Health Care Information

Nurse holding confidential medical records - Health Care Information
Patient talking with doctor - confidentiality and privacy

Introduction

Health care information can be any information or an opinion about:

  • any physical, mental or psychological information about a person;
  • a person’s disability;
  • a person’s expressed wishes regarding future provisions of health services;
  • health services that have been provided, or are to be provided to a person;
  • other personal information collected to provide, or in providing, a health service;
  • personal information collected in connection with a donation, or intended donation of a person’s body parts, organs or body substances;
  • genetic information that is predictive of a person’s genetic status.

Such information is seen as especially sensitive and personal.

This section provides a brief introduction to ethical and legal ways in which such information is kept ‘confidential’ and ‘private’.

In Brief: ‘Confidentiality’ and ‘Privacy’

In Australia, notions of ‘confidentiality’ and ‘privacy’ are valued. In everyday use, the terms ‘privacy’ and ‘confidentiality’ are often thought of as the same and the terms are used interchangeably to refer to non-disclosure of personal information.

However, ‘confidentiality’ and ‘privacy’ are separate legal concepts. Each protecting personal information, but each operating in different ways. The notion of patient confidentiality also has a strong history in ethics, which health practitioners have long since honoured.

The concepts can be quite difficult to understand in a technical sense, and the law is plentiful. Nonetheless, a good starting point is simply to explain what the difference is. Then, via specific pages on ‘confidentiality’ and ‘privacy’ Health Law Central provides a little more information to help people understand these concepts and to find resources that may further inform them.

Confidentiality

Confidentiality relates to situations in which information is given to a person (a confidant) under an obligation to keep the information confidential (for example, a person would expect that information confided to a health practitioner is kept ‘secret’).

Confidentiality is an important concept which recognises ‘the dignity and autonomy of the individual, as well as the public interest in fostering a relationship of trust between health service providers and health consumers to ensure both individual and public health outcomes.’ 1

Confidentiality is upheld as an ethical concept, which for example is undertaken as an oath, or stated in codes of practice.

Confidentiality is also a legal concept, which is given form in the common law (judge made law) action of ‘breach of confidence’, and in some statutory ‘secrecy’ provisions.

Note: Confidential information is not always in recorded form (that is it may include conversations, and not just what is written down).

Click on the link below to find out more:

Privacy

There is no precise definition of the term ‘privacy’ at law. However, in an extensive review on the laws of privacy, the Australian Law Reform Commission stated:

“It has been suggested that privacy can be divided into a number of separate, but related, concepts:

Information privacy, which involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as ‘data protection’;

Bodily privacy, which concerns the protection of people’s physical selves against invasive procedures such as genetic tests, drug testing and cavity searches;

Privacy of communications, which covers the security and privacy of mail, telephones, e-mail and other forms of communication; and

Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. This includes searches, video surveillance and ID checks. 2

All in some way or another may be relevant in a health context. However our focus in this section is upon health care information.

Click on the link below to find out more:

Accessing information

Woman accessing records - Health Care Information
A person may wish to access their health records for a number of reasons. They may wish to check that information recorded about them is correct (and correct it if it is not), they may wish to see what has been recorded, or find out information about the health care that was provided to them.

In Australia, the High Court noted that a person has no common law right to access personal information about themselves when that information is owned or held by another. 3 However, legislation has been introduced at the Commonwealth level, and in some states and territories, that created rights of access in various circumstances.

Find out more about relevant laws governing access to health care information, and what access they allow, by following the link below:

Notes:

  1. M McMahon, ‘Re-thinking Confidentiality’ in I Freckelton and K Petersen (eds), Disputes and Dilemmas in Health Law (2006) 563, 579; P Finn, ‘Confidentiality and the “Public Interest”’ (1984) 58 Australian Law Journal 497, 502 cited in Australian Law Reform Commission, ALRC Discussion Paper 72, Review of Australian Privacy Law Vol. 1 Discussion Paper 72, September 2007, p 1560.
  2. Australian Law Reform Commission, ALRC Discussion Paper 72, Review of Australian Privacy Law 1 Discussion Paper 72, September 2007, p 114.
  3. Breen v Williams (1995) 186 CLR 71.