Connolly: Yes to Privacy Act Liability for Mental and Emotional Distress

A couple of years ago I wrote here about the Supreme Court case denying that a person could collect damages from the government under the Privacy Act based on mental and emotional distress. It’s a narrow point, but an important one, because the harm …
Privacy Act: are you compliant?

It has been nearly nine months since the Privacy Amendment (Enhancing Privacy Protections) Act 2012 (Cth) (Privacy Amendment Act) came into effect on 12 March 2014 and amended the Privacy Act 1988 (Cth) (Privacy Act) with what are some of the …

medico legal

Second workshop of series of medico-legal workshops.

 

The law relating to health and medicine is ever changing field. The area of medical professional negligence litigation can be argued as one of the most difficult and technical forms of personal injury litigation.

 

In this medico-legal series of workshops we will discuss all areas where doctors may be at risk of litigation or at risk of action taken by registering bodies.

 

There is anecdotal evidence that every doctor will experience a complaint against her or him at some stage of their career. Although, most of the complaints against doctors never see the Court or dismissed by Medical Boards, the process itself is extremely unpleasant experience.

 

The learning objective of this series of workshops is to equip you with knowledge of how to minimise the risk of the complaints made against you. Also, we will discuss risk minimisation strategies related to investigations by Medicare and Medical Boards.

Privacy.

 

Privacy The Privacy Act 1988, applies to public sector agencies, private organisations as well as individuals. If any of its provisions have been breached, the claimant may complain to the federal Privacy Commissioner, which may be enforced by the Federal Court.
Some states and Territories have also legislated for their own privacy laws. These laws apply to private institutions, public agencies and individuals, and mostly concern the use of personal information, particularly health information.
Personal information relating to a patient must not be collected for recording purposes except in the event that it is necessary for which it was actually collected, the patient is informed or aware of this reason of collection and is aware as to whom the information will be disclosed to.
Such information must also be protected against being misplaced, misused, accessed by an unauthorized person, modified or disclosed.
Practice point 1.


Collection of information must pass relevance test. 


Recent real life example: female patient complained to Medical Board claiming that male doctor breached professional boundaries. She claimed that asking about her sexuality and sexual habits was irrelevant and offensive. Doctor’s defense was that he had to know this information in order to manage her recurrent UTI better. Doctor was reprimanded by the Board. He had to explain to the patient that he was going to ask certain questions and how is it relevant to the clinical task at hand.


Practice point 2.


It is a duty of a doctor to make sure that all reasonable steps are taken in order to protect patient information.


This is a “near miss” case that was recently discussed with one of the doctors. Doctor M. often takes patient’s notes home to complete. One night he had a party at home. At some stage he realised that the patients’ notes are on his desk can be easily accessed by any of the guests. He immediately removed the notes into locked drawer. Luckily, there was no actual breach.


Self-managed activity 1 (20 min).
Please, imagine you movements throughout your shift at work and the following day. Are there any moments where you are at higher risk of breach of privacy? What would you change in your routine in order to minimise the risk of breach of privacy?

 

Confidentiality.

Unlike privacy, confidentiality concerns the disclosure of personal information to third parties. It employs not only medical principles (patients can feel free to disclose any information to their doctor with sense of security)but also ethical (involving the patient’s right to autonomy and self- determination as to what information will be disclosed to their doctor and who will be the recipient of the information, without the potential of being discriminated against or stigmatized) and public policy principles (where patients are assured the information they disclose will be kept confidential, effective treatment can take place)
Patients are owed a legal Confidentiality can be explained as the expectation of the patients that their private and personal information that they divulge to their doctors is imparted on the condition that the information will not be used for purposes other than those for which it is given.

Confidentiality – Inappropriate disclosure of patient information

In late 2009, the patient presented to the general practitioner (GP) with psychological problems and other medical issues. The patient’s family members were also patients of the GP. The GP became aware in April 2010 that the patient had separated from her husband. In late 2010, the patient’s husband presented the eight year old child of the marriage to the GP with a second degree burn after a kettle of boiling water had fallen on him. The husband requested a report for the Family Court to assist in his court application for sole custody of the children. The GP provided the report and disclosed the patient’s confidential health information without her consent.

