Today’s correspondent is a medical student from WA who poses this hypothetical

“A young female patient (15F) gave a history to me that included reference to sexual interaction with an older male teenager (18F). After telling her story, she expressly asked me not to disclose that fact to my supervisor, an older male practitioner. A fundamental pillar of patient care is confidentiality, the principle being that no information should be shared or disclosed without the patient’s consent. As a student, is my first priority to honour the patient’s wishes and keep her secret, or respect my position as a student under supervision and disclose the full history to my supervisor?”

They say:

Now, my first instinct on hearing this question was to say that the student had a duty to tell the supervisor. When patients provide information to a health service, they do so in anticipation of the information being used to provide them with care. Doctors and other health practitioners provide care; students are only granted access to this information so they can walk in tandem with the supervising practitioner and see how the information was used to inform the care provided. As the student was acting as an agent of the health service when he received the information, it would be expected that now that the information had been collected by the health service, it is appropriate that the treating practitioner of that health service had access to the same information.

However, while my initial answer appears clear in principle, I could not find any reliable legal basis for maintaining that argument. A student is not under any contract of service to the health service which would mandate sharing of information. Practitioners within a health service are not entitled to access information about patients they are not treating, or otherwise without the patient’s consent. The question also has to be asked whether the information is critical to the patient’s care – the student may consider that the information is unlikely to change the practitioner’s treatment, and so honour the patient’s decision to withhold it as being in their best interests. However, the practitioner may feel that the information would significantly alter their treatment, including their decision to take a further history and possibly make a mandatory report to child protection authorities.

At the end of the day, I think I would support the student in giving a detailed report to his supervisor, saying “the patient asked me not to tell you this, but…” however I am not confident on the legal basis of this position.

How would you approach such a question?

Let me start by saying that I hope I’m not being asked to address an assessment question.

The fundamental concern here is that the patient is 15 disclosing a sexual relationship with an 18 year old – ie that she is the victim (regardless of her consent) of a criminal offence (Criminal Code (WA) s 321).  And I think the analysis is right, even though the student is not under a contract with the health service, he or she is told that information presumably as part of the patient’s health care (hence the reference to a ‘history’).    

A doctor (but not a medical student) is required to report any belief held on reasonable grounds that a child (ie a person under the age of 18) has been the subject of sexual abuse (Children and Community Services Act 2004 (WA) ss 3 (definition of ‘child’ and 124B). 

Western Australia does not yet have specific privacy laws but the Australian Privacy Principles still give some guidance. It is not a breach of privacy to disclose private information where that disclosure is ‘required or authorised by or under an Australian law’ (such as the Children and Community Services Act 2004 (WA) (Privacy Principle 6.2(b)). Disclosure is also permitted where the entity making the disclosure ‘reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual…’ (and one might think an ongoing sexual relationship between an 18yo and a 15yo is such a threat) (Privacy Act 1988 (Cth) s 16A).   As noted, however, those laws do not yet apply to a health service in WA (Legal Aid Western Australia, Privacy and Freedom of Information (30 January 2024)).

On more general principles I agree that a person who gives a ‘history’ in a medical setting knows that the information is being given for the purposes of providing health care. Further if they know they are speaking to a student they would understand that the student has to pass that information on because they are clearly not going to be making the health care decisions for the person. For either the patient, or the community, to expect a student to bear the burden of keeping that information confidential rather than accepting they will share it with a supervisor in order to get guidance and to learn would be to misunderstand what it means to be a student. 

I agree there is no clear legal basis for an answer here. It is about drawing on general principles of both privacy and, given the history disclosed the duty on treating health practitioners to infer that the student would not be in breach of ethical or legal principles if they made a disclosure to their supervisor.  Ideally however the student would first approach the patient to try and gain their consent to the disclosure and, if that was not forthcoming, to advise the patient that they have to disclose the information provided.

Now this question is out of scope for this blog being not ‘emergency’ related per se, but I publish this answer in any event as it will be of interest to other health students including students of paramedicine who will face the same issues.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.