Privacy, confidentiality and consent

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Chapter 9 Privacy, confidentiality and consent

LEARNING OBJECTIVES

Upon completion of this chapter you should be able to:

• understand the legal and professional obligation of confidentiality in relation to patient and client information
• identify the legal and professional consequences when the obligation to keep information confidential is breached
• identify the professional codes of ethics and conduct that protect patient and client confidentiality
• identify and understand the practical application of the exceptions to the obligation of confidentiality
• locate and understand the application of the Privacy Act (Cth), National Privacy Principles, Information Privacy Principles, and government privacy schemes as they relate to pharmacy practice
• identify legislation that facilitates access to information contained in patient and client health records
• understand the elements of a legally valid consent.

INTRODUCTION

The nature of pharmacy practice, whether conducted in the private or public sectors, whether provided by sole owners or members of an institutional health care team, will almost always include access to patient and client information. This access to patient and client private and confidential information is based on the therapeutic relationship which exists between consumers of health services and health professionals who care for them. Indeed, it is a combination of the legal, professional and ethical obligations imposed on health professionals to keep the patient’s and client’s information confidential — and the patient’s and client’s perception that such information will be kept confidential — that underpins the therapeutic relationship. That is, a pharmacist needs patients and clients to disclose relevant health information to be able to make informed decisions regarding which treatment options may be most suitable and appropriate. The patient is only likely to disclose such information, however, if it is understood that their information will be kept confidential and used only for the purpose of clinical decision-making. It is therefore important that pharmacists have an understanding of the legal, professional and ethical obligations that maintain the confidentiality of patient information and the mechanisms by which privacy of, and access to, patient information is secured.

Various situations in pharmacy practice require pharmacists to follow privacy and confidentiality legislation, principles and guidelines. The Pharmacists Board of Queensland has identified the following practice situations that involve the improper disclosure of information:[1]

• discussing or providing counselling in open and public areas where health information and personal details may be overheard
• providing professional services such as opioid substitution programs in an insensitive manner
• leaving personal information on a public counter or in places where it can be accessed or viewed by unauthorised persons
• displaying product names on cash registers in view of other customers
• disclosing a person’s personal details or health information to a third party
• storing or carrying of medicines in a way that does not protect the nature of medicines or the identity of the person for whom they are intended
• providing identifying data for marketing purposes (either direct or analysis of usage data).

Skene notes that privacy and confidentiality are different issues in that privacy is focused on the collection of information, whereas confidentiality is focused on communication of that information.[2] Although the duties imposed on pharmacists in relation to these two issues differ conceptually, they are complimentary to one another in their application and there is a considerable overlap within a health care context.

In addition to the duties imposed on pharmacists to keep patient’s or client’s information confidential and ensure the privacy of their information, there is also the obligation to obtain a legally valid consent prior to initiating or participating in any form of care or treatment of the person. This chapter will consider the legal requirements in relation to patient information and consent to treatment.

THE OBLIGATION TO KEEP INFORMATION CONFIDENTIAL

The modern day notion of confidentiality, within the context of health care delivery by any health professional, originates in the provisions of the Hippocratic Oath. Under this oath a medical practitioner agrees to be bound by the ethical obligation to ensure:

All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men [and women], which ought not be spread abroad, I will keep secret and never reveal.[3]

The confidentiality of patient and client information is therefore one of the fundamental presumptions founding the relationship between all health professionals, and their patients or clients. Indeed, pharmacy practice takes place in an environment in which the client expects their information will be kept confidential and the pharmacist appreciates and respects the obligations imposed by that expectation. As stated in the case of Seager v Copydex [1967] WLR 923:

[A person who] has received information in confidence shall not take unfair advantage of it. He [or she] must not make use of it to the prejudice of he [or she] who gave it without obtaining consent.

It could be argued that for any health professional to provide optimum care to a patient or client they must have full and frank disclosure of all relevant information by that individual. In the case of X v Y [1988] 2 All ER 648, involving a medical practitioner, the court observed:

If people felt that there was any chance of information given to their doctor, or the doctor’s diagnosis, being passed on, people would be reluctant to seek advice and the disease would go underground. Confidentiality must be absolute or almost absolute…In the long run, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients will not come forward if doctors are going to squeal on them. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care.

