This question comes from a Western Australia paramedic student. They write
… a topic came up in one of my lectures regarding consent and confidentiality issues between two patients. My lecturer was a little uncertain how to answer my question and has prompted me to contact you for your help.
Here’s the scenario…
You are called out to an incident involving two people eg. A fight or car accident where there is high probability that body fluids have been spilt and transferred between patients.
One patient has, say, Hep C and strongly asks you not to divulge this information to the other patient.
Where do we stand legally, ethically and morally in this situation?
Well it’s nice that the lecturer referred the student to this blog! It’s often easier to work from the most extreme case and then move back so for my answer I’m going to assume the patient has HIV rather than Hep C as there are stricter laws applicable in that case.
First the paramedic is receiving confidential sensitive information regarding their patient. The person who discloses they are HIV positive is doing that with the expectation of confidence but for some reason, we assume they are not just saying it for the sake of telling someone but because it is relevant to their health care. The privacy principles allow the sharing of private information for the purposes for which it was given (see ‘First aid patient records – who and what are they for?’ (January 31, 2015)). Paramedics deliver the person to hospital with a hand over to the triage nurse or doctor so it would be quite consistent with the privacy principles to record that information on the patient care record and include that in the handover to the hospital staff.
But the information is not given for the purpose of sharing it with the other person involved, in fact that is expressly refused. Does the other person need to know? The paramedics could give the person general advice that they may like to consult their doctor, or ask the hospital doctors if they are being transported, about the need for relevant testing as a general caution when there may have been contact with bodily fluids. This could be done without any reference to the other person, pointing out that the paramedics always wear gloves and PPE so there is a risk in any case.
Assume however there is some need for the other patient to know the specifics. There is some case law that says breaching confidence to prevent greater harm is OK. In W v Egdell  1 All ER 835 (a UK case) a psychiatrist was engaged to provide an expert opinion to support a person’s application for conditional discharge from a secure mental health facility. W was being detained after killing 5 people and injuring 2 others in a shooting incident some 10 years earlier. The psychiatrist wrote his report in essence saying that in his opinion the prisoner was dangerous and should not be transferred to a less secure unit in anticipation of eventual release. Not surprisingly the applicant’s lawyers did not like that report and chose not to include it in their submission. The doctor, on becoming aware that his report was not before the Mental Health Review Tribunal, took it upon himself to breach the patient’s confidence (remembering that he had been engaged on behalf of the prisoner/patient) by sending his report directly to the Tribunal. In an action for breach of confidence the court said the doctor’s actions were lawful. Sir Stephen Brown, President of the Court of Appeal said:
The decided cases very clearly establish:
(1) that the law recognises an important public interest in maintaining professional duties of confidence; but
2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure.
In this case the public interest, and the limited nature of the disclosure, meant that W’s action for damages for breach of confidence was dismissed.
Compare that to the New Zealand case, Duncan v Medical Practitioners Disciplinary Committee  1 NZLR 513. Dr Duncan had concern about his patient’s fitness to continue his occupation as a bus driver. The doctor advised his patient to give up his job, which he refused to do. The doctor asked one of his other patients to help organise a petition to get his patient’s licence revoked. The patient complained to the Medical Practitioners Disciplinary Committee that found the doctor guilty of professional misconduct and imposed a fine. Rather than leave it there, and rather than appeal, the doctor went public on the national media (not a lot making news in New Zealand that week). Jeffries J said
There may be occasions, they are fortunately rare, when a doctor receives information involving a patient that another’s life is immediately endangered and urgent action is required. The doctor must then exercise his professional judgment based upon the circumstances, and if he fairly and reasonably believes such a danger exists then he must act unhesitatingly to prevent injury or loss of life even if there is to be a breach of confidentiality. If his actions later are to be scrutinised as to their correctness, he can be confident any official inquiry will be by people sympathetic about the predicament he faced. However, that qualification cannot be advanced so as to attenuate, or undermine, the immeasurably valuable concept of medical confidence.”
