Confidentiality

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 AssociationCode 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 • 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

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 • 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 • 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 • 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

Confidentiality