Medical practitioners have a legal and ethical duty not to disclose health information without the consent of the patient concerned. The duty ensures that patients are able to discuss their health freely with their doctor, safe in the knowledge that the information will remain confidential. This duty is based both in case law and legislation. The clearest statements in case law concerning obligations relating to confidential information are found in equity. Provided certain requirements are present,1 doctors owe their patients an equitable duty of confidence.
In addition to case law, there are statutes that regulate the collection, storage, use and disclosure of health information. At the federal level, the Privacy Act 1988 contains National Privacy Principles, which set minimum standards for patient privacy. Principle 2 imposes a duty of confidentiality on health professionals by providing that information must not be disclosed unless certain, specified circumstances exist. At the state level, the privacy of individuals’ health information is addressed by the Health Records and Information Privacy Act 2002, which commences on 1 July 2004. The Act requires public and private health service providers to comply with Health Privacy Principles. Principles 10 and 11 prohibit the non-consensual use or disclosure of health information, subject to a list of exceptions.
The various laws I have mentioned do not distinguish between adult and underage patients. There are, however, a number of issues relating particularly to minors that we need to look at to find out if there is a need for clarification or change. The example earlier given by Prof. Tilbury about the schoolgirl Melissa Smith of Nottinghamshire, England highlights one such issue. In that case, Melissa’s mother Mrs Maureen Smith complained about the fact that the school and medical professionals involved did not inform her about her daughter’s pregnancy and subsequent abortion. On behalf of Mrs Smith, one might argue that parental involvement is necessary or desirable in matters concerning young people’s reproductive and sexual health. Others might even say that confidentiality of children’s health information undermines parental authority and family autonomy. On the other hand, one should ask whether there is a danger that disclosure to parents might deter young people from seeking services relating to sexual health.
The issue that needs to be addressed is whether young people should have the right to keep their health information confidential from their parents. If so, what should be the test to apply in deciding whether or not a young person can claim it? Who should be able to invoke it? What should be its content?
There is a view that a young person who has sufficient understanding and intelligence to consent to a particular medical treatment should have the right of confidentiality with respect to that treatment. Hence, if a medical practitioner adjudges a young person to be competent to consent to receive advice on contraception or, in the case of Melissa Smith, termination of pregnancy, the doctor is obliged not only to give such advice or treatment, but also to keep the consultation confidential from the young person’s parents. The rationale for this view is that if parents do not, in the circumstances, have the power to consent to a medical treatment that their child seeks, they do not require the power to obtain medical information about that treatment.
But what if a young person is assessed by a doctor to be incapable of giving valid consent to a medical treatment? One view states that in this situation, the doctor should be able to disclose the young person’s medical information to the parents. The basis of this view is twofold. First, it is argued that the obligation of confidence is based on a person’s autonomy. No obligation of confidence can be owed to a young person who is incompetent to give consent to a medical treatment, since he or she is, by that token, not capable of exercising autonomy as regards the treatment he or she wanted. Secondly, it is argued that parents have a right to know information necessary to carry out effectively their parental duties of care. A parent may not be able to ensure the welfare and health of a young person without information about the young person’s health or medical requirements.
The alternative view is that even where a young person is found to lack the capacity to consent to a medical treatment, the fact that he or she consulted a doctor, and what the doctor has learned in the process of assessing competence for that treatment, must be kept confidential, if the young person expressly objects to the disclosure or gave the information with an expectation that it would not be disclosed to others. Such a test requires an inquiry into whether or not the young person can comprehend an obligation of secrecy with respect to the medical information obtained by the medical practitioner. In support of this view, it is argued that the preservation of confidentiality is based not solely on the recognition of the autonomy of certain young people. It is also founded on young people’s right to and need for privacy, which should not be less than those of adults. Moreover, there is a public interest argument relating to effective health services: without the guarantee of confidentiality, many young people will not seek medical advice or treatment. For example, an American study found that half of adolescent girls would stop using family planning clinics if parental notification were required. Many of those young girls would engage in behaviours that increase their risk for pregnancy and sexually infectious diseases.2
The final point I wish to mention concerns types of health information. Disclosure to parents is likely to arise in situations involving health information, which the young person considers to be personal and sensitive in nature, for example those relating to reproduction and sexual health, drug dependency and depression. A young person is unlikely to object to his or her parents being informed about a treatment for a common cold. The question that one might ask is whether the content or of young people’s right of confidentiality should depend the type of health information involved. In other words, should young people’s right to keep their health information confidential from their parents apply only to certain types of health information?
Disclosure to parents it but one of many issues relating to health information that we are looking at. We encourage you to have read our Issues Paper when it is published and give your views on the questions raised. You are also most welcome to give us comments on related issues that you think we should also cover.
FOOTNOTES
1. See W v Egdell [1990] Ch 359.
2. D Reddy, R Fleming and C Swain, “Effect of Mandatory Parental Notification on Adolescent Girls Use of Sexual Health Care Services” (2002) 288 Journal of American Medical Association 710.
