Medical Confidentiality and Patient Privacy

Abstract

Although confidentiality and privacy are often seen as interchangeable, they are different concepts. Confidentiality in medical treatment dates back to Ancient Greece. Privacy is a much more modern concept. Confidentiality is linked to personal dignity and patient autonomy. It is an equitable and legal concept long recognised in the law and reflected in the ethical duties owed by doctors to patients. The duty exists because there is a public interest in promoting disclosure within the doctor–patient relationship. There can be a tension between the public interest in individual patients retaining the right to confidentiality and the public interest in disclosure of patients’ health information. Privacy as a concept received little attention until recently in Australian law.

At common law, patients had no general right of access to their health records. In recent years, Australian parliaments have granted patients statutory rights to the privacy of and access in relation to their health records. However, information privacy is determined by overlapping and, at times, inconsistent legislation. The legislation that created the “My Health Record system”, Australia’s national electronic health records system, poses risks to confidentiality of patients’ medical information and patients’ privacy.

Keywords: confidentiality, privacy, legislation, common law, national electronic health records system

JEL Classification: L18, K 19, K 29