The obligation to keep information confidential has both a legal and ethical basis and includes information such as the patient’s current and previous medical details, family history, social and financial circumstances and any facts in relation to current or previous treatment or medication history. The disclosure by a pharmacist that a person has attended the pharmacy may constitute a breach of the duty of confidentiality. An example of the protection of patient information is evident in the addition of clause 9(h) to Schedule 3 of the Victorian Health Professions Registration Act 2005 that specifies that pharmacists may not reveal the identity of patients’ medicines to others:

(h) the identity of a medicine being supplied or dispensed to a client of the pharmacy or pharmacy department cannot be known by another person present in the pharmacy or pharmacy department who is not a person carrying on the pharmacy business or pharmacy department or a member of the staff of the business or department.

PROFESSIONAL AND ETHICAL OBLIGATIONS

Professional codes of conduct and ethics protect the rights of patients and clients to have their information kept confidential. The Pharmaceutical Society of Australia (PSA) Code of Professional Conduct (the code) expressly recognises the obligation imposed upon pharmacists to keep client information confidential. Principle three of the code states:[4]

A pharmacist must respect the confidentiality of information acquired in the course of professional practice relating to clients and their families. Such information shall not be disclosed to anyone without the consent of the client. Exceptions may arise where the health of the client or others is at risk, where information is sought by an officer of a statutory authority empowered under legislation, where a court order requires the release of confidential information, or the information is released to those assuming responsibility for the patient (e.g. next-of-kin, parent, relative, guardian or anyone with powers of attorney).

The various pharmacy registering authorities in each of the Australian jurisdictions also make express reference to the professional obligation to maintain patient and client confidentiality. For example, the Pharmacy Board of Victoria Guidelines for Good Pharmaceutical Practice[5] includes provisions covering privacy and confidentiality and the Pharmacists Board of Queensland Guidelines on Privacy and Confidentiality[6] specifically provide guidance to registrants on privacy and confidentiality issues as they relate to pharmacy practice. Pharmaceutical Defence Limited (PDL) also refer to the pharmacists’ professional obligations to ensure privacy and confidentiality.[7]

The Society of Hospital Pharmacists of Australia’s Code of Ethics (2006) identifies that ‘ [A]ll patient services must be provided with courtesy, respect and confidentiality’. Pharmacists should also refer to the PSA document titled: Professional Practice and the Privacy Act[8] and always endeavour to maintain the relevant professional practice standards; for example, criterion 1 of the Fundamental Pharmacy Practice standard and criterion 2 of the Organisation of Pharmacy Practice standard.[9]

Strict adherence to privacy guidelines in community pharmacy is complicated by the retailing component and requires careful planning. The Pharmacists Board of Queensland suggests the following strategies:[10]

• Attention to pharmacy layout to ensure that confidential information is not communicated in the presence of other consumers. Use of a professional services area, other consumers kept at a distance by barriers or by location away from traffic areas and conversation maintained at a suitable volume may achieve this.
• Policies in place so that any information about the affairs of any person obtained as a result of his or her practice as a pharmacist is not divulged unless:

• it is to a person authorised to have access to such information (and only to the extent of that authorisation);
• the consumer authorises the disclosure of the information; or
• if in the pharmacist’s opinion it is in the consumer’s best interest to do so, he or she may divulge pertinent information to another health practitioner who has care of that person.

• Policies in place so that details of prescription and over-the-counter medications where the drug is identified should not be included in information provided to other than the patient e.g. on family accounts, to third party organisations processing accounts including service companies, or organisations collecting statistical data.

Pharmacies participating in the Diabetes Medication Assistance Service (DMAS) are required to have a separate counselling area.[11] As the profession moves towards the provision of more specialised services the requirement to have separate counselling areas may become more popular in the future. As these areas could also be used for patient counselling that is of a confidential nature, for example counselling involved in the provision of the morning after pill (MAP), this would assist the profession in complying with privacy requirements.

STATUTORY OBLIGATIONS

Legislation exists at state, territory and federal levels directed specifically to the maintenance of confidentiality in relation to patient and client information. The legislation generally provides that clients or users of health care services have the right to those services being provided in a way that respects their right to the confidentiality of their information. Health professionals, often referred to as the ‘designated person’ or ‘relevant person’, must not disclose that information either directly or indirectly to others and there is usually a statutory penalty in circumstances in which information is disclosed inappropriately. As an example, the Queensland Health Services Act 1991 sections 60–62 impose on public health sector employees a duty of confidentiality and a penalty for breach of that statutory duty. Section 62A states:

Confidentiality

A designated person, or former designated person must not disclose to another person, whether directly or indirectly, any information (confidential information) acquired because of being a designated person if a person who is receiving or has received a public sector health service could be identified from the confidential information.

