A NSW paramedic says:

I have been doing some reading recently, mainly more in depth into the PPIP [Privacy and Personal Information Protection Act 1998 (NSW)] and HRIP [Health Records and Information Privacy Act 2002(NSW)] Acts, (light reading right), and I have some questions in relation to when I can disclose information to a police officer. 

A purely hypothetical scenario: 

A patient has suffered an injury during an attempted break and enter, NSW Ambulance is on scene before police. The paramedics are treating the patient, and during the treatment, the patient states, ” I was trying to break into the house and have fallen and hurt my wrist, I can tell you because you can’t tell the police”

The patient’s injuries are treated, and the patient is then being spoken to by police. You are then pulled aside by the police officer on scene and asked, “How did he get the injuries? What did he tell you he was going?” 

My questions are:

  1. Am I required to know if the patient is detained by the police officers for the purpose of investigating an offence first? Or any of the details as to why the officers are requesting the information? If the patient is not being detained, then the disclosure of any information could be a breach? I am referring to s18(c) and s23 of the PPIP act mainly, and the how and when I can disclose the information safely. 
  2. If the person is detained, and the officer requests that information, and I required to disclose the information at that stage of their investigation, or can I legally decline and if the officers wish, they can apply to subpoena the information at a later stage?
  3. When completing my health care record for the incident, am I required to write verbatim, what the patient has disclosed? Or if I omit the statement of confessing to a criminal offence, and write, eg, “Patient sustained injury to right wrist post falling through a window”. Am I required to write that in the patient’s health care record, that I am aware that the patient sustained a wrist injury whilst climbing through a window in an attempt to break and enter, even though the act of committing the criminal offence, is not related to the injury itself and my treatment given. 

Obviously, there are moral and ethical principles at play here within the second question mainly, but the main concern I have here is, what do I need to know from the police officer to legally disclose the information at the time, and am I required to document in a healthcare record, about the actions and the confession of a criminal offence?

I have previously addressed issues of detecting and reporting crime – see:

Fundamentally a paramedic is under no obligation to tell the police what the patient told them; no-one is required to give the police a statement.

Having said, Health Privacy Principle number 11, set out in schedule 1 of the Health Records and Information Privacy Act 2002 (NSW), says an organisation (ie NSW Ambulance, not the individual paramedic) may disclose confidential information if:

(1)…

(i) the organisation–

(i) has reasonable grounds to suspect that–

(A) unlawful activity has been or may be engaged in … and

(ii) discloses the health information as a necessary part of … reporting its concerns to relevant persons or authorities, or

This Act picks up and applies the privacy principles to state government entities and those, by virtue of the Australian Constitution, beyond the reach of Commonwealth law.  Individuals on the other hand are regulated by the Privacy Act 1988 (Cth) (see s 6C definition of ‘organisation’). 

Privacy Principle 6 says that a person who holds personal information must only use it for the purpose for which it was collected ‘the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order’ (Principle 6.2(b)) or ‘… the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body’ (Principle 6.2(e). An enforcement body includes NSW Police (s 6 definition of ‘enforcement body’)).

Section 316 of the Crimes Act 1900 (NSW) says:

An adult–

(a) who knows or believes that a serious indictable offence has been committed by another person, and

(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,

is guilty of an offence.

A serious indicatable offence is an offence punishable by 5 or more years imprisonment (Crimes Act 1900(NSW) s 4).  Larceny (ie theft) is a serious indictable offence (ss 4 and 117) as is breaking into a house with intent to commit larceny (ss 4 and 111). The obligation of patient confidentiality may, however, give rise to a ‘reasonable excuse’.

What that means is a paramedic really has a choice. They could decline to answer police questions, as is their right, or they could choose to disclose what they have been told.  Let us look at the specific questions:

  1. Am I required to know if the patient is detained by the police officers for the purpose of investigating an offence first? Or any of the details as to why the officers are requesting the information? If the patient is not being detained, then the disclosure of any information could be a breach? I am referring to s18(c) and s23 of the PPIP act mainly, and the how and when I can disclose the information safely. 

    Section 18(1)(c) of the PPIP Act says 

    A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless–

    (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

    That is clearly not relevant as telling the police about the patient’s admission is not ‘necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

    Putting s 18(1)(c) aside, the Crimes Act 1900 (NSW) s 316 relates to information that may lead to ‘securing the apprehension of the offender or the prosecution or conviction of the offender for that offence’.  It can include giving information to police about an offence that they police don’t know or suspect has been committed so it cannot only apply where a person is under arrest.  

