3.3.1 Confidentiality, privacy and reporting to the driver licensing authority
Health professionals have both an ethical and legal duty to maintain patient confidentiality. The ethical duty is generally expressed through codes issued by professional bodies. The legal duty is expressed through legislative and administrative means and includes measures to protect personal information about a specific individual. The duty to protect confidentiality also applies to driver licensing authorities.
The patient–professional relationship is built on a foundation of trust. Patients disclose highly personal and sensitive information to health professionals because they trust that the information will remain confidential. If such trust is broken, many patients could either forgo examination/treatment and/or modify the information they give to their health professional, thus placing their health at risk.
Although confidentiality is an essential component of the patient–professional relationship, there are, on rare occasions, ethically and/ or legally justifiable reasons for breaching confidentiality. With respect to assessing and reporting fitness to drive, the duty to maintain confidentiality is legally qualified in certain circumstances in order to protect public safety. The health professional should consider reporting directly to the driver licensing authority in situations where the patient is either:
- unable to appreciate the impact of their condition
- unable to take notice of the health professional’s recommendations due to cognitive impairment, or
- continues driving despite appropriate advice and is likely to endanger the public.
In the Australian Capital Territory, New South Wales, Queensland, Tasmania, Victoria and Western Australia, statute provides that health professionals who make such reports to driver licensing authorities without the patient‘s consent but in good faith that a patient is unfit to drive are protected from civil and criminal liability. The Northern Territory does not currently provide indemnity cover (refer to Appendix 3: Legislation relating to reporting).
In South Australia and the Northern Territory current legislation imposes mandatory reporting. A positive duty is imposed on health professionals to notify the relevant authority in writing of a belief that a driver is physically or mentally unfit to drive (refer to Appendix 3: Legislation relating to reporting).
It is preferable that any action taken in the interests of public safety should be taken with the consent of the patient wherever possible and should certainly be undertaken with the patient’s knowledge of the intended action.
The patient should be fully informed as to why the information needs to be disclosed to the driver licensing authority and be given the opportunity to consider this information. Failure to inform the patient will only exacerbate the patient’s (and others’) mistrust in the patient– professional relationship. It is recognised that there might be an occasion where the health professional feels that informing the patient of the disclosure may place the health professional at risk of violence. Under such circumstances the health professional must consider how to appropriately manage such a situation (refer to section 3.3.3 Patient hostility towards the health professional).
In making a decision to report directly to the driver licensing authority, it may be useful for the health professional to consider:
- the seriousness of the situation (i.e. the immediate risks to public safely)
- the risks associated with disclosure without the individual’s consent or knowledge, balanced against the implications of non-disclosure
- the health professional’s ethical and professional obligations
- whether the circumstances indicate a serious and imminent threat to the health, life or safety of any person.
Examinations requested by a driver licensing authority
When a patient presents for a medical examination at the request of a driver licensing authority the situation is different with respect to confidentiality. The patient may present with a form or letter from the driver licensing authