Chapter 9 Privacy, confidentiality and consent
Upon completion of this chapter you should be able to:
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.
THE OBLIGATION TO KEEP INFORMATION CONFIDENTIAL
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]
[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.
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
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]
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
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.
EXCEPTIONS TO THE DUTY TO CONFIDENTIALITY
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]
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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