Transcript Confidentiality - Memorial University of Newfoundland

Confidentiality
Drs. A. Latus and B. Barrowman
ISD I
May 7, 2003
Case 1
 Your patient Harold requests an HIV test. The result
is positive.
 H indicates that it is very important to him that you tell
no one he is HIV-positive. He intends to keep this
secret.
 You are aware that H is involved, probably sexually,
with a doctor you went to medical school with.
 You are very strongly inclined to warn your colleague
and tell this to H. He insists that you tell no one and
threatens you with legal action should you do so.
– What should you do?
Confidentiality Issues – Obvious &
Subtle
 Does H’s conduct pose such a risk to others
than it overrides his right to have his medical
information kept confidential?
 The case is loosely based on a real one.
Have we violated the patient’s confidentiality
by presenting the case in class?
Hippocratic Oath
“All that may come to my knowledge in
the exercise of my profession or outside
of my profession or in daily commerce
with men, which ought not to be spread
abroad, I will keep secret and will never
reveal.”
Canadian Medical Association
Code of Ethics
“22. Respect the patient’s right to
confidentiality except when this right
conflicts with your responsibility to the
law, or when the maintenance of
confidentiality would result in a
significant risk of substantial harm to
others or to the patient if the patient is
incompetent...”
Ethical Basis of Obligation of
Confidentiality
1. Beneficence: Expectation of confidentiality
facilitates patient care
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communication between doctor and patient
essential to the relationship
doctor requires information to give proper advice
and Rx
much of that information is very personal and
private
patients are more likely to reveal such
information if they are confident it will not be
revealed to third parties without their permission
Ethical Basis of Obligation of
Confidentiality
2. Autonomy/Respect for Patients
– general view that people have a right to control the
release of sensitive/personal information about
themselves
 revealing information in a clinical setting is not equivalent
to giving permission for free release of that information
– some would even claim that your personal health
information (or financial information or …) is
somehow roughly equivalent to your property and
so not to be used without your permission
Overcoming Confidentiality
 Notice that both reasons for valuing
confidentiality raise the possibility of limits to
confidentiality. Broadly:
– Beneficence: confidentiality may be breached
when a certain level/sort of harm will be prevented
– Respect for patient: confidentiality may be
breached when respect for you and/or others
requires this
Confidentiality – the Legal
Obligation
 Longstanding principle developed by courts
– arises from special relationship of trust and
confidence between doctor and patient
– essential in promoting open communication
– protects patient’s right to privacy and reputation
 Statutory requirement in many health care
settings - legislation governing hospitals
generally mandates nondisclosure of hospital
records
Current Interest in Privacy
 For reasons not solely connected with health care,
governments have taken a great interest in privacy
recently
– Federal Legislation: Personal Information Protection and
Electronic Documents Act (2001-4)
 Broadly speaking, requires organizations to obtain your consent
when they collect, use or disclose personal information
(including medical information) about you
– Provincial Legislation: NL Access to Information and
Protection of Privacy Act (passed, but not yet proclaimed)
 Some talk of legislation aimed specifically at health information
Breach of Duty of Confidentiality
 Doctor potentially liable to patient for
damages ($) in action for breach of
confidentiality
 Not a common cause of civil action or finding
of liability
 Professional disciplinary proceedings - very
common cause of complaint
Circumstances of Breach of
Confidentiality
 Most often careless/inadvertent
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office staff indiscretion
elevator chatter
discussion in rounds
inattention to wording of release
unguarded conversation with patients’
friends/relatives
– classroom
Breach of Confidentiality Electronic Records
 Must exercise special care with use of
fax, e-mail, other electronic means of
transmission of patient health
information - confidentiality easily
compromised
 Large number of people with potential
access to information
Exceptions to the Requirement of
Confidentiality
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Express consent
Implied consent
Legal proceedings
Statutory requirements
Protection of the public
Express Consent
 Doctor may disclose confidential information
when authorized or directed by patient to do
so
 Should obtain written authorization when info
of sensitive nature or to be released to third
party e.g. employer, insurer, etc
 Written authorization may be required by
legislation e.g. NL Hospitals Act
Express Consent
 For authorization for release of information to be
valid, patient must have mental capacity to
understand nature and effect of consenting to release
of confidential information
 Some provinces have legislation re. substitute
consent
 Important to have clear understanding of extent of
information to be disclosed
– i.e. all of chart? specific parts?
Implied Consent
 Patient’s authorization for release of information may
be reasonably implied in some cases
– e.g., consultation or discussions among members of health
care team
 Information should be shared with other health care
(or related) professionals only where reasonably
necessary for care and treatment of patient or for
safety of those treating patient
Implied Consent
 Implied consent to release information about
patient to family members?
