Legal considerations
Michael Gorton
College Honorary Solicitor, Russell Kennedy, Solicitors, Melbourne, Australia
Incident reporting is a welcome quality assurance activity. The profession needs to be encouraged to participate, and not discouraged for fear that:
- information may be used in medical negligence litigation;
- disclosure may cause embarrassment or adverse impact;
- legal action may arise from third party review.
There are a number of systems for protecting quality assurance projects and processes in Australia, both under Commonwealth, State and Territory legislation.
Patient confidentiality is also protected under the Privacy Act (Cwth) as well as relevant health records legislation in some states.
In many cases the consent of the patient to whom the information relates will be required. Broad privacy consent statements can alleviate some of these difficulties. Where identifying information is sought in relation to patients, doctors and hospitals, it may be appropriate to seek statutory protection under “qualified privilege” statutory schemes – either state or federal.
Research in particular needs protection. Exemptions are contained in the Privacy Act for obtaining some information for research purposes. Reasonable steps should be taken to ensure that the health information has been collected with consent, or is otherwise de-identified. Reasonable steps should be taken to protect the information from misuse or loss. Reasonable steps should be taken to destroy and de-identify personal information when no longer required.
Many doctors will be concerned that information obtained during quality assurance activities, particularly identifying information, may be adverse to the doctor and his or her practice. Accordingly, incident reporting and other quality assurance activities should seek appropriate legislative protection to preserve confidentiality and privacy.
