CONFIDENTIALITY, PRIVACY AND ACCESS TO HEALTH RECORDS CONFIDENTIALITY All health practitioners have a duty of confidentiality that arises ...
CONFIDENTIALITY, PRIVACY AND ACCESS TO HEALTH RECORDS CONFIDENTIALITY All health practitioners have a duty of confidentiality that arises from the nature of the information provided in the course of the therapeutic relationship with the patient . A patient is entitled to expect that information discussed during a consultation will not be shared with other parties without their explicit permission . If a child has the capacity to consent to medical treatment on their own behalf, they are generally also entitled to confidentiality .
This includes the right for the child’s health information to be kept confidential from their parents . If a child is not competent to consent to treatment, and a parent has consented to treatment on their behalf, the parent would be entitled to information about the child’s heath care . EXEMPTIONS TO CONFIDENTIALITY The exemptions to the duty to maintain confidentiality are both legal and ethical . WHERE THE PATIENT CONSENTS TO DISCLOSURE A patient can give express verbal or written permission or implied permission for their health provider to disclose information to a third party – e .g . a parent, or another professional involved in their care . Such consent should not be coerced and should be adequately documented .
It is important to discuss and clarify with the young person whether they consent to others having access to their health information, and under what circumstances . WHERE DISCLOSURE IS NECESSARY TO TREAT A CLIENT If there are multiple providers involved in a young person’s health care, it can be considered reasonable that communication between providers would serve in the best interests of the patient: the concept of ‘team confidentiality’ can be explained to patients when working within a multidisciplinary team . However, it is advisable to seek a patient’s permission to disclose any non-urgent communications outside these parameters . WHERE THE PROVIDER IS COMPELLED BY LAW TO DISCLOSE Note that in these instances, information disclosed is usually kept in confidence and not divulged to outside parties:
• Court proceedings – these may involve a provider giving evidence in court or producing health records under subpoena . However, the provider may be able to claim privilege over this information and should not simply disclose them to the court without obtaining legal advice . • Notifications – medical practitioners have specific requirements to notify public authorities of matters such as: » Evidence of a notifiable disease (including HIV infection, AIDS, all forms of hepatitis, tuberculosis, and several others) » Reporting of blood alcohol level test results for patients admitted to hospital after a motor accident » Births and deaths • Mandatory reporting of child abuse (see Mandatory Reporting, below) . • Best interests of the patient – this exemption relates to a situation where a provider believes there is a real risk of serious harm to the patient – e .g . a young person at risk of suicide – if information is not disclosed to a third party . Such a decision and the basis upon which it is made should be well documented in the patient’s medical record, especially in circumstances where the patient has not consented to the disclosure . • Public interest – in practice, this could include a situation where a provider is made aware by a patient that they have committed, or intend to commit, a serious criminal offence . Practitioners should obtain legal advice about whether or not they have an obligation to disclose the information depending on the circumstances . PRIVACY AND ACCESS TO HEALTH RECORDS Privacy and confidentiality are very similar concepts . As well as a common law right to confidentiality, patients have a statutory right to privacy over their health information and health records . The Privacy Act 1988 (Commonwealth) applies throughout Australia and applies to personal and health information held by private sector providers . It does not cover state and territory public hospitals and clinics .
States and territories have their own laws covering privacy and health records . These apply to public sector agencies, and some apply also to the private sector (e .g . the NSW Health Records and Information Privacy Act 2002 applies to both) In general, patients have a right of access to their health records, a right to demand that the records be corrected if inaccurate, and a right to ask for their health information not to be shared with other health providers or third parties . 114 There are exceptions to the right to privacy in certain circumstances, similar to the exemptions to confidentiality discussed above . Young people under 18 can exercise their own privacy choices (e .g . not allow parents to see their records) once they are able to understand and make their own decisions . Generally, this will go handin-hand with competence to consent to medical treatment (Australian Law Reform Commission 2006) .
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