Today’s question raises some interesting and complex issues regarding Queensland’s ‘Viewer’. (For previous discussions about The Viewer see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’ (October 20, 2023) and Accessing ‘The Viewer’ before accessing the patient (June 5, 2024)). Today’s correspondent says:
I am a paramedic employed in the Queensland mining industry and have recently become aware that all paramedics and nurses within Qld can access Queensland Health’s “The Viewer” platform (including those not employed by QHealth) to check hospital records of patients we are treating.
My question is what occurs when I inadvertently access information through that platform that the patient would not otherwise disclose to me. For example, if I sent a patient to hospital for an unrelated medical issue then see that they disclosed to the treating clinician drug use at work that would impair their ability to work safely. Under the Coal Mining Health and Safety Act 1999 s39 all coal mine workers have an obligation “if the coal mine worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness, to give the information to the other persons”.
Another potential conflict is documenting information that I’ve seen on The Viewer. I currently work with a contracting company that provides medical services to mine sites but has its own independent medical documentation system that a client can access only with approval from the patient or other legal means; however I have also worked at sites that have their own in-house paramedics and medical documentation system that is much more open to relevant staff within the health and safety department (but still compliant with national privacy law). If I was to inadvertently see information about an undisclosed medical condition or medication, would it be inappropriate to omit that from my documentation, including if that undisclosed information is relevant to the reason for care, due to concerns that it could be injurious to the patient if their employer had access to that information?
And a final potential conflict is if a paramedic or nurse is employed in the capacity of a health advisor responsible for managing work related injuries could they access the viewer for imaging/lab results from the hospital for example accessing an xray of a fractured wrist after a fall at work.
Queensland Health says:
Eligible health practitioners practising in Queensland outside the state’s public health services can gain read-only access to The Viewer via the Health Provider Portal. The Viewer is a Queensland Health application that collates patient information from more than 65 Queensland Health administrative and clinical applications.
Being able to securely access patient information via The Viewer saves health practitioners’ time, allowing them to make clinical decisions supported by comprehensive, current, and accurate information.
I won’t try to work out who is an ‘eligible health practitioner’, I will take it as given that my correspondent and those in similar positions fit that definition. If they aren’t ‘eligible health practitioner[s]’ then the problem goes away as they won’t be accessing The Viewer.
The website gives details of the patient information that can be found on the Viewer. It is in fact quite extensive and not all of it would be relevant to each practitioner who can access the information but presumably they can all see it.
Eligible health practitioners may only access records within the Health Provider Portal for the purpose of providing care or treatment to a patient.
Appropriate use of the information is defined by the Hospital and Health Boards Act 2011 and Information Privacy Act 2009.
The terms of use say, at [2.1(b)]:
You may access and use the Application, to view, use and display the Content for your professional use when necessary in accordance with the Purpose. You must not access or use the Application for any other purpose.
The term ‘Purpose’ means ‘means to facilitate the care or treatment of an individual by a Prescribed Health Practitioner acting in that capacity and in accordance with section 161C(2)(a) of the [Hospital and Health Boards] Act [2011 (Qld)]’.
We can draw some conclusions here; it would not be permissible to search the Viewer to go ‘fishing’ that is looking for information about employees to see if they have issues that make them unsafe to work in Coal mines etc. As I’ve also discussed before I cannot see how it is legitimate to use the Viewer to ‘follow up’ on a patient (see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’ (October 20, 2023)). It follows that if a paramedic ‘ …sent a patient to hospital for an unrelated medical issue’ there would be no reason for them to then look at the viewer and see ‘ that they disclosed to the treating clinician drug use at work that would impair their ability to work safely’. But that doesn’t answer the question of what to do with the information once it has been seen nor does it address the issue where the paramedic is treating a patient for an unrelated condition and legitimately looks up The Viewer to find information related to that treatment and sees evidence of this disclosure (Hospital and Health Boards Act 2011 (Qld) s 161C).
