tom's consent was unauthorised.
How to improve: Test the justification rather than assuming a beneficial purpose automatically defeats confidentiality.
Mistake: Treating public curiosity as public interest
Why this is incorrect: Information may be highly attractive to readers without serving a genuine public purpose.
How to improve: Explain why society benefits from this disclosure.
Mistake: Assuming Article 10 always defeats confidentiality
Why this is incorrect: Article 10(2) specifically recognises preventing disclosure of confidential information as a possible lawful restriction upon expression.
How to improve: Balance Article 10 against Article 8 and the confidentiality interest.
Mistake: Treating surveillance and confidentiality as the same topic
Why this is incorrect: Surveillance concerns obtaining or monitoring information. Confidentiality concerns inappropriate use or disclosure of information already held in confidence.
How to improve: Use Interception of communications [Interception of communications] where the facts concern secret monitoring.
Mistake: Listing case names without using them
Why this is incorrect: OCR rewards supporting cases where they clarify the legal rule, not as decoration.
How to improve: Explain the principle for which HRH Prince of Wales v Associated Newspapers or Mosley v News Group Newspapers is being used.
Exam-Style Questions ✍️
Question 1
State the four elements of breach of confidence identified by OCR. [4 marks]
Answer:
information obtained in circumstances giving rise to a duty of confidence [1]
information has the quality of confidence [1]
information is used in an unauthorised way [1]
the claimant suffers detriment from the use [1].
Question 2
Give three matters identified by OCR which may prevent a successful breach-of-confidence claim. [3 marks]
Answer:
the information is already in the public domain [1]
the information was not confidential [1]
disclosure was justified by the public interest [1].
Question 3
Explain why medical records are likely to satisfy the quality of confidence requirement. [4 marks]
Indicative answer:
Medical records contain highly personal information. [1]
They are held within a confidential doctor-patient or healthcare relationship. [1]
OCR's 2022 mark scheme expressly treats medical records as possessing the quality of confidence. [1]
The patient is also likely to have a reasonable expectation of privacy in relation to them. [1]
Question 4
Explain how the duty of confidentiality relates to Articles 8 and 10 ECHR. [6 marks]
Indicative answer:
Article 8 protects private life and can support the claimant's interest in keeping confidential personal information private. [1]
Confidential medical information may give rise to a strong reasonable expectation of privacy. [1]
Article 10 protects the right to receive and impart information. [1]
Preventing publication of confidential material can therefore interfere with freedom of expression. [1]
Article 10(2) recognises preventing disclosure of confidential information as a possible restriction on expression. [1]
Courts may therefore need to balance privacy against freedom of expression and consider proportionality. [1]
Question 5
Noah tells his doctor that he has been diagnosed with a serious neurological condition. Without Noah's permission, the doctor gives identifiable details to a pharmaceutical company. The company contacts Noah directly to advertise an experimental treatment.
Advise Noah whether there may have been a breach of confidence. [6 marks]
Indicative answer:
The doctor-patient relationship gives rise to a clear duty of confidence. [1]
Noah's diagnosis and medical records have the quality of confidence. [1]
He has a strong reasonable expectation of privacy. [1]
Noah did not consent to the pharmaceutical company receiving his identifiable information, so the use appears unauthorised. [1]
The loss of privacy and unwanted contact can support detriment. [1]
With no clear public-interest justification in the facts, a breach of confidence is strongly indicated. [1]
Question 6
A newspaper receives confidential documents showing that a senior public official has secretly accepted large payments from a company in return for influencing government decisions. The official seeks to prevent publication, arguing that the documents were confidential.
Explain the arguments on both sides. [8 marks]
Indicative answer:
The confidential nature of the documents may give the official an initial confidentiality argument. [1]
Article 8 may also support protection of genuinely private information. [1]
Publication would involve Article 10 freedom of expression. [1]
Journalistic expression and the public's ability to receive important information may carry significant weight. [1]
OCR recognises public-interest disclosure as a possible answer to a breach-of-confidence claim. [1]
Evidence of serious wrongdoing by a senior official provides a strong genuine public-interest argument. [1]
The court should consider whether the extent of publication is proportionate and whether unrelated private details need to be revealed. [1]
The public-interest argument is therefore likely to be considerably stronger than if the information were merely private gossip. [1]
Question 7
Freya is a famous actor receiving treatment for a serious mental-health condition. A hospital employee secretly gives her medical notes to a celebrity website. The website argues that Freya often speaks publicly about healthy living and that readers will therefore be interested in her diagnosis.
