In their job, health professionals have to look after some of the most intimate details of their patients’ lives. This is a great responsibility, and patients trust and expect doctors, nurses and others to not just tell anyone. This obligation is recognised in the Health Information Privacy Code.
Rule 11 of the Code says health professionals cannot disclose health information they hold about an individual, unless there is a valid reason to do so.
But when can you release information? Will you be breaching a patient’s privacy if you talk to a police officer about them? Can you hand over everything you can find; or just a little bit, or nothing at all? Watch what the Privacy Commissioner has to say.
Section 22C of the Health Act 1956 allows, but doesn’t require, health professionals to disclose information to a police officer (and some other officials), if they need the information to do their job. Where the treatment relates specifically to drug dependency, then the information is privileged against disclosure in criminal court proceedings under section 59 of the Evidence Act 2006.
If you believe that any child or young person has been or is likely to be harmed, whether physically, emotionally or sexually, you can report the matter to a social worker or Police. This is vital, as there is little that is more serious than the need to protect a child.
Disclosure to a social worker or Police is allowed under section 15 of the Children, Young Persons, and Their Families Act 1989. Health professionals are protected under section 16 of that Act from any civil, criminal, or disciplinary proceedings if they do so. Importantly, this authority and immunity is not limited to the extreme end of imminent risk to children, but incorporates a wide range of harms, including suspected ill-treatment, neglect, abuse or deprivation. If you have concerns about a child, you can report it under section 15.
Search warrants and production orders
If Police have a search warrant or a production order for information about a patient, health professionals have to hand it over to them under the Search and Surveillance Act. A search warrant or production order is approved and issued by the Court, if Police have met the grounds required under the Act. If Police have a search warrant they can search a health provider's premises. If they have a production order, health professionals have to release the information requested. It is an offence to refuse.
But sometimes Police do not have enough information to obtain a compulsory order. The Privacy Act is flexible enough to allow health professionals to disclose information under an exception to rule 11, when necessary “to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution and punishment of offences”.
You may have information that could help Police in their investigations. There will be no breach of rule 11 of the Code if you can demonstrate you have considered this exception, and you acted in good faith.
To be clear, this is your discretion, and there are several things to consider before exercising it.
Things to consider
First, unless Police have a search warrant or production order health professionals don’t have to give them anything.
Secondly, you need to turn your mind to whether this disclosure is reasonably necessary in these particular circumstances. It’s Police’s job to convince you. If you are convinced, then you can release the information.
If Police’s request is vague or informal, or you question why they really need all that information, then follow up. They should provide you with a form or an explanation explaining why the information is needed. If you are unsure whether to disclose information, you may wish to seek legal advice or contact the Medical Protection Society for further guidance. If you are still in doubt, you don’t have to tell them, and you can ask them to go back and get a production order.
If you decide to disclose to a police officer, it is up to you to ensure the information you do disclose is proportionate and necessary in the circumstances.
Police don’t necessarily have to request information from you for this exception to apply. If you are concerned about a potential crime, or the health and wellbeing of someone, then you can disclose information to the appropriate authorities.
But again, before you do so, consider what information needs to be disclosed, why this particular information should be disclosed, and why it is necessary for the purpose you are disclosing it.
Also, consider who you are disclosing to. Make sure you send it to the people who can do something about it. Don’t set up a Facebook name and shame page about thieves, or arrange a public campaign against possible criminals. Let the professionals look into it and let them do their job.
If you have any concerns or questions, please try AskUs, an interactive FAQ tool on our website, or call our enquiries line on 0800 803 909.
Acknowledgement: This article was first published in NZ Doctor.
Image credit: Doctor examining a patient - Creative Commons.