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10.1 Health consumer rights

29 Aug 2016 - 15:01 | Version 9 |

Contributed by MatthewLittlejohn and current to 1 May 2016

Health law in the NT is governed by a myriad of NT legislation, Commonwealth legislation and the common law. This section deals only with some specific areas of health and the law as it relates to the rights of a patient, namely:
  • the relationship between a patient and doctor
  • the need for consent to treatment
  • medical negligence
  • access to medical records
  • confidentiality of patient information and statutory exceptions
  • death and organ and tissue transplantation.
The law relating to health rights and medical negligence is complex and specialised. In nearly all circumstances, legal advice should be sought.

The legal relationship between a health care provider and patient is based both in contract and the duty of care.

A person who is injured or disabled as a result of medical or hospital treatment may have a number of causes of action open to them, including suing for negligence, which is the most common (see Medical negligence ). A patient may also be able to sue for breach of contract, assault and battery or false imprisonment. Less frequently there may be a cause of action for breach of statutory duty, for example under trade practices legislation for misleading and deceptive conduct or breach of fiduciary duty where a fiduciary relationship can be said to exist (see Contracts and consumer protection).

The contract between patient and provider

When a patient presents to a health care provider or hospital with a problem and the hospital or health care provider agrees to diagnose the problem and treat it, a contract for services is created.

In any contract for medical services, there are implied terms or warranties that ensure that a health or medical service will be performed with reasonable care and skill. The standard of skill judged to be reasonable is that of a reasonable doctor in similar circumstances. So if the doctor is a junior doctor, the actions in question are weighed up against the expertise of a reasonable junior doctor with similar experience. If the doctor is a specialist, the standard of care required is that of a similarly qualified and experienced specialist.

Duty of care

Whether or not there is a contract between the patient and the health care provider, the provider owes a duty of care to the patient to provide the treatment with reasonable care and skill. The standard of skill is the same as required in contract (see Medical negligence ).

Consequences for breach of contract

If a health care provider breaches an implied term in the contract with a patient or breaches the duty of care, the patient may:
  • sue for breach of contract and/or negligence (see Medical negligence )
  • make a complaint to the Health and Community Services Complaints Commission (see Contact points )
  • in extreme cases, request that the relevant board take disciplinary action against the health care provider involved, such as taking away the right to practise medicine.
In the NT patients who are unhappy with treatment at an NT public hospital usually sue the NT Government, as the operator, for damages, together with the individual health care provider they believe to be responsible for the adverse event. An employed health care provider being sued for actions taken in the course of employment is entitled to be indemnified by their employer for any damages awarded against them. This means that while the health care provider's reputation may be damaged, they would not be required to personally pay the plaintiff's damages or legal costs.

Any interference to a person's body, such as medical treatment, is a trespass. If treatment is made without consent it may amount to an assault and battery. This kind of legal action is however, fairly rare because all that is needed by way of consent is agreement in broad terms to the procedure proposed. A patient who complains that they wouldn't have consented to the treatment offered if they had known of the risks involved won't be able to take action for assault and battery because they gave their general consent, but they may have an action in negligence (see Medical negligence ).

As a general rule, patients can't be required to accept treatment, no matter how painless, beneficial and risk free the treatment may be or dire the consequences of refusing it. This rule is founded on the principle of respect for a patient's autonomy and right to self determination. These principles have been tested in the Australian courts, such as in the case of Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (see Rogers v Whitaker case ). Other cases have also upheld a patient's right to make informed decisions about medical treatment.

In practice, respect for autonomy involves providing the information needed for the patient to make an informed decision about the nature of the treatment, including the likely benefits and risks and the consequences of not going through with it.

Intentional assault may attract prosecution under the criminal law and give rise to a civil claim for damages (see Injuries and damage caused by crime ). Assault is defined in section 187 of the Criminal Code Act as including 'the direct or indirect application of force to a person without his consent'.

An adult patient of sound mind has a right to make decisions about risks they take in receiving medical treatment. Before a patient can properly exercise the right to consent to or refuse a particular medical treatment, they need to have a reasonable understanding of what that treatment involves. As that information can best come from the treating doctor, it is part of the doctor's duty to provide a proper explanation of the medical treatment and the risks involved (see Rogers v Whitaker case ).

