Articles and Case Studies

Our Medico Legal Advisory Service

16 Sep 2012

Nerissa Ferrie

by Ms Nerissa Ferrie

MDA National’s Medico-legal Advisory Service assists Members with a range of legal and ethical dilemmas. With permission from the Member involved, Medico-legal Adviser, Nerissa Ferrie reviews a recent matter concerning patient confidentiality.

Where the Truth can be Stranger than Fiction

The call

When the Member first contacted our Medico-legal Advisory Service, his practice had been approached by the manager of the building who asked staff to identify a person captured on CCTV. The reception staff viewed the footage and confirmed that the person in the video was known to them.

The video showed the patient leaving the Member’s rooms, pausing outside the allied health professional’s office across the corridor, and walking off with some packages left outside the door.

The building manager reported the theft to the police, but subsequently lost the CCTV footage. The police advised the practice that they couldn’t pursue charges against the patient unless the practice staff were 100% sure they could identify the patient as having committed the theft.

Privacy and ethics

Although practice staff were able to clearly identify the patient, they were careful not to inadvertently breach the patient’s privacy by providing personal details to the building manager without consent.

The Member had an additional problem because he was due to perform surgery on the alleged thief that afternoon! He didn’t know if it was ethically appropriate to operate given what he now knew about his patient. The Medico-legal Adviser asked the Member whether this knowledge would in any way compromise the medical care he provided to the patient. The Member said no and he appropriately decided to proceed with the surgery. To cancel the surgery at such short notice would require explanation, and at this stage the patient was unaware she had been filmed pilfering packages from outside the allied health provider’s office.

Police statements

One month later, the Member sought further advice when the police contacted the rooms seeking statements from the practice staff. The police advised the Member that in this case they were unable to compel the practice staff by way of a warrant, which would protect the practice from a breach of confidentiality and a potential complaint.

Our advice

We advised the Member that unless the police could compel the practice staff to provide the information requested, they were not required to do so. If the practice wished to cooperate with the police, they could consider doing so on the basis of Australian Privacy Principle (APP) 6, Use and Disclosure of Personal Information, under one of the seven  ‘permitted general situations’ where personal information can be disclosed for a secondary purpose.

APP 6 contemplates permitted uses and disclosures where the APP entity holds a reasonable belief that the use or disclosure of someone’s personal information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body (APP 6.2(e)). Such activities include “prevention, detection, investigation and prosecution or punishment of criminal offences and intelligence gathering activities”. The section is not intended to override the duty of confidentiality between a medical practitioner and an individual. The test which should be applied requires the practitioner to look at the seriousness of the situation – for instance, an investigation into an alleged murder or sexual offence would clearly be more serious than property theft.

In this case, the Member decided that the seriousness of the act did not warrant a breach of confidentiality and politely declined to assist the police with their prosecution.

Have you had any similar ethical conundrums?

Share your comments below…

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