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NZ Doctor Series - Privacy Matters (# 18)
November 2009
Freedom of the press is one of the planks our democracy stands on. In the abstract this is an undeniable positive. As the saying goes, "sunlight is the best disinfectant". Dealing with press freedom directly, though, can be a little harrowing. What should you say to a reporter on the other end of the phone at 5.00 pm on a Friday?
One answer, of course, is ‘nothing' - but things are rarely that simple. What if you want to get your side of the story across, or to defend a colleague? What if you're being asked for information about a patient you genuinely feel poses a threat to others or who has been mistreated? How about Official Information Act requests - do you have to respond?
In fact, the law will only rarely require you to speak or remain silent when faced with enquiries from the media. Instead, you will generally have a space in which to exercise your discretion, in line with your own ethical obligation of confidentiality. Protecting the confidence of your patients must weigh heavily.
But, as always, there are exceptions. For instance the Health Information Privacy Code allows you to talk about a hospital patient's presence, location, condition and progress unless the patient or their representative has vetoed disclosure.
The answers to the other questions posed above are more equivocal.
Disclosing information about a patient to back up a colleague, or to defend yourself against allegations you think are unfair, will always present problems Unless you have the patient's permission, a polite ‘no comment' may be the best option. Naturally if the information is solely about you rather than your patient you can do as you like with it, and information that cannot identify a person can always be disclosed.
Also, while you can disclose information about a patient to prevent a serious and imminent threat to someone's safety, you need to be talking to someone who can do something about that threat. It's unlikely the media would fit that bill.
The situation is slightly different if you work for a public sector agency like a hospital or District Health Board, though you're also more likely to have a communications officer to help deal with difficult dilemmas. The Official Information Act means that anyone, including a reporter, can ask for access to publicly held information, including patient records. Requests can be refused where disclosure would breach someone's privacy and there is no significant public interest in disclosure. Nearly all the time, this will lead to a refusal of an OIA request for health information, but not always.
The bottom line is ‘don't be hasty', even when faced with a tight news deadline. When talking to the media, first find out who they are, what exactly they're looking for and who else they've spoken to. Then you'll be better placed to respond in a way that respects both the public's right to know and your patients' right to confidentiality.