Information Powers: Professionals: TMA70/S19A and FA98/SCH18/PARA 27 - General
The medical and legal professions owe their clients a strict duty of confidentiality. If they break this duty of confidence, they may be subject to a legal action by their clients.
If a legal or medical professional taxpayer advances his duty of confidentiality to his client as a reason for failing to comply with an informal request for information you may find that the following will help allay their concerns:
- Duty of confidentiality
HMRC’s strict statutory duty of confidentiality to taxpayers is enforceable by criminal prosecution and carries a maximum penalty of two years imprisonment (section 19, Commissioners for Revenue and Customs Act 2005). This means that any information seen is safe in our hands and could not be passed on unless there is an express statutory gateway that allows us to do so.
- Assurance about use of the information
You should give an assurance that any information about their clients (for example large dental bills) will not be used in initiating or as any part of an enquiry into their clients’ tax affairs
- The practical points
You are unlikely to be able to understand medical shorthand/jargon without their assistance and do not have the time or the inclination to interpret it
- Examination of Records
You could offer to examine the documents in the taxpayer’s presence (where practical).
Given the potential sensitivity of the information they may hold and the serious consequences that may follow from releasing it, you should not treat reluctance to comply with an informal request for information or documents alone as a sign that the taxpayer is being uncooperative.
In HMRC’s view, TMA70/S19A overrides the duty of confidentiality and this view was accepted by the Special Commissioners in Guyer v Walton, an appeal by a solicitor SPC 274/01 against a notice issued under section 19A TMA70 [note that the part of this decision relating to disclosure of legally privileged documents has been overridden by the House of Lords judgement in the case of R v Special Commissioner and another, ex parte Morgan Grenfell & Co. Ltd - but the finding on client confidentiality stands]. Therefore, a properly issued formal notice will enable you to proceed with your enquiry and protect the taxpayer from a potential legal action by his client. Therefore, in most cases the taxpayer will prefer the comfort of a formal notice.
For this reason you should frame your requests for information in the expectation that you will need to proceed without delay to the issue of a formal notice. You should seek only documents or particulars that are ‘reasonably required’ at that stage of your enquiry. You may issue a further notice or notices at a later date should it become necessary.
As with any request for private information you should consider the rights of privacy under HRA 98/Article 8 before taking any steps to request information or documents. If your request is for sensitive information such as medical details EM10043 you should be particularly careful when considering the proportionality of your request. EM1350+ provides some general guidance. However, in a usual case, this will mean that you must be satisfied (and be able to justify, if necessary to a Commissioner) that the information is not only relevant to your enquiry but is also the least intrusive method of effectively resolving the enquiry.