Advise Freya. [10 marks]
Indicative answer:
The hospital relationship gives rise to a strong duty of confidence. [1]
Freya's medical notes have the quality of confidence. [1]
The information is intensely personal and attracts Article 8 protection. [1]
Freya has a strong reasonable expectation of privacy in medical records. [1]
The employee's disclosure was secret and the facts provide no evidence that Freya consented. [1]
This therefore appears to be unauthorised use. [1]
Loss of control over sensitive medical information and likely distress can establish detriment. [1]
The website has an Article 10 interest in publication. [1]
However, the fact that readers are interested does not itself establish a genuine public interest. [1]
On these facts, the Article 8 and confidentiality interests are likely to outweigh the weak expression argument, making breach of confidence strongly indicated. [1]
Question 8
A university researcher receives confidential patient information from a hospital for a specific medical research project. The hospital states that the information must be used only for that research. The researcher later gives identifiable records to a journalist investigating claims that the hospital has deliberately concealed dangerous failures in patient care.
Advise whether the disclosure is likely to amount to a breach of confidence. [12 marks]
Indicative answer:
A strong response should consider both sides.
Confidentiality
The information was received in circumstances expressly creating a duty of confidence.
Patient records are strongly capable of satisfying the quality-of-confidence requirement.
The researcher was authorised to use the records only for a specified research project.
Giving identifiable records to a journalist falls outside that stated purpose and therefore appears unauthorised.
Identified patients may suffer detriment through loss of privacy.
Their Article 8 rights strengthen the confidentiality argument.
Possible justification
OCR recognises public interest in disclosure as a possible answer to breach of confidence.
Allegations that a hospital concealed dangerous failures could involve a serious matter of genuine public importance.
Article 10 protects journalistic expression and the ability to receive important information.
However, proportionality is crucial.
It may be possible to reveal evidence of the hospital's wrongdoing without disclosing the identities and unrelated medical details of individual patients.
The fact that the records are identifiable therefore weakens the argument that this particular disclosure was necessary.
Conclusion
A balanced conclusion could find a strong public interest in revealing the alleged hospital wrongdoing while still concluding that disclosure of identifiable confidential patient records went further than necessary.
Question 9
'The duty of confidentiality provides necessary protection for Article 8 privacy, but it must sometimes give way to Article 10 freedom of expression.'
Discuss the extent to which you agree. [20 marks]
Indicative marking guidance:
A strong answer should explain the domestic law of confidence and analyse its relationship with both Convention rights.
Relevant points may include:
OCR expressly requires the duty of confidentiality to be studied in relation to Articles 8 and 10.
Breach of confidence involves information obtained in circumstances giving rise to a duty of confidence.
The information must have the quality of confidence.
Use or disclosure must be unauthorised.
OCR's 2022 mark scheme also identifies detriment to the claimant.
Medical records provide a particularly strong example of information possessing the quality of confidence.
A patient has a powerful expectation that sensitive medical information will remain private.
This domestic doctrine therefore supports the individual's Article 8 interest in private life.
Confidentiality can also promote trust in relationships where people need to disclose sensitive information.
OCR identifies HRH Prince of Wales v Associated Newspapers and Mosley v News Group Newspapers as relevant supporting authority.
However, confidentiality is not unlimited.
OCR identifies information already being public, the information not being confidential and public-interest disclosure as possible answers to a claim.
Article 10 protects the receipt and communication of information.
Preventing disclosure of confidential information is itself expressly recognised as a possible restriction under Article 10(2).
This means the legal system must balance confidentiality against expression rather than treating either interest as absolute.
Journalistic expression may carry particular democratic value where information exposes serious wrongdoing or matters of genuine public importance.
OCR examiner material emphasises the difference between information genuinely in the public interest and information which merely interests members of the public.
Disclosure of private medical details for entertainment provides a strong case for confidentiality.
Disclosure exposing serious wrongdoing creates a much stronger Article 10 and public-interest argument.
Proportionality is important because a legitimate reason to disclose some information does not automatically justify publication of every confidential detail.
The domestic duty therefore operates as one of the English-law restrictions shaping the practical operation of Convention rights.
OCR's 2022 examiner report demonstrates the importance of learning the specific domestic doctrine, rather than replacing it with a general account of Articles 8 and 10.
A strong conclusion may argue that confidentiality is essential for meaningful Article 8 protection, particularly for medical and highly personal information, but that a carefully controlled public-interest exception is necessary to prevent confidentiality from becoming an unjustified barrier to important Article 10 expression.
Higher-level responses should explain the elements of breach of confidence accurately, use supporting authority selectively, distinguish genuine public interest from curiosity, analyse both Articles 8 and 10 and reach a balanced conclusion.
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