There are no hard and fast rules to cover every situation, but past decisions made in Australian courts suggest that the type of information supplied to a patient should include:
  • an explanation of what the treatment involves
  • why the treatment is necessary
  • the anticipated effects of not undergoing the proposed treatment
  • any unusual risks that may arise from the treatment
  • the relative advantages or disadvantages of any alternative treatment
  • the option to withdraw consent at any time.
In addition to warning a patient of possible complications associated with a procedure, it may be necessary in some circumstances for a surgeon to inform the patient about their surgical experience and the best available care [Chappel v Hart (1998) 195 CLR 232].

A person who decides to undergo a particular medical procedure based on insufficient information or is given information in a way they do not understand is not considered to have legally consented to treatment. However, a person who makes a decision about treatment without being properly informed will only have available to them an action in negligence, not in trespass.

To be valid, consent to medical treatment requires that:
  • the patient has the competency or capacity to consent
  • the patient is capable of understanding the treatment in broad terms
  • the patient's consent covers the act performed
  • the decision was made voluntarily.

Therapeutic privilege - withholding information

Health care providers have the right to therapeutic privilege. This means they can withhold information from a patient if they believe that the patient's physical or mental health would be more seriously harmed if they are given the information, than if they are not. However, this should only be employed sparingly and there would have to be a very good medical reason for keeping a patient ignorant of a fact that they would otherwise be entitled to (see Medical negligence ).

Consent doesn't necessarily have to be given expressly; it can be implied from a patient's conduct and the surrounding circumstances. Fleming in The Law of Torts states that:

'Actions speak louder than words. Holding up one's bare arm to a health care professional at a vaccination point is as clear an assent as if it were expressed in words: O'Brien v Cunard SS Co 28 NE 266 (Mass 1891); Schweizer v Central Hospital (1974) 53 DLR (3d) 494. Even silence and inaction may in some circumstances be interpreted as an expression of willingness. Failure to resist or protest indicates consent if a reasonable person who is aware of the consequences and capable of protest or resistance would voice his objection.' [Fleming JG, The Law of Torts (9th ed, 1998), Law Book Company pp.72-73].

It is generally accepted that the more invasive the procedure, the greater the need is for express consent to be given.

Express consent is given if a patient explicitly agrees to a medical procedure either orally or in writing. Usually a patient is asked to sign a consent form before undergoing surgery. Consent forms may provide evidence that consent was given expressly but are not conclusive of this fact.

A hospital or individual health professional defending an action for negligence based on lack of consent will need to prove that the consent was informed and freely given. The patient's signed consent to treatment form provides some evidence of consent, but a form that doesn't describe the procedures, risks and alternatives to treatment can't prove that the patient was given all the facts. Also, the existence of a consent form doesn't preclude the possibility that the patient did not understand what they were told or withdrew their consent after signing it.

In any dispute a court will consider other evidence, including conversations between the patient and doctors and staff.

An essential element of valid consent is a patient's ability to understand the treatment to which they consent and its consequences. Whether a person has capacity to consent may depend on the complexity of the treatment involved and their ability to understand and make a reasoned judgment based upon the information provided. Lack of capacity can arise in a broad range of situations, including where a patient has been involved in a serious trauma and is experiencing an altered physical or mental state.

It is important for each patient to be assessed individually.

Unconscious patients

Where a patient is only temporarily incompetent and is expected to become competent again, such as a patient who is unconscious or anaesthetised, the doctor may be able to administer treatment only if there is an imminent threat to the patient's life or physical or mental health. In less urgent circumstances where a patient can be consulted when they regain consciousness, it may not be lawful to treat them without their consent.

If a member of the family is at hand when a patient is unconscious or unable to consent, the doctor should discuss treatment with them in order to gather information about the patient and their likely choices, so an informed clinical decision can be made. However, no person is legally entitled to give or withhold consent for another adult unless they have been appointed that person's guardian by a court (see Adults under guardianship ).

When friends or relatives are convinced a person won't regain the ability to give or withhold consent, either at all or in the immediate future, they should apply to the court to have a legal guardian appointed. A legal guardian is able to give or withhold consent to treatment on behalf of the patient (see Adult guardianship ).

Adults under guardianship

The situation of an adult with an intellectual disability who lacks the competence to give proper consent is governed by the Adult Guardianship Act 1988 and in certain limited circumstances, mental health legislation. The consent of a court is required to carry out a non-emergency major medical procedure on a person who is the subject of an adult guardianship order.

A patient's relatives have no right to authorise treatment unless they have been appointed as the patient's guardian, with specific authorisation to make medical decisions for the patient. Even then this authorisation doesn't include the right to consent to major medical treatment; that remains the court's right.

