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Some issues as to (medical) consent and confidentiality

Nicholas Millar, solicitor

Tel: 2529 3866 E mail: jnmillar@netvigator.com

Edited transcript of talk given by N Millar on the 7^th April 2006 to a group of doctors and other health care professionals at Queen Elizabeth Hospital.

1. It is important to establish some basic principles. I do so given that you all are either doctors or nurses, and I am informed are aware, at the least, of the core principles.

2. It is important to bear in mind that neither consent nor confidentiality are discreet subjects. They overlap with each other and with other aspects of the law including criminal, family, mental health as well as ethics.

3. The source of the requirement imposed may be legal (whether as a result of case law or statute) or ethical (whether imposed by such as the Medical Council resulting from what it views as its legal obligations, consensus of the medical profession or something such as the Hippocratic Oath or the Declaration of Geneva as amended or similar).

4. It is basic but important to remember that the duty of confidentiality is owed to the patient; the doctor has no right, subject to certain exceptions, to confidentiality as to matters he learns from the patient, as distinct from the patient.

5. Similarly it is for the patient to consent. The doctor cannot impose, again subject to certain exceptions being basically matters such as mental health, infectious disease or in certain circumstances emergency situations. The mental health and infectious disease situations are largely governed by statute.

6. Whether somebody has mental capacity to consent, certainly in the instance of somebody who is either mentally impaired or perhaps under the influence of drugs or alcohol, is something on which I assume Dr Josephine Wo will speak. However, if somebody is not mentally capable, then to whom can a doctor look for the question of a consent or need they indeed look?

7. In contrast to the UK there appears to be a dearth of case law in Hong Kong as to either medical confidentiality or the question of consent. Thus most of the cases referred to are English, with some other common law jurisdictions. It should be bone in mind that almost all such cases arise out of what might be termed unusual circumstances or factual situations; all cases are supposedly decided by applying the law to the facts of the particular case, although sometimes general principles are subsequently extracted and sought to be applied in future.

Confidentiality

8. Obviously a medical professional owes a duty of confidentiality to all patients irrespective of their capacity or age, save that where somebody is perhaps too young in the case of a child or mentally incapacity, due to mental illness, then certain communications may be appropriate to those who are, for lack of a better word, in loco parentis. For the mentally impaired person, such may be a guardian appointed under the Mental Health Ordinance or similar.

9. It is clear from English authority that every member of hospital’s staff is subject to the same duty of confidentiality to the patient as is a doctor.

10. The Medical Council of Hong Kong red book of Professional Code For Doctors makes various provisions both as to medical records and medical examination. I would refer you to Part III, Section A sub-section 1 as to Patient's Privacy and Confidentiality. Sub-section 1.4 is headed "Disclosure of medical information to third parties". It provides as follows:-

15.1 A doctor should obtain consent from a patient before disclosure of medical information to a third party not involved in the medical referral.

15.2 In exceptional circumstances medical information about a patient may be disclosed to a third party without the patient's consent. Examples are: (i) where disclosure in the public interest or in the interests of an individual is justified because the failure to disclose the appropriate information would expose the patient, or someone else, to a risk of death or serious harm; (ii) when required bylaw to do so.

15.3 However, before making such a disclosure a doctor must weigh carefully the arguments for and against disclosure and be prepared to justify the decision. If in doubt, it would be wise to discuss the matter with an experienced colleague or to seek help from a medical defence society, a professional association or an ethics committee.

[ Remember who is the patient. Thus for example in suspected child abuse, where the child is the patient, you have to consider the child’s best interests and I would suggest that if child abuse is suspected you involve social services/welfare as well, probably, as the police.]

11. The GMC guideline at paragraph 18 under the heading "Respecting Confidentiality" says:-

18. You must treat information about patients as confidential. If in exceptional circumstances there are good reasons why you should pass on information without a patient's consent, or against a patient's wishes, you must follow our guidance on Confidentiality: Protecting and Providing Information and be prepared to justify your decision to the patient, if appropriate, and to the GMC and the courts, if called on to do so.

12. The GMC has a subsidiary document “Confidentiality: Protecting and Providing Information” which is of April 2004 and gives information.

13. A doctor in the witness box has absolute privilege and is protected against any action for breach of confidence provided and subject to any such privileged communication not having been made maliciously. If ordered, a doctor is bound to answer any question which is put to him.

