Confidentiality

1
Confidentiality

• Drs. A. Latus and B. Barrowman
• ISD II - Pediatrics
• May 7, 2003

2
Case 1 - Amber

• Amber is a 15 year old female who is requesting a
  prescription for the birth control pill.
• Has not yet had sexual intercourse with anyone,
  but is thinking about doing so with current
  boyfriend, also 15 years old.
• Says she just wants to be prepared.
• They have been going out for about a year and she
  says the relationship is serious.
• Does not want her parents to be told about any of
  this.
• Should you tell her parents about this request?
• Would you provide the birth control prescription
  without telling her parents?

3
Case 2 - George

• George is a 14 year old male who visits you, his
  pediatrician, regarding his acne.
• Has a quite severe case has heard that there
  are drugs available that might help him
• In your opinion, the best treatment would involve
  taking Accutane.
• You would be quite comfortable prescribing the
  drug if Gs parents were part of this decision,
  but he does not want them involved.
• Gs parents disapprove of taking drugs to solve
  a minor problem like acne.
• G, however, sees his acne as a major problem
• Should you tell his parents about this request?
• Would you provide the prescription without
  telling Georges parents?

4
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.

5
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...

6
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

7
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

8
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

9
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
  reputation
• Statutory requirement in many health care
  settings - legislation governing hospitals
  generally mandates nondisclosure of hospital
  records

10
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

11
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

12
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

13
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

14
Exceptions to the Requirement of Confidentiality

• Express consent
• Implied consent
• Legal proceedings
• Statutory requirements
• Protection of the public

15
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

16
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?

17
Implied Consent

• Patients 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

18
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

19
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

20
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

21
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

22
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

23
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

24
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

25
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

26
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)

27
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?

28
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

29
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

30
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

31
Minors and Confidentiality/Access to Health
Information

• In general, a decisionally capable minors right
  to access his or her own health information is
  the same as that of an adult
• Likewise he or she is also generally entitled to
  confidentiality with respect to that information

32
Minors and Confidentiality/Access to Health
Information

• Parental access to their childrens health
  information
• parents generally entitled to disclosure of
  decisionally incapable childs health information
• necessary in order to make appropriate health
  care decisions for child

33
Minors and Confidentiality/Access to Health
Information

• Controversial issue - can a minor, although not
  capable of making treatment decisions, prevent MD
  from disclosing to parents that he or she has
  sought professional advice - e.g. re sex, drugs,
  etc.?
• not conclusively settled in Canadian law

34
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

35
Case 1

• Amber is a 15 year old female who is requesting a
  prescription for the birth control pill.
• Has not yet had sexual intercourse with anyone,
  but is thinking about doing so with current
  boyfriend, also 15 years old.
• Says she just wants to be prepared.
• They have been going out for about a year and she
  says the relationship is serious.
• Does not want her parents to be told about any of
  this.
• Should you tell her parents about this meeting?
• Would you provide the birth control prescription
  without telling her parents?

36
Case 2

• George is a 14 year old male who visits you, his
  pediatrician, regarding his acne.
• Has a quite severe case has heard that there
  are drugs available that might help him
• In your opinion, the best treatment would involve
  taking Accutane.
• You would be quite comfortable prescribing the
  drug if Gs parents were part of this decision,
  but he does not want them involved.
• Gs parents disapprove of taking drugs to solve
  a minor problem like acne.
• G, however, sees his acne as a major problem
• Should you tell his parents about this meeting?
• Would you provide the prescription without
  telling Georges parents?

37
Case 3

• Amber is a 15 year old female who is requesting a
  prescription for the birth control pill and
  testing for HIV as she acknowledges she has had
  unprotected sexual intercourse.
• The HIV test returns negative.
• Amber does not want her parents to be told about
  the HIV test nor about the birth control pills
  (if you prescribe them).
• What factors are ethically/legally relevant here?
• Should you tell her parents about this visit?
• Should you prescribe the birth control pills
  without telling her parents?

38
Case 4

• Approx. 18 months ago, Samantha, 11, was treated
  for osteosarcoma in her left arm. Her arm was
  amputated she was given chemotherapy
• Recent tests indicate the cancer has recurred and
  metastasized to her lungs.
• Even with aggressive treatment Samanthas chances
  for recovery are less than 20.
• Samanthas parents want treatment to continue
• Samantha adamantly refuses further treatment.
• She protests, You already made me give up Snowy
  her cat, to reduce the risk of infection and my
  arm. What more do you want?
• A capacity assessment indicates that Samantha is
  probably incapable of making treatment decisions
  (From Bioethics for Clinicians 9)