Think before you talk

It’s a common scenario. Your receptionist calls you to say, “Doctor, before you see the next patient can you please take this phone call from …?” But the caller is not a patient. The person on the phone might be your patient’s partner, parent, adult child, or even a nosy neighbour.

Before you know it, the caller is giving you unsolicited information, quickly followed by, “You cannot tell the patient that I told you this.” Such information can also come in uninvited, in the form of a ‘private and confidential’ email or letter, similarly refusing consent for disclosure to the patient.

These scenarios have the potential to cause a medico-legal headache and serious consequences for all involved.

Patient confidentiality

According to Good Medical Practice: A Code of Conduct for Doctors in Australia, patients have a right to expect that doctors and their staff will hold their information in confidence. This is unless the patient provides consent; the information is compelled by law; or public interest considerations prevail.

While it’s not a breach of confidentiality to listen, breaches of confidentiality can occur inadvertently during discussions with a third party. Your obligations in relation to confidentiality should be made clear, presuming the discussion needs to occur at all.

Damage to the therapeutic relationship

If the patient subsequently finds out about the discussion, they may understandably feel their trust in your therapeutic relationship is lost. Patients are rightfully suspicious of information provided (or discussed) about them, without their involvement.

It may put you in an awkward position if the patient should confront you directly, seeking to know if you engaged in a discussion about their health with a third party.

Privacy obligations to the third party

The caller may have refused to allow you to reveal to the patient what it was you discussed, or even their identity. Yet, they expect you to magically act on this information.

Privacy laws may restrict what you’re able to do with the information without the consent of the caller. When receiving unsolicited information, your obligations under Commonwealth privacy law require you to “decide whether or not (you) could have collected the information” [4.2]. If you could not have legitimately collected the information, you need to decide whether there is an overarching obligation to act on it.

There are circumstances where the information (and source) might need to be revealed – such as serious risk to life, health, or public safety (e.g., firearm or driver safety) or where mandatory reporting obligations are involved (e.g., child safety).

Where there is no consent to inform the patient, consider whether the information should be destroyed, returned or ignored.

A decision to disclose the information should be made after obtaining advice about the specific circumstances, carefully considering the balance of risks.

How to store this information

Presuming the information cannot be discarded, deciding where to store it is often the trickiest part.

Any information stored in the file will likely be available to the patient, given their right of record access under privacy law. If you decide to destroy the information and not store it in the patient record, you may still need to retain a copy of what was provided so you can later demonstrate why it was not placed in the records. Your medical defence organisation may be the best place to store such a document.

How to avoid the pitfalls

• If possible, you should make the information provider aware at the outset of the conversation that any collateral information they disclose, including their identity, will be revealed to the patient. This discussion should occur before they disclose anything to you. If they do not consent, then you can refuse to proceed.
• Consider the impact on your therapeutic relationship with the patient before engaging in any discussion about unsolicited information.
• Any information received from a third party following their consent to release to the patient should be disclosed and verified with the patient at the earliest opportunity. If you need to store the information in the records before talking to the patient, ensure its unverified nature is also documented.
• If information is inappropriately stored in the records, these matters can be exceedingly complex to manage successfully, given the patient’s right of access.
• If the unsolicited information raises concerns regarding serious risk to life, health, or personal and/or public safety, then it may need to be acted on without the discloser’s consent.
• Please feel free to contact our Medico-legal Advisory Services team about how to handle unsolicited information. Ideally this advice should be sought before you store the information.

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