The Law Handbook 2024

Chapter 9.1: Health and the law 873 • some other law requires disclosure; or • it can be argued that the person has provided express or implied consent for the disclosure; or • it may be in the public interest for the information to be disclosed. Situations where some other laws may require disclosure of otherwise confidential information include: • revealing to police or a court the presence of alcohol or any other drug in the breath or blood of a driver after a motor accident under Part 5 of the Road Safety Act 1986 (Vic); • reporting of information under the Births, Deaths and Marriages Registration Act 1996 (Vic); • reporting a reportable death or a reviewable death to the coroner under the Coroners Act 2008 (Vic); • reporting cases of suspected child abuse under chapter 4 of the Children, Youth and Families Act 2005 (Vic); and • notifying infectious diseases and micro-organisms to the Victorian Government Department of Health under Part 8 Division 3 of the Public Health and Wellbeing Act 2008 (Vic) (‘ PHW Act ’). Situations where consent to a disclosure of information may be implied include a treating doctor giving information to a health provider they are making a referral to, and reports provided for the purpose of insurance where the person has been examined at the request of the insurer. Duty to disclose information to third parties In some cases, the law and ethical guidelines recognise that a health service provider may owe a duty of care to share information with third parties, such as relatives or sexual partners. Australian courts have been reluctant to recognise such duties because of the potential for conflict between the duty to the patient and the duty to the third party. The law provides little guidance about when it may be in the public interest for a health practitioner to disclose information. This area of law received attention with the emergence of HIV/AIDS and, more recently, the advent of genetic testing . For example, in the case Harvey v PD (2004) 59 NSWLR 639, the court said that a doctor breached his duty of care to a female patient whose husband, who was also his patient, was HIV positive. Likewise, in the English case of ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB), the court recognised that a limited duty of geneticists to disclose genetic information about a patient to the patient’s relatives could exist, but held that the duty had not been breached in that case. In this regard, the provisions of the privacy legislation described above may be relevant. In particular, the Privacy Act permits private health service providers to disclose genetic information in order to avoid serious risks to the life, health or safety of a patient’s genetic relatives, provided that the disclosure is in accordance with the National Health and Medical Research Council’s guideline titled ‘Use and Disclosure of Genetic Information to a Patient’s Genetic Relatives under section 95AA of the Privacy Act 1988 (Cth) (APP 6.2(d) and s 16A(4)). This might justify warning relatives that a patient has a genetic condition if the patient will not warn them. Blood transfusions and organ transplants In Victoria, the law about blood donations and organ and tissue transplants is in the Human Tissue Act 1982 (Vic) (‘ HT Act ’). The Act also defines when death has occurred for legal purposes. It should be noted that the HT Act contains special provisions relating to consent and confidentiality that may override or supplement the general rules on informed consent and confidentiality outlined earlier in this chapter. By law, human tissue (which includes organs but not foetal tissue, spermatozoa or ova (ss 3(1), 5 HT Act)) cannot be removed from the body of a living or dead person for the purpose of transplant or research unless consent has been obtained in accordance with the HT Act. Section 42 of the HT Act states that the Act does not apply to removal of tissue, regenerative or non-regenerative, in the course of medical/dental treatment or a procedure carried out in the interests of the health of the person by a registered medical practitioner or dental practitioner (for dental treatment) with the consent of the person. That is, removals of tissue are not covered by the HT Act if they are in the interests of the patient’s health (and those other requirements are met).