14. According to commentators it is ethical to break confidentiality without a patient's consent, where this is in the patient's own interest to do so and where it is undesirable on medical grounds to seek such consent. The recipient to the information may be another healthcare professional or a close relative or if the doctor suspects a patient is a victim of neglect or physical or sexual abuse then an unrelated third party. However, it remains the doctor's duty to make every reasonable effort to persuade the patient to allow the information to be given and make clear to the third party that the information is given in confidence. When such a situation occurs the decision rests, almost by definition, on clinical judgment which must be a properly considered clinical decision.

15. In so far as a doctor has an overriding duty society when making such a decison that duty overrides the patient's right of confidentiality.

16. What if the doctor knows that the patient has committed a crime or, perhaps worst, is about to commit?

17. There is English case law to the effect that the doctor need not assist the police by answering their questions concerning his patient although the doctor must not give false or misleading information (Rice v Connelly [1966]). However, in certain circumstances, the doctor would be exonerated for breaching his duty of confidentiality by disclosing information about the patient.

18. "There are cases where the desire to preserve [the confidential relation which exist between the medical man and his patient] must be subordinated to the duty which is cast on every good citizen to assist in the investigation of serious crime". Avory J [1914].

19. In W v Egdel [1990] CH359, a prisoner in a secure hospital sought a special review of his case so he could be transferred to a less secure unit. At the behest of his legal representatives, he was interviewed by an independent consultant psychiatrist who formed an unfavourable opinion of the prisoner. The application for transfer was therefore stopped. The psychiatrist was aware that the prisoner was due for a routine review of his detention and knowing that his own report would not be included in the patient's notes feared a decision might be taken on inadequate information with consequent danger to the public. He thus sent a copy of his report to the Medical Director of the hospital and a further copy to the Home Office. He was sued in contract and in equity for breach of confidence. It was held that the psychiatrist Dr Egdel was under a clear duty of confidence. Question arose as to the breadth of that duty. The GMC guideline at the time in paragraph 97 stated "Rarely, cases may arise in which disclosure in the public interest may be justified eg. a situation in which a failure to disclose appropriate information would expose the patient or someone else to risk of death or serious harm."

20. Court of Appeal per Bingham LJ held that there was a public interest in maintaining professional duties of confidence. The court doubted the position where a doctor was acting as an independent consultant. The then Mental Health law showed a clear parliamentary intention that a restricted patient should be free to seek advice and evidence for specific purpose which was confidential in respect of the authorities. Only the most compelling circumstances could justify acting contrary to the patient’s perceived interest in the absence of consent (ie. to breach that confidentiality).

21. However, in the case the fear of the real risk to the public safety entitled Dr Egdel to take reasonable steps to communicate the grounds of his concerns to the appropriate authorities.

22. Egdel has been followed in at least one case where the Court of Appeal found the doctor to have acted reasonably in disclosing information on the facts of that case. [R v Crozier 1990].

23. There is however the questions as to what happens if a doctor acts unreasonably?

24. If somebody has a medical condition which for example makes it dangerous for them to drive, should the doctor inform the authorities? [In England there is a specific statutory obligation on doctors to inform the DULC of a patient's epilepsy] In the absence of various specific statutory provisions then prima faces the answer is no but, certainly in the case of something like epilepsy, I think the doctor would be found to have acted reasonably if he informed the relevant authorities that somebody was an epileptic and held a driving licence, on the basis the doctor’s duty to society was greater that the particular patient’s right to confidentiality.

25. The contrary example is a New Zealand case where a bus driver underwent a triple coronary bypass operation but was subsequently certified as fit to drive by his surgeon,. His GP however asked that his licence to drive be withdrawn and warned his passengers of their supposed danger. The GP was censured and his challenge was dismissed by the courts on the basis that whilst medical confidentiality can be breached in case of clear public interest on the facts of this case there was no such.

26. What of HIV and AIDS?

27. [Omitted]

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28. As to minors or children, the case of Gillick [1985] Lord Fraser in the House of Lords held that a doctor would be justified in proceeding to give a child (under the age of 16) with contraceptive advice without her parents' consent or knowledge provided the doctor was satisfied that :-

(a) the girl would, although under 16, understand his advice;

(b) the doctor could not persuade the girl to inform her parents or to allow him to inform the parents that she was seeking contraceptive advice;

(d) unless she received contraceptive advice or treatment, her physical or mental health or both might suffer.

29. Her best interests required him to give her contraceptive advice, treatment or both.

30. What has subsequently become known to be Gillick competent for minors/ children might be summarized as the young patient having sufficient understanding and intelligence to understand the advice of the doctor [and I would add to make a reasoned decision in reliance thereon].