Maximum penalty — 50 penalty units.

Common law obligations

The obligation imposed on pharmacists to keep patient information confidential is maintained through the various common law decisions. The following is an overview of the legal basis upon which a client may initiate an action at common law in circumstances in which they consider there has been a breach of this obligation.

Negligence

The duty to keep information confidential is part of the duty of care owed by a pharmacist to their clients. In circumstances in which this duty is breached through the pharmacist divulging client information the pharmacist may be sued in negligence for the damage caused by the breach.[12]

Contract

It is an implied term of a contract involving the provision of health care that all information disclosed in relation to that care will be kept confidential. In the public sector there are no contracts between individual providers and their clients. However, in the private sector, where the client receives a service for the fee paid directly to the provider, a contract will exist which may provide the ground for an action in breach of contract where a client’s information is inappropriately disclosed.

Defamation

An action in defamation is founded on an allegation that the pharmacist makes a statement about a patient, which though untrue, is published and thereby lowers the reputation of the patient in the eyes of their peers. The law of defamation is not uniform across Australia, with certain jurisdictions such as New South Wales, Queensland and Victoria having enacted legislation.[13]

Equity

The law recognises the power imbalance between the providers of health care services and their patients and clients. Where a pharmacist discloses information about a patient or client, that person may claim a breach of the fiduciary duty owed to them by the pharmacist that resulted in a loss. In Coco v A N Clark (Engineers) Ltd [1969] RPC 41, Megarry J held:

In my judgement, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself … must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party.

The patient or client information must therefore have ‘the necessary quality of confidence about it’, and ‘must have been imparted in circumstances importing an obligation of confidence’.

EXCEPTIONS TO THE DUTY TO CONFIDENTIALITY

It is clear from the foregoing that patients have the right to confidentiality of their information, however, this right is not absolute and may be overridden in particular circumstances.

Express consent

The disclosure of patient information is authorised where the pharmacist has the express consent of the patient. It is suggested that the issue of with whom, if anyone, the patient’s information may be discussed is clarified as soon as possible. There may be circumstances in which the patient consents to a spouse, parent, child or another health professional being given information about the patient’s health concerns or particular medication regime. Clearly, where a range of health care professionals and workers are caring for a patient there is an implied consent to the communication of information necessary for the patient’s ongoing health care and wellbeing between those involved in the care.

Legal duty of disclosure

In all Australian states and territories there is legislation requiring the disclosure of certain patient and client information. Though the specific requirements of each jurisdiction are set out in the respective Acts it is mandatory in all jurisdictions, other than Western Australia, for nominated professionals to report suspected child abuse.[14] In most jurisdictions the diagnosis of a communicable disease and/or the presentation of a client with suspicious injuries are also reportable. There are also legislative provisions in the respective jurisdictions to provide information, or produce documents or other materials, as part of the court process. Though in a number of the states or territories there is no legal protection inherent in the health professional–patient relationship, in Victoria, Tasmania and the Northern Territory, doctor–patient privilege is permitted in civil proceedings.[15] In both Victoria and New South Wales there is privilege in the communication between victims of sexual assault and their counsellors.[16]

There may be situations in pharmacy practice that would require of pharmacists to weigh up the legal and ethical requirements regarding patient confidentiality against legislation that permits a breach of confidentiality. This is particularly relevant in supplying the MAP when the pharmacist believes that the sexual intercourse involved an unlawful activity. This would involve three scenarios, namely:

1. rape (sexual intercourse without consent)
2. incest (sexual intercourse between family members)
3. consensual sex with a minor if there is a large age difference between the sexual partners.[17]

Public interest disclosure

The obligation imposed on a health professional to keep a patient’s or client’s information confidential may be overridden in circumstances in which the disclosure of the information is necessary in the public interest. This public interest exception is not clearly defined and arises only where there is a real and significant threat of harm, or the possibility of death; for example, where a pharmacist is told by the patient or client that they intended to kill or harm another person.[18] In the case of W v Edgell and Others

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