Ultimately Dr Duncan was struck off the register of medical practitioners.
The fundamental difference between the two was who they told; Dr Edgell told the Mental Health Review Tribunal, the body that needed the information and that had the authority to act; Dr Duncan, on the other hand told the world at large.
With respect to the treatment of infectious disease, including HIV, the medical staff must notify the Executive Director, Public Health that the person they are treating has an infectious disease (Health Act 1911 (WA) s 276). Where the disease is AIDS or HIV the notification must not include the person’s name, address or telephone number unless there are ‘reasonable grounds to believe that the patient may engage in behaviour that is likely to put other persons at risk of infection’ (s 276A). The Executive Director may order a person suffering from an infectious disease to submit to treatment and/or to enter quarantine (s 251).
One can see that with HIV/AIDS discsloure is very limited. Even reports to the Executive Director, Public Health do not identify the patient. There have been cases however where Doctors have been held liable for not disclosing their patient’s HIV status to someone else.
In Harvey v PD  NSWCA 97, FH (a male) and PD (a female) both attended the practice of Dr Harvey for mutual HIV tests as they were planning to get married. The practice receptionist rang PD to confirm that here results were negative but refused to disclose FH’s results. FH was positive and the doctor had some discussion with him about his HIV status and made an appointment with a specialist clinic but made no effort to follow upon whether he attended, whether he told PD of his results and whether or not he was taking precautions to prevent spreading the virus to PD. Without going through all the details (as they’re not relevant to our discussion) Dr Harvey was found to have breached his duty to PD. He did not need to tell her of FH’s status but he did need to be more proactive in his counselling of FH (as required by the Public Health Act 1991 (NSW)) and if he was not taking steps to protect FH, Dr Harvey could have referred the matter to the Department of Health in terms similar to the WA legislation cited above.
One can see that’s not applicable to our case. Even if paramedics are treating both patients, so they are both patients of St John Ambulance (WA) they do not have the joint relationship that PD and FH had. There can be no implied consent to share results (something that was considered given PD and FH attended the practice together to get their HIV tests). There is no suggestion that one patient’s ongoing conduct was posing a threat to the other.
What makes these cases different from the scenario painted by my correspondent is the suggestion of ongoing danger to the. In our scenario the paramedics don’t know if the HIV patient is posing a risk to anyone else and by his conduct he’s not posing a future risk to the other person. The other person has been exposed, or not, already, there is no threat of future risk. The situation may be different if the call was to a fight and one person made ongoing threats about the other, for example if he asked the paramedics to leave him alone for a few minutes so he could ‘finish the job’ and showed the paramedics that he was carrying a gun. There would be no breach in telling the police and giving a warning to colleagues and the other patient. But that is not the case here.
I used the example of HIV as the more stringent requirements, in each state, to limit information regarding the identity of HIV patients (see Health Act 1911 (WA) s 276A discussed above). Hepatitis C is not included in the definition of an infectious disease (Health Act 1911 (WA) s 3) but the definition does include any disease listed as an infectious disease in the Government Gazette. Hepatitis C is listed as an infectious disease on the WA Department of Health website so has, presumably, been added to the relevant definition by proclamation. The fact that it is an infectious disease again means it must be reported (see http://www.public.health.wa.gov.au/3/314/3/hepatitis_c.pm) so that would reinforce that it is appropriate for paramedics to tell the doctors at handover but still would not justify telling the other patient. Hopefully the hospital will have in place processes to counsel the patient and persuade him or her to give consent to let the other person know. If that consent is not forthcoming then the other patient can still be counselled, and offered HIV, Hepatitis and other relevant tests, and that can be put as a general precaution given the risk, without divulging the other person’s status.
Taking those issues into account I would conclude that telling the treating staff at the hospital is legitimate as its telling those that need to know and it’s no breach of privacy as its using the information received for the purposes for which it was received. Telling the other patient would not however be justified.