31. A doctor however still has to come to a view that the child is “competent” It is also noticeable that the young patient takes a risk in a doctor forming the view that the young patient does not have such understanding and knowledge and therefore choosing to involve the parents or guardians!

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32. Disclosure of medical records can be ordered pursuant to the provisions of Sections of 41 and 42 of the High Court Ordinance. This is usually for the purposes of potential medical negligence actions but includes the obtaining of records of third parties (and thus a doctor or hospital who is not going to be the defendant to an action) where personal injuries have been sustained. As the matter lies in the discretion of the Court, the individual against whom an order is sought can object. An example on public interest grounds (blood transfusion cases in England and Scotland – seeking the identity of HIV positive blood).

33. As far as I am aware, save for the above, there is not a specific statutory provision in Hong Kong that allows a patient's the right per se to medical records concerning them. What they are undoubtedly entitled to, subject to the provisions in the ordinance, is to copies of such medical records pursuant to provisions of the Personal Data (Privacy) Ordinance.

34. Whether a patient is entitled to the original records may well be a matter of contract between the treating body or doctor and the patient. There are at least three conflicting decisions, from different jurisdictions (England and Wales, Canada and Australia) as to whom the actual medial records made by an individual doctor belong.

35. The Personal Data (Privacy) Ordinance provides, in a very summarized forms as follows:-

[see handout]

36. There is so far as I aware, no equivalent in Hong Kong to the English Access to Medical Records Act 1988. Thus a doctor preparing a report for a third party such as an insurance company or an employer is not as far as I am aware per se compelled to disclose that report to the patient. However, the doctor should clearly obtain the patient's consent to such report being prepared and submitted and that consent should be evidenced in writing.

37. If there was an improper disclosure of medical information then the patient has a right to sue in effect for a declaration so finding the disclosure to be improper, for an injunction preventing further disclose and implicitly for damages (monetary compensation) the amount of which would be contingent on the results of the improper disclosure.

38. Patient also has a right to complain in Hong Kong to the Medical Council.

Consent

39. The Medical Council of Hong Kong code of professional conduct provides in Part III Section A sub-section 2 as to Consent states:-

51.1 A medical practitioner should observe the following principles:-

i. Consent is part of quality care and also a legal requirement. Consent has to be informed and proper which means that patients should be properly informed about the general nature, effect and risk of medical procedures.

ii. Consent is normally given by the patient himself or by a designated person under specific circumstances. When it is not possible for an otherwise competent patient to give consent, the views of the family members should be considered provided that such views are compatible with (i) the patient's best interests; and (ii) the patient's right of self-determination.

iii. Consent should be preferably be recorded in a document, although in law, a consent in written form is not absolutely necessary. The need for written consent becomes necessary under specific statutory provision.

iv. A patient has the right to refuse to give consent to treatment, provided that the patient is able to exercise his judgment clearly and freely. The refusal should be respected and preferably documented.

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40. The GMC guidelines at paragraph 17 under the heading "Obtaining Consent" says:-

17. You must respect the right of patients to be fully involved in decisions about their care. Wherever possible, you must be satisfied, before you provide treatment or investigate a patient's condition, that the patient has understood what is proposed and why, any significant risk or side effects associated with it, and has given consent. You must follow the guidance in Seeking Patients' Consent: The Ethical Considerations.

41. The GMC also has a document published in November 1998 and titled Seeking Patients' Consent. The Ethical Considerations. I am a bit surprised that it appears not to have been updated but it is very useful.

42. The Hospital Authority guidelines on Life sustaining Treatment in the Terminally Ill make the specific point that refusal of treatment by a mentally competent and properly informed patient must be respected. The medical team has to ensure that the patient is adequately informed and has the mental capacity to refuse the treatment.

43. When the patient has lost capacity to decide a valid advance directive refusing life sustaining treatment should be respected. [Note it does not refer to a directive seeking treatment – see Burke v GMC 2005 and fact doctors cannot be compelled to give treatment they regard as futile] nor that an advance directive requesting to be kept alive (and therefore treated) be necessarily respected.

44. A guardian of a mentally incapacitated adult incapable of giving consent is entitled to give consent considered to be in the best interests of the patient and similarly to withhold consent for treatment futile to the patient.

45. In the case of Chester v Afshar a House of Lords decision in 2003. a consultant neuro-surgeon with much experience of this surgery did not warn the patient that there was a small (1% to 2%) unavoidable risk that the operation advised by him however expertly performed might lead to a serious adverse result. At first instance the judge found that the consultant did not warn the patient as he should have and hence was in breach of his duty to her. Although there was nothing wrong with the standard of the surgery performed, it led to the complication cauda equine syndrome. At all stages, first instance, Court of Appeal and House of Lords (albeit 3 – 2), the judges upheld the patient's claim and said that she had established causation between her condition and the failure to warn.

