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Duty to maintain confidentiality

Health professionals and services are under a strict ethical and legal duty to keep patient information confidential. A breach of this duty could lead to the practitioner being disciplined by the relevant professional body, and the patient might be able to sue for breach of confidentiality. A health professional may only provide information to a person other than the patient for reasons of significant public interest or when required by legislation, for example:

  • if the disclosure is justified in the public interest so as to prevent a breach of the nation's security, a fraud, an illegal act or matter otherwise destructive to the nation or its people, including matters medically dangerous to the public (such as serious infectious diseases), or

  • where legislation requires a doctor to release information to a health authority when he or she treats a patient with a serious infectious disease, including sexually transmitted diseases; or

  • for the health of the person concerned, or

  • if the doctor is required to release information by law either prior to a court hearing, or when required to attend court under a subpoena to give evidence, or

  • if the laws related to mandatory reporting of suspected child abuse or neglect require disclosure, see CHILDREN AND YOUNG PEOPLE, Child Protection, or

  • if disclosure is required under the Summary Offences Act 1953 (SA) [s 21G], which covers where a patient has a knife wound (except a non-serious accidental wound); the details of the wound and the circumstances of how it was obtained must be passed on to the police [Summary Offences Regulations 2016 (SA) reg 9]; however, the patient's identity must not be given [s 21G(1)(b)], or

  • if the patient has directly or indirectly approved the release of information, for example to a solicitor or another doctor, or

  • there is an emergency and it is important to provide information to the treating doctor or hospital.

Breach of confidentiality (in equity)

Where none of the above situations exist, and information is disclosed, the professional may have breached confidence. If information about a patient is disclosed without his or her authority, then the patient may be able to sue for breach of confidence if:

  • the information has the necessary quality of confidence about it, and
  • the information was provided by the patient to the doctor in circumstances which indicated it was to be treated in confidence.

Generally, for an action in breach of confidence to succeed, the person claiming needs to show that the unauthorised use of the information caused economic detriment. However, in medical cases, it is unclear whether economic or any detriment has to be shown.

Duty of confidentiality in contract

Where a patient consults a health professional or enters a private hospital, it will usually be understood implicitly that, as part of the contract between them, there is a duty of confidence.

Confidentiality  :  Last Revised: Fri Jul 15th 2016
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.