THE LEGAL ASPECTS OF MEDICAL CONFIDENTIALITY

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THE LEGAL ASPECTS OF MEDICAL CONFIDENTIALITY

• BY PHILIP FONG
• HARRY ELIAS PARTNERSHIP

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THE DUTY TO MAINTAIN PROFESSIONAL CONFIDENCE

• THIS DUTY IS ENSHRINED IN
• ETHICS
• LAW

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ETHICS

• THE HIPPOCRATIC OATH/ DECLARATION OF GENEVA
• THE SMC PHYSICIANS PLEDGE
• THE SMC ETHICAL CODE

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LAW

• A duty of confidence arises when confidential
  information comes to the knowledge of a person in
  circumstances where he has notice, or is held to
  have agreed, that the information is
  confidential, with the effect that it would be
  just in all the circumstances that he should be
  precluded from disclosing the information to
  others.

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LAW

• 3 LIMITING PRINCIPLES TO THE DUTY TO MAINTAIN
  CONFIDENCE
• PUBLIC DOMAIN
• USELESS INFORMATION OR TRIVIA
• CONSENT / PUBLIC INTEREST

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THE EXCEPTIONS

• WHERE THE PATIENT GIVES CONSENT
• WHERE INFORMATION IS SHARED WITH HEALTHCARE
  PERSONNEL CARING FOR PATIENT

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THE EXCEPTIONS

• WHERE, ON MEDICAL GROUNDS, IT IS UNDESIRABLE TO
  SEEK PATIENTS CONSENT, MAY DISCLOSE INFORMATION
  TO FAMILY OR CLOSE RELATIVE
• WHERE DISCLOSURE TO THIRD PARTY WOULD BE IN THE
  BEST INTEREST OF THE PATIENT EXCEPTIONAL
  CIRCUMSTANCES ONLY

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THE EXCEPTIONS

• WHERE IT IS IN THE PUBLIC INTEREST EXCEPTIONAL
  CIRCUMSTANCES ONLY
• WHERE IT IS NECESSARY FOR THE DOCTORS
  SELF-PROTECTION OR DEFENCE

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THE EXCEPTIONS

• WHERE A STATUTE REQUIRES DISCLOSURE
• WHERE A COURT ORDERS DISCLOSURE
• WHERE IT IS NECESSARY FOR PURPOSES OF APPROVED
  MEDICAL RESEARCH

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THE PATIENTS BEST INTEREST

• DISCLOSURE TO FAMILY MEMBER OR CLOSE RELATIVE
  ALLOWED WHERE PATIENT INCAPABLE OF MAKING
  INFORMED DECISIONS ABOUT HIS OR HER OWN TREATMENT

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THE PATIENTS BEST INTEREST

• PATIENT IS UNCONSCIOUS, EG. COMA
• PATIENT IS TOO ILL
• PATIENT IS A YOUNG CHILD
• PATIENT IS AN INCOMPETENT ADULT, EG. MENTAL
  ILLNESS OR SENILITY

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THE PATIENTS BEST INTEREST

• DISCLOSURE TO FAMILY MEMBER OR CLOSE RELATIVE IS
  ALSO ALLOWED WHERE IT IS UNDESIRABLE IN THE
  INTEREST OF PATIENTS HEALTH, TO DISCLOSE
  INFORMATION TO HIM DIRECTLY

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THE PATIENTS BEST INTEREST

• WHERE PATIENT IS IN A VULNERABLE STATE OF MENTAL
  HEALTH, EG. SUICICAL, DEPRESSION
• IN SUCH CIRCUMSTANCES, DISCLOSURE TO PATIENT MAY
  PUT HIS LIFE/HEALTH OR OTHERS AT RISK

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PARENT VS CHILD

• PARENTAL RIGHT DIMINISH AS THE CHILD ACQUIRES THE
  ABILITY TO MAKE DECISIONS
• PACE OF DEVELOPMENT WILL VARY FROM CHILD TO CHILD
• PARENTAL RIGHT WILL TERMINATE WHEN THE CHILD HAS
  SUFFICIENT UNDERSTANDING AND INTELLIGENCE

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PARENT VS CHILD

• DOCTOR MUST ACT IN PATIENTS BEST INTEREST AND
  MUST SATISFY HIMSELF THAT PATIENT HAS
  SUFFICIENTLY MATURE UNDERSTANDING
• DOCTOR MUST EXERCISE PROFESSIONAL JUDGMENT
• DOCTOR MUST RESPECT PATIENTS CONFIDENTIALITY IF
  PATIENT SATIFIES THE TEST OF MATURITY

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THE PUBLIC INTEREST

• DISCLOSURE MAY BE DESIRABLE AND APPROPRIATE TO
  PROTECT THE PUBLIC WHERE THE DOCTOR HAS REASON TO
  BELIEVE THAT PATIENTS MEDICAL CONDITION PUTS
  OTHERS AT RISK