If a patient is subject to an adult guardianship order, a medical practitioner can apply to the court for consent to a major medical procedure. In the NT there is not yet any legislation that enables advance directives to be included in powers of attorney and so make it possible for family or friends to consent to medical treatment if a person is incompetent to make these decisions for any reason.

Children and people with intellectual disabilities

A young person or a person who is intellectually disabled is capable of giving informed consent when they achieve a sufficient understanding and intelligence to enable them to understand what is proposed.

It is generally accepted that a child of 14 can consent to medical procedures, except for terminating a pregnancy [Criminal Code Act s.174(4)(b)] and procedures that require the consent of the Family Court, such as sterilisation. A child of 14 years can also receive the contraceptive pill without the knowledge of her parents.

Where a person is incapable of giving consent because they are suffering from an intellectual disability or psychiatric condition, the doctor should seek consent from the patient's legal guardian. If the person doesn't have a legal guardian, it may be necessary to apply to a court to have a guardian appointed. In some instances, such as where sterilisation or abortion is to be performed on an intellectually disabled person, only a court can provide consent (see Adult guardianship ).

A parent or guardian of a child under 16 years of age or the guardian of an intellectually disabled adult who refuses treatment for someone in their care may have their decision challenged. The following action can be taken if medical treatment has been refused for a child:
  • the young person may be taken into care under the Community Welfare Act 1983 and the Minister for Health and Community Services could give consent (see Child welfare )
  • the Family Court may exercise the general welfare power provided by the Family Law Act 1975 (Cth) and make an order for treatment to be given.

Sterilisation

Parents are not able to simply consent on their child's behalf to any non-therapeutic operation, such as sterilisation. This issue usually arises in relation to intellectually disabled children, but is not limited to them.

In 1992 the High Court in Secretary, Department of Health and Community Services v JWB and SMB ([1992] HCA 15; 1992) 175 CLR 218 (Marion's case) decided that the parents of a 14-year-old girl suffering from mental retardation, deafness, epilepsy and behaviour problems could not lawfully consent to a sterilisation procedure without an appropriate court's authorisation. The Family Court is usually the appropriate court.

The court takes its authority from the responsibility of the Crown for those who can't look after themselves. In addition, under the Family Law Act 1975 (Cth) the function of the court is to decide what is in the best interests of the child. Sterilisation is a step of last resort, only authorised when all other procedures or treatments have failed.

People with psychiatric disabilities

Under the Mental Health and Related Services Act 1998 a person can be admitted to a treatment facility or to treatment, but only under certain very specific circumstances (see Mental health ).

In emergencies

The Emergency Medical Operations Act 1973 allows a medical practitioner to perform an operation, including a blood transfusion, without the consent of the patient in an emergency situation, if it is to prevent death or serious permanent injury where consent cannot be secured and it is not practicable to delay the operation.

Under the common law doctrine of emergency, it is lawful for a medical practitioner to treat a patient without consent if they reasonably believe that treatment is necessary to avert a serious and imminent threat to the patient's life or their physical or mental health. The doctrine of emergency has been strictly construed and should not be relied upon lightly. The emergency must be such as to require immediate treatment to save the patient's life or health and not merely be a matter of convenience. The doctrine has no application where there is a clear indication that the patient has refused the treatment. It only has application if the patient cannot give consent and their intentions are unknown.

As a general rule, a competent adult patient has a legal right to refuse medical treatment, no matter how dire the consequences. A patient also has the right to discharge themselves from hospital at any time.

All medical treatment constitutes the civil wrong of trespass unless it has first been consented to, or falls within one of the exceptions discussed above.

Where a patient has refused medical treatment that is considered to be immediately necessary or wants to leave a health care facility contrary to medical advice, a health care professional has a duty to carefully explain the consequences of so doing [Wang v Central Sydney Area Health Service [2000] Aust Torts Reports 64,079].

A doctor can only find out the reasons for the refusal and attempt to counter them. When a patient refuses treatment, all health care professionals involved should make clear notes of advice given and may ask the patient to sign a form acknowledging that they have left contrary to medical advice.

A person is not allowed to be detained for treatment against their will unless expressly authorised by law.

When terminally ill

The Natural Death Act 1988 enables a person to legally record their desire to refuse medical treatment by 'extraordinary measures' if they were to become terminally ill. The appropriate form is available from a doctor or local hospital. Once a person has recorded their decision on the form, health care providers are legally bound to follow it, even if the subject is unconscious or otherwise incapable of expressing their wishes.

