The Queen Elizabeth Hospital (QEH) is too accessible to random persons. I’ve previously heard and read about people who go to the hospital to see who is on certain wards and then feel it necessary to spread that news to the general populace.
Having spent too much time in the hospital in recent times, I have had the opportunity to see these roving individuals myself. I am not referring to volunteers on legitimate business but to persons who have no business there whatsoever. Some come under the guise of handing out pamphlets or something else, the more brazen don’t bother with any guise at all.
The liability issue alone of having strangers walk off the road right up to a patient’s bedside without even having to identify themselves, is a nightmare waiting to happen. Add to the fact that confidential patient information is potentially accessible is another lawsuit waiting in the wings.
This habit that the QEH has of having patients with certain diseases bedded on specific wards means that simply by going to visit this ward, I can identify who has cancer and who is dying from AIDS, which is what the malicious (in both the Bajan sense and the dictionary sense) want to know. Subjecting HIV-positive persons to attending a single identifiable clinic has the same effect.
Medical personnel are under a duty not to voluntarily disclose information which has been gained in a professional capacity without the consent of the patient. The courts have stated that “a duty of confidence arises where confidential information comes to the knowledge of a person in circumstances where he has notice or is held to have agreed that the information is confidential with the effect that it would be just in all the circumstances that he be precluded from disclosing the information to others.” In other words, it is the nature of the relationship which gives rise to the duty. The QEH, as a medical service provider, is bound by the same principles.
Confidentiality is important to ensure that patients are willing to come forward to receive treatment and since the information belongs to the patient, it is the patient’s right to control access to it. In order to give a valid consent to disseminating that information, the patient must be an adult of sound mind. The patient also must be provided with enough information on which to base the decision including the reasons for the disclosure, the likely consequences, how much information will be disclosed and to whom it will be given.
The consent must be voluntary and, where it is withheld, disclosure can only be made if it falls within the other named exceptions such as public safety or health. Do I consent to random people knowing my business simply by checking into the hospital and being assigned to a ward?
At common law, protection for confidential information is by way of action for breach of confidence. In AG v Guardian Newspapers (No. 2)  1 A.C. 109, the court pointed out that “where it is in the public interest that confidential information be disclosed, and to avoid covering up wrongdoing, the courts will not uphold the right to confidence.”
While there is no settled definition of “public interest”, it is understood that it does not necessarily include all members of the public and may be limited to persons with a proper interest in receiving the information.
A major point of discussion regarding the scope of disclosure on the basis of public interest grounds relates to persons who are HIV positive. The British General Medical Council has issued guidelines which include the disclosure of information in order to protect another person from the risk of death or serious harm.
For example, under these guidelines, a medical practitioner could disclose information to an HIV patient’s known sexual partner in circumstances where the patient has not informed that person and cannot be convinced to do so. In such circumstances, the patient should be informed before the information is disclosed and the medical practitioner must be prepared to justify his decision. Disclosure to persons who have not been and are not at risk for infection is prohibited.
Injunctions in other countries have been granted restraining the release of information identifying persons diagnosed with HIV on the basis that the patient may be reluctant to come forward for and to continue with treatment, in particular counselling, thereby depriving the patient of its benefit and the public are likely to suffer from an increase in the rate of spread of the disease.
I don’t know what is the point of asking people to “know their status” if you are going to put them in a position where they must choose between treatment and the “marrish and the parrish” knowing their status as well.
(Alicia Archer is an attorney-at-law in private practice)