The Hospital and Health Boards Act 2011 (Qld) s 142(1) says ‘A prescribed health professional must not disclose, directly or indirectly, confidential information to another person unless the disclosure is required or permitted under this Act.’ A paramedic is a ‘prescribed health professional’ (Hospital and Health Boards Regulation 2023 (Qld) r 48 and schedule 7). Information may be disclosed:
…if the disclosure is required or permitted by an Act or law (s 143(3));
… if ‘(a) the relevant chief executive believes, on reasonable grounds, the disclosure is necessary to assist in lessening or preventing a serious risk to— (i)the life, health or safety of a person, including the person to whom the confidential information relates; or (ii) public safety; and (b) the relevant chief executive has, in writing, authorised the disclosure’ (s 147).
The term ‘relevant chief executive’ means ‘(a)for information held by a Service—the health service chief executive or the chief executive; or (b)for information held by the department—the chief executive’.
An external provider accessing the viewer is bound by the Information Privacy Act 2009 (Qld) (see Hospital and Health Boards Act 2011 (Qld) s 161B). The Information Privacy Act 2009 (Qld) sets out the privacy principles in Queensland. The Privacy Principles indicate, as we would expect, that personal information can only be used for the primary purpose for which it was obtained (Privacy Principle 6.1). A patient who reveals issues about their health to their treating practitioners do so in order to receive health care. They do not reveal that information for the benefit of their employer.
Information can be disclosed however when required by law (Privacy Principle 6.2(b) or where a permitted health situation applies (Privacy Principle 6.2(d)). What is a ‘permitted health situation’ is defined in Schedule 4 but I cannot see that any of them apply that would allow the use of the information in the sort of circumstances described.
Having looked at all of that I redraft the first two questions to, I think, make more sense of the question, the law and the answer.
A paramedic working for a Coal Mine accesses the Viewer for the legitimate purpose of providing treatment to a person employed at the Coal Mine. Whilst there they see information of an illness or injury (including for example, admitted drug use at work) that would impair their ability to work safely. Can they disclose that information to their employer?
Based on the terms of both the Information Privacy Act 2009 (Qld) (see Hospital and Health Boards Act 2011 (Qld) I think they can if that disclosure is required or permitted by law. So we now need to look to the Coal Mining Health and Safety Act 1999 (Qld) to see what it says. Section 39 applies to anyone associated with a coal mine so would include a paramedic employed by, or contracted to a Coal Mine as a health professional. Section 39(2) says:
The person has the following obligations—
(a) …
(b) if the person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness—to give the information to the other persons;
(c) to take any other reasonable and necessary course of action to ensure no-one is exposed to an unacceptable level of risk.
The person in this context is the paramedic. They have the information. If they need to tell the patient that ‘this condition you have is a real issue working here’ then they need to tell the patient that in order to allow the patient to ‘to protect themselves from the risk of injury or illness’ but that is not the context we are concerned about. And of course telling a person about the implications of their own medical condition is not a breach of privacy.
The issue is does someone else, eg the supervisor, need to know the information to allow the supervisor to fulfil their obligations under the Act? Or is the disclosure of the information a ‘reasonable and necessary course of action to ensure no-one is exposed to an unacceptable level of risk’?
The Coal Mining Safety and Health Regulation 2017 (Qld) r 42 says:
A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following—
(a) personal fatigue;
(b) other physical or psychological impairment;
(c) the improper use of drugs.
That includes (r 42(4)(c)) ‘an obligation of a person to notify the site senior executive for the mine of the person’s current use of medication that could impair the person’s ability to carry out the person’s duties at the mine’.
Since the famous case of Tarasoff v Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976) it appears that extreme risks to the health and safety of others trumps patient confidentiality. In W v Egdell [1990] 1 All ER 835 the court said:
The decided cases very clearly establish:
(1) that the law recognises an important public interest in maintaining professional duties of confidence; but
(2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure.
Edgell was a psychiatrist was engaged to provide an expert opinion to support a person’s application for conditional discharge from a secure mental health facility. W was being detained after killing five people and injuring two others in a shooting incident some 10 years earlier. The psychiatrist wrote his report in essence saying that in his opinion the prisoner was dangerous and should not be transferred to a less secure unit in anticipation of eventual release. Not surprisingly the applicant’s lawyers did not like that report and chose not to include it in their submission. The doctor, on becoming aware that his report was not before the Mental Health Review Tribunal, took it upon himself to breach the patient’s confidence (remembering that he had been engaged on behalf of the prisoner/patient) by sending his report directly to the Tribunal.
