WA News News & Reports Privacy While Networking
Privacy While Networking
Written by Mr Chad Edwards-Smith
Tuesday, 29 November 2016

201612-network-socialising-chatOver the party din, Maureen clearly heard him say: “… and she comes to me to complain about shortness of breath and low exercise tolerance. The woman is 120kg plus and clearly isn’t in any shape to be tackling the Rottnest Channel Swim! So I tactfully suggest she might first lose a bit of weight and recommend some lifestyle changes. But then she starts lecturing me about my weight and starts asking about my diet. Apparently she’s a dietician, if you can believe it, and suddenly I’m copping a serve from my patient about my lifestyle!” There’s laughter all round.

Maureen wonders whether he might be talking about her friend Alice – a dietician and once an avid swimmer. Last time they met, Alice had certainly put on a few kilos but she didn’t know she was planning to compete in the Rottnest swim. She’d try to catch up with her on Facebook and ask.

A few weeks later a doctor contacts the our advisory line: “Someone’s complained that I’ve breached patient confidentiality. But it wasn’t like that, all of the people I spoke to were actually doctors, and I was only trying to get some feedback on a difficult case. I never mentioned any names! Surely I can do this? After all, we’re all doctors, and we all share a duty of confidentiality don’t we?”

While doctors (and healthcare providers generally) routinely disclose confidential health information between themselves for the purpose of facilitating the patient’s healthcare, this ‘sharing’ of information is permissible, not because the conversants are doctors or healthcare providers, but because of the purpose of disclosure.

The Privacy Act (1988) allows for disclosure of sensitive health information where:
•    the disclosure (secondary purpose), is directly related to the reason that the patient provided the information in the first place (being the primary purpose – which is usually to enable treatment); and
•    the patient would reasonably expect that their information would be disclosed in such circumstances.

A well-recognised situation of disclosure is where healthcare providers share information to facilitate the patient’s care. This would include a GP liaising with a specialist, or a registrar taking advice from a senior colleague as to the best treatment.
This part of the Privacy Act enables the healthcare system to work, without the need to constantly obtain the patient’s consent for each and every interaction between healthcare providers.
Doctors may feel the need to vent about their day but any disclosures regarding patients should be limited to completely de-identified scenarios – remembering it is not enough to merely refrain from mentioning names.

So remember, when it comes to disclosing confidential information among colleagues:
•    The common duty amongst doctors to maintain patient confidentiality does not mean that doctors can indiscriminately share patient information.
•    Any disclosure between colleagues needs to be for the purpose of facilitating the patient’s care. De-identifying a case involves more than just omitting the names (particularly in Perth).( Refer to the OAIC Guidelines on de-identification of data and information
ED: Chad is head of Avant’s Medical Defence Services (WA)

 

While communication is one thing, investigation of notifications is another. We believe good doctors want the bad ones weeded out but they don’t want to be part of a witch hunt or get buried in lawyers, politics or paperwork.

The national Medical Board can respond to a complaint or act on the advice of the WA Medical Board to establish an assessment panel to either examine the health or performance and professional standards of a doctor. Health consumers are represented on panels along with medical practitioners.

The Medical Board and AHPRA have undisclosed lists of doctors who are approved by them as panellists and probably as expert witnesses. Many of these people, we believe, were ‘grandfathered’ across when National Law first came in (2010). Their impartiality is as unknown as they are. Then we have expected biases of the legal assessors, chosen by AHPRA, possibly thrown into the mix.

Is there a problem, Houston?

It is important this is sorted to everyone’s satisfaction as 42% of doctors in our survey thought panellists could lack impartiality to a serious extent.

In fact, only one quarter of doctors we surveyed (n=195) were happy with the impartiality shown by AHPRA or the Medical Board in processing a complaint (with 36% unhappy and 39% undecided). Nearly all of those who were unhappy said they were concerned that unfairness will be seriously damaging to someone. Investigation is a very confronting experience.

If someone is being investigated by a panel, either the panel or the person being investigated can opt for a more out-in-the-open State Administrative Tribunal (SAT) judicial hearing – the panel usually refers because it feels the evidence before it constitutes more serious professional misconduct.

What Fair Doctors Want

Talking to doctors, they appear to want an apolitical system of investigation that is fair and timely. They want to be treated reasonably. Unlike the legal profession, their work is mostly built around trust and honesty. They do not want a return to the ‘good old days’ where those with a political bent in the medical profession could influence what the Medical Board did.

While this is a very difficult area for us to investigate, with arguments and counter-arguments at every step, we cannot understand why the Medical Board would turn to arguably the most political organisation, the AMA, for its counsel (the national Board Chair met earlier this year with “senior leaders from AHPRA and representatives of the AMA” to workshop doctor complaints).

Why? Our e-Poll responses raise a question mark over the AMA’s involvement (and we don’t think AMA members have been polled on this issue.)

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