A patient with fever, sore throat and flu like symptoms is advised by his general practitioner to self-isolate while he awaits the results of his Covid-19 test. However, he becomes increasingly agitated and ends the consultation abruptly saying that he cannot miss a day of work and that he has no intention of staying at home by himself. What should the doctor do?
The situation creates a tension between the doctor’s duty of confidentiality to her patient on the one hand, and her potential obligations to third parties and the broader public on the other.
The current situation
The World Health Organisation declared Covid-19 a pandemic on 11 March 2020. At the time of writing there have been almost 7,000 confirmed cases and just under 100 Covid-19 related deaths in Australia. After recent significant physical distancing measures resulted in “a flattening of the curve”, federal and state governments are beginning to ease restrictions with a view to an increased reliance upon testing, contact tracing and isolation.
Crucial to this strategy is the requirement of self isolation for suspected, probable or confirmed cases. Current guidelines require that individuals must self isolate for a period of around 14 days if they have Covid-19, or meet other criteria such as close contact with a confirmed case, or recent overseas travel.
The obligation of confidentiality
Upholding confidentiality is an essential part of any clinical consultation. Healthcare professionals have ethical, professional, and legal obligations to respect patient rights to privacy and confidentiality. Obligations of privacy and confidentiality apply to patients with suspected or confirmed Covid-19.
Disclosing a patient’s health information to a third party, including the fact that a competent patient has failed to follow medical advice, would constitute a breach of patient confidentiality. This can potentially expose the healthcare professional to the threat of litigation and/or regulatory action.
Duty of care to others and exceptions to confidentiality
The courts have recognised that in certain circumstances where there is a clear risk of harm, healthcare professionals can owe a duty of care to third parties - that is, individuals outside the doctor patient relationship. In 2012, the NSW Court of Appeal1 held that a duty of care was owed by a medical practice to an HIV positive patient’s sexual partner. The analysis was heavily influenced by the fact that HIV was a scheduled disease under public health legislation, which imposed strict obligations on doctors regarding notification and treatment.
In addition, the common law, legislation and various codes of conduct each recognise exceptions to the duty of confidentiality where disclosure is in the public interest and/or to avoid public harm, as well as where disclosure is required by law.
Common law examples include a UK Court finding that the public interest outweighed the duty of confidentiality when a doctor released a medical report regarding a potentially dangerous schizophrenic prisoner to the relevant tribunal. However, New Zealand courts2 have emphasised, in a case regarding a bus driver with heart problems, that a breach of patient confidentiality on this basis should be limited to a responsible body which could address the concern. In that case it was not considered appropriate to inform the media.
The public interest exception is also picked up in the Medical Board of Australia’s code of conduct3 and Australian Privacy Principles4.
Refusal to self isolate with Covid-19
Here, it may be relevant to consider whether the medical practitioner is aware of a risk of harm to a particular individual or group of individuals, for example if he or she knows that the patient lives or works with elderly or vulnerable people. In these circumstances, there may be a common law duty of care to take reasonable steps in response to this risk of harm to the individual/s.
Public interest considerations may be influenced by the public health situation at the relevant time, and this situation continues to evolve based on the number and location of confirmed cases, and the rates of transmission.
Similarly, the extent to which disclosure is required or authorised by law has changed over time with the addition of Covid-19 as a notifiable disease in all States and Territories. This has meant that healthcare professionals are required to notify the relevant health department of a suspected Covid-19 case within a specified timeframe (24 – 72 hours). A failure to notify will result in financial penalties of up to $10,000 in most states.
Reporting a notifiable disease under the relevant legislative scheme will come within an exception to the breach of patient confidentiality/privacy because it is compelled by statute. The status of Covid-19 as a notifiable disease may also be relevant to consideration of any common law duty of care.
It is relevant to remember that we are in exceptional times, with a State of Emergency being declared in all states and territories. Many states have also enacted emergency powers under Commonwealth and State legislation, which carry additional penalties for failure to self-isolate5.
Practical steps to consider:
- Counsel the patient and advise them of the above. Once fully informed they may well reconsider their position.
- Make a careful file note of all discussions you have with the patient and the steps taken.
- Are you aware of any particular individuals who may be placed at risk?
- Keep informed. Clear and up to date guidance and resources are available from the Australian Medical Association, AHPRA, and Government. The key message across all bodies is to seek guidance and stay up to date with the relevant policies and guidelines.
- Consider the guidance for notifiable diseases for Western Australia, Queensland, Victoria, South Australia, and New South Wales.
- Seek guidance from a senior clinician, medical defence organisation or your Public Health Unit.
- If disclosure of information is required, take care to ensure that it is limited to what is reasonably necessary, and is confined to appropriate recipients.
- The relevant contact details for all Public Health Units (including your State) can be accessed via the Royal College of General Practitioners here.
- The Office of the Australian Information Commissioner has published this guidance on understanding privacy obligations.
1Idameneo (No 123) Pty Ltd v Dr Colin Gross  NSWCA 423
2Duncan v Medical Practitioners Disciplinary Committee1986 1 NZLR 513
5For example, on 15 April 2020 a WA man was convicted and sent to prison for failing to comply with a self-isolation directive under the Emergency Management Act.