 Onus on physician to show reasonable basis
for implied consent if there is later dispute
 Ask patient first whether ok to talk to family
members
Legal Proceedings
 Physician may not disclose confidential
information even in case of service of
subpoena or police investigation, except
when ordered to do so by court or pursuant to
search warrant
 No legal obligation to report to police names
of patients who may have been involved in
criminal activity
Legal Proceedings
 To comply with duty of confidentiality, physician
should request police to obtain search warrant for
production of chart in response to police inquiries
about a patient
 General rule that physician called as witness in legal
proceedings must answer all relevant questions
asked under oath
 Doctor-patient communications not categorically
protected from disclosure in court, however court has
discretion, particularly in area of mental health, to
excuse doctor from disclosing information
Statutory Requirements
 Several provincial and federal statutes
which require a physician to divulge info
obtained through doctor-patient
relationship
 Several statutes provide for prosecution
and penalties for failure to comply with
disclosure obligations
Statutory Requirements
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Suspected child abuse
Patient who may be unfit to drive
Commercial pilot unfit to fly
Reportable communicable diseases
Suspicious deaths
Vital statistics
Workers compensation
Medicare billing information
Statutory Requirements Child Abuse
 NL Child Youth and Family Services Act
– Mandatory reporting where person has information that child
is or may be “in need of protective intervention”
– Includes physical, sexual emotional abuse, neglect, living
with violence, etc.
– Applies to all professionals who work with children
 Pediatric situations raise a number of issues
concerning confidentiality. These will be dealt with
during a session in the pediatrics unit.
Statutory Requirements - Fitness
to Drive/Fly
 NL Highway Traffic Act - mandatory reporting
of “persons … suffering from condition that
may make it dangerous to operate a motor
vehicle”
 Aeronautics Act - duty to report flight crew or
air traffic controller who has medical or
optometric condition likely to constitute
hazard to aviation safety
Statutory Requirements Communicable Diseases
 Specific reporting requirements vary in
different jurisdictions
 Report notifiable diseases to
Community Health Offices in NF
 Variable reporting requirements for
different infections
Protection of the Public - Is there
a Duty to Warn?
 Situations where physician has duty to
society because need to divulge information
outweighs duty of confidentiality to patient
 Tarasoff, Smith v. Jones cases
 Disclosure of confidential information justified
(required?) where clear and imminent risk of
serious harm or death to identifiable
person(s)
Case: Patient Access to Records
 Patient starting to see Dr. New, requests copy
of all of her records from Dr. New. Dr. New
agrees to copy his own notes but not to
provide copies of records created by Drs.
Prior and Specialist in his possession.
 Issues
– Who owns the records?
– Who has access to information in the records?
– Are there exceptions to patients’ right of access?
Patient Access to Records McInerney v. MacDonald (SCC 1992)
 Mrs MacD became patient of Dr McI after being
treated by several other physicians over the years.
 She became concerned that she may have received
inadequate care prior to seeing Dr McI and requested
a copy of her complete medical file including reports
from other physicians
 Dr McI provided her own notes, but not those
prepared by other physicians, stating that those were
the property of the other physicians, and that it would
be unethical for her to release them
Patient Access to Records McInerney v. MacDonald (SCC 1992)
 “The physician, institution or clinic compiling the
medical records owns the physical records.”
 “A patient is entitled, upon request, to examine and
copy all information in his medical records which the
physician considered in administering advice and
treatment, including records prepared by other
doctors…”
 The doctor has a duty to “act with utmost good faith
and loyalty, and to hold information received from or
about a patient in confidence…The purpose of
keeping the documents secret is to promote the
proper functioning of the relationship…”
Patient Access to Records McInerney v. MacDonald (SCC 1992)
 Access to medical records should enhance the trust
inherent in the doctor-patient relationship.”
 “Patients should have access to their medical records
in all but a small number of circumstances.”
 Doctors may refuse if “there is a significant likelihood
of a substantial adverse effect on the physical,
mental or emotional health of the patient or harm to a
third party.”
 Onus on physician to justify refusal
Seeking Advice
 Complexity of requirements of and
exceptions to duty of confidentiality
 Seek advice from provincial licensing
authorities or legal counsel (CMPA)
when in doubt
Case 1
 Your patient Harold requests an HIV test. The result
is positive.
 H indicates that it is very important to him that you tell
no one he is HIV-positive. He intends to keep this
secret.
 You are aware that H is involved, probably sexually,
with a doctor you went to medical school with.
 You are very strongly inclined to warn your colleague
and tell this to H. He insists that you tell no one and
threatens you with legal action should you do so.
– What should you do?
Case 2
 Ms. V is 29 years old and has epilepsy.
 Her driver's licence was revoked when the
department of transportation was notified of
her recent history of seizures.
 Ms. V mentions to her physician that she
sometimes drives short distances to get
groceries with her 3-year-old daughter in the
car.
 Her physician feels obliged to notify the
authorities about this.
Case 3
 John Smith, a 45 yr old stockbroker, has been seeing
you twice/week for 2 months since a 3 week
hospitalization for depression.
 Had attempted suicide by overdosing on asprin
 Had not been sleeping for more than 5 hours/night &
lost 25 lbs in 6 weeks
 Now on an antidepressant but still only sleeping 5
hours/night, feeling tired and helpless, cannot
concentrate or work
 Today, he told you he has decided to kill his wife
because she is “the root of all his problems”. He
insists that you keep this confidential