Confidentiality in Healthcare

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Confidentiality in Healthcare

• Ethics Law
• Sean McArt BSc, MSc, H Dip.
• The things that most people want to know about
  are usually none of their business Geor
  ge B. Shaw

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Session Objectives

• What is confidentiality? /Why respect
  confidentiality?
• The law
• Is confidentiality absolute/Exceptions to
  confidentiality/Breeching confidentiality
• Confidentiality Death, incapacity and minors
• Confidentiality - Palliative care case study

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Confidentiality

• Most people consider health information to be
  highly personal and, therefore, need to be
  confident that their privacy will be protected
  whenever they use a health service ... Clear and
  open communication between the health service
  provider and health consumer is integral to good
  privacy
• Radwanshi (2001)

• Generally, if institution/person A holds
  information about person B then person C
  cannot obtain that information in the normal
  course of events without the consent of person B

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What information is confidential?

• All identifiable patient information, whether
  written, computerised, visual or audio recorded
  or simply held in the memory of health
  professionals, is subject to the duty of
  confidentiality.
• It covers
• Any clinical information about an individuals
  diagnosis or treatment
• A picture, photograph, video, audiotape or other
  images of the patient
• Who the patients doctor is and what clinics
  patients attend and when
• Anything else that may be used to identify
  patients directly or indirectly.
• (BMA 2008)

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When does a matter become confidential?

• Broadly speaking the courts have recognised
  three elements to deciding whether a matter is
  confidential
• The nature of the information
• Nature of the encounter
• Nature of any disclosure

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Why respect confidentiality?

• Trust is an important aspect between patients and
  healthcare professionals. Patients without fear
  of a breech of confidentiality should be able to
  communicate symptoms that often they may feel are
  embarrassing, stigmatising, or indeed trivial
• Without this trusting relationship patients may
  not divulge information which may make treating
  them impossible
• Patients may not seek medical attention at all
• Has important role in a professional patient
  relationship establishing a sense of security,
  freedom of action and self respect for patients

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http//www.dataprotection.ie/viewdoc.asp?DocID225
(2003)
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Why respect confidentiality?
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Why respect confidentiality?

• Hospital policy
• Contained within each member of staff contract of
  employment
• Can result in disciplinary action

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Why respect confidentiality?

• Professional Code of Conduct An Bord Altranais
• Information regarding a patients history,
  treatment and state of health is privileged and
  confidential...
• Professional judgement and responsibility
  should be exercised in the sharing of such
  information with professional colleagues. The
  confidentiality of patients records must be
  safeguarded.
• (http//www.nursingboard.ie/en/publications_curren
  t.aspx?page4 )

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The Irish Medical Council Guide to Professional
Conduct and Ethics

• Confidentiality is a fundamental principle of
  medical ethics and is central to the trust
  between patients and doctors
• Patient information remains confidential even
  after death
• You should ensure as far as possible that the
  patients privacy is maintained at all times and
  that accidental disclosure of confidential
  information does not occur
• You should ensure as far as possible that
  confidential information in relation to patients
  is maintained securely and in compliance with
  data protection legislation.

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Why respect confidentiality?

• The Data Protection Commissioner
• Criminal sanctions
• Under section 31 of the Acts, the maximum fine on
  summary conviction of such an offence is set at
  3,000. On convictions on indictment, the maximum
  penalty is a fine of 100,000.
• Civil sanctions
• Where a person suffers damage as a result of a
  failure by a data controller or data processor to
  meet their data protection obligations, then the
  data controller or data processor may be subject
  to civil sanctions by the person affected.
  Ordinarily, the "injury" suffered by a data
  subject will be damage to his or her reputation,
  possible financial loss and mental distress.

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Confidentiality Ethics and Law
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Confidentiality in Law

• Constitution
• Universal Declaration on Human Rights 1948
• European Convention on Human Rights 1950, 2003
• Council of Europe Convention on Data Protection
  1981
• Convention on Human Rights Biomedicine 1997
• Data Protection Act 1988 2003
• Freedom of Information Act 1997-2003
• Convention on Human Rights Act 2003
• Common Law
• Lisbon Treaty

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Constitution

• Article 40.3.1 protects the personal rights of
  each citizen
• These personal rights include implied rights
• Implied right to privacy first outlined in McGee
  v. Attorney-General 1974 I.R.284
• State to protect vindicate the citizens right
  to constitutional privacy

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European Convention on Human Rights 1950, 2003

