Privacy, confidentiality and consent

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Chapter 9 Privacy, confidentiality and 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]

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:

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:

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:

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:

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]

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]

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:

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.

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.

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: