Articles and Case Studies

Confidentiality

17 Aug 2017

Folder being stamped CONFIDENTIAL

It has long been recognised that a relationship of complete trust is essential for any effective therapeutic relationship between doctors and their patients

The duty of confidentiality encourages patients to fully disclose all personal information truthfully so that they can receive appropriate medical care.

"All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal"1

It has long been recognised that a relationship of complete trust is essential for any effective therapeutic relationship between doctors and their patients. The duty of confidentiality encourages patients to fully disclose all personal information truthfully so that they can receive appropriate medical care.

Patients should be able to divulge information to their doctors without fear of embarrassment, harm or discrimination that may arise from the widespread dissemination of the information. The duty of confidentiality extends to all information that arises out of a doctor’s professional relationship with patients. A patient’s right to confidentiality survives the doctor-patient relationship and the patient’s death, as stated in the World Medical Association’s Declaration of Geneva:

I will respect the secrets that are confided in me, even after the patient has died.2

The Medical Board of Australia’s Good Medical Practice:
A Code of Conduct for Doctors in Australia states:

“Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations.

Good medical practice involves:

  • Treating information about patients as confidential.
  • Appropriately sharing information about patients for their health care, consistent with privacy law and professional guidelines about confidentiality.
  • Being aware that there are complex issues related to genetic information and seeking appropriate advice about disclosure of such information”.3

A doctor’s legal obligation of confidentiality arises out of common law. There is also a wide range of legislation which provides for the protection of confidences. The reported case law suggests that civil actions based on breach of confidentiality by doctors are very infrequent but doctors may be the subject of a complaint and disciplinary action for a breach of confidentiality.

Exceptions to the Duty of Confidentiality

A doctor’s duty of confidentiality is not absolute. Doctors can provide information about a patient to a third party without it constituting a breach of confidentiality in the following situations:

  1. Express or implied consent of the patient to the release of the information
    This includes the disclosure of information to another health professional to ensure the appropriate medical care and treatment of the patient.

  2. Mandatory disclosure under compulsion of law
    This may include a subpoena, summons, search warrant or other Court order requiring the provision of information. There is also a wide range of legislation which varies in each state and territory and requires doctors to disclose information about their patients. This legislation includes:
    • Mandatory notification of child abuse – legislation exists in all states and territories, although in WA there is mandatory reporting of child sexual abuse only.
    • Reporting of “notifiable diseases” – these are generally infectious diseases where notification is required for public health purposes and the identity of the patient is not always disclosed.
    • Notification of births and deaths.

  3. Overriding duty in the “public interest” to disclose information
    These are often difficult and complex cases. The doctor has to decide whether their duty to the community outweighs that to their patient. The legal scope of the public interest exception to the duty of confidentiality is often unclear. However, for certain disclosures there is legislation that protects and indemnifies the doctor from the patient taking civil action against them.

    As a general principle, the public interest exception recognises that there may be a need to breach patient confidentiality in exceptional circumstances because of an overriding public interest favouring disclosure of information to an appropriate third party. This arises in limited circumstances where there is a serious threat to an individual’s life, health or safety; or a serious threat to public health or public safety. This exception generally relates to emergency situations.

    The Privacy Commissioner states:

    A ‘serious’ threat must reflect significant danger, and could include a potentially life threatening situation or one that might reasonably result in other serious injury or illness. Alternatively, it could include the threat of infecting a person with a disease that may result in death or disability. A threat could also relate to an emergency, following an accident, when an individual’s life or health would be in danger without timely decision and action.

    A ‘serious’ threat to public health or public safety relates to broader safety concerns affecting a number of people. This could include the potential spread of a communicable disease, harm caused by an environmental disaster or harm to a group of people due to a serious, but unspecified, threat. In this situation, the disclosure should only be made to a responsible authority with a proper interest in receiving the information. The exception also allows for disclosure to an individual whose life, health or safety is threatened.

An example of the requirement to disclose

Probably the most common example of the requirement to disclose in the “public interest” is that of a patient who refuses to stop driving despite medical advice to do so. In this case, the doctor can report the patient to the relevant Driver Licensing Authority (DLA).
In every state and territory, a doctor who notifies the DLA in good faith is protected from civil and criminal liability (note: in the Northern Territory and South Australia doctors have a mandatory obligation to report to the DLA if they believe a driver is physically or mentally unfit to drive).
Additionally, under amendments introduced in October 2009 to the Privacy Act, a doctor can disclose a patient’s genetic information, without the patient’s consent, in circumstances when there is reasonable belief that disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of his or her genetic relatives.4 Importantly, these amendments do not oblige disclosure of the information but allow disclosure to occur if needed.

Conclusion

Confidentiality is a fundamental basis of the doctorpatient relationship. Complex issues can arise for doctors in balancing the duty of patient confidentiality and the doctor’s duty to society at large. Members are encouraged to seek advice from an experienced colleague and our Medico-legal Advisory Services team in these circumstances.

  1. Hippocratic Oath. Available from: en.wikipedia.org/wiki/Hippocratic_Oath
  2. World Medical Association. Declaration of Geneva. August 1968. Available from: wma.net/policies-post/wma-declaration-of-geneva/
  3. Medical Board of Australia. Good Medical Practice: A Code of Conduct for Doctors in Australia; 2009. Available from: medicalboard.gov.au
  4. NHMRC and Office of the Privacy Commissioner. Use and disclosure of genetic information to a patient’s genetic relatives under Section 95AA of the Privacy Act (Cth). Guidelines for health practitioners in the private sector. Issued by the NHMRC on 27 October 2009. Available from: nhmrc.gov.au/about-us/publications/guidelines-approved-under-section-95aa-privacy-act-1988-cth
Confidentiality and Privacy, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Practice Manager Or Owner, Psychiatry, Radiology, Sports Medicine, Surgery
 

Library

How to Respond to a Complaint

Even a complaint that may seem trivial is important to the patient. MDA national Medico-legal Adviser and practicing GP, Dr Jane Deacon, discusses how to respond to a complaint.

Podcasts

11 Apr 2019

Top Tips and Medico-legal Mistakes Part 1

MDA National Executive Professional Services Manager and GP, Dr Sara Bird, explains how to be better prepared and avoid common medico-legal mistakes.

Podcasts

11 Apr 2019