In Duncan v Medical Practitioners Disciplinary Committee [1987] 1 NZLR 513, Dr Duncan had concern about his patient’s fitness to continue his occupation as a bus driver. The doctor advised his patient to give up his job, which he refused to do. The doctor asked one of his other patients to help organise a petition to get his patient’s licence revoked. The patient complained to the Medical Practitioners Disciplinary Committee that found the doctor guilty of professional misconduct and imposed a fine. Rather than leave it there, and rather than appeal, the doctor went public on the national media. Jeffries J said
There may be occasions, they are fortunately rare, when a doctor receives information involving a patient that another’s life is immediately endangered and urgent action is required. The doctor must then exercise his professional judgment based upon the circumstances, and if he fairly and reasonably believes such a danger exists then he must act unhesitatingly to prevent injury or loss of life even if there is to be a breach of confidentiality. If his actions later are to be scrutinised as to their correctness, he can be confident any official inquiry will be by people sympathetic about the predicament he faced. However, that qualification cannot be advanced so as to attenuate, or undermine, the immeasurably valuable concept of medical confidence.”
Ultimately Dr Duncan was struck off the register of medical practitioners.
I would suggest similar considerations are relevant here. First in deciding whether someone, eg the mine’s executive, needs to know the information to ‘fulfill their obligations’ it would depend on what their obligations are. One would need to look at each mine’s health and safety policy, directions etc.
One can also ask would disclosing the information be a ‘reasonable and necessary course of action to ensure no-one is exposed to an unacceptable level of risk’. The first step would be to talk to the patient and explain their obligations to self-report under regulation 42(4)(c). If they can be persuaded to report their own impairment, then the issue is resolved. If the practitioner thinks there is an ‘unacceptable’ level of risk, then like Mr Edgell they need to consider carefully to whom that should be disclosed. There may be ways to talk to the treating doctors (unlikely to be a hospital doctor, but perhaps a GP) to help assess the risk and to determine if the doctor, or patient or paramedic is the best to disclose it. But if the risk to the worker or other workers at the coal mine is ‘unacceptable’ and there is no other way to deal with it, it would appear disclosure would be permitted.
As for the question
If I was to inadvertently see information about an undisclosed medical condition or medication, would it be inappropriate to omit that from my documentation, including if that undisclosed information is relevant to the reason for care, due to concerns that it could be injurious to the patient if their employer had access to that information?
It may be injurious to the patient if the employer had access to that information but it may also be injurious if they did not and therefore unnecessarily exposed the worker to risks to their health and safety, or injurious to others. Again it would be a judgement about what the information is and how relevant it is. The first thing to do would be discuss the issue with the patient and try and get their consent to record it and if necessary notify them. If the information was essential to ensure appropriate care or was a ‘reasonable and necessary course of action to ensure no-one is exposed to an unacceptable level of risk’ (emphasis added) then it should be disclosed else the health care records become meaningless.
The third question I was asked was
… if a paramedic or nurse is employed in the capacity of a health advisor responsible for managing work related injuries could they access the viewer for imaging/lab results from the hospital for example accessing an xray of a fractured wrist after a fall at work
I don’t see that as a conflict; that is exactly what access to the viewer was for, to assist the person managing the work related injury to do so by accessing all the information they need. Managing their return to work is facilitating their ‘care or treatment’.
Conclusion
Duties of health and safety particularly to third parties, appear to trump patient confidentiality. If a paramedic legitimately accesses The Viewer and sees information that indicates a person is a threat to the health and safety of others, particularly in high risk industries that have specific and relevant work health and safety duties such as coal mining and no doubt others eg aviation, then the mere fact that they saw it on The Viewer would not mean they could not and in some circumstances must report it. Just as a doctor must, in some circumstances, report matters their patient told them so to would a relevant health practitioner who has duties under other legislation such as in the circumstances described here.
I note that patients can opt out of allowing access to practitioners outside Queensland Health so a person who thinks they are going to disclose something that they don’t want their employer to know may like to exercise that right.
Proudly supported by (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 these supporters.
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
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