• The act under article 8 guarantees the right to
  respect for private and family life. This quite
  clearly includes the right to confidentiality
  stating
• Protection of personal data, not least medical
  data, is a fundamental importance to a persons
  enjoyment of his or her right to respect for
  private and family life ... Respecting the
  confidentiality of health data is a vital
  principle in the legal systems of all the
  contracting parties to the convention

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The Data Protection Act

• Data Protection Act 1988
• Computerised personal information only
• Data Protection Act 2003
• Extended the data protection remit to manual
  files
• Strengthens the privacy rights of individuals
• Adds obligations on data controllers to fairly
  process personal information
• Gives power to the Data Protection Commissioner,

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The Freedom of Information Act 1997 2003

• Gives individuals legal rights to
• Access personal and non-personal records
• Have personal details amended or deleted where
  information is incorrect, incomplete or
  misleading
• Seek reasons for decisions that affect them

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Is the duty of confidentiality absolute?
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Is confidentiality an absolute right?

• In Ireland confidentiality or privacy is
  recognised by the courts as a right, but not an
  absolute right
• The belief that confidentiality is not absolute
  is also the model which our two closest
  neighbours the U.S. and the U.K. subscribe to
• In France and Belgium confidentiality is
  considered as an absolute requirement to protect
  the patients interests

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The exceptions to confidentiality

• There are four circumstances where exceptions may
  be justified in the absence of permission from
  the patient
• (1) When ordered by a Judge in a Court of Law, or
  by a Tribunal established by an Act of the
  Oireachtas.
• (2) When necessary to protect the interests of
  the patient.
• (3) When necessary to protect the welfare of
  society.
• (4) When necessary to safeguard the welfare of
  another individual or patient.
• (https//medicalcouncil.ie/Media-Centre/Publicatio
  ns/Older/Ethical20Guide202004.pdf )

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When necessary to safeguard the welfare of
another individual or patient

• Tarasoff v. Regents of the University of
  California
• Prosenjit Poddar a university student from India
  studying in the U.S. attended folk dancing
  classes with Tatiana Tarasoff and subsequently
  kissed her on New years eve.
• Tatiana rebuffed his advances sending him into an
  emotional crisis, in which he became depressed -
  neglecting his appearance, studies and health
• Owing to this he was placed under the care of a
  psychiatrist Dr. Gold

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• Dr. Gold in turn referred him as an out-patient
  to a staff psychologist named Dr. Moore.
  Following several sessions Poddar outlined his
  intention to kill Tatiana, on her return from
  vacation
• Shortly after the session, Dr. Moore informed the
  campus police to detain Poddar, at which time he
  would sign a seventy-two hour detaining order, he
  also outlined this in a letter to the head of the
  campus police.
• The campus police on coming into contact with
  Poddar decided on their own initiative to release
  him. Simultaneously Dr. Powelson the director of
  psychiatry learned of Dr. Moores actions and
  ordered him to intercept the letter to the campus
  police and destroy it along with his therapists
  notes and take no further action against
  Prosenjit. On the 27th of October Poddar killed
  Tatiana with the use of a knife as she ran away
  from him

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When necessary to protect the welfare of society

• W v. Edgell and Others 1990 1 All ER 835 CA
  England
• Infectious Disease (Amendment) Regulations 2000
• Gunshot wounds, where one may inform the
  authorities under section nine of the Data
  Protection Act (1988)
• Road Traffic Law

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When necessary to protect the interests of the
patient

• Children or adults who are subject to abuse -
  Child Care Act 1991, furnishes the Garda Siochana
  with the power to evoke an emergency care order
  if they believe there is an immediate and serious
  risk to the health or welfare of a child
• The protection of an individual from themselves,
  in cases of suicide could also be broadly placed
  in this category this is where the limits of
  this exception become vague

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When ordered by a Judge in a Court of Law

• Discovery must be done by court order
• Discovery is related to relevant issues involved
  in the court proceedings only
• The duty cast on every good citizen to assist in
  the investigation of serious crime
• Hunter v. Mann 1974 QB 767

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(No Transcript)
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Breeching Confidentiality

• If the individual consents
• If required by statute
• Infectious disease
• Child protection
• Road traffic law
• Eligibility to health services
• The Public Interest
• Preventing harm to others
• Exposing, detecting or preventing crime
• In litigation
• Traditionally, no medical research exception has
  been recognised
• Is disclosure for relevant and sufficient reason
  and proportionate?
• A healthcare professional MUST be able to justify
  any breech of confidentiality

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Confidentiality for those who cannot consent?
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Who has a right to know your healthcare
information?

