Confidentiality vs Risk of Harm

But there are times when doctors are not required to maintain patient confidentiality, and these exceptions are set out in both state and federal privacy legislation. However, under privacy legislation, there is no mandatory duty for doctors to disclose confidential information to third parties. Against this background, a recent finding by a Victorian Coroner suggests there are those who consider that doctors should make disclosures when exceptions apply.¹

Case history

Ms Adriana Donato was murdered by her ex-boyfriend, James Stoneham, on 23 August 2012 in Essendon, Victoria. The focus of the inquest into Ms Donato’s death centred on the extent of Mr Stoneham’s disclosure to his case manager, Clinical Psychologist Dr Caroline Gregory, of any threat to Ms Donato’s safety, either implied or explicit.

Ms Donato ended her relationship with Mr Stoneham for the second time in December 2011. By early to mid-February 2012, there was a change in Mr Stoneham who struggled to deal with the breakup. From this time, Mr Stoneham was drinking excessively and taking illicit drugs. He was attending Dr Gregory for treatment. Dr Gregory last saw Mr Stoneham on 22 August 2012, the day before Ms Donato’s death.

Medico-legal issues

The Victorian Coroner explored Dr Gregory’s obligations of confidentiality in the therapeutic relationship and the exemption to that confidentiality as set out in the Health Privacy Principles contained in the Health Records Act 2001 (Vic). The Coroner also examined whether the threshold for breaching confidentiality under the Health Privacy Principles – that the patient must present a “serious and imminent threat to an individual” ² – was too high.

Dr Gregory was shocked to learn about Ms Donato’s death. She stated that while Mr Stoneham had discussed feelings of anger, there was a vast difference between those feelings and what had happened. In her assessment of Mr Stoneham on 22 August 2012, Dr Gregory saw no risk of harm to anyone. At a consultation on 13 August 2012, Mr Stoneham had expressed aggression towards an unnamed individual and had thoughts of violence, but refused to disclose any details. There were earlier consultations where Mr Stoneham had expressed anger towards Ms Donato.

As a result of expert evidence, the Coroner concluded that Dr Gregory should have questioned Mr Stoneham on 13 August 2012 about his thoughts of violence and she should have made specific reference to Ms Donato. The Coroner considered that if this had occurred, it may have led to a notification by Dr Gregory to the police.

The Coroner commented that while the reporting of such matters is not mandatory, the spirit of the Health Privacy Principles demands that such matters must be addressed and that the reporting of above threshold cases should occur. In arriving at this view, the Coroner considered that the threshold under the Health Privacy Principles was too high and acknowledged that, at a federal level, there is no requirement that the threat needs to be “imminent”. The Coroner recommended that the Department of Health and Human Services give consideration to the removal of the requirement that a “serious risk of harm” be also one which is “imminent”.

Medico–legal advice

Under the Australian Privacy Principles (APPs), health information can be disclosed if it is a “permitted general situation” – this includes if you reasonably believe that the disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual.

Want to know more about your  obligations under state and federal privacy legislation?

Contact our Medico-legal Advisory Services team on 1800 011 255 for further information.

Medico-legal Advisory Services
MDA National

References

1. Coroners Court of Victoria. Inquest into the Death of Adriana Donato.
2. Health Records Act 2001 (Vic). Health Privacy Principle 2.2(h).