This question comes from

… a security officer (authorised officer) at a hospital in South Australia. We periodically issue expiation notices under the Health Care Act 2008 (SA) for breach of by-laws.

We have the power to require a person to provide their name and address when they have committed an offense under the by-laws.

However, if a person refuses to provide their name and address, are we allowed to obtain their name and address from nursing staff?

 

The Health Care Act 2008 (SA) s 42 says that ‘An incorporated hospital may make … by-laws for’ a number of purposes such as regulating traffic and parking and to regulate access to and behaviour on hospital premises.  The maximum penalty that can be provided for in a by-law is a fine of $1000 or an ‘expiation fee’ of $200.

The concept of an ‘expiation fee’ and ‘expiation notice’ seems unique to South Australia.   According to the Oxford dictionary (online) expiation means ‘The act of making amends or reparation for guilt or wrongdoing; atonement.’  If you receive a notice it says you can ‘expiate’ (or make amends) for your ‘guilt’ by paying the fee rather than go to court.  It is, in effect, an ‘on the spot fine’ with a fancy name.   The management of expiation notices is governed by the Expiation Of Offences Act 1996 (SA).

The power to ‘require the person to provide the person’s name and address’ is found in the Health Care Act 2008 (SA) s 42(2)(a).    A person who ‘without reasonable excuse, fails to answer, to the best of the person’s knowledge, information and belief, a question put by an authorised officer’ is guilty of an offence that carries a maximum fine of $10000.  An authorised officer may also ‘restrain a person to the extent necessary to exercise a power under subsection (2)’; in effect an authorised officer may arrest a person who fails to provide their name and address when required to do so.   Given the failure to comply with s 42(2) is itself an offence, it is a matter that can be dealt with by police.

We now get to the question ‘if a person refuses to provide their name and address, are we allowed to obtain their name and address from nursing staff?’   The first thought I have is how would you identify the person to the nurse to make sure they were giving the correct details.  If the nurse saw whatever it was they might know who the person was, or I suppose a security guard could follow the person back into the ward and ask the nurse – who is that person?  But that would hardly be sufficient information on which to issue an expiation notice.

But putting that aside let’s assume the nurse knows, or can look up the medical record to find, the patient’s name and address.  Let us also assume the only reason the nurse knows the person’s name is because they have been treating them.  A person’s name is not the same as confidential medical information but the principal is still that the person gave their name to the staff for medical care, not law enforcement.  I think it would put the nursing staff in a difficult position to ask them to identify a patient so they could receive a fine.

The hospital’s records, on the other hand, are maintained for reasons beyond patient care including invoicing for health care.   It may be more appropriate to seek the information from admissions staff rather than nursing staff.  If I was a nurse I would certainly be uncomfortable about giving you that sort of information as it is inconsistent with the purpose for which the information is given.

A person’s name and address is not confidential information in the same way that details of their condition and treatment is; but it would be ethically dubious to ask nursing staff to release that information to security so that they can issue an expiation notice.  Given we have to be talking about a patient (the staff aren’t’ going to have the details of a visitor) the appropriate course would be remind the person that they must provide details of their name and address and if they don’t, call the police.   Whether the security officer or admissions staff can access the patient’s record is really a question that should be directed to the hospital as they write the by-laws, employ the staff and own the records.