Mushrooms, media and medical ethics: where is the line on patient privacy?

As outlined in the Medical Board of Australia’s Good Medical Practice doctors have strict duties of confidentiality and obligations under privacy legislation to protect patient information.

If a patient discloses information during a consultation, confidentiality means you must not share that information with others, including colleagues, family members or even other health professionals, except in limited circumstances. Exceptions include where the patient has consented, where it is legally required, or it is directly relevant to their care.

For more on privacy and confidentiality see our factsheet Privacy: the essentials.

In the Erin Patterson case, some of the facts were already on the public record. The doctor had given evidence in court. So what exactly is the issue?

The key issue lies in the context in which a doctor shares information. When giving evidence in court, you do so in the capacity of a witness. A subpoena or summons is a court order which you are required to comply with. Giving evidence in that context gives you the legal authority to disclose otherwise confidential information.

However, even when giving evidence in court, you must stick to factual and objective information. As outlined in our factsheet on giving evidence in court, the role of a factual witness is to provide relevant clinical facts, not to speculate or offer character assessments.

Once outside the courtroom, legal protections no longer apply, and your professional and statutory duties of confidentiality and privacy are back in full force.

"While doctors may be compelled to give evidence in court, which provides legal protection for necessary disclosures, those same protections do not extend to voluntary media interviews," Ms Haysom said.

Media interest in high-profile cases is nothing new, and doctors can sometimes find themselves unexpectedly approached for comment. It might be a call from a journalist, a request for an interview, or a microphone suddenly pushed in your face.

If this happens, the safest approach is not to comment. Often the best course of action is also the hardest, and that is to say nothing.

Even if you feel confident you are only sharing information already in the public domain, you still risk breaching patient confidentiality or being seen to act unprofessionally. Making comments that are speculative, judgmental or based on incomplete facts can also expose you to regulatory or legal consequences.

If you are approached by the media:

• Do not engage in off-the-cuff conversations, even if the questions seem harmless. There is always a strong chance your comments will be reported.
• Politely decline to comment and refer them to your hospital or organisation’s media team (if applicable).
• If you are in private practice, consider whether your practice has a media policy or spokesperson.
• Never identify a patient or share information that could allow someone to identify them.
• Avoid expressing personal opinions about a patient’s character or guilt.

If you are unsure what to do, seek advice from your medical defence organisation, before responding.

Doctors are expected to follow the Medical Board of Australia’s Code of Conduct, which includes treating patients with respect and compassion, and maintaining their right to privacy and confidentiality. It also states that doctors must consider how their public comments may affect the public's trust in the profession.

The Code of conduct requires you to treat all patients with respect at all times. This includes patients in custody who are entitled to receive appropriate medical care irrespective of your views regarding the patient's health, personality or behaviour.

A media interview that breaches these expectations could result in a formal complaint, professional reprimand or other disciplinary action.

You may also be at risk of breaching your employment contract. If you speak out without authorisation, your hospital or employer may see this as misconduct and choose to terminate your employment.

"We encourage any practitioner facing media attention to contact their medical defence organisation for guidance before responding," Ms Haysom said.

"Our role is to support doctors through these challenging situations while helping them understand their professional obligations.” she said

So before agreeing to a media interview, ask yourself, is it really worth it given the potential consequences? If in doubt, seek advice.

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