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 .
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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) .