'Extraordinary measures' are treatments made to prolong life by replacing a patient's own bodily functions with technology, such as artificial respirators and renal dialysis machines.

'Terminal illness' is defined as an injury, illness or disease which, unless extraordinary measures are taken, would cause imminent death, and even if extraordinary measures were taken there is no prospect of recovery.

If the person is not terminally ill or extraordinary measures are used to keep them alive, the situation falls outside the scope of the Natural Death Act and the usual law of consent applies.

Lawful authority for proceeding with treatment

The types of lawful authority for proceeding with treatment are discussed above in more detail and include:
  • the patient's express or implied consent
  • treatment performed in an emergency or an operation performed under the Emergency Medical Operations Act 1973
  • specified treatment under legislation such as the Mental Health and Related Services Act 1988
  • examination, testing or treatment in accordance with a direction from the Minister or Chief Health Officer acting under the Notifiable Diseases Act 1981
  • examination of a person thought to be suffering from pulmonary tuberculosis in accordance with the Migration Act (Cth)or the Quarantine Act (Cth)
  • treatment and testing of prisoners in accordance with the Prisons (Correctional Services) Act 1980
  • taking a blood sample from patients admitted to hospital after being involved in a motor accident (see Motor vehicle accidents )
  • a court order.

Medical negligence

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. It extends to the examination, diagnosis and treatment of the patient and the provision of relevant information to the patient.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill. Negligence involves a breach of this duty.

A case for negligence turns on the understanding of what is reasonable in a particular case. For instance, a general surgeon in a remote area faced with an emergency requiring immediate heart surgery could not reasonably be expected to use the degree of skill a specialist cardio-thoracic surgeon in a city teaching hospital would apply in the same situation. Similarly, a health professional who faces a negligence claim after volunteering assistance at the scene of an accident will be excused for certain behaviour that might, in other circumstances, be viewed as unacceptable. They might be justified in attempting procedures they would not ordinarily be considered competent to perform. A procedure performed in haste at the scene of an accident might reasonably be done without the same degree of care and skill as in a hospital.

The duty of care is owed in all aspects of a health professional's practice, including:
  • diagnosis: failure to diagnose correctly from the outset may or may not constitute negligence. Merely misdiagnosing is not necessarily negligent. Some ailments are notoriously difficult to diagnose and require extensive testing to eliminate a number of other possibilities.
  • treatment: includes the question of whether the practitioner is required to provide treatment. In Lowns v Woods [1996] Aust Tort Reports 63,151, the NSW Court of Appeal held that there is a legal duty on a doctor to attend to a person in urgent need of care where a direct request has been made for the doctor to do so and there is no reasonable impediment preventing attendance. A doctor may be required to attend a person in need of emergency care even if the person has not previously been the doctor's patient.
  • advice: includes a duty to use reasonable care and skill when advising on the management of an ailment or injury and of the risks involved in any treatment or diagnostic procedure. A patient who consents to a procedure being carried out, but then later complains that they would not have consented had they known of certain risks, will only have an action in negligence if they can establish that the risk was a material risk such that the failure to inform amounts to a breach of duty by the health care professional, and the failure to inform caused the damage (see Rogers v Whitaker case ).
Negligence is not the failure to achieve a perfect result. For example, a foot badly injured in an accident might only be restored to a fraction of its former function despite the best medical attention possible. Only if it can be shown that someone did something badly or carelessly, or neglected to do something in the treatment of the foot, will an action in negligence be available.

A court action for damages alleging negligence is heard in the Local Court for claims up to $100,000 and in the NT Supreme Court where damages are likely to exceed this amount. In such cases, the court will hear the opinions of expert witnesses who have been called by both sides to testify about the procedures that should have been followed or the advice that should have been given. The court then decides, on the balance of probabilities, after weighing up the evidence, whether the practitioner used all the care and skill which could reasonably have been expected in the circumstances.

Rogers v Whitaker case

The decision the High Court made in the case of Rogers v Whitaker (1992) 175 CLR 499 has had wide implications for medical negligence cases. The case involved a patient who chose to have surgery to correct blindness in her right eye. The eye surgeon didn't tell her that the operation carried a one in 14,000 risk that a condition called sympathetic ophthalmia could occur, potentially causing blindness in her good left eye. She subsequently went blind in her left eye, rendering her completely blind.