    A paramedic could argue that the release of the information was justified by Heath Privacy Principle 11(1)(i) and/or the Commonwealth’s privacy principles 6(2)(b) and (e).

    2. If the person is detained, and the officer requests that information, and I required to disclose the information at that stage of their investigation, or can I legally decline and if the officers wish, they can apply to subpoena the information at a later stage?

    No, you are not under an obligation to provide that information. Section 316 applies unless there is a ‘reasonable excuse’. A paramedic’s obligations to their patient given the relevant code of conduct and overriding health ethics would, I suggest, be accepted as a ‘reasonable excuse’.

    3. When completing my health care record for the incident, am I required to write verbatim, what the patient has disclosed? Or if I omit the statement of confessing to a criminal offence, and write, eg, “Patient sustained injury to right wrist post falling through a window”. Am I required to write that in the patient’s health care record, that I am aware that the patient sustained a wrist injury whilst climbing through a window in an attempt to break and enter, even though the act of committing the criminal offence, is not related to the injury itself and my treatment given. 

    I doubt health records are ever verbatim. The health care record is there to record the clinical features that explain your diagnosis and treatment decisions and that inform future care.  The circumstances in which he or she came to be going through the window are not part of the mechanism of injury.  If it’s not relevant you don’t need to record it. 

    Discussion

    I have previously discussed the conflict between maintaining not only a specific patient’s trust but also community trust and disclosing information to law enforcement.  Paramedics want people to tell them what is going on as it helps inform their treatment.  If people think the paramedics will report them to police, then they may be reluctant to provide clinically relevant information such as what drugs they have taken or how they came to be injured.

    On the other hand the community has an interest in law enforcement but I think we can say that interest varies.  If a patient tells a paramedic where their kidnapped victim is being held we would want them to report that to police and that would be to prevent ‘a serious and imminent threat to the life or health of’ that victim.   A person’s disclosure that they self-administered a prohibited drug, on the other hand, really has no impact on anyone but the patient.

    Where housebreaking sits in the public interest could be a matter of debate.

    What a parmedic would need to be careful about is whether the offence that the patient has admitted to is a serious indictable offence. One can be sure that an admission of sexual assault, murder, attempted murder etc are, but other offences you would need to have access to the relevant law to know whether it is punishable by five or more years imprisonment. It so happens that larceny is a serious indictable offence but what about others such as common assault? Self-administration of a prohibited drug? Drive under the influence of alcohol or drugs?  If you disclose the information but it turns out that the offence was not a serious indictable offence then the defence provided by s 316 may not be available. 

    The rule against hearsay

    Another thing to think about is the ‘rule against hearsay’. This is a rule of evidence that says, generally speaking, an out of court statement cannot be admitted into evidence to prove the truth of what was said. In this context the patient’s ‘out of court statement’ is their admission to the paramedic.   Evidence from a paramedic that their patient said ‘Bill was trying to break into the house’ would not be admissible to prove that Bill was trying to break into the house.  To prove that Bill was trying to break into the house the patient would have to give evidence of what he observed or knew.

    An exception to the rule against hearsay is evidence of an admission. A statement that is against a person’s interest may be admitted on the assumption that people would not make admissions if they were not true.  So a paramedic could not give evidence, against Bill, that their patient said ‘Bill was trying to break into the house’. But they could give evidence, against their patient, that their patient said ‘I was trying to break into the house’.   What that means is if you are going to give this sort of information to police you must be prepared that you may be called as a witness to give evidence against your patient.  Giving evidence is not fun.

    Conclusion

    Despite s 316 I would argue that paramedics are not under an obligation to tell police of an admission in the circumstances described. The duties implied by the paramedic code of conduct and the underlying principles of health ethics would provide a ‘reasonable excuse’, and no-one gets prosecuted for breaches of s 316.  But s 316 does give an opportunity to disclose that information if the paramedic wants to as it can be argued that the disclosure was required by law.  Certainly the more serious the disclosure the more thought needs to be given.  Paramedics should certainly disclose to police information provided by patients where that information is necessary ‘to prevent ‘a serious and imminent threat to the life or health of’ some person so an admission as to where an injured person, or the hidden bomb, is to be found should be relayed without regard to privacy considerations.

    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.