Medical practitioners have a legal and
ethical duty not to disclose health information without the consent of the
patient concerned. The duty ensures that patients are able to discuss
their health freely with their doctor, safe in the knowledge that the
information will remain confidential.
This duty is based both in case law and
legislation. The clearest statements in case law concerning obligations
relating to confidential information are found in equity. Provided certain
requirements are present,1 doctors owe their patients an equitable duty of
confidence.
In addition to case law, there are statutes
that regulate the collection, storage, use and disclosure of health
information. At the federal level, the Privacy Act 1988 contains
National Privacy Principles, which set minimum standards for patient
privacy. Principle 2 imposes a duty of confidentiality on health
professionals by providing that information must not be disclosed unless
certain, specified circumstances exist. At the state level, the privacy of
individuals’ health information is addressed by the Health Records and Information Privacy
Act 2002, which commences on 1 July
2004. The Act requires public and private health service providers to
comply with Health Privacy Principles. Principles 10 and 11 prohibit the
non-consensual use or disclosure of health information, subject to a list
of exceptions.
The various laws I have mentioned do not
distinguish between adult and underage patients. There are, however, a
number of issues relating particularly to minors that we need to look at
to find out if there is a need for clarification or change. The example
earlier given by Prof. Tilbury about the schoolgirl Melissa Smith of
Nottinghamshire, England highlights one such issue. In that case,
Melissa’s mother Mrs Maureen Smith complained about the fact that the
school and medical professionals involved did not inform her about her
daughter’s pregnancy and subsequent abortion. On behalf of Mrs Smith, one
might argue that parental involvement is necessary or desirable in matters
concerning young people’s reproductive and sexual health. Others might
even say that confidentiality of children’s health information undermines
parental authority and family autonomy. On the other hand, one should ask
whether there is a danger that disclosure to parents might deter young
people from seeking services relating to sexual health.
The issue that needs to be addressed is whether
young people should have the right to keep their health information
confidential from their parents. If so, what should be the test to apply
in deciding whether or not a young person can claim it? Who should be able
to invoke it? What should be its content?
There is a view that a young person who has
sufficient understanding and intelligence to consent to a particular
medical treatment should have the right of confidentiality with respect to
that treatment. Hence, if a medical practitioner adjudges a young person
to be competent to consent to receive advice on contraception or, in the
case of Melissa Smith, termination of pregnancy, the doctor is obliged not
only to give such advice or treatment, but also to keep the consultation
confidential from the young person’s parents. The rationale for this view
is that if parents do not, in the circumstances, have the power to consent
to a medical treatment that their child seeks, they do not require the
power to obtain medical information about that treatment.
But what if a young person is assessed by a
doctor to be incapable of giving valid consent to a medical treatment? One
view states that in this situation, the doctor should be able to disclose
the young person’s medical information to the parents. The basis of this
view is twofold. First, it is argued that the obligation of confidence is
based on a person’s autonomy. No obligation of confidence can be owed to a
young person who is incompetent to give consent to a medical treatment,
since he or she is, by that token, not capable of exercising autonomy as
regards the treatment he or she wanted. Secondly, it is argued that
parents have a right to know information necessary to carry out
effectively their parental duties of care. A parent may not be able to
ensure the welfare and health of a young person without information about
the young person’s health or medical requirements.
The alternative view is that even where a young
person is found to lack the capacity to consent to a medical treatment,
the fact that he or she consulted a doctor, and what the doctor has
learned in the process of assessing competence for that treatment, must be
kept confidential, if the young person expressly objects to the disclosure
or gave the information with an expectation that it would not be disclosed
to others. Such a test requires an inquiry into whether or not the young
person can comprehend an obligation of secrecy with respect to the medical
information obtained by the medical practitioner. In support of this view,
it is argued that the preservation of confidentiality is based not solely
on the recognition of the autonomy of certain young people. It is also
founded on young people’s right to and need for privacy, which should not
be less than those of adults. Moreover, there is a public interest
argument relating to effective health services: without the guarantee of
confidentiality, many young people will not seek medical advice or
treatment. For example, an American study found that half of adolescent
girls would stop using family planning clinics if parental notification
were required. Many of those young girls would engage in behaviours that
increase their risk for pregnancy and sexually infectious
diseases.2
The final point I wish to mention concerns
types of health information. Disclosure to parents is likely to arise in
situations involving health information, which the young person considers
to be personal and sensitive in nature, for example those relating to
reproduction and sexual health, drug dependency and depression. A young
person is unlikely to object to his or her parents being informed about a
treatment for a common cold. The question that one might ask is whether
the content or of young people’s right of confidentiality should depend
the type of health information involved. In other words, should young
people’s right to keep their health information confidential from their
parents apply only to certain types of health information?
Disclosure to parents it but one of many issues
relating to health information that we are looking at. We encourage you to
have read our Issues Paper when it is published and give your views on the
questions raised. You are also most welcome to give us comments on related
issues that you think we should also cover.
FOOTNOTES
1. See
W v Egdell [1990] Ch 359.
2. D Reddy, R
Fleming and C Swain, “Effect of Mandatory Parental Notification on
Adolescent Girls Use of Sexual Health Care Services” (2002) 288
Journal of American Medical Association
710.