Last updated 5 December 2016
Information given in confidence by a person to a health practitioner is protected at law as confidential information.
A medical practitioner’s obligation to maintain confidentiality is not absolute, and there are certain situations where disclosure of confidential information can occur without the practitioner breaching their obligation of confidence. These situations may include but are not limited to:
- the person consenting to the release of the information
- child abuse and neglect of a child requiring mandatory reporting under the Child Protection Act 1999 (Qld)
- a court order (e.g. subpoena) requiring the release of documents for a proceeding or attendance at the proceedings to give evidence
- an emergency situation necessitating the provision of information to the treating doctor or hospital
- legislation requiring a doctor to release information to a health authority when they treat a person with a diagnosis of a notifiable conditions (e.g. certain sexually transmitted diseases) (s 70 Public Health Act 2005 (Qld)).
If an individual’s treating health practitioner discloses their confidential information without lawful reason, the individual may have the ability to take legal action against the practitioner based on one or more of the following grounds:
- breach of contract
- possibly in negligence
- in equity for breach of confidence.
Statutory obligations of confidentiality of public hospitals and other public health services
In Queensland, the duty of confidentiality in relation to public sector health services is also specifically provided for in the Hospitals and Health Boards Act 2011 (Qld) (HHB Act). A designated person must not disclose confidential information about a patient who has received a public sector health service unless the disclosure is required or permitted under this Act. Breaches of this obligation of confidentiality can attract a substantial fine (s 142 HHB Act). The obligation of confidentiality extends to a wide variety of ‘designated’ people within the relevant health service including (s 139 HHB Act):
- a health service employee such as a doctor or nurse
- a board member of the service
- an employee of the Department of Health
- the Chief Health Officer
- a health professional other than a health service employee
- a contractor who accesses confidential information under a contract for IT.
Disclosure of confidential information is permitted under the HHB Act in the following circumstances where:
- it is required or permitted by an Act or law (s 143)
- consent has been provided (s 144(a))
- the disclosure is for the care or treatment of the person to whom the information relates (s 145)
- the disclosure is about the general condition of the patient and is communicated in general terms (s 146(1)(a))
- the disclosure is to a person who has sufficient personal or professional interest in the health or welfare of the person (e.g. disclosure to the patient’s treating GP or to a spouse (s 146(b))
- it will prevent or lessen a serious risk to life, health or safety of a person, or to public safety (s 147)
- the disclosure is made to the Health Ombudsman (s 156)
- it is in the public interest (s 160).