PATIENT CONFIDENTIALITY AND BREAKING THE SILENCE

NEVER REVEALING WHAT I SEE OR HEAR IN THE LIVES OF MEN UNLESS REQUIRED BY THE LAW”

Upon graduation, Emergency Medical Service practitioners take an EMS Hippocratic Oath to never reveal whatever they see or hear in the lives of their patients. This is regardless of whether the patient is alive or dead. While bearing in mind the sacrosanct nature of an oath, majority of the EMS personnel endeavor to keep it inviolate in their line of duty. What does this obligation mean and under what circumstances does the law require you to break the silence?

emt-class-of-2015            Photo Courtesy: Kenya Council of Emergency Medical Technicians

Patient confidentiality is the legal requirement to keep the information relating to a patient (like their medical records and personal details) a secret, private and confidential. This obligation on EMS personnel means that, unless authorized by the law, a patient’s information shall not be shared even with colleagues in the teaching environment or leisure time gossip.

The Constitution of Kenya[1] provides that every person has a right to privacy, which includes the right not to have the privacy of their communications violated or any information relating to their family or private affairs unnecessarily required or revealed.  The Kenya National Patients’ Rights Charter[2] reinforces this position by providing that patient confidentiality shall be maintained even upon death of the patient.

Among the many laws with strict provisions on confidentiality is the HIV and AIDS Prevention and Control Act of 2006. Section 20 of this Act contemplates privacy guidelines like the use of an identifying code when collecting, recording, storing and securing information of HIV tests and related medical assessments instead of the patient’s name or other personal details. The Public Health Act[3] further provides that proceedings in cases of patients with venereal diseases shall be held in secrecy.

DISCLOSURE UNDER THE LAW

However, rights are not absolute and sometimes they can be limited by the law[4]. For example, the right to privacy can be limited on public interest grounds, upon consent to disclose or if it is a requirement under the applicable laws[5] as follows;

  1. The information is required by law through a court order. The court can order the production of information especially when the information contained in the medical records is relevant to the proceedings before the court or tribunal. In this case, the EMS practitioner cannot cite the Hippocratic Oath. In the famous case of Hunter v Mann[6], the court compelled a doctor to disclose the identity of the patient whom he had treated and was linked to a hit and run accident. The doctor refused while citing the Hippocratic Oath to defend his non-disclosure but he was convicted and fined.;
  2. The Public Health Act[7] requires the disclosure of the following notifiable diseases to a medical officer of health:- smallpox, plague, cholera, scarlet fever, typhus fever, diphtheria, measles, whooping-cough, erysipelas, puerperal fever, typhoid fever, epidemic cerebro-spinal meningitis, acute poliomyelitis, leprosy, anthrax, glanders, rabies, Malta fever, sleeping sickness, beri-beri, yaws and all forms of tuberculosis
  3. The information can be released if the consent of the patient is given or through the consent of his or her legal and personal representatives. For example, the parents of an underage sick child can authorize an EMS practitioner to release the medical records.
  4. The information is necessary to protect the welfare of the individual or the community[8]. It is in the public interest to protect the general public from serious harm
  5. The information is communicated to healthcare personnel in the continuum of care or to protect them. Many a times, EMS practitioners are required to handover the patients who need further management to persons of equal or higher certification for continuity of care. Failure to hand over can lead to the offense of abandonment. While handing over, you can disclose the patient’s medical details through an oral or written patient care report.EMS practitioners should also disclose any hazards or contagious diseases associated with a particular patient in order to protect the receiving health care personnel from harm.
  6. The information is recorded in patient care reports and other quality assurance based tools
  7. The information is provided for research purposes. Provided that information offered for research shall not include the patient’s name, photo or other identification marks that will make it possible to identify the patient.
  8. The information is submitted to relevant administrative organs and regulatory bodies such as The Kenya Council of Emergency Medical Technicians (KCEMT) through the grievance submission procedures. In addition, upon the death of a person attending medical practitioners are required by law[9] to provide information on the cause of death and other relevant details of the deceased to the Registrar of Births and Deaths.
  9. Information is submitted for the insurance billing process
  10. Information related to commission of criminal activities such as child abuse, terrorism, or fraud whether such information is acquired before, during or after providing emergency medical care

Unless these conditions for disclosure are met, breach of patient confidentiality is an offense in Kenya. Upon conviction, the liable party can be  fined up to one hundred thousand shillings and/or two years imprisonment.

Sources:

[1] Article 31 (c) and (d), Constitution of Kenya, 2010.

[2] Chapter 1, Article 7 of the Kenya National Patients’ Rights Charter, 2013. Ministry of Health.

[3] Section 54 of the Public Health Act Cap 242 of the Laws of Kenya

[4] Article 24, Constitution of Kenya, 2010

[5] Section 22 of the HIV and  AIDS Prevention and Control Act (No. 14 of 2006)

[6] Hunter v Mann (1974) 1 QB 767

[7] Section 17 and 18 of the Public Health Act Cap 242 of the Laws of Kenya

[8] Section 22(c) of the HIV and  AIDS Prevention and Control Act (No. 14 of 2006)

[9] Section 18 of the Births and Deaths Registration Act, Cap 149 of the Laws of Kenya

 

About the author

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Brian Beauttah is an Executive Director at Knights Emergency Medical Services. He was the Best Advanced Emergency Medical Technician (EMT-1) in Kenya (2014). He has since acquired Advanced Life Support (ALS) endorsements. He is the winner of the Priory of St John Kenya Best Life Saver Award (2016) among other accolades. He has served as an Assistant Secretary in the Kenya Council of Emergency Medical Technicians – KCEMT. He has engaged in professional practice in various EMS institutions. Brian is a 4th year law student at the prestigious University of Nairobi in Kenya.

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