Confidentiality

FOREWORD

This Booklet serves as a guide to the medical practitioners to meet the standard of care and professionalism set out by the Malaysian Medical Council. It contains the moral and professional obligations expected of the medical practitioners of this country.

It also serves to enhance public awareness of such standards expected from the doctor who treats them. Such awareness will hopefully encourage greater adherence by the doctors to these guidelines.

I therefore, urge all medical practitioners to adhere to these guidelines outlined in this booklet, at all times. Useful contributions from the medical fraternity may be incorporated in future revision of these guidelines.

 

Tan Sri Dato' Dr. Abu Bakar bin Suleiman
President
Malaysian Medical Council.
    
January, 2001

 

 

GUIDELINES TO DOCTORS

A medical practitioner registered with the

Malaysian Medical Council has rights, privileges and responsibilities.

The practitioner is expected to meet the standards of competence,

care and conduct set by the Malaysian Medical Council.

This booklet sets out the MMC's guidelines on confidentiality.

It is an extension of the principles

described in the booklet 'Good Medical Practice'.

 

 

  1. PRINCIPLES OF CONFIDENTIALITY

    Patients have the right to expect that there will not be disclosure of any personal information, which is learnt during the course of a practitioner's professional duties, unless they give permission. Without assurances about confidentiality patients may be reluctant to give doctors the information they need in order to provide good care. For these reasons:

    - When a practitioner is responsible for confidential information, the practitioner must ensure that the information is effectively protected against improper disclosure when it is disposed of, stored, transmitted or received;

    - When patients give consent for disclosure of information about themselves, the practitioner must ensure that they understand what will be disclosed, the reasons for disclosure and the likely consequences;

    - The practitioner must ensure that patients are informed whenever information about them is likely to be disclosed to others involved in their health care, and that they have the opportunity to withhold permission;

    - The practitioner must respect requests by patients that information should not be disclosed to third parties, except in exceptional circumstances (for example, where the health or safety of others would otherwise be at serious risk);

    - The practitioner should only disclose such relevant confidential information for a specific purpose;

    - Any information given to health workers or any concerned third party is done on the understanding that it is given to them in confidence which must be respected;

    - If a practitioner decides to disclose confidential information, the practitioner must be prepared to explain and justify the decision.

    - These principles apply in all circumstances, including those discussed in this booklet.

  2. DISCLOSURE OF CONFIDENTIAL INFORMATION WITH THE PATIENT'S CONSENT

    A practitioner may release confidential information in strict accordance with the patient's consent, or the consent of a person properly authorized to act on the patient's behalf.

  3. DISCLOSURE WITHIN TEAMS

    a. Modern medical practice usually involves teams of doctors, other health care workers, and sometimes people from outside the health care professions. The importance of working in teams is explained in the MMC's booklet 'Good Medical Practice'. To provide patients with the best possible care, it is often essential to pass confidential information between members of the team, on a need to know basis.

    b. A practitioner must ensure that patients understand why and when information may be shared between team members, and any circumstances in which team members may be required to disclose information to third parties.

    c. Where the disclosure of relevant information between health care professionals is clearly required for treatment to which a patient has agreed, the patient's explicit consent may not be required. For example, explicit consent would not be needed where a practitioner discloses relevant information to a medical secretary to have a referral letter typed, or a practitioner makes relevant information available to a radiologist when requesting an X-ray.

    d. There will also be circumstances where, because of a medical emergency, a patient's consent cannot be obtained, but relevant information must in the patient's interest be transferred between health care workers.

    e. If a patient does not wish a practitioner to share particular information with other members of the team, those wishes must be respected. If a practitioner and a patient have established a relationship based on trust, the patient may choose to give the practitioner discretion to disclose information to other team members, as required.

    f. All medical members of a team have a duty to make sure that other team members understand and observe confidentiality.

  4. DISCLOSURE TO EMPLOYERS, INSURANCE COMPANIES AND OTHER THIRD PARTIES INCLUDING MANAGED CARE ORGANIZATIONS

    a. When assessing a patient for a third party (for example, an employer or insurance company), a practitioner must make sure, at the outset, that the patient is aware of the purpose of the assessment, of the obligation that the doctor has towards the parties concerned, and that this may necessitate the disclosure of personal information. The practitioner should undertake such assessments only with the patient's written consent.

    b. A practitioner must ensure that his or her relationship with third party payers or managed care organizations do not contravene the principles of confidentiality as stated above in item 1.

