The first post under this heading involved questions of transmissible diseases and whether a paramedic treating a person from a fight or MVA of the disease status of another person involved in the same incident. Today’s question involves evidence of crime and comes from a Victorian paramedic:
If in the discharge of my duties as a paramedic, I become aware that a patient for whom I have direct care, is or may have recently committed a criminal offence, and my knowledge of this act is solely based upon my interactions with this person as my patient, does confidentially/privacy provisions apply? This question was raised with me relating to a specific example relating to alleged immigration offences (Visa Overstay/Working without appropriate Visa). I don’t think anyone would have an issue with the reporting of a case of suspected Terrorist activity, domestic violence or suspected Child abuse (Paramedics in Victoria are not covered by “compulsory reporting” laws). However am I breeching any laws (Privacy Act etc) by contacting the appropriate authorities relating to this offence, or other offences?
I think the starting point is to remember the reason for patient confidentiality. People need to be encouraged to tell their health care professionals, including paramedics, an honest history in order to get the appropriate treatment. They will be unwilling to do so if the disclosure is likely to be used against them. If paramedics start reporting all the criminal conduct they suspect it would terrible damage to the trust that paramedics enjoy and the health care they can provide.
Where a state agency, like Ambulance Victoria, collects personal information about a person then that information must be protected and used only for the purposes for which it was obtained (Privacy And Data Protection Act 2014 (Vic)). A person who discloses to a paramedic that they have taken an overdose of illegal drugs is providing that information in order to get effective treatment. It would be both unnecessary and unhelpful to report that to police; but other information will be in different categories.
- A paramedic may simply observe evidence of a crime, rather than have it disclosed. For example a paramedic may be called to a person with chest pain and whilst attending them see that there is child pornography displayed on the person’s computer screen. The person is not ‘giving’ confidential information to the paramedic, in a way that a person who discloses their history is, this is just something the paramedic observes.
- A paramedic may be treating someone who discloses a serious crime as part of her history. For example they may be called to assist a woman who reveals, in confidence that she has been kept in sexual servitude (contrary to the Crimes Act 1958 (Vic) s 60AB). This history is relevant to explain the nature of her injuries and aids in both diagnosis and treatment but the woman asks that the paramedic not tell anyone for fear of repercussions.
- A paramedic may suspect that a person is, as my correspondent suggests, guilty of some ‘immigration offences (Visa Overstay/Working without appropriate Visa)’.
Subject to the discussion below, there is no obligation to report a crime to Victoria Police. The Crimes Act 1958 (Vic) s 326 says
Where a person has committed a serious indictable offence, any other person who, knowing or believing that the offence, or some other serious indictable offence, has been committed and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts any benefit for not disclosing that information shall be guilty of a summary offence and liable to level 8 imprisonment (1 year maximum).
A paramedic who is paid not to disclose an offence that has been revealed by the patient would be guilty of this offence; but a paramedic who doesn’t disclose an offence because the patient has asked him or her not to, or because he or she believes it would not be in the patient’s interests would not be.
A ‘serious indictable offence’ is an offence that has a maximum penalty of 5 years imprisonment, or more (s 325).
Compare the Victorian section to the Crimes Act 1900 (NSW) s 316 which says
If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.
No issue of ‘benefit’ there, though if the person does accept a benefit to withhold the information, the maximum penalty increases to 5 years. I would anticipate however that a paramedic that receives information ‘in confidence’ would have a reasonable excuse for withholding the relevant information should he or she wish to do so.
There is an old fashioned offence of ‘misprision of a felony’. That most authoritative source of legal knowledge, Wikipedia, says:
Misprision of felony was an offence under the common law of England… It consisted of failing to report knowledge of a felony to the appropriate authorities… With the development of the modern law, this crime has been discarded in many jurisdictions,
I’m not going to try and discover whether misprision of a felony remains an offence in Victoria (or any other Australian state) but given that the distinction between felony and misdemeanour has been abolished (Crimes Act 1958 (Vic) s 322B) and Victoria has specific provisions regarding disclosing crimes (ss 326-330) I’m going to accept that this ancient common law offence is not relevant.
My correspondent did says that ‘Paramedics in Victoria are not covered by “compulsory reporting” laws’. This refers to laws that impose an obligation on health professionals and others to report concerns about children at risk; but there is (since 27 October 2014) a general obligation on every adult to report child sexual assault in Victoria. The Crimes Act 1958 (Vic) s 327(2) says:
… a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.
All of this discussion talks about the obligation (or lack of obligation) to report offences, but what of the question ‘am I breeching any laws (Privacy Act etc) by contacting the appropriate authorities relating to this offence, or other offences?’ I’ve already mentioned the Privacy And Data Protection Act 2014 (Vic) which incorporates the national privacy principles into Victorian law. Those principles govern the collection, use and storage of private information, but release of that information is not contrary to the principles where
… the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of … reporting its concerns to relevant persons or authorities (Information Privacy Principle 2, [2.1(e)]).
So where does that leave the (Victorian) paramedic?
- There is no obligation to report one’s suspicions unless those suspicions are that a person over the age of 18 has committed a sexual offence against a person under the age of 16. That suspicion could come from the patient who may be either the offender, or the victim, or from what is observed at the scene. In any event those suspicions should be reported to police.
- For other offences it’s a difficult balance of harm v benefit. Consider who is being harmed? If the only person being harmed is the patient (eg if they admit to taking drugs) why would you disclose that? If, on the other hand, there is a risk to others, one has to consider how serious the risk? Is the person supplying drugs to their friends, running a drug ring or planning a terrorist offence? Clearly the more serious the threat, the more the balance swings in favour of disclosure.
- Paramedics report things they observe all the time, for example if a paramedic went to a house and found the patient had died in unexpected circumstances they would call the police regardless of other people’s objections. Equally fire fighters call the police when they attend an explosion and discover a meth lab. If a paramedic walks in on an obvious crime scene they should call the police and are not disclosing material revealed in confidence.
- Where the material really is revealed in confidence as part of the treatment but reveals the commission of a serious offence, particularly where the person making the disclosure is disclosing they are a victim of crime but do not want it reported, I would suggest that the paramedic should record that information on their patient record, bring it to the attention of a senior officer. It is the ‘organisation’ that must ensure it uses and maintains the records in accordance with the Privacy Principles and it is the organisation that may disclose that data to police under Principle 2.1(e).
- Putting all that aside, if a paramedic formed the view that there was an immediate and imminent risk of serious harm or serious offending, if someone’s life is at risk (whether you can identify the someone or not) ring the police. No privacy principle or principle of confidentiality is going to allow a person to ‘hide’ if what is being revealed are serious criminal offences such as sexual assault, murder, terrorism, drug manufacturing etc.