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... in area of mental health, to excuse doctor from disclosing information ... Doctors may refuse if 'there is a significant likelihood of a substantial ... – PowerPoint PPT presentation

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Title: 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 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?

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 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...

Ethical 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
  • 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
  • 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 patients right to privacy and
  • Statutory requirement in many health care
    settings - legislation governing hospitals
    generally mandates nondisclosure of hospital

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
  • Professional disciplinary proceedings - very
    common cause of complaint

Circumstances 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
  • 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

Exceptions to the Requirement of Confidentiality
  • 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
  • Important to have clear understanding of extent
    of information to be disclosed
  • i.e. all of chart? specific parts?

Implied Consent
  • Patients authorization for release of
    information may be reasonably implied in some
  • 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

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

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

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

Statutory 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

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
  • Includes physical, sexual emotional abuse,
    neglect, living with violence, etc.
  • Applies to all professionals who work with
  • 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
  • Report notifiable diseases to Community Health
    Offices in NF
  • Variable reporting requirements for different

Protection of the Public - Is there a Duty to
  • 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

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
  • 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

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
    confidenceThe 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
  • Patients should have access to their medical
    records in all but a small number of
  • 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