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Confidentiality in Healthcare Ethics & Law Muhamedzhan Raiymbek Confidentiality in Healthcare Ethics & Law Muhamedzhan Raiymbek

Session Objectives • What is confidentiality? /Why respect confidentiality? • The law • Is Session Objectives • What is confidentiality? /Why respect confidentiality? • The law • Is confidentiality absolute/Exceptions to confidentiality/Breeching confidentiality • Confidentiality –Death, incapacity and minors • Confidentiality - Palliative care case study

Confidentiality • Generally, if institution/person ‘A’ holds information about person ‘B’ then person ‘C’ Confidentiality • Generally, if institution/person ‘A’ holds information about person ‘B’ then person ‘C’ cannot obtain that information in the normal course of events without the consent of person ‘B’ • ‘Most people consider health information to be highly personal and, therefore, need to be confident that their privacy will be protected whenever they use a health service. . . Clear and open communication between the health service provider and health consumer is integral to good privacy’ Radwanshi (2001)

What information is confidential? All identifiable patient information, whether written, computerised, visual or audio What information is confidential? All identifiable patient information, whether written, computerised, visual or audio recorded or simply held in the memory of health professionals, is subject to the duty of confidentiality. It covers: • Any clinical information about an individual’s diagnosis or treatment • A picture, photograph, video, audiotape or other images of the patient • Who the patient’s doctor is and what clinics patients attend and when • Anything else that may be used to identify patients directly or indirectly. (BMA 2008)

When does a matter become confidential? Broadly speaking the courts have recognised three elements When does a matter become confidential? Broadly speaking the courts have recognised three elements to deciding whether a matter is confidential: • The nature of the information • Nature of the encounter • Nature of any disclosure

Why respect confidentiality? • Trust is an important aspect between patients and healthcare professionals. Why respect confidentiality? • Trust is an important aspect between patients and healthcare professionals. Patients without fear of a breech of confidentiality should be able to communicate symptoms that often they may feel are embarrassing, stigmatising, or indeed trivial • Without this trusting relationship patients may not divulge information which may make treating them impossible • Patients may not seek medical attention at all • Has important role in a professional patient relationship establishing a sense of security, freedom of action and self respect for patients

http: //www. dataprotection. ie/viewdoc. asp? Doc. ID=225 (2003) http: //www. dataprotection. ie/viewdoc. asp? Doc. ID=225 (2003)

Why respect confidentiality? Why respect confidentiality?

Why respect confidentiality? • Hospital policy ▫ Contained within each member of staff contract Why respect confidentiality? • Hospital policy ▫ Contained within each member of staff contract of employment ▫ Can result in disciplinary action

Why respect confidentiality? • Professional Code of Conduct – An Bord Altranais ‘Information regarding Why respect confidentiality? • Professional Code of Conduct – An Bord Altranais ‘Information regarding a patient’s history, treatment and state of health is privileged and confidential. . . ’ ‘Professional judgement and responsibility should be exercised in the sharing of such information with professional colleagues. The confidentiality of patient’s records must be safeguarded. ’ (http: //www. nursingboard. ie/en/publications_current. as px? page=4 )

The Irish Medical Council – Guide to Professional Conduct and Ethics • ‘Confidentiality is The Irish Medical Council – Guide to Professional Conduct and Ethics • ‘Confidentiality is a fundamental principle of medical ethics and is central to the trust between patients and doctors’ • ‘Patient information remains confidential even after death’ • ‘You should ensure as far as possible that the patient’s privacy is maintained at all times and that accidental disclosure of confidential information does not occur’ • ‘You should ensure as far as possible that confidential information in relation to patients is maintained securely and in compliance with data protection legislation’.

Why respect confidentiality? The Data Protection Commissioner Criminal sanctions • Under section 31 of Why respect confidentiality? The Data Protection Commissioner Criminal sanctions • Under section 31 of the Acts, the maximum fine on summary conviction of such an offence is set at € 3, 000. On convictions on indictment, the maximum penalty is a fine of € 100, 000. Civil sanctions Where a person suffers damage as a result of a failure by a data controller or data processor to meet their data protection obligations, then the data controller or data processor may be subject to civil sanctions by the person affected. Ordinarily, the "injury" suffered by a data subject will be damage to his or her reputation, possible financial loss and mental distress.