Allegations

The GP faced an allegation that she breached the patient’s privacy by providing a letter to the husband that disclosed confidential health information without the patient’s consent.

Finding

The Panel found that the GP wrote a report disclosing the patient’s confidential health information, and gave it to the patient’s husband without the patient’s consent and that, upon reflection, she realised she had breached the patient’s privacy.

The Panel found that the GP behaved in a way that constituted unprofessional conduct. It also found the GP believed that she was acting in the best interests of the children and had learned from the experience.

The Panel decided that the GP engaged in unprofessional conduct, in that her professional conduct was below the standard reasonably expected by the public or her peers.

Determination

The Panel cautioned the GP to take care not to disclose confidential health information without first obtaining consent.

 

 

Self-managed activity (20 min).

Could you recall any situation in your practice, which carries any resemblance with the case above? What would you do?

 

Exceptions. Do you owe duty of confidentiality all the time?

There are exceptions to the rules of confidentiality. The first, most common one is Court subpoena. Subpoena is a document signed and stamped by Court / Magistrate ordering you to release some or all information about the patient. You do not need to ask patient’s consent to release that information.

Second exception is “public interest”. For example, if a doctor believes that patient is a danger to himself / herself or to others – public interest overrides confidentiality. Patient may be mentally ill or carrier of dangerous infectious disease. In cases like these doctor notifies police, Health Department, relatives etc.

Child abuse is another incidence of a duty by doctor to notify relevant authorities. This duty overrides duty of confidentiality.

 

Practice points:

  • Under no circumstances, doctor should release any information about patients to any third party, except
  • Subpoena issued by Court
  • Public interest
  • Suspected case of child abuse

 

Self-managed activity (20 min).

 

Please, reflect on your practice and try to remember any situations where you had to consider the issue of confidentiality.

 

Presence of a third party

Key points

  • Patients must be asked to provide consent for the presence of a third party before the consultation commences
  • Third parties can be interpreters; carers; relatives; friends; medical, allied health or nursing students on placement; general practice registrars or chaperones
  • When prior consent for the presence of a third party has been provided, it is prudent to check that the consent remains valid at the outset of the consultation.

Prior consent

Ideally, permission for the presence of a third party during the consultation needs to be sought when the patient makes an appointment, or, failing that, when they arrive at reception. It is not acceptable to ask permission in the consulting room, as some patients may feel ‘ambushed’ and unable to refuse. Once prior consent has been sought and given, the GP should confirm at the outset of the consultation that the patient has consented to the presence of any third party.

Chaperones

In some circumstances, the patient or GP may feel more comfortable if there is a chaperone present during an examination. Appropriate consent needs to be obtained from the patient where the doctor requests the presence of a third party for this purpose. The RACGP has a position statement on the use of chaperones.

Third parties such as family or carers

Where a patient is accompanied to the practice by a third person (such as a family member or carer) it is equally important to ensure that the patient consents to the presence of that person in their consultation and it is useful to record this consent in the consultation notes.

Practice staff need to be mindful of the particular needs of people with intellectual disabilities who may not be able to provide consent. In such cases a legal guardian or advocate may have been appointed to oversee the interests of the patient. More information on guardianship can be found atwww.hreoc.gov.au/disability_rights/hr_disab/areas/appendices.htm#app1.

Students on clinical placement

Exposure to general practice is important for the recruitment and training of our future GPs as well as other health professions.

Recent graduates and international medical graduates are more likely to enter general practice if they have exposure to general practice in their university education. The general practice term is the most important part of vocational training and most general practice registrars report that the experience is valuable. Hence, education and training are among the most important reasons for a third party to observe or to be involved during the consultation.

The permission of the patient must be obtained before the consultation if undergraduate students, general practice nurses or other doctors or health professionals are to be involved in the consultation, whether through direct observation, interview or examination.

 

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