46. Although regarded as a causation decision what I wish to highlight is what some people might regard as the relatively small risk namely 1% or at most 2% but that such was of sufficient magnitude that the defendant was in breach of his duty of care by not warning the patient of it. It could be argued she did not give a valid consent to the operation, at least in the sense of the assumption of the risk inherent in the nature of that operation. The duty to warn is centred on the right of the patient to make and make an informed choice whether to undergo the procedure, in this case this surgery.

47. Common law has long recognized the principle that every person has the right to have his body integrity protected from invasion by others. There are narrowly defined circumstances where this integrity may be comprised e.g. lawful arrest.

48. Legal consequences of unauthorized invasion of body integrity (basically medical treatment) could be civil action for damages, criminal liability for assault and professional disciplinary sanction.

49. Consent can be implied, it may be expressed.

50. It does not have to be recorded in writing, although for evidential purposes in the event of any disputes in the future, I would strongly recommend that consent be recorded in writing.

51. Such can be done on a specific consent form prescribed by the requisite authority normally the Hospital Authority (although its forms have deficiencies even in the current mode) but also in the actual medical notes.

52. If there are particular risks either to severity of consequence or frequency of occurrence, then such should be specifically recorded as having been brought to the attention of the patient (assuming they have).

53. While the Hospital Authority's latest Risk Factor Information Sheet appear quite informative, I have 2 comments. The first is that I have only seen them as a result of enquiry when friends who are employed by the Hospital Authority provided me with them; I have never been given a copy when I or any member of my family has been a patient.

54. Secondly, they are not in English. By this I do not mean they are written only in Chinese, I have seen versions in English. However, they are not written in such a way that an ordinary man or woman would, I believe, readily understand them certainly as to delineation (or percentage chance) or indeed as to the nature or consequence of the risk.

55. While such risk factor forms are obviously helpful to the treating authority and doctor, I can envisage argument in the future as to whether they do constitute valid “informed consent”.

56. In the overwhelming majority of cases, all medical treatment, even of a minor nature, should not proceed unless the doctor has first obtained the patient's consent. That may be expressed or may be implied. For example, if I present myself to a doctor for examination and acquiesce in the suggested routine. There may be specific cases eg prisoners where consent cannot be assumed.

57. As to the limited circumstances in which a doctor may be entitled to proceed without such consent, these can be subsumed under the heading of "Non Voluntary Therapy" which is to be distinguished from involuntary treatment. The latter implies treatment against the patient's express wishes and such instances ethically would be very few eg. treatment of a highly infectious and dangerous disease.

58. Non voluntary treatment is that given when the patient is not in a position to have or to express any views as to his or her management.

59. Such could include because:-

(i) patient is incapable in giving consent by reason of unconsciousness.[HK case of Hospital Authority v C]

(ii) the patient is a minor.

(iii) when the patient's state of mind is such as to render an apparent consent or refusal invalid..

60. As to the unconscious patient, you could seek justify treatment either by saying there is implied consent to treatment to that individual being presumed (as being in the patient’s best interests). An alternative is to rely the doctrine of necessity which legitimates an otherwise wrongful act. However the treatment must not be more extensive than is required by the circumstances of the situation. There is a legal distinction between procedure justified by necessity and those which are convenient.

61. Thus in Marshall v Kerry a Canadian case, a surgeon removed a testicle in the course of an operation to repair a hernia on the basis that he stated the testicle was diseased and therefore the patient's life was in peril. It was held that the removal of the testicles was necessary. Speaking personally, I do not see why it had to be done then and the patient’s express consent obtained.

62. In Murray v McMurchy a doctor sterilized the patient without her consent when during a caesarian section the doctor discovered the condition of the patient's uterus made it hazardous for her to go through a subsequent pregnancy; he thus tied the fallopian tubes although there was no pressing need for the procedure to be undertaken. The court held such was unreasonable and not necessary. The sterilization could have been postponed until consent had been obtained.

63. Basically the case provides that the doctor is justified by necessity in proceeding without the patient's consent if a condition is discovered in an unconscious patient for which condition treatment is necessary in the sense that it would be unreasonable to postpone the operation to a later date.

64. The HA consent forms basically give the doctor [carte blanch] to do anything they regarded as "necessary". In my view, such would not protect the doctors if they did something otherwise than was clearly necessary or clearly intended.

