Health care providers will on occasion be faced with requests by police to release patient information, or even bodily samples. If a patient is able to consent to this, the matter is straightforward. What, however, if the incapacitated patient, for instance, is sedated and on a ventilator in the intensive care unit?

Duty of confidentiality and disclosure of patient information

The duty of a health care provider to guard the confidences of their patient is seminal to the doctor-patient relationship. The duty of confidentiality compels a health care provider to maintain the information obtained in the course of treating a patient and is governed by law and professional standards.[1] Breach of confidentiality can have serious civil and disciplinary repercussions for a health care provider.

In relation to Queensland public health services, the Hospital and Health Boards Act 2011 (Qld) provides that confidential information concerning a patient must not be disclosed unless authorized by the Act. The Act provides for disclosure of information, in situations that might be relevant to a police enquiry:

  • Where the release of information is permitted by law [2] – such as a court order.
  • It will prevent or lessen a serious risk to life, health or safety of a person or to public safety.[3]
  • It is in the public interest[4].

The balancing of the competing public interests and safety regarding disclosure of medical information is complicated. In all circumstances, it will depend upon the specific facts of the situation. In order to navigate such complexities, it is suggested that hospitals and health care providers have clear policies in place addressing procedures of disclosure.

An example of when the public interest exception overrode the patient’s right to confidentiality is the English case of W v Edgell.[5] In this case the patient had been diagnosed with paranoid schizophrenia and was detained in a secure hospital after being convicted of killing 5 people. The patient’s lawyers lodged an application to remove the patient to a less secure facility. They requested Dr Edgell to provide a report on the patient in support of the application. The report was not favourable and the patient’s lawyers dropped the application.

Dr Edgell sent a copy of the report to the hospital. The patient sued Dr Edgell arguing a duty of confidentiality was owed. The court found the doctor owed a duty of confidentiality to the patient; however, the doctor also had an overriding interest to place the report before the proper authorities if the public interest required it. There is no case law on point in Australia; however, we suggest this approach is likely to be followed whether the patient is lacking capacity or not.

A particular issue arises when a patient is believed to have been the victim of or perpetrator of a crime and his or her identity is unknown. Can the health care provider release information to the patient that might enable them to identify the patient? Arguably yes, on the basis that it is in the public interest (as well as the patient’s own best interests in the case of a victim of crime) to be identified. Identifying the patient will often be the first step in the detection, investigation or prevention of crime.

Bodily integrity and police specimens

All adults who are deemed competent have a right not to be subject to bodily interventions without their informed consent. Incapacitated patients are however obviously unable to consent to interference with their bodies, such as the taking of fingerprints, or blood or urine samples. Acting without a patient’s consent in such circumstances could amount to a criminal charge of assault.[6]

Specific legislative intervention, such as the Transport Operations (Road Use Management) Act 1995 (Qld), enables law enforcement to compel health care professionals to take blood and saliva samples for testing,[7] even if the patient is unconscious[8] or does not consent.[9] This power only arises in circumstances where law enforcement reasonable suspects the person had driven a vehicle.[10]

It might be generally agreed that it is in the public interest for intoxicated drivers to be investigated. However, this is an example of specific legislative intervention addressing the discrete issue of intoxicated drivers. This does not extend as a carte blanche authority for law enforcement to exercise such powers do this in every available scenario.

In each instance there will need to be a careful weighing of the patient’s right to confidentiality and the wider public interest. In cases where a disclosure cannot definitively be said to outweigh the patient’s rights a health care provider can ask police to obtain a court order to compel disclosure, which in turn protects the provider from any action against it in doing so.