Confidentiality

Drs. A. Latus and B. BarrowmanISD II - Pediatrics

May 7, 2003

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?

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 G’s parents were part of this decision, but he does not want them involved.

G’s 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

George’s parents?

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.”

Canadian Medical AssociationCode of Ethics

“22. Respect the patient’s 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...”

Ethical Basis of Obligation of Confidentiality1. 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

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

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

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 patient’s right to privacy and reputation

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

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

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

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

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

Exceptions to the Requirement of Confidentiality

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

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

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?

Implied Consent

Patient’s 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

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

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

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

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

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

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

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

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

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)

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?

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

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 confidence…The purpose of keeping the documents secret is to promote the proper functioning of the relationship…”

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

Minors and Confidentiality/Access to Health Information In general, a decisionally capable

minor’s 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

Minors and Confidentiality/Access to Health Information

Parental access to their children’s health information

– parents generally entitled to disclosure of decisionally incapable child’s health information

– necessary in order to make appropriate health care decisions for child

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

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

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?

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 G’s parents were part of this decision, but he does not want them involved.

G’s 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

George’s parents?

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?

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 Samantha’s chances for recovery are less than 20%.

Samantha’s 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)