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THE LEGAL ASPECTS OF MEDICAL CONFIDENTIALITY

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A duty of confidence arises when confidential information comes to the knowledge ... RELATIVE ALLOWED WHERE PATIENT INCAPABLE OF MAKING INFORMED DECISIONS ABOUT ... – PowerPoint PPT presentation

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Title: THE LEGAL ASPECTS OF MEDICAL CONFIDENTIALITY


1
THE LEGAL ASPECTS OF MEDICAL CONFIDENTIALITY
  • BY PHILIP FONG
  • HARRY ELIAS PARTNERSHIP

2
THE DUTY TO MAINTAIN PROFESSIONAL CONFIDENCE
  • THIS DUTY IS ENSHRINED IN
  • ETHICS
  • LAW

3
ETHICS
  • THE HIPPOCRATIC OATH/ DECLARATION OF GENEVA
  • THE SMC PHYSICIANS PLEDGE
  • THE SMC ETHICAL CODE

4
LAW
  • A duty of confidence arises when confidential
    information comes to the knowledge of a person in
    circumstances where he has notice, or is held to
    have agreed, that the information is
    confidential, with the effect that it would be
    just in all the circumstances that he should be
    precluded from disclosing the information to
    others.

1 OF 2
5
LAW
  • 3 LIMITING PRINCIPLES TO THE DUTY TO MAINTAIN
    CONFIDENCE
  • PUBLIC DOMAIN
  • USELESS INFORMATION OR TRIVIA
  • CONSENT / PUBLIC INTEREST

2 OF 2
6
THE EXCEPTIONS
  • WHERE THE PATIENT GIVES CONSENT
  • WHERE INFORMATION IS SHARED WITH HEALTHCARE
    PERSONNEL CARING FOR PATIENT

1 OF 4
7
THE EXCEPTIONS
  • WHERE, ON MEDICAL GROUNDS, IT IS UNDESIRABLE TO
    SEEK PATIENTS CONSENT, MAY DISCLOSE INFORMATION
    TO FAMILY OR CLOSE RELATIVE
  • WHERE DISCLOSURE TO THIRD PARTY WOULD BE IN THE
    BEST INTEREST OF THE PATIENT EXCEPTIONAL
    CIRCUMSTANCES ONLY

2 OF 4
8
THE EXCEPTIONS
  • WHERE IT IS IN THE PUBLIC INTEREST EXCEPTIONAL
    CIRCUMSTANCES ONLY
  • WHERE IT IS NECESSARY FOR THE DOCTORS
    SELF-PROTECTION OR DEFENCE

3 OF 4
9
THE EXCEPTIONS
  • WHERE A STATUTE REQUIRES DISCLOSURE
  • WHERE A COURT ORDERS DISCLOSURE
  • WHERE IT IS NECESSARY FOR PURPOSES OF APPROVED
    MEDICAL RESEARCH

4 OF 4
10
THE PATIENTS BEST INTEREST
  • DISCLOSURE TO FAMILY MEMBER OR CLOSE RELATIVE
    ALLOWED WHERE PATIENT INCAPABLE OF MAKING
    INFORMED DECISIONS ABOUT HIS OR HER OWN TREATMENT

1 OF 4
11
THE PATIENTS BEST INTEREST
  • PATIENT IS UNCONSCIOUS, EG. COMA
  • PATIENT IS TOO ILL
  • PATIENT IS A YOUNG CHILD
  • PATIENT IS AN INCOMPETENT ADULT, EG. MENTAL
    ILLNESS OR SENILITY

2 OF 4
12
THE PATIENTS BEST INTEREST
  • DISCLOSURE TO FAMILY MEMBER OR CLOSE RELATIVE IS
    ALSO ALLOWED WHERE IT IS UNDESIRABLE IN THE
    INTEREST OF PATIENTS HEALTH, TO DISCLOSE
    INFORMATION TO HIM DIRECTLY

3 OF 4
13
THE PATIENTS BEST INTEREST
  • WHERE PATIENT IS IN A VULNERABLE STATE OF MENTAL
    HEALTH, EG. SUICICAL, DEPRESSION
  • IN SUCH CIRCUMSTANCES, DISCLOSURE TO PATIENT MAY
    PUT HIS LIFE/HEALTH OR OTHERS AT RISK

e
4 OF 4
14
PARENT VS CHILD
  • PARENTAL RIGHT DIMINISH AS THE CHILD ACQUIRES THE
    ABILITY TO MAKE DECISIONS
  • PACE OF DEVELOPMENT WILL VARY FROM CHILD TO CHILD
  • PARENTAL RIGHT WILL TERMINATE WHEN THE CHILD HAS
    SUFFICIENT UNDERSTANDING AND INTELLIGENCE

15
PARENT VS CHILD
  • DOCTOR MUST ACT IN PATIENTS BEST INTEREST AND
    MUST SATISFY HIMSELF THAT PATIENT HAS
    SUFFICIENTLY MATURE UNDERSTANDING
  • DOCTOR MUST EXERCISE PROFESSIONAL JUDGMENT
  • DOCTOR MUST RESPECT PATIENTS CONFIDENTIALITY IF
    PATIENT SATIFIES THE TEST OF MATURITY

