Articles and Case Studies

Collateral Damage – Dealing with Unsolicited Information

07 Jun 2016

by Nerissa Ferrie

Man and woman in conversation

Prevention is often better than cure, so we like to share challenging medico-legal issues with our Members before they find themselves in the middle of a dispute.

Collateral information provided by concerned family members can often assist doctors in providing timely clinical care. However, unsolicited information is sometimes volunteered which may not be in the best interests of the patient.

Case history

You have been treating an elderly patient, Edna, for a number of years – both before and after her husband’s death. You have had minor interactions with one or two of Edna’s four children when they accompanied Edna to an appointment, but she usually comes to consultations alone. Edna is starting to experience some short-term memory loss, but she still drives short distances and lives independently.

You have a new patient, Tracey, coming in. You have no idea that Tracey is one of Edna’s daughters. It is only when you welcome Tracey into the consultation room that she discloses the reason she has come to see you is to discuss concerns about her mother.

Tracey says:

Doctor, someone needs to take Mum in hand. Dad left her very comfortable financially, but lately she has been donating large sums of money to the local church and other charities. She’s spending our inheritance at a rate of knots! She’s clearly being influenced by someone in the church and I’m concerned that she has lost the plot. This old bloke at the church started coming over to her house and I think he’s stealing her money. Here’s a copy of a recent bank statement, so you can see how much has been taken from her savings account. Can’t you declare her incompetent and stop her spending so much?

Discussion

So what do you do when a family member volunteers unsolicited information about a patient, and where should you document this information?

The first thing you should do is explain to Tracey that as the purpose of her visit was to discuss her mother, and not her own health, this does not constitute a doctor-patient relationship. Tracey agrees that she has her own GP and is not seeking clinical care. You should then explain that you owe Edna a duty of confidentiality and privacy, and you cannot discuss her personal health information without her express consent, nor can you accept unsolicited information about Edna without her knowledge.

Tracey says, “You can’t tell her I came to see you, she will be furious. I just want you to stop her spending so much money!”

At this point there are two options available to you.

    1. Make it clear to Tracey that if she wants you to raise these issues with Edna, you will need to advise Edna of the conversation and the concern raised.

    If Tracey agrees to this, you can take note of the concerns (separate to the clinical notes) and raise them with Edna at the next consultation, or even suggest that Tracey comes to the next consultation with her mum. Once you have raised the concerns with Edna, you can clearly document the conversation in the notes with her full knowledge.

    2. If Tracey does not want Edna to know about her visit, you can inform Tracey that it is a family matter, not a medical issue, and direct Tracey to the tribunal in your state which deals with guardianship if the problem cannot be resolved within the family.

    If Tracey does not want her concerns documented or raised with Edna, you can still make your own enquiries, given that Edna is a vulnerable elderly patient.

At your next consultation with Edna, you decide to approach the conversation on a general social and wellbeing basis. You ask, “So how have you been getting on since Bill died?”

Edna replies:

It was hard at first, but the kids made sure I had plenty of time with the grandkids to keep me occupied. I recently joined a social club through my local church and I have met some lovely people there, including a man who also recently lost his partner. We have a lot in common. We have been fortunate through our lives and have healthy grown-up children who have their own families now. We wanted to give back to the community and we have been looking into local charities and trying to distribute some of our money to those most in need.

You have satisfied yourself that Edna is not being fleeced, without the need to raise Tracey’s concerns or to discuss Edna’s care without her knowledge or consent.

This is a fictional scenario and life is not always so neatly packaged, but the same principles generally apply.

General principles

  • Your duty is to the patient – not to the person providing the unsolicited information.
  • If you receive unsolicited information, either in person or in writing, advise the person that in order to act on the information you will need to disclose the content and the source to the patient. The sooner you have this conversation, the better.
  • If you don’t have consent to discuss the unsolicited information with the patient, any written material should be destroyed or returned to the person who provided it.
  • If the person providing the unsolicited information is also your patient, you should only record information in the clinical notes relevant to that patient’s clinical care, e.g. “having difficulty sleeping due to concerns about elderly mother”. You should not document anything in the notes of the patient who is the subject of the unsolicited information without first discussing it with them.
  • Encourage the friend/relative to raise their concerns directly with the patient, or see if the patient will agree to the friend/relative attending the next consultation where the issues can be raised in an open forum.

The issues raised may be legitimate, and the concern may be genuine and well meaning – but whether your patient is elderly, vulnerable or mentally ill, they are still entitled to patient confidentiality, privacy and good clinical care. This means not talking about them with others without their consent and knowledge.

These issues can be very complex. If you are in any doubt about your legal and professional obligations in these circumstances, please contact our Medico-legal Advisory Services team for further advice.


Nerissa Ferrie
Medico-legal Adviser
MDA National
Communication with Patients, Confidentiality and Privacy, Medical Records and Reports, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Psychiatry, Radiology, Sports Medicine, Surgery, Physician, Geriatric Medicine, Cardiology, Plastic And Reconstructive Surgery, Radiation Oncology, Paediatrics, Independent Medical Assessor - IME
 

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