Doctor’s distress at patient’s swastika tattoo did not justify privacy breach

It can be deeply shocking and distressing when patients express – through words or symbols - derogatory, racist or threatening views. Doctors need to feel safe, and to seek support if they are confronted with such situations. However, it is important to find ways of responding that do not breach legal or professional obligations, including protecting patient privacy. 

XY was being treated in intensive care in a regional hospital after a home-made pipe bomb exploded. He was in a coma, intubated and ventilated. The doctor in question was one of his many treating practitioners. When the doctor discovered the tattoo of the swastika on XY’s penis during the  examination of the patient, they photographed it and shared it with other treating practitioners on a messaging application.

The incident was reported to the regulator.

The doctor admitted having taken and shared the photograph without XY’s consent and agreed there was no clinical purpose for taking or sharing the photo.

Criminal proceedings were brought against the doctor, but dismissed after the parties came to agreement at a restorative justice conference.

The doctor accepted that taking and sharing the image without consent amounted to professional misconduct. When explaining the context of their actions, the doctor said they had experienced multiple incidents of racism in the past, which had led to them formally changing their name. The doctor considered the swastika was intended to be derogatory towards people of their ethnic origins and to represent racist views. Seeing it tattooed on the patient triggered feelings of shock and offence. At the time they were also experiencing considerable stress working in the public health system and had just worked for 18 days without a break.

The tribunal accepted that the doctor immediately regretted taking and posting the photo. They resigned their public health position and began to practise privately. They also undertook professional training on boundaries and ethical decision-making.

The tribunal also noted the story had been misreported in local and state media.

The tribunal concluded the conduct constituted professional misconduct. It took into account that the doctor had been practising in a regional area of need for 5 years since the incident with exemplary references.

The tribunal concluded no supervision or mentoring was necessary and that no benefit would be served by a suspension. However, a fine was appropriate to reflect the seriousness of the misconduct.

The doctor was ordered to pay $10,000.

The tribunal ordered the doctor’s current and former name not be published. It made no order for costs.

Outside of an emergency, you need patient consent to take any images of, or associated with, a patient. Images, may only be used to provide patient care, unless a patient expressly consents to another use such as education or training.

You may be justified in disclosing a patient’s health information without consent in an emergency if you believe there is a serious risk to life, health and safety. This is a narrow exception and it is always best to seek advice before breaching a patient’s privacy for this reason.

You are not expected to put yourself at risk, or tolerate abusive or threatening behaviour from a patient.

If you witness or experience racist behaviour in your workplace, speak to supportive colleagues, organisations or Avant.

Avant factsheet: Racism in medical practice

Avant factsheet: Privacy: the essentials

Avant article: Get smart: clinical images and smartphones

Avant factsheet: Clinical images: a snapshot of the issues

Avant article: GP breached patient privacy by disclosing information to police without a warrant

For medico-legal advice, please contact us here, or call 1800 128 268, 24/7 in emergencies.