The public interest exception has recently been used in a number of interesting ways.
Disclosure to the media
Traditionally, public sector health services have refused to comment to the media on current cases, on the grounds that doing so would breach section 62A of the HSA. This has led to an inability to rebut inaccurate or untruthful allegations regarding the health services provided. In Queensland, at least, it appears that the new Director-General of Health is seeking to redress the imbalance, relying upon section 62F of the HSA. For example, a former patient gave an interview to a local newspaper in which she alleged that she underwent ‘four botched operations’ and suffered treatment which was ‘barbaric, inhumane and absolute nightmare’. As a consequence she said that she was now ‘sicker than ever’. This was run as a front page story.
The report contained a number of inaccuracies which Queensland Health wished to correct. The patient’s consent was sought to release confidential information to the media regarding her health care, but she refused. Queensland Health’s Director-General took the unusual step of declaring public interest disclosure because he believed that the patient’s claims reported in the media ‘unjustifiably eroded public confidence in the health system’. He further stated that ‘it is essential the media and public are provided the facts in this case’.
Disclosure in child safety matters
A nurse received an attendance notice to appear before the Children’s Services Tribunal (‘the Tribunal’) to give evidence regarding a child in a case of suspected abuse. It was not clear from the legislation whether the Children’s Services Tribunal Act (Qld) (‘the CSTA’) required or permitted the nurse to breach confidentiality if, in doing so, she committed an offence under section 62A of the HSA. This left it open for the nurse to commit a criminal offence under the HSA and be subject to penalty and/or disciplinary action by giving evidence to the Tribunal. The parents were asked to give consent to the nurse giving evidence, but they refused. As the heart of the Tribunal’s business was the welfare of a young child, the Director-General granted the nurse a limited public interest disclosure exemption, thus enabling her to give evidence to the Tribunal.
In the first instance the patient should always be asked to consent to disclosure of confidential information regarding their health care. If consent is refused, these examples illustrate the variety of ways in which the exception contained in section 62F of the HSA can be used to release otherwise confidential information in circumstances that warrant it.
This article was written by Kalina Pyra, Senior Associate and Kate McIntyre, Senior Associate at TressCox Lawyers for the quarterly TressCox ‘Health Business’ publication. For further details, visit www.tresscox.com.au.
Kalina Pyra (left) acts in the defence of medical negligence claims on behalf of hospitals, medical practitioners and allied health professionals. For the last seven years, her primary specialisation has been in health litigation however also conducts a number of conciliations in the Health Rights Commission. To further her knowledge, Kalina completed a Masters in Law specialising in litigation with a focus on health law and alternative dispute resolution.
Kate McIntyre (right) completed a Bachelor of Arts/Bachelor of Laws at the University of Queensland in 2000 and since that time has worked almost exclusively as an insurance litigation lawyer specialising in the defence of personal injury, professional indemnity, public and product liability claims on behalf of defendant insurers. Kate’s preferred area of expertise is medical negligence and she is currently completing a Masters of Health and Medical Law at the University of Melbourne.