Marina Leikina, Associate, Gordon Legal
Nurses, midwives and personal carers deal with health information every single day they attend work.
However, sometimes because of their access to this sensitive personal information, thorny issues can arise.
- What if you come across the health information of someone you know?
- What if you wish to find out some information to help a friend or a family member?
- What if they ask you to do this for them?
- Can you post a photo of the adorable baby in the maternity ward on social media?
- Can you tell the police that a particular patient has possession of stolen goods?
Nurses, midwives and carers as health care providers are heavily regulated by a range of different legislation, codes and guidelines. These include:
- Health Records Act 2001 (Vic);
- Health Practitioner Regulation National Law 2009 (National Law);
- Nursing and Midwifery Board of Australia (NMBA) Code of conduct for nurses/ NMBA Code of conduct for midwives;
- Individual health facility policies.
According to the Health Records Act, ‘health information’ is defined broadly and includes information or opinion about a person’s physical/ mental health, or a health service provided, or to be provided, to a person.
Personal information such as contact details, if collected in order to provide a health service, is considered to be health information. Health information can include a range of documents, including photos. It also includes information that is not recorded in a document and is simply said orally.
The Health Records Act protects the privacy and confidentiality of health information. The Health Privacy Principles (HPPs) set out in the Act regulate how health information is collected, stored, accessed and disclosed. In accordance with the HPPs, health information can only be used or disclosed for the primary purpose for which it was collected – that is, to provide a health service to a person. Under the HPPs, there are a number of exceptions where health information can be used for purposes other than to provide a health service. However, nurses should exercise extreme caution in using health information other than for the primary purpose of providing direct patient care.
The NMBA Code of conduct for nurses states that:
‘Nurses have ethical and legal obligations to protect the privacy of people. People have a right to expect that nurses will hold information about them in confidence, unless the release of information is needed by law, legally justifiable under public interest considerations or is required to facilitate emergency care…’
The Code of conduct for nurses sets out a series of statements about what nurses must do to uphold privacy and confidentiality of health information. This includes not disclosing a person’s information without their consent and ensuring that nurses’ use of social media is consistent with their obligations regarding privacy.
The NMBA Code of conduct for midwives establishes the same privacy obligations for midwives.
A complaint about misuse of health information can be made to the Australian Health Practitioner Regulation Agency, if the person who engaged in the conduct is a registered health practitioner, or otherwise to the Health Complaints Commissioner.
The NMBA/AHPRA investigates complaints regarding nurses and midwives and takes action where necessary. The Board can take action when it forms a view that a practitioner has engaged in conduct that is unsatisfactory. If a practitioner fails to meet their professional obligations regarding confidentiality of health information, and a complaint is made to AHPRA, the Board will likely take some action.
Employers will often have their own policies and procedures about the management of health information, privacy and confidentiality. Breaches of these policies may bring about disciplinary action, including termination of employment.
Overall, nurses, midwives and personal carers ought not to use their position as an employee of a health service to access health information or personal information unless it is essential for the purpose of performing their role at the workplace. This includes accessing information of family or friends, even with their consent. If a person you know wishes to access information, they should make an oral or written request to the health service, through official channels.
If you are not sure whether disclosure or use of information is proper in the circumstances, do not make the decision on your own and discuss it with a senior colleague at the workplace or make an inquiry with the ANMF.
ANMF (Vic Branch) members* are entitled a free standard will and discounted rates for personal legal services through Gordon Legal.
*Conditions apply, excludes students and associate members
