Orthopaedic surgeon’s communication with treating doctors does not breach patient privacy

Generally Australian privacy law permits sharing a patient’s personal health information between healthcare practitioners caring for the patient. This is because it is a secondary purpose directly related to the reason the information was first collected, where patients would expect their information to be shared. The case is also a good reminder that practitioners should seek specific consent when using patient information for education or training purposes. Even when details are removed, patients may still be identifiable, so you should get specific patient consent before using their information in these contexts.

Privacy – use and disclosure of personal information

The patient, Mr B, had diabetes and his right leg had been amputated below the knee due to severe infection following an accident. The amputation had been performed by his original surgeon Dr O.

Following the amputation on the right side, Mr B later consulted orthopaedic surgeon Dr J for a second opinion about management of his left foot, which had weakened bones, nerve damage and was misshapen.

Mr B had not told his original surgeon he was seeking a second opinion from Dr J. He did not disclose the name of the original surgeon when completing Dr J’s patient information form. However, he did tick the box accepting Dr J’s terms and conditions. The original surgeon’s name was printed on the x-ray envelope Mr B provided.

After reviewing the x-rays and examining Mr B, Dr J strongly advised against surgery, at least in the next 6-12 months. They warned this risked infection and could result in amputation below the knee on the left side.

At the end of the consultation, Dr J advised they would write to Mr B’s doctors and send a copy of the letter to the patient.

Mr B complained Dr J had breached his privacy by sending a copy of the letter to Mr B’s GP and to his original surgeon Dr O. He claimed this had irreparably damaged his relationship with Dr O to the point he felt unable to continue the treating relationship.

Communication

The consultation appears to have involved communication challenges.

Dr J considered Mr B had been evasive about the causes of his condition and was pushing ‘pretty hard’ for a surgical solution. Dr J claimed to be concerned Mr B had not accepted the warning against surgery and that he would not pass this on to his treating doctors. Dr J considered it was important for continuity of care to share the information from this consultation with Mr B’s other treating doctors.

Mr B and his wife complained Dr J had been arrogant, rude, impatient and offensive. Mr B said he was unaware Dr J planned to write to his doctors.

Use of patient information for education

Dr J became aware during the consultation that he recognised some of the detail of Mr B’s treatment. Dr J told the tribunal he attended a monthly clinical meeting of peers where Mr B’s original surgeon had presented a deidentified version of Mr B’s condition and presentation. Dr J did not disclose this to Mr B, because of uncertainty about why Mr B had been reluctant to discuss the history of his condition.

The tribunal concluded Mr B had consented to the collection of his health information. He had permitted a physical examination, answered questions and provided x-rays in an envelope displaying the name of his original surgeon.

The tribunal accepted Mr B had provided health information for the purpose of contributing to Mr B’s medical management by his original treating surgeon.

The tribunal was not satisfied Dr J and his original surgeon, Dr O were sharing care of Mr B, because Dr O was unaware of the consultation.

However, Dr J’s purpose in sharing information was to contribute to Mr B’s medical management. Determining purpose is an objective test and not about intention, which would be subjective.

Dr J had used and disclosed Mr B’s health information for the primary purpose for which it was collected.

The tribunal also accepted that Dr J had told Mr B that they would write to his treating doctors. While Mr B said he did not expect Dr J to write to his original surgeon, the tribunal found that he should have and it was reasonable for Dr J to share the letter to the GP with Mr B’s original surgeon, as well as Mr B.

Accordingly, there had been no privacy breach.

Privacy laws enable you to share information with other practitioners involved in a patient’s care without specific consent from the patient, where it’s for the purpose of their clinical care and unless the patient has expressly refused.

It is good practice to discuss with the patient how you will communicate with other practitioners, especially if not immediately obvious. These discussions inform the patient’s expectations about how their information will be handled and help you identify and address any concerns. You should make a note of any patient refusal for their information to be shared, or other concerns. 

Your privacy policy should also clearly explain how you use and share information, including with other practitioners.

Seek specific permission from patient if you wish to use or share their information for education or training purposes. Assume that a patient may be identifiable from a case study, even if you think you have deidentified it.

Avant factsheet – Privacy: the essentials

Office of the Australian Information Commission Guide to health privacy | OAIC