65. One might question as to how this would be judged. The classic answer is by imparting the Bolam test (as modified) – namely the view of a reasonable body of medical opinion of that speciality.

66. There are conflicting judicial decision as to necessity and how it be judged depending on jurisdiction and nature of the allegedly necessary treatment. However with the increasing emphasis, certainly outside Hong Kong, on the patient's right to be informed and to choose. I would suggest Bolam is not necessarily decision.

67. By a 1992 case re T the Court of Appeal held that in England and Wales in the case of an adult patient no other person not even the next of kin has an automatic legal right to consent to or refuse treatment. This is of course subject to the qualification as to whether a legal guardian is appointed.

68. As to consent in respect of treatment to children, where the child is not of an age and intellectual capacity to be able to consent to treatment then the parents (or legal guardian) can so do. However, again there is a distinction between consenting to treatment and refusing to consent to treatment. The person vested with the power must use it reasonably.

69. Thus it may be reasonable for me to refuse to have my son given the MMR vaccination. However it might be unreasonable for me to refuse, on religious grounds, that he be given a blood transfusion in the absence of which he would die. If the doctor was faced with the latter situation, he would have two options (assuming I would not change my view). Which he should adopt I think would depend on the urgency of the situation. Either he could rely on the doctrine of necessity and say that such life saving treatment as a blood transfusion was necessary for preserving the child's life and proceed. If the doctor was subsequently sued, he would rely upon for doctrine of necessity, the interests of the child and the fact that he was acting in good faith. I am fairly sure that the court would find in his favour.

70. The alternative, if the situation does allow for a little time, might be the doctor would wish to consider, through either his employer in the case of Hospital Authority or his defence organization if in private practice, making an application, essentially on an emergency basis, to the court for permission to provide the treatment.

71. The only Hong Kong decision of which I am aware is Hospital –v- C [2003 Haartman J] I am surprised if there are not more decisions. It may be due to cultural norms being different or acquiescence that "doctor knows best" but certainly in England, there are several cases that have been brought for permission, whether under different statues or the court’s inherent jurisdiction, for permission to perform treatment as an emergency.

72. Note, the situation has to be urgent and life threatening or at least disabling. The Supreme Court of Ireland has upheld the autonomy of parents to refuse a simple heel prick test on their newborn son for a condition known as phenylketonuria was reasonable even though such refusal could lead to serious and irremediable brain damage [if he had the condition and it was untreated]. Whether such would be followed in England or in Hong Kong is questionable.

73. "Parental rights to control of a child exist not for the benefit of the parent but for the child" [Ld. Fraser in Gillick [1986]].

74. There is a spate of (English) cases where the court has overruled the wishes of parents to continue to have their children treated where the view of the treating doctors was such treatment was futile.

75. The Hospital Authority's guidelines on life sustaining treatment for the terminally ill provide that the healthcare team has no obligation to provide physiologically futile treatment requested by the patient or the family. The current thinking as to the terminally ill or so seriously handicapped individual as it being futile to "artificially prolong and extend" their life.

76. In the case of re C [1999], the English Court of Appeal ruled that the parent of a child suffering from biliary atresia could legally refuse a liver transplant on behalf of the infant even though there was firm medical opinion that the transplant would give the child a number of years of life beyond his current prognosis. The court seems determined not to equiparate (equate) the concept of best medical interest with the broader notion of best interest.

77. For children between ages of 16 and 18, provided the child is of sound mind and capable of understanding, then the child's decision should be adhered to.

78. The majority of the House of Lords in Gillick held that parental right to determine whether or not their minor child below the age of 16 had medical treatment "determines if and when the child achieves a significant understanding and intelligence to enable him or her to understand fully what is proposed" but until the child reaches such capacity to consent, the parental right to make the decision continues, save only in exceptional circumstances.

79. The law appears to be that a doctor treating a child should always attempt to obtain parental authority but provided the minor patient is capable of understanding what is proposed and has expressed his/her wishes and consent, the doctor may in exceptional circumstances provide treatment on the basis of the minor 's consent. The decision to do so must be on clinical grounds and depend heavily on the severity and permanence of the proposed therapy. It is a question of fact in each case whether a child seeking advice has sufficient understanding to give consent in law.

80. Treatment of mentally impaired or mentally incompetent. In Hong Kong largely controlled by Re F (House of Lords decision in 1990) and Part IVC of the Mental Health Ordinance (cap 136).

81. By Section 59 ZD of the Mental Health Ordinance (Cap. 136) consent to the carrying out of treatment (as defined) to a mentally incapacitated person (as defined) may be given a guardian (as defined) of that person, but with exceptions.