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Confidentiality » Duty of Confidentiality and Exceptions

Guidelines and Policies

Guidelines on Public Comment by Hospital Doctors Cth
Australian Medical Association
The AMA maintains that all doctors have an obligation to speak out when they believe that the quality of patient care is compromised.

Information Sheet (Private Sector) 24 – 2008: Disclosure of health information and impaired capacity Cth Private
Privacy Commissioner
Guidance as to when it is appropriate to disclose information about a patient who lacks capacity to family members or persons responsible.

Information Sheet (Private Sector) 25 – 2008: Sharing health information to provide a health service Cth Private
Privacy Commissioner
Provides guidance as to when it is appropriate to share confidential health information in order to provide a health service.

National Statement on Ethical Conduct in Human Research Cth
NHMRC
While it applies to patients in research trials it is considered a guide to accepted practice within the medical profession.

Legislation

Children and Young Persons (Care and Protection) Act 1988 NSW
Mandatory reporting for suspected child abuse.

Crimes Act 1900 (NSW) NSW
s 316 makes it mandatory for people to report a person they believe has committed a serious indictable offence. There are some specific protections for those that obtain information in the course of their profession.

Guardianship Act 1987 NSW
A person cannot disclose information obtained in connection with administration or execution of this Act.

Health Administration Act 1982 NSW
Makes disclosure of information an offence against this Act.

Health Practitioner Regulation National Law Act 2009 NSW
ss140-143 outline notifiable conduct whereby a health practitioner, employer or educator must notify the National Agency of certain conditions or conduct of other health practitioners or students.

Health Records and Information Privacy Act 2002 NSW
Imposes a duty of confidentiality on State and Private Health Organisations. Outlines certain exceptions to the duty.

Mental Health Act 2007 NSW
Contains provisions imposing a duty of confidentiality.

Privacy Act 1988 Cth
Imposes a duty of confidentiality on Cth and private organisations. Outlines certain exceptions to the duty.

Public Health Act 1991 NSW
It is an offence to disclose the details of a patient with HIV or AIDS.

Road Transport (Safety and Traffic Management) Act 1999 NSW
Doctors may have a statutory duty to breach confidence in providing the results of blood samples from blood alcohol tests to the court.

Toolkits and Protocols

AMA Code of Ethics Australia
Australian Medical Association
Outlines a medical practitioner’s duty to maintain confidentiality and some of the exceptions to this duty.

Confidentiality and disclosure of health information toolkit
British Medical Association

Confidentiality and Duty to Report
University of Illinois College of Medicine

Confidentiality: UK Clinical Ethics Network UK
UK Clinical Ethics Network
Overview of the ethical and legal considerations of confidentiality including the obligations of clinical ethics committees.

What are the exceptions to the duty of confidentiality?
Queensland Law Society

Cases

Breen v Williams (1996) 186 CLR 71 Cth
Common law duty of confidentiality.

Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513    NZ
not on Nzlii
Case on the public interest aspect of breaching confidentiality. Held in this case that telling the police, media and bus passengers that their driver had a heart condition and shouldn’t drive (despite being certified fit to drive by his surgeon) was a breach of confidentiality.

Harvey v PD [2004] NSWCA 97 NSW
In the NSW Supreme Court Cripps, AJ held that doctors had breached their duty of care because of defective pre-HIV test counseling.

Idameneo (No 123) Pty Ltd v Gross [2012] NSWCA 423 NSW
Medical practice failed to inform a patient that she may have HIV following her test. Patient then had unprotected sex and infected the plaintiff, CS. Both treating doctors admitted liability, but they argued that the company which ran the clinic’s practice management and record keeping services had also been negligent. The New South Wales Court of Appeal found that the wording of contract did not indemnify Idameneo from the results of its own negligent conduct.

W v Egdell [1990] 1 All ER 835 UK
Held that a psychiatrist owes a duty to the public to inform the proper authorities, in breach of confidentiality, in cases where he believes there is a real immediate and serious risk of harm.

X v Y [1988] 2 All ER 648 UK
not on bailii
Weighs up public interest in freedom of the press and public interest of maintaining confidentiality.

Papers, Reports and Books

Medical confidentiality and the public disclosure of HIV status
Journal of South Pacific Law

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