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    Issue 16

  • The big decisions

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    Doctor faces tribunal for sharing patient’s information

     
    Stephen Grant Headshot

    Stephen Grant

    LLB, BSc

    Head of Practice Civil Claims

    Avant
     
    Doc faces tribunal main image

    Sharing patient information with colleagues is sometimes necessary, but careful consideration is required in view of the privacy laws.

    A surgeon member was successfully defended in a civil suit for sharing a patient’s health information with two doctors without express consent.

    The patient filed a complaint against the member for breach of privacy with the state’s civil and administrative tribunal. The patient, who had consulted the member for a second opinion, claimed the member’s actions had irreparably damaged the doctor-patient relationship with their usual treating surgeon.

    Patient seeking second opinion

    The patient had a history of diabetes and had undergone a right-sided lower limb amputation due to a severe infection of the limb. The amputation of the patient’s foot had since placed significant pressure on the left foot, leaving the patient with nerve damage and a misshapen left foot.

    The patient consulted the member for a second opinion. From the medical history and symptoms the patient described, the member recognised the case because it had been discussed – in a strictly de-identified way – by one of their colleagues at a clinical conference they attended. The member gave evidence that while discussing the patient’s medical history, the patient had been deceptive and denied knowledge of the cause of the right-side foot infection and the diagnosis for the underlying disease in the left side.

    According to the member, the patient ‘pushed hard’ for a surgical solution to the problem with the left foot. The member advised that surgery in the near future would be dangerous and there was a risk they could lose their remaining leg; therefore, it was not in the patient’s interests to pursue this course.

    The member was concerned the patient may inaccurately report the consultation to their usual surgeon, which could lead to surgery being conducted too soon. It was therefore considered necessary and appropriate to share the explicit advice provided to the patient with the patient’s usual surgeon and referring GP.

    The patient had purposely not named their usual surgeon during the consultation, or in forms they filled out prior to the consultation, because they did not want their usual surgeon to know they were getting a second opinion.

    At the end of the consultation, the member advised the patient they would write to the patient’s treating doctors and send the patient a copy. The member knew who the usual surgeon was because of the clinical conference and they saw the name on an x-ray the patient brought with them.

    Tribunal finds doctor acted out of concern

    The patient filed a complaint, claiming the member had breached their privacy by disclosing their information to their treating surgeon without their consent. The patient claimed the trust between them and their usual surgeon had been irreparably damaged by the letter sent by the member.

    The member told the tribunal that, should the patient have surgery too soon, it would likely lead to infection and amputation of the left foot – an outcome they described as “tragic”.

    The member emphasised that appropriate continuity of care was dependent on sharing information between doctors involved in treating the patient. Where information had been shared, the member said they did so because they had a responsibility to the patient.

    While the tribunal accepted the patient had not expected their health information to be shared, it found this was an unreasonable expectation given the seriousness of the medical condition.


     

    While the tribunal accepted the patient had not expected their health information to be shared, it found this was an unreasonable expectation given the seriousness of the medical condition.

    The tribunal accepted Avant’s submission on behalf of the member that the health information had been disclosed to the patient’s usual surgeon and used for the primary purpose for which it was collected – to contribute to the patient’s medical management – in accordance with the privacy principles.

    The tribunal accepted the member had been concerned the patient did not understand the seriousness of the clinical situation and had not accepted their advice that surgery too soon would likely result in a second amputation, and they seemed determined to have surgery to correct the shape of their foot.

    Ultimately, the tribunal found the member acted out of concern for the patient and had not breached the patient’s privacy. In writing to the patient’s usual surgeon, the member was communicating about the medical management of their condition and acting in their best interests.

    Key lessons

    While the tribunal found the health information had been shared in the patient’s best interests, this unique case serves as a reminder for all doctors to be familiar with their privacy and confidentiality obligations. Remember to:

    • Ensure you inform patients about how your practice manages health information, including disclosure of information to third parties.
    • Review your practice’s privacy policy in line with the privacy laws.
    • Make privacy everyone’s business – train all your staff and ensure they comply.
     

    Useful resources

    Data breaches: all you need to know
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    IMPORTANT: Professional indemnity insurance products are issued by Avant Insurance Limited, ABN 82 003 707 471, AFSL 238 765. The information provided here is general advice only. You should consider the appropriateness of the advice having regard to your own objectives, financial situation and needs before deciding to purchase or continuing to hold a policy with us. For full details including the terms, conditions, and exclusions that apply, please read and consider the policy wording and Product Disclosure Statement, which is available at avant.org.au or by contacting us on 1800 128 268.

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