Hung Sau Fung v. Lai Ping Wai and Ors HCPI 204/2009

Implications

The Court of First Instance expressed concern of the intrusion of principles of doctor-patient confidentiality by the attendance of the healthcare manager for the employer’s insurer at a medical consultation. The Court gave guidance to doctors as to how the patient’s consent should be obtained in this scenario, before allowing the healthcare manager to attend a consultation.

The case serves as a reminder to doctors to always obtain, and check the scope of, written consent from the patient before discussing any patient confidential information with rehabilitation/healthcare staff or personnel.

Background

Many employers in Hong Kong, especially those within the construction industry, have their own Rehabilitation Programme aiming to provide injured employees with timely and free medical treatment and rehabilitation services in the private sector (usually paid for by the insurers). Very often insurers or the employers need to obtain medical reports from the treating doctors, clinics or hospitals in order to design a suitable rehabilitation plan. Sometimes, the rehabilitation service provider may request to attend the consultations with the injured employee.

In this case, the evidence before the Court was that it was the usual practice for the healthcare manager of the rehabilitation service provider engaged by the loss adjuster to attend a follow-up appointment with the treating doctor and the injured employee when that was indicated and with the employee’s consent.

Decision

In addition to expressing concern as to the intrusion of doctor-patient confidentiality by the attendance of the healthcare manager, the Court was also concerned that when the injured person provided consent for the healthcare manager to be present at the consultation, he was not specifically reminded of his right of privacy and confidentiality in his relationship with his treating doctor.

The Judgment provided that, to protect the injured person’s privacy and the confidential relationship with the treating doctor:

  • Consent of the injured employee to the insurer’s healthcare professional should be obtained in writing.
  • Written consent should contain a clear statement that “the injured employee understands that he enjoys a confidential relationship with his treating doctor, that his doctor is bound by that confidence not to discuss his case with any other person, and that he is prepared to waive that confidence provided that those discussions are made in his presence and relate to the rehabilitation services that may be offered by the insurer concerned (i.e. the employer)”.