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Implied consent or breach of privacy?

20 March 2020 | Dr Susan Hertzberg, MB.BS, MHealthlaw, MBioethics, FACEM, Senior Medical Adviser, NSW and Dr Jack Marjot, MB.BS BSc, Doctor in Training Medical Adviser, NSW, Avant

*member case involving an emergency physician, highlights the dilemma doctors face when dealing with privacy of information and family members.

A young man presented to the Emergency Department with abdominal pain, accompanied by his partner and mother. Before seeing the patient, the doctor read his file and noted he had a history of chronic hepatitis C. The doctor called the patient into a consulting room and he was followed in by his partner and mother. The patient did not stop them.

The doctor proceeded to take a medical history, then said, “I note that you have hepatitis C – what is the status of your disease? Are you taking any medications for it?” This caused a stir and the patient’s mother became visibly surprised and distressed by the news.

It turned out the mother did not know about his medical condition and was so upset she left the room. The doctor spent time discussing what had happened with the patient, his partner and mother and apologised profusely. He also suggested counselling for the mother but was under the impression she needed time to process the information.

The doctor was shocked when the patient’s partner subsequently lodged a complaint with the hospital for breach of privacy.

The hospital formed the view the patient’s privacy had been breached and the doctor had not managed the incident well in terms of patient care and had not followed the hospital’s internal protocol for handling incidents.

Consent assumed

The doctor assumed consent to discuss details of the patient’s medical history was implied by the patient allowing his family to be present for the consultation. So why did the hospital conclude that privacy had been breached when at first glance, the principles of implied consent seemed to indicate the patient agreed for his condition to be revealed to his mother?

In many cases, the presence of family members means they know about the patient’s medical status, but a doctor cannot assume this. A patient may be in too much pain to refuse family from attending or may not want to offend family members. It can also be difficult for the doctor to ask the patient if there is anything he/she would not want discussed in front of a family member.

Under privacy legislation, health information is regarded as one of the most sensitive types of personal information. Every doctor should be mindful of this in their communication with patients and family members.

Tips to reduce risks

It is important to be alert for information the patient might feel is sensitive and adapt your assessment to ensure you do not breach the patient’s privacy. Of course, different patients may consider different information sensitive, depending on factors including their age, gender and cultural background.

A comprehensive past medical history is essential to the assessment of the patient. In this case, the patient’s hepatitis C status may be relevant to their abdominal pain. These tips will help to elicit and explore sensitive aspects of a patient’s past medical history:

  • Ask open questions to allow the patient to volunteer the information. E.g. “Can you tell me about any other important medical problems you have?” It should be a red flag for privacy concerns if they fail to disclose a significant piece of information.
  • Signpost that you are going to need to ask some personal questions and directly offer the patient a chance for family members to step out. E.g. “At this stage, it’s routine here in emergency that we ask some personal questions. Would you like your family members to step-out?”
  • Ask any family members to leave the consultation area (return to the waiting room if necessary) to enable you to conduct an examination., E.g. “I am going to examine Mr X now, I usually ask family members to step out at this stage, but I’ll call you back in shortly”. Use this time to extend your history.

If the consultation goes awry, despite your best efforts, be mindful of taking appropriate action to minimise adverse outcomes for the patient and comply with your organisation’s incident reporting protocol. In this case, the doctor did suggest counselling for the mother, but could have arranged a referral to the social work department for counselling of all parties and escalated it to the head of the Emergency Department unit as soon as practicable after the event.

The doctor was criticised for not fully documenting what occurred in the electronic medical record. Ideally, he should have provided a written record of what took place, subsequent management of the distressed parties and reporting actions.

How Avant assisted

While the doctor inevitably found the year-long complaint process stressful, Avant’s medico-legal team were able to help him prepare his written response to the hospital, which included an expression of regret and apology to the patient and their family.  

Subsequently, the doctor was subjected to remedial action by way of a formal meeting with the Clinical Governance Unit and a written acknowledgement of his conduct. He was also asked to provide a signed declaration that he agreed to adhere to the state’s Code of Conduct and local policy Directives.

We regularly see complaints where doctors have inadvertently breached a patient’s privacy and unfortunately face, not only the distress that can cause, but in some cases, disciplinary action. The tips above should help to signpost any privacy concerns and help members to adapt their consultations to ensure no inadvertent breaches occur.   

More information

Avant has developed a range of articles and resources to assist you:

If you require advice on your privacy obligations, visit our website or for immediate advice, call us on 1800 128 268, 24/7 in emergencies.

*Some details in this case have been changed.

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