The High Court looked at the scope and content of the surgeon's duty of care and whether his failure to advise and warn of the risks inherent in the operation was a breach of this duty.

The surgeon relied on a test adopted in the English courts in 1957, known as the Bolam principle, which states that a doctor who acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion is not negligent, even if other doctors adopt a different practice.

At the trial, one body of medical practitioners gave evidence supporting the surgeon's decision not to warn the patient of the danger of sympathetic ophthalmia; another body of medical practitioners disagreed. The court decided that:
  • a doctor has a duty to warn a patient of a material risk inherent in medical treatment. A risk is 'material' if a reasonable person in the patient's position would be likely to attach significance to it
  • if a doctor knows a particular patient would be likely to attach significance to the risk, it should be disclosed.
In this case the patient had asked many questions about any possible unintended or accidental interference to her good left eye. The court found the doctor to be in breach of his duty of care by failing to warn her of the dangers of sympathetic ophthalmia.

It is, therefore, important that doctors tell their patients about any possible risks involved in treatment or surgery. Doctors should have obtained an extensive history from the patient and any other available sources so they know whether the patient is likely to attach significance to any risks involved.

Compensation

If there is a breach of duty of care and that breach has caused loss or injury to the patient, they are entitled to compensation.

Compensation is payable for:
  • past and future loss of income
  • expenses, such as the costs of future care
In the NT, compensation for pain and suffering has been abolished and replaced with an assessment of permanent impairment.

Compensation is usually paid as a once off lump sum but may be paid in annual instalments.

Medical negligence cases are difficult, time-consuming and costly actions. Medical negligence is also a complex and specialist area of law, so expert legal advice is essential.

The funding of a claim against a doctor should be organised early on. If legal aid is not available to cover the patient's legal costs, there are other options. Some legal firms act for patients on a speculative basis. For example, a firm may agree to not seek payment if the action is unsuccessful. If the action is successful, costs payable may be at an agreed higher level than if the client had guaranteed payment for fees regardless of the result. Clients may be able seek assistance in payments for disbursements from a legal aid organisation, the NT Legal Aid Commission's Contingency Legal Aid Fund (this fund provides limited financial assistance for people who cannot afford the initial (non-lawyer) costs of preparing and running a court case) or from a lending institution (see Dealing with lawyers ; Legal aid ). Disbursements are expenses other than lawyer's fees, such as medical reports, court filing fees and barristers' fees. Normally, a legal firm would only proceed on the basis of risking its fees if the person's case was a good one.

How to proceed in a medical negligence case

It is often difficult to establish the facts required for a negligence case, as it can be difficult to determine what actually happened. It is important to gather as many facts as possible before commencing a negligence action.

First, relevant medical records need to be obtained. In the NT medical records will normally be provided to a solicitor whose written request is accompanied by an up-to-date, signed Authority to Release Medical Information (see Access to health information ).

After obtaining records, the lawyer must become familiar with the relevant medical matters, seeking independent medical advice to determine the strength of their case.

Health professionals are no longer reluctant to testify against their associates. In large population centres there are a number of medico-legal companies retaining specialists in most fields. The small population centres of the NT have fewer practitioners in particular fields, so independent opinion might have to be sought interstate. Once located, the medical expert's opinion may be inconclusive or suggest that a practitioner in another field should be consulted as well. This all takes time and money as neither legal assistance nor expert medical opinion come cheaply.

It is also important to be able to show exactly what loss or damage has been sustained. The plaintiff in a medical negligence case may suffer from a medical problem prior to the alleged negligence. Only medical problems that actually result from the negligent act or omission can attract compensation. Subsequent medical problems that can't be proved to have been caused by the negligence can't be claimed for and compensated. For example, if a patient sustains an ugly wound that is made worse by an infection contracted because of a medical practitioner's negligence, the doctor is only liable for the additional scarring and the pain caused by the infection.

Who to make a claim against

If negligence is claimed against a doctor working in private practice, the claim should be against the individual doctor. Most doctors have medical insurance to indemnify against such claims.

A person who suffers harm due to the negligence of a health professional based in a hospital can sue either the individual doctor or the employer of the doctor, which may or may not be the owner or occupier of the hospital.

Employers (usually the NT Government if it is a public hospital in the NT) are vicariously responsible for the actions of their employees. This rule places responsibility on the body most able to ensure proper standards through the selection and training of staff, efficient organisation and supervision. It also protects patients who might otherwise find themselves suing an individual who simply could not afford to pay adequate compensation. Therefore, even if a doctor is sued in their own name, the employer may bear the cost of any damages awarded to the plaintiff.