16
THE PUBLIC INTEREST
  • DISCLOSURE MAY BE DESIRABLE AND APPROPRIATE TO
    PROTECT THE PUBLIC WHERE THE DOCTOR HAS REASON TO
    BELIEVE THAT PATIENTS MEDICAL CONDITION PUTS
    OTHERS AT RISK

17
THE PUBLIC INTEREST
  • WHERE A CRIME HAS BEEN COMMITTED
  • WHERE A CRIME IS LIKELY TO BE COMMITTED

1 OF 4
18
THE PUBLIC INTEREST
  • WHERE THE PATIENT IS A CARRIER OF AN INFECTIOUS
    DISEASE OR HIV
  • WHERE THE PATIENT HAS AN ILLNESS WHICH MAY AFFECT
    MOTOR FUNCTIONS AND LEAD TO LOSS OF SELF-CONTROL

2 OF 4
19
THE PUBLIC INTEREST
  • THESE CIRCUMSTANCES ARE NOT ABSOLUTE
  • THE PUBLIC INTEREST MUST BE BALANCED AGAINST THE
    PATIENTS RIGHT TO CONFIDENTIALITY

3 OF 4
20
THE PUBLIC INTEREST
  • ONLY WHERE THE PUBLIC INTEREST IS OVERWHELMING
    CAN CONFIDENTIAL INFORMATION BE DISCLOSED
  • DISCLOSURE CAN ONLY BE MADE TO THE APPROPRIATE
    AUTHORITY AND NOT TO THE PUBLIC AT LARGE

4 OF 4
21
COMPULSION BY COURT ORDER
  • MUST COMPLY STRICTLY WITH COURT ORDER
  • FAILURE TO COMPLY MAY LEAD TO CONTEMPT
    PROCEEDINGS
  • NO PRIVILEGE FROM DISCLOSURE OF CONFIDENTIAL
    INFORMATION IN COURT PROCEEDINGS

22
SELF-PROTECTION
  • IN DISCIPLINARY PROCEEDINGS, DOCTOR MAY DISCLOSE
    CONFIDENTIAL INFORMATION ABOUT A PATIENT TO
    DEFEND HIMSELF AGAINST PATIENTS COMPLAINT
  • PATIENT WHO MAKES COMPLAINT IS PRESUMED TO HAVE
    WAIVED CONFIDENTIALITY

23
MANAGEMENT AND RECORD KEEPING
  • MAINTAINENCE OF RECORDS IS NECESSARY FOR DOCTORS
    AND HOSPITALS
  • PATIENTS RECORDS MAY ALSO BE STORED FOR OTHER
    MANAGEMENT PURPOSES
  • IMPLIED CONSENT BY PATIENT

24
MANAGEMENT AND RECORD KEEPING
  • BUT DOCTOR RETAINS PRIME RESPONSIBILITY FOR
    PROTECTION OF IINFORMATION
  • DOCTOR MUST ENSURE AN EFFECTIVE SECURITY SYSTEM
    TO PREVENT IMPROPER DISCLOSURES

25
STATUTORY EXCEPTIONS
  • BASIS FOR THESE EXCEPTIONS IS THE OVERWHELMING
    PUBLIC INTEREST IN FAVOUR OF DISCLOSURE IN THESE
    AREAS
  • DISCLOSURE SOMETIMES EXTENDS TO OTHER HEALTHCARE
    PERSONNEL AND GOVERNMENT OFFICERS BESIDES DOCTORS

26
STATUTORY EXCEPTIONS
  • INFECTIOUS DISEASES ACT
  • INFECTIOUS DISEASES
  • HIV
  • FACTORIES (MEDICAL EXAMINATIONS) REGULATIONS
  • IMMIGRATION ACT

27
STATUTORY EXCEPTIONS
  • TERMINATION OF PREGNANCY REGULATIONS
  • PRIVATE HOSPITALS AND MEDICAL CLINICS ACT
  • ENLISTMENT ACT, ENLISTMENT REGULATIONS

28
STATUTORY EXCEPTIONS
  • PRISONS REGULATIONS
  • MENTAL DISORDERS AND TREATMENT ACT
  • MISUSE OF DRUGS ACT, MISUSE OF DRUGS (APPROVED
    INSTITUTIONS AND TREATMENT AND REHABILITATION)
    REGULATIONS

29
CONSEQUENCES OF A BREACH OF CONFIDENCE
  • ACTION BROUGHT BY PATIENT FOR BREACH OF
    CONFIDENCE
  • POSSIBLE REMEDIES IN CIVIL PROCEEDINGS
  • INJUNCTION TO RESTRAIN BREACH/ FUTURE BREACHES
  • DAMAGES IN LIEU OF INJUNCTION

30
CONSEQUENCES OF A BREACH OF CONFIDENCE
  • DISCIPLINARY PROCEEDINGS - COMPLAINT TO SMC
  • PROFESSIONAL MISCONDUCT IF DOCTOR DISCLOSES
    CONFIDENTIAL INFORMATION WITHOUT PATIENTS
    CONSENT, OR WITHOUT JUST CAUSE

31
CONCLUSION
  • IMPORTANCE OF DUTY OF CONFIDENCE
  • DISCLOSURE ONLY ALLOWED WHEN ONE OF THE
    RECOGNISED EXCEPTIONS APPLIES
  • SERIOUS CONSEQUENCES IF DUTY OF CONFIDENCE IS
    BREACHED WITHOUT JUST CAUSE

32
THE END THANK YOU
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