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Aspects of confidentiality: When your patient is an impaired practitioner

One of the most commonly recurring issues that feature on the MPS advice line is confidentiality. In each edition of Casebook we will highlight an unusual scenario from the MPS case files, at the heart of which lies a difficult dilemma around confidentiality

Dr A, a GP, saw patient Dr G, a practising dentist, over recent seizures. Dr G had previously presented with an encephalitis complicated by seizures; she had recovered from the encephalitis but had since had a breakthrough seizure. There was no residual deficit but Dr G was now considered an epileptic, as she had had more than one seizure, and was placed on an antiepileptic agent.

Dr A contacted MPS because of his concerns over Dr G’s ability to return to work as a practising dentist. He was unsure of the implications if Dr G resumed her practice, and faced a dilemma of breaching Dr G’s right to confidentiality in order to safeguard her patients. 

He was unsure of the implications if Dr G resumed her practice, and faced a dilemma of breaching Dr G’s right to confidentiality in order to safeguard her patients

MPS advice

The first question is whether Dr G can be considered impaired in her ability to practise as a dentist. Section 1 of the Health Professions Act 56 of 1974 defines impairment as “a mental or physical condition which affects the competence, attitude, judgement or performance of professional acts by a registered practitioner”. It is down to Dr A’s judgment whether this fulfils the description of Dr G’s condition.

If Dr A considers Dr G to be impaired in her ability to practise, then section 25 of the Act obliges him to report Dr G to the HPCSA.

It says: “Reporting of impairment or of unprofessional, illegal or unethical conduct (1) A student, intern or practitioner shall – (a) report impairment in another student, intern or practitioner to the board if he or she is convinced that such student, intern or practitioner is impaired.”

In addition, the HPCSA’s guidance Confidentiality: Protecting and Providing Information (2007) – in its section “Disclosures to protect the patient or others”, sections 9.3.1 to 9.3.1.1 – says:

“Disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to risk or death or serious harm. Where third parties are exposed to a risk so serious that it outweighs the patient’s right to confidentiality, health care practitioners should seek consent to disclosure where practicable. If it is not practicable, they should disclose information promptly to an appropriate person or authority. They should generally inform the patient before disclosing the information.

“Such circumstances may arise, for example: A colleague who is placing patients at risk as a result of illness or some other medical condition (eg. an impaired colleague): If health care practitioners are in doubt about whether such disclosure is justified they should consult an experienced colleague, or seek advice from a professional organisation. The safety of patients must come first at all times.” 

As an impaired practitioner, Dr G had an obligation to self-report to the HPCSA and Dr A was advised to give her that opportunity

Dr A discussed his concerns with Dr G. As an impaired practitioner, Dr G had an obligation to self-report to the HPCSA and Dr A was advised to give her that opportunity. However, Dr A was advised that he had to be satisfied that this self-reporting had occurred, and to remember his own obligations to report.

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