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THE PUBLIC INTEREST

• WHERE A CRIME HAS BEEN COMMITTED
• WHERE A CRIME IS LIKELY TO BE COMMITTED

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THE PUBLIC INTEREST

• WHERE THE PATIENT IS A CARRIER OF AN INFECTIOUS
  DISEASE OR HIV
• WHERE THE PATIENT HAS AN ILLNESS WHICH MAY AFFECT
  MOTOR FUNCTIONS AND LEAD TO LOSS OF SELF-CONTROL

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THE PUBLIC INTEREST

• THESE CIRCUMSTANCES ARE NOT ABSOLUTE
• THE PUBLIC INTEREST MUST BE BALANCED AGAINST THE
  PATIENTS RIGHT TO CONFIDENTIALITY

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THE PUBLIC INTEREST

• ONLY WHERE THE PUBLIC INTEREST IS OVERWHELMING
  CAN CONFIDENTIAL INFORMATION BE DISCLOSED
• DISCLOSURE CAN ONLY BE MADE TO THE APPROPRIATE
  AUTHORITY AND NOT TO THE PUBLIC AT LARGE

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COMPULSION BY COURT ORDER

• MUST COMPLY STRICTLY WITH COURT ORDER
• FAILURE TO COMPLY MAY LEAD TO CONTEMPT
  PROCEEDINGS
• NO PRIVILEGE FROM DISCLOSURE OF CONFIDENTIAL
  INFORMATION IN COURT PROCEEDINGS

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SELF-PROTECTION

• IN DISCIPLINARY PROCEEDINGS, DOCTOR MAY DISCLOSE
  CONFIDENTIAL INFORMATION ABOUT A PATIENT TO
  DEFEND HIMSELF AGAINST PATIENTS COMPLAINT
• PATIENT WHO MAKES COMPLAINT IS PRESUMED TO HAVE
  WAIVED CONFIDENTIALITY

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MANAGEMENT AND RECORD KEEPING

• MAINTAINENCE OF RECORDS IS NECESSARY FOR DOCTORS
  AND HOSPITALS
• PATIENTS RECORDS MAY ALSO BE STORED FOR OTHER
  MANAGEMENT PURPOSES
• IMPLIED CONSENT BY PATIENT

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MANAGEMENT AND RECORD KEEPING

• BUT DOCTOR RETAINS PRIME RESPONSIBILITY FOR
  PROTECTION OF IINFORMATION
• DOCTOR MUST ENSURE AN EFFECTIVE SECURITY SYSTEM
  TO PREVENT IMPROPER DISCLOSURES

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STATUTORY EXCEPTIONS

• BASIS FOR THESE EXCEPTIONS IS THE OVERWHELMING
  PUBLIC INTEREST IN FAVOUR OF DISCLOSURE IN THESE
  AREAS
• DISCLOSURE SOMETIMES EXTENDS TO OTHER HEALTHCARE
  PERSONNEL AND GOVERNMENT OFFICERS BESIDES DOCTORS

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STATUTORY EXCEPTIONS

• INFECTIOUS DISEASES ACT
• INFECTIOUS DISEASES
• HIV
• FACTORIES (MEDICAL EXAMINATIONS) REGULATIONS
• IMMIGRATION ACT

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STATUTORY EXCEPTIONS

• TERMINATION OF PREGNANCY REGULATIONS
• PRIVATE HOSPITALS AND MEDICAL CLINICS ACT
• ENLISTMENT ACT, ENLISTMENT REGULATIONS

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STATUTORY EXCEPTIONS

• PRISONS REGULATIONS
• MENTAL DISORDERS AND TREATMENT ACT
• MISUSE OF DRUGS ACT, MISUSE OF DRUGS (APPROVED
  INSTITUTIONS AND TREATMENT AND REHABILITATION)
  REGULATIONS

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CONSEQUENCES OF A BREACH OF CONFIDENCE

• ACTION BROUGHT BY PATIENT FOR BREACH OF
  CONFIDENCE
• POSSIBLE REMEDIES IN CIVIL PROCEEDINGS
• INJUNCTION TO RESTRAIN BREACH/ FUTURE BREACHES
• DAMAGES IN LIEU OF INJUNCTION

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CONSEQUENCES OF A BREACH OF CONFIDENCE

• DISCIPLINARY PROCEEDINGS - COMPLAINT TO SMC
• PROFESSIONAL MISCONDUCT IF DOCTOR DISCLOSES
  CONFIDENTIAL INFORMATION WITHOUT PATIENTS
  CONSENT, OR WITHOUT JUST CAUSE

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CONCLUSION

• IMPORTANCE OF DUTY OF CONFIDENCE
• DISCLOSURE ONLY ALLOWED WHEN ONE OF THE
  RECOGNISED EXCEPTIONS APPLIES
• SERIOUS CONSEQUENCES IF DUTY OF CONFIDENCE IS
  BREACHED WITHOUT JUST CAUSE

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THE END THANK YOU