Confidentiality Ethics and Law Confidentiality Ethics and Law

Is the duty of confidentiality absolute? Is the duty of confidentiality absolute?

Is confidentiality an absolute right? • In Ireland confidentiality or privacy is recognised by Is confidentiality an absolute right? • In Ireland confidentiality or privacy is recognised by the courts as a right, but not an absolute right • The belief that confidentiality is not absolute is also the model which our two closest neighbours the U. S. and the U. K. subscribe to • In France and Belgium confidentiality is considered as an absolute requirement to protect the patient’s interests

The exceptions to confidentiality There are four circumstances where exceptions may be justified in The exceptions to confidentiality There are four circumstances where exceptions may be justified in the absence of permission from the patient: • (1) When ordered by a Judge in a Court of Law, or by a Tribunal established by an Act of the Oireachtas. • (2) When necessary to protect the interests of the patient. • (3) When necessary to protect the welfare of society. • (4) When necessary to safeguard the welfare of another individual or patient. (https: //medicalcouncil. ie/Media. Centre/Publications/Older/Ethical%20 Guide%202004. pdf )

When necessary to protect the interests of the patient • Children or adults who When necessary to protect the interests of the patient • Children or adults who are subject to abuse Child Care Act 1991, furnishes the Garda Siochana with the power to evoke an emergency care order if they believe there is an immediate and serious risk to the health or welfare of a child • The protection of an individual from themselves, in cases of suicide could also be broadly placed in this category; this is where the limits of this exception become vague

Case ‘Against all the odds, and despite being referred to a hospice, Collette showed Case ‘Against all the odds, and despite being referred to a hospice, Collette showed signs of recovering from bowel cancer. After several months, the consultant decided that Collette was no longer terminally ill, although he could not be certain that she would not become ill again in the future. Accordingly, he felt she no longer required the extensive support supplied by the hospice and discharged her. Collette was very upset by this, partly because she did not want to loose her terminally ill status, which had generated her more attention from her family than she had become accustomed to in the past. The hospice staff were not unsympathetic. They had promised that they would not abandon her and would care for her until she died. The staff also widely believed that her family had rather neglected her previously. Because they did not wish to let Collette down, she was given radically reduced honorary status as an out-patient. For instance she still attended social events and had her hair set by the hair dresser who donated some of her spare time to the hospice. It quickly became obvious that Collette’s family did not realise that she was no longer thought to be terminally ill. The nurse manager attempted to talk to Collette about this, but she was politely and firmly told to mind her own business. ’ (Webb 2005)

How can healthcare providers insure confidentiality is maintained • Discretion in general conversations ▫ How can healthcare providers insure confidentiality is maintained • Discretion in general conversations ▫ ‘New technology’: Facebook, Twitter ▫ Online posting of unprofessional content (Katherine C. Chretien, et al. JAMA. 2009; 302(12): 1309 -1315 Oct, 2009) • Examining how we talk to patients ▫ ▫ • Out-side work With Non-clinical personnel: (confidentiality agreement) How do we ‘carry’ data? ▫ Unsecured laptops ▫ USB keys ▫ Is data anonymised where possible • When information is shared – every party must be aware of his/her obligation of confidentiality • Seek patient consent as early as is reasonably possible

Summary • Confidentiality is VITAL in healthcare – But is not always an absolute Summary • Confidentiality is VITAL in healthcare – But is not always an absolute right • There are 4 exceptions defined by the Irish medical council • A healthcare professional MUST be able to stand over any breech of confidentiality and it should be a last resort • Duties to inform authorities in certain cases (Child abuse, elderly abuse, public interest) – where danger exists, should only be done after careful consideration • All competent persons over 18 have the right to confidentiality- for all other persons healthcare providers must act in the patients best interests