• If you are gt18
• Are fully competent (or are competent to
  understand your medical information in order to
  make a decision)
• And are alive
• Only you and the people you authorise to share
  your private information with have a right to
  view your information (relatives of a competent
  adult do not).

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Groups

• Incapacity
• Death
• Minor

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Incapacity

• Where an individual cannot comprehend or retain
  treatment information, believe it and weigh it in
  the balance to arrive at a choice then they are
  considered unable to consent to that treatment
• Re C (adult refusal of medical treatment) 1994
  1 All ER 819

• If a doctor decides to breach confidentiality on
  the best interest argument, first they must
  weigh the possible harms against the benefits,
  second, they must be prepared to justify their
  decision and third if unsure they should consult
  experienced colleges
• General Medical Council. Confidentiality
  protecting and providing information.
  http//www.gmc-uk.org/guidance/current/library/con
  fidentiality.asp

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Death

• Declaration of Geneva respect for the secrets
  confided... even after the patient has died
• General Medical Council extends after death
• Morally an individuals confidentiality is still
  considered to require respect

• Legally -confidence is prima facie a personal
  matter thus the legal duty ends with the death of
  a patient
• Death certificate is a public document
• Medical records can be accessed if certain
  criteria are met under the Freedom of Information
  Act by their spouses or next of kin

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Minors

• Unwanted parental intrusion to confidentiality
  can result in minors loosing trust in healthcare
  providers and move away from health care
• Gillick competency has not been shown by any
  Irish case law to exist

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Minors

• For those aged between sixteen and eighteen, the
  Non-Fatal Offences Against the Person Act (1997),
  allows consent to surgical, medical or dental
  treatments (this act does not allow them to
  decline treatment)
• The Child Care Act (1991)
• Insofar as practicable, give due consideration,
  having regard to his age and understanding, to
  the wishes of the child. (Child Care Act 1991)
• Law Reform Commission in Ireland have suggested
  that it is the prevailing belief in Irish legal
  opinion that under 16s have no personal power to
  consent to medical treatment

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Case

• Against all the odds, and despite being referred
  to a hospice, Collette showed signs of recovering
  from bowel cancer. After several months, the
  consultant decided that Collette was no longer
  terminally ill, although he could not be certain
  that she would not become ill again in the
  future. Accordingly, he felt she no longer
  required the extensive support supplied by the
  hospice and discharged her. Collette was very
  upset by this, partly because she did not want to
  loose her terminally ill status, which had
  generated her more attention from her family than
  she had become accustomed to in the past.
• The hospice staff were not unsympathetic. They
  had promised that they would not abandon her and
  would care for her until she died. The staff also
  widely believed that her family had rather
  neglected her previously. Because they did not
  wish to let Collette down, she was given
  radically reduced honorary status as an
  out-patient. For instance she still attended
  social events and had her hair set by the hair
  dresser who donated some of her spare time to the
  hospice. It quickly became obvious that
  Collettes family did not realise that she was no
  longer thought to be terminally ill. The nurse
  manager attempted to talk to Collette about this,
  but she was politely and firmly told to mind her
  own business.
• (Webb 2005)

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How can healthcare providers insure
confidentiality is maintained

• Discretion in general conversations
• New technology Facebook, Twitter
• Online posting of unprofessional content
• (Katherine C. Chretien, et al. JAMA.
  2009302(12)1309-1315 Oct, 2009)
• Examining how we talk to patients
• Out-side work
• With Non-clinical personnel(confidentiality
  agreement)
• How do we carry data?
• Unsecured laptops
• USB keys
• Is data anonymised where possible
• When information is shared every party must be
  aware of his/her obligation of confidentiality
• Seek patient consent as early as is reasonably
  possible

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Summary

• Confidentiality is VITAL in healthcare But is
  not always an absolute right
• There are 4 exceptions defined by the Irish
  medical council
• A healthcare professional MUST be able to stand
  over any breech of confidentiality and it should
  be a last resort
• Duties to inform authorities in certain cases
  (Child abuse, elderly abuse, public interest)
  where danger exists, should only be done after
  careful consideration
• All competent persons over 18 have the right to
  confidentiality- for all other persons healthcare
  providers must act in the patients best interests

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Thank you

• Questions?