Title: Confidentiality
1Confidentiality
- Drs. A. Latus and B. Barrowman
- ISD I
- May 7, 2003
2Case 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?
3Confidentiality Issues Obvious Subtle
- Does Hs 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 patients confidentiality by
presenting the case in class?
4Hippocratic 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.
5Canadian Medical AssociationCode of Ethics
- 22. Respect the patients 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...
6Ethical Basis of Obligation of Confidentiality
- Beneficence Expectation of confidentiality
facilitates patient care - 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
7Ethical 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
8Overcoming 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
9Confidentiality 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 patients right to privacy and
reputation - Statutory requirement in many health care
settings - legislation governing hospitals
generally mandates nondisclosure of hospital
records
10Current 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
11Breach 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
12Circumstances of Breach of Confidentiality
- Most often careless/inadvertent
- office staff indiscretion
- elevator chatter
- discussion in rounds
- inattention to wording of release
- unguarded conversation with patients
friends/relatives - classroom
13Breach 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
14Exceptions to the Requirement of Confidentiality
- Express consent
- Implied consent
- Legal proceedings
- Statutory requirements
- Protection of the public
15Express 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
16Express 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?
17Implied Consent
- Patients 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
18Implied 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
19Legal 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
20Legal 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
21Statutory 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
22Statutory Requirements
- 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
23Statutory 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.
24Statutory 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
25Statutory 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
26Protection 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)
27Case 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?
28Patient 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
29Patient 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
confidenceThe purpose of keeping the documents
secret is to promote the proper functioning of
the relationship -
30Patient 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
31Seeking Advice
- Complexity of requirements of and exceptions to
duty of confidentiality - Seek advice from provincial licensing authorities
or legal counsel (CMPA) when in doubt
32Case 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?
33Case 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.
34Case 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