  5. DISCLOSURE OF INFORMATION WITHOUT THE PATIENT'S CONSENT

    a. Disclosure in the patient's medical interests

    i) Problems may arise if a practitioner consider that a patient is incapable of giving consent for treatment, and the practitioner has tried unsuccessfully to persuade the patient to allow an appropriate person to be involved in the consultation. If the practitioner is convinced that it is essential and in the patient's medical interests, relevant information may be disclosed to an appropriate person or authority for a specific purpose. The practitioner must inform the patient of the disclosure. The practitioner should remember that the judgement of whether patients are capable of giving or withholding consent to treatment or disclosure must be based on an assessment of their ability to appreciate what the treatment or advice being sought may involve, and not solely on their age.

    ii) If a practitioner believes a patient is a victim of neglect or physical or sexual abuse, and is unable to give or withhold consent to disclosure, the practitioner should provide information to an appropriate responsible person or statutory agency, in order to prevent further harm to the patient. In these and similar circumstances, the practitioner may release information without the patient's consent, provided the disclosure is in the patient's best medical interests.

    iii.) Rarely a practitioner may judge that seeking consent for the disclosure of confidential information may be damaging to the patient, but that the disclosure would be in the patient's interests. For example, a practitioner may judge that it would be in a patient's interests that a close relative should know about the patient's terminal condition. In such circumstances information may be disclosed without consent.

    b. Disclosure after a patient's death

    The practitioner still has an obligation to keep information confidential after a patient dies. The extent to which confidential information may be disclosed after a patient's death will depend on the circumstances. These include the nature of the information, whether that information is already public knowledge, and how long it is since the patient died. Particular difficulties may arise when there is a conflict of interest between parties affected by the patient's death. For example, if an insurance company seeks information about a deceased patient in order to decide whether to make a payment under a life assurance policy, the practitioner should not release information without the consent of the patient's executor, or next-of-kin, who has been fully informed of the consequences of disclosure.

  6. DISCLOSURE FOR MEDICAL TEACHING, MEDICAL RESEARCH AND MEDICAL AUDIT

    a. Research

    i) Where, for the purpose of medical research there is a need to disclose information which is not possible to anonymise effectively, every reasonable effort must be made to inform the patients concerned, or those who may properly give permission on their behalf, that they may, at any stage, withhold their consent to disclosure.

    ii) Where consent cannot be obtained, this fact should be drawn to the attention of a research ethics committee which should decide whether the public interest in the research outweighs patients' right to confidentiality. Disclosures to a researcher may otherwise be improper, even if the researcher is a registered medical practitioner.

    b. Teaching and audit

    Patients' consent to disclosure of information for teaching and audit must be obtained unless the data have been effectively anonymised.

  7. DISCLOSURE IN THE INTEREST OF OTHERS

    Disclosure may be necessary in the public interest where a failure to disclose information may expose the patient, or others,to risk of death or serious harm. In such circumstances the practitioner should disclose information promptly to an appropriate person or authority.

    Such circumstances may arise, for example, where:

    - A patient continues to drive, against medical advice, when unfit to do so. In such circumstances the practitioner should disclose relevant information to the employer and Road Transport Department.

    - A colleague who is also a patient, is placing patients at risk as a result of illness or other medical condition.

    - Disclosure is necessary for the prevention or detection of a serious crime.

  8. DISCLOSURE IN CONNECTION WITH JUDICIAL OR OTHER STATUTORY PROCEEDINGS.

    a. The practitioner may disclose information to satisfy a specific statutory requirement, such as notification of a communicable disease or of attendance upon a person dependent upon certain controlled drugs. The practitioner may also disclose information if ordered to do so by a judge or presiding officer of a court, or if summoned to assist a Coroner or other similar officer in connection with an inquest or comparable judicial investigation. If a practitioner is required to produce patients' notes or records under a court order, the practitioner should disclose only so much as is relevant to the proceedings. The practitioner should object to the judge or the presiding officer if attempts are made to compel him or her to disclose other matters which appear in the notes or records, for example matters relating to relatives or partners of the patient who are not parties to the proceedings.

    b. In the absence of a court order, a request for disclosure by a third party, for example, a lawyer, police officer, or officer of a court, is not sufficient justification for disclosure without a patient's consent.

    c. When a Committee of the MMC investigating a doctor's fitness to practise has determined that the interests of justice require disclosure of confidential information, the practitioner may disclose information at the request of the Committee's Chairman, provided that every reasonable effort has been made to seek the consent of the patients concerned. If consent is refused the patient's wishes must be respected.

  9. MEDIA INQUIRIES ABOUT PATIENTS

    Practitioners are sometimes approached by the media for comment about medical issues. Where such comment include information about patients, the practitioner must respect the patients' right to confidentiality. Before releasing any information, the practitioner should:

    a. Remember that information which the practitioner has learnt in a professional capacity should be regarded as confidential whether or not the information is also in the public domain.

    b. Whenever possible, obtain explicit consent from patients before discussing, matters relating to their care, with the media, whether or not the patient(s)' name(s) or other identifying information is to be revealed. Explicit consent must be obtained if patient(s) will be identified from the details disclosed.

    c. Remember that patient(s) can be identified from information other than name or addresses. Details which in combination may reveal patients' identities include their condition or disease, age, occupation, the area where they live, medical history or the family.

    d. Always consider and act in accordance with the best medical interests of patients when responding to invitations to speak to the media about patients.

 

DOCTORS WHO DECIDE TO DISCLOSE CONFIDENTIAL INFORMATION
MUST BE PREPARED TO EXPLAIN AND JUSTIFY THEIR DECISIONS