Confidentiality

Contributed by Susan Brooks and current to 1 September 2005

Doctors have a legal and ethical duty to protect the confidentiality of their patient. The ethical duty has its roots in the Hippocratic oath. In modern times the oath has been adapted through the code of ethics of Medical Associations such as the AMA. The code specifically deals with the issue of confidentiality (s.1.1.1)

Complaints involving the ethical breach of confidentiality can be made to the Office of Health Review or the Medical Board of Western Australia.

Alternatively, court action may be possible based in contract, negligence and in equity.

A case in negligence, as mentioned above, must involve an injury. If, for example, your doctor has disclosed information about your medical treatment which has caused you to lose your job, then you may be able to sue the practitioner in negligence and contract. However, you are unlikely to succeed if you are embarrassed by the disclosure.

The recent changes to the Privacy Act 1988 (Cth) referred to above have given health consumers greater protection in relation to protection of confidential information. Included as a National Privacy Principle (NPP) in schedule 3 of the Act is:

NPP 2.1: Organisations (including individuals) must not use or disclose personal information (including a patient’s medical records) for a secondary purpose (for example, in employment circumstances) unless:

• the person concerned consents, expressly or by implication;
• disclosure is necessary to lessen or prevent a serious and imminent threat to an individual’s life, health or safety; or a serious threat to public health or public safety; or
• the disclosure is required or authorised by law.

Under NPP 2.4, disclosure to a responsible person (for example, parents or guardians) is permitted:

• if the patient is incapable or cannot communicate; and
• where it is necessary to provide appropriate care or for compassionate reasons; and
• is not contrary to the known wishes of the patient.

COMPLAINTS TO THE PRIVACY COMMISSIONER

The Privacy Commissioner has the power to receive complaints, order investigations and make determinations.

If you think that your health provider has disclosed information about you and thereby breached an NPP or IPP, then you can complain directly to the Commissioner. The procedure is not dependent on the discretion of any prosecuting authority. The office of the Commissioner undertakes the Investigation and the process is free. You may also obtain compensation even if you have not suffered any injury or loss besides hurt feelings.

Under Part V of the Privacy Act, the Federal Court or the Federal Magistrates Court may enforce the Commissioner’s determination. The above protections do not as yet extend to those practitioners working within the state health system in Western Australia. Other states have introduced legislation to complement the Commonwealth legislation: see further PRIVACY RIGHTS .