Confidentiality - Disclosures without consent
Correct as of May 2010
Certain circumstances can mean you are obliged to disclose information about a patient, even if you do not have their consent. You may also be asked to provide information from the medical records of patients who are incapable of giving consent, are aged under 18, or have died. This factsheet gives you further information about these circumstances.
An obligation to disclose
It is important to fully document any decisions about the information you disclose
Under certain circumstances, the disclosure of medical information is required by law. In these situations, consent from the patient is not required. You should not disclose any more information than is absolutely necessary.
The patient should be made aware of the disclosure, and informed about why you are disclosing the information, unless it is not practicable to do so; for example, if the patient cannot be contacted quickly enough, or if informing the patient would defeat the purpose of the disclosure. It is important to fully document any decisions about the information you disclose.
Disclosures to third parties
Usually, you should obtain a patient’s consent before disclosing confidential information to a third party. However, s.1.4.2 of the Medical Council of Hong Kong’s Code of Professional Conduct (January 2009) – or the Code – says there are exceptional circumstances where consent is not necessary: “(i) where disclosure is necessary to prevent serious harm to the patient or other persons; (ii) when disclosure is required by law.”
Coroners' investigations
In certain circumstances, the coroner is required to investigate the circumstances of a death – for example, if a person dies suddenly, by accident or violence, or under suspicious circumstances. You are obliged to disclose any information you may hold about the deceased that is likely to be relevant to the investigation.
Courts or litigation
Both civil and criminal courts have powers to order the disclosure of information in various circumstances. A judge can require you to disclose patient information. You should highlight the lack of patient consent and should object to the judge if attempts are made to compel you to disclose what appear to you to be irrelevant matters.
Reporting patients to the Transport Department
The Transport Department is legally responsible for deciding if a person is medically unfit to drive, and needs to know if a driver has a condition, or is undergoing treatment that may now, or in their future, affect their safety as a driver. The driver is legally responsible for informing the Transport Department about such a condition or treatment.
If a patient refuses to accept the diagnosis or will not inform the Transport Department, you should speak to them, and if they continue to drive against your advice you should contact the Transport Department and disclose any relevant information.
Justifiable disclosures in the public interest
The disclosure of information about a patient without their express consent may be justifiable, if the public interest in disclosing the information outweighs the patient’s interests in keeping it confidential.
In all cases, you must decide whether or not the possible harm caused to the patient – and the overall trust between doctors and patients – by disclosing this information will outweigh the benefits resulting from the disclosure.
You should attempt to seek the patient’s consent, but there are certain circumstances when this will not be possible. It is important to document any decision you make and your reasons for disclosing the information.
Communicable diseases
If the welfare of other health workers may be properly considered to be endangered, the Council would not consider it to be unethical if those who might be at risk of infection whilst treating the patient were to be informed of the risk
If a patient refuses to allow you to inform someone outside the healthcare team of their infection status, you must respect their wishes unless you consider that failure to disclose the information will put healthcare workers or other patients at risk of infection.
S.32.2 of the Code says: “If the welfare of other health workers may be properly considered to be endangered, the Council would not consider it to be unethical if those who might be at risk of infection whilst treating the patient were to be informed of the risk.”
If the patient refuses to consent to the disclosure of their health to spouses or other partners who may be at risk, the Council also says you may “consider it a duty to inform the spouse or other partner”.
Children and young people
Many young people have the capacity to consent to the disclosure of their medical records. If the child or young person (under 18 years of age) is able to understand the purposes and consequences of disclosure they can consent or refuse consent to the disclosure. You should discuss disclosing the information with them and release it only with the child or young person’s consent.
If a child or young person under 18 refuses consent, you should nevertheless disclose the information if this is necessary to protect the child, young person or someone else from serious harm, or if disclosure is justifiable in the public interest.
If the child or young person lacks the capacity to consent to the disclosure of information, those with parental responsibility can consent on their behalf. The consent of only one person with parental responsibility is needed for consent for disclosure.
Adults lacking capacity
The overriding principle is that the disclosure of confidential information is made in the best interests of the person lacking capacity. This may involve releasing information about their condition - for example, to their carer, to ensure they receive the best treatment.
Further information
- Medical Council of Hong Kong, Code of Professional Conduct (Part 2A, pages 10-14)
- The Privacy Commissioner for Personal Data, Personal Data (Privacy) Ordinance (Cap 486)
- Hong Kong Medical Association, Patients’ Rights and Responsibilities
- Mental Health Ordinance
- Transport Department.