Hospitals are not vicariously liable for health workers employed by patients, such as a private nurse or private doctor who treats a patient in the hospital but is not actually employed by it. A number of private hospitals provide the facilities and the nursing staff, but don't employ the doctors, who have separate contracts with their patients.

In addition to assuming legal responsibility for the actions of their staff, public hospitals have a direct duty of care which they cannot delegate to any individual staff member. Hospitals are ultimately responsible for their own organisational systems, such as those relating to hygiene and communications, and for the recruitment, selection and allocation of staff.

Private hospitals have a similar duty of care in relation to how their establishments are run. If a private hospital allocates a particular doctor to a patient, the hospital itself could be sued in place of the negligent professional. However, when private hospital patients choose their own doctor, that doctor, and not the hospital, carries responsibility for any medical negligence.

Access to health information

In September 1996 the High Court in Breen v Williams (1996) 186 CLR 71 confirmed that while a patient could claim ownership of documents they obtained and paid for, such as x-rays and pathology reports, their medical records are the property of the author of those records, usually the treating doctor or the hospital where doctors are employed. The court decided that a patient had no legal right to access, inspect and or copy records kept by their doctor, and rejected claims that such a right flowed from the contract between patient and doctor, the common law, as a result of a fiduciary duty or from a 'right to know'.

In relation to private practitioners, the Privacy Act 1988 (Cth) now provides for patient access to their own medical records on request (subject to specified exceptions).

The Information Act provides a right for a person to access their personal information (including medical records) held by the NT's public health services.

Gaining access

At present, a patient wanting to access their public health records in the NT should write to the medical superintendent of the hospital or chief administrator of the health centre that provided treatment, enclosing essential personal details, such as date of birth, to help with identification.

Patients are given access on a controlled basis. A health practitioner may be present to answer queries about procedures, medical phrases and so on. If a patient disagrees with any information in their record, comment can be attached to the record as an addendum.

The Department of Health and Community Services' guidelines allow access to be refused on the grounds that it may be prejudicial to the physical or mental health of a patient, but warn employees that they need to exercise extreme care if denying access on this basis.

As referred to above, access to medical records held by private hospitals and health professionals in private practice is provided for under the Privacy Act (Cth).

Confidentiality

The general rule is that a doctor or any health professional may not, without the consent of the patient, disclose to any third party, information acquired by reason of their professional relationship. Unauthorised access to patient information, including medical and hospital records, is prohibited.

The duty of confidentiality is based on a doctor's need to obtain a full and frank history from the patient so they can make a proper diagnosis. The patient has to be comfortable that what they tell the doctor is not going to be made public. It is the patient's choice, not the doctor's, as to whether personal information is disclosed to other people.

In compensation cases and other civil claims, doctors and hospitals are not allowed to release information about a patient to insurance companies or respondent parties without their patient's consent [Evidence Act 1939 s.12(2)].

The rule of patient confidentiality applies to family relationships, which means a hospital can't release a patient's records or information about them to their spouse or children without their consent. Similarly, the parents or relatives of a child patient who is sufficiently mature to make decisions about confidentiality won't be privy to the child's medical records unless the child permits it. The duty of confidentiality is a continuing one that survives the end of a doctor-patient relationship and the death of a patient. When a patient dies, the right to consent to release information passes to the next of kin or the executor of the estate.

Sources of protection

  • The International Code of Medical Ethics states that: 'A physician shall preserve absolute confidentiality on all he knows about his patient even after the patient has died.'
  • The Australian Medical Association's Code of Ethics states that: 'It is the practitioner's obligation to observe strictly the rule of professional secrecy by refraining from disclosing voluntarily without the consent of the patient (save statutory sanction), to any third party, information which he has learnt in his professional relationship with the patient.'
  • The Department of Health and Families publishes Guidelines on Confidentiality and Release of Medical Records for its employees. The underlying principle in access matters is 'that all information relating to an identifiable individual must be treated confidentially'.
  • Confidentiality is an implied term in any contract between the patient and a health professional.
  • Privacy laws.

Exceptions to the confidentiality rule

The duty to maintain confidentiality does not apply:
  • if the patient consents to the release of information
  • in the hospital system where health service providers are required to share information
  • under various Acts where the public interest outweighs a person's right to privacy. For instance under the Notifiable Diseases Act 1981 a doctor is required to notify a medical officer of health appointed under the Public Health Act 1952 if they diagnose a patient as suffering from or carrying a notifiable disease. In practice reports are made to the head of the Centre for Disease Control, who is a medical officer of health
  • if a court orders it, such as when it orders documents to be produced.
There is also a myriad of other laws that impact on patient confidentiality. For example, section 25 of the Traffic Act 1987 requires a blood sample to be taken from each person when they go to hospital for examination or treatment following a motor vehicle accident. The hospital authorities have to notify the police of the patient's name and details, and the blood sample becomes the property of police for the purposes of analysis.

Another example is section 11 of the Motor Vehicles Act 1949, which requires a doctor to notify the Registrar of Motor Vehicles if they believe a patient of theirs is physically or mentally incapable of driving a motor vehicle safely.

A health practitioner, including a doctor, is obliged under the Health Practitioners Act to report to the relevant professional board if they believe a patient who is health practitioner may be seriously impaired in their ability to practise in their category of health care.

Under section 14 of the Community Welfare Act 1983, doctors are required to report to the police or welfare authorities when a child has been maltreated. The doctor doesn't breach confidentiality or the rules of professional etiquette, ethics, or professional conduct by making the report, so can't be sued or held criminally liable.

The Domestic and Family Violence Act also provides protection for health practitioners reporting domestic violence.

In the above cases, the disclosure of information is either specifically authorised by an Act or is permitted by clear implication.

Breach of confidentiality

If information about a patient is disclosed without that person's authority, the patient would generally be able to:
  • sue the hospital or doctor for breach of confidence if they have suffered some harm as a result of the breach. Harm, in this sense, might mean the person losing a job because a doctor told their employer about their medical condition. Hurt feelings or pride do not usually give rise to legal rights. If loss has been suffered, the patient may, according to the circumstances, sue on the grounds of breach of contract (see Contracts and consumer protection ), negligence (see Medical negligence ) and a possible breach of an equitable duty of confidence
  • make a complaint to the health professional's employer if there is one
  • make a complaint to the Health and Community Complaints Services Commission
  • make a complaint to the Health Professions Licensing Authority or relevant Health Practitoners Board which can take disciplinary or other action (see Contact points ).

Privacy

Privacy is a broader concept than confidentiality or privilege. Privacy legislation aims to provide a robust framework to regulate the handling of information at all stages of the handling process - collection, use, storage, security - and includes accessible mechanisms for complaints and enforcement. As referred to above, privacy laws also provide for patients to have access to their own health information on request (subject to specified exceptions), as well as providing a mechanism for correction of information.

The area of privacy law is in the process of change, but at the moment health professionals in the private sector are regulated by the Privacy Act.

In the public sector health professionals are presently covered by the Department of Health and Community Services' Information Privacy Code of Conduct. The Information Act provides a right for a person to access their personal information (including medical records) held by the NT's public health services.

A discussion paper for a proposed Health Privacy and Records Bill has been released by the department. This legislation, if passed, would be health specific, dealing only with health information privacy. Its introduction would mean that there would be one set of rules that applied to both private and public sector health providers in the NT.

Death and tissue transplantation

According to the authors of Ethics, Law and Medical Practice (Kerry Breen et al, Allen & Unwin, Sydney, 1997), before modern advances gave doctors the ability to support or replace vital functions, such as those of the cardiac, respiratory and renal systems, there was little if any conflict between the law and medicine on the issue of death. By the mid 1970s there was widespread acceptance in law, medicine and theology, and by the public, that the death of the brain was equivalent to the death of a person; the stopping of the heart did not necessarily mean death unless the brain had died.

In 1977 the Law Reform Commission of Australia advised that the law had a responsibility to legislate, however generally, on the definition of death. It recommended that the law should state that a person has died when there occurred either irreversible cessation of all function of the brain or irreversible cessation of circulation of blood in the body of the person. This definition was subsequently included in legislation around Australia and in the NT Human Tissue Transplant Act (HTTA).

Prior to that, according to common law, a breathing person with circulation was considered to be alive; a person whose heart and lungs had stopped working for good was considered to be dead.

Responsibilities of doctors following death

A doctor who is called to a person thought to be dead has the following four main responsibilities:
  • to confirm that death has taken place
  • to exclude where possible, on medical grounds, any suspicions of foul play in relation to the death
  • to issue a death certificate when in a position to do so
  • if unable to issue a death certificate, to refer the death to a coroner.
A doctor who certifies death must be fully registered; that is, have general, full or unrestricted registration in the State or Territory where the death occurred.

Certain deaths are reportable deaths, which means that the coroner must be notified about them. These include:
  • a child in care under the Community Welfare Act 1983 [s.12(1)(a)]
  • a patient who, in accordance with the Mental Health and Related Services Act 1998, is in custody in a hospital or temporarily removed from a hospital [s.12(1)(b)]
  • a person held in custody by the police or prison who is brought or admitted to the hospital [Mental Health and Related Services Act s.12(1)]
  • a death that occurred during an anaesthetic
  • a death that occurred as a result of an anaesthetic and is not due to natural causes
  • a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury.
Under the Coroners Act 1993[CA], a doctor who is present at or after the death of a person has to report the death to a coroner as soon as possible if:
  • the death is reportable
  • they don't view the body
  • they are unable to determine the cause of death [CA s.12(3)].
The penalty for a failing to do so is $5000.

Coroner's powers to investigate death

It is the standard practice of the coroner to issue a summons for the delivery of all medical and hospital records of the deceased when they are investigating a death. Summonses are usually served by the police who have the power to enter and remove documents if necessary.

The coroner has wide powers to investigate a death that has happened in their jurisdiction. If a coroner reasonably believes that a death needs to be investigated, they can direct a medical practitioner to perform an autopsy [CA s.20].

The dead person's senior next of kin, defined in section 3 of the CA, may ask the coroner not to authorise an autopsy [s.23]. If the coroner decides that an autopsy is necessary, they must send immediately to the senior next of kin written advice of that decision. The senior next of kin then has 48 hours to apply to the Supreme Court for an order stopping the autopsy.

There can be a lengthy lapse of time between the death and the handing down of the coroner's findings. During this time the hospital records are kept by the coroner's office. After the decision is handed down, they are returned to the hospital.

The donation of organs and tissues for transplantation

The ability of modern medicine and technology to maintain vital functions for many days and even weeks after brain death carries with it profound legal and ethical problems, in particular when tissues and organs are required for transplantation. Kerry Breen et al in Ethics, Law and Medical Practice make it clear that it is essential when diagnosing brain death in potential donors, that very clear distinctions are made between death and a prolonged state of coma in patients who are vegetative, but in whom there is some evidence of brain-related function. Once a person is dead, they are no longer in a coma.

Any tests or treatment carried out on a patient before death must be for the benefit of the patient and not solely to preserve organs and tissues for transplantation.

The States and Territories have all legislated to ensure that there is a complete segregation of the medical team caring for a patient who is in irreversible coma and dying, and the medical team caring for a patient who is in dire need of a transplant.

Model legislation on removal of human tissues, published by the Australian Law Reform Commission in 1977 has been enacted with some minor variations by all States and Territories in Australia. In the NT the relevant legislation in this area is the Human Tissue Transplant Act 1979 (HTTA). A doctor can't remove any tissue or organ from a person's body, no matter if the person is alive or dead, without that person's consent. Where a living person wishes to make a tissue or organ donation, their consent must be evidenced by a doctor's certificate [HTTA s.10], which must:
  • contain the person's written consent, including the scope of the consent, given in the doctor's presence
  • contain proof that the doctor told the person about the nature and effect of the proposed tissue removal, and this explanation was provided before the person gave consent
  • certify that the doctor is satisfied that, at the time the consent was given, the person was at least 18 years old, of sound mind and gave consent freely.
If a person who dies in a hospital expressed, while alive, a wish or consent to donate organs or tissues after death, and didn't express a change of mind, that is sufficient authority for the donation to take place. The person in charge of the hospital can then lawfully authorise organs and tissues to be removed for therapeutic, medical or scientific purposes [HTTA s.18]. The senior available next of kin should be consulted about their knowledge of the dead relative's wishes at the time of death, and if the senior next of kin objects the person in charge of the hospital can't go ahead with the donation. Only the coroner investigating a death can authorise the removal of tissue over the objections of the senior available next of kin [HTTA s.20].

Where the body is in a place other than a hospital, the senior available next of kin may, by writing, authorise the removal of tissue, but not if the dead person had during their lifetime expressed an objection to having tissue removed from their body [HTTA s.19]. If another senior next of kin objects, the removal of tissue cannot proceed.

In addition to the legislative safeguards provided by the HTTA, the National Health and Medical Research Council has prepared a set of recommendations for the donation of organs and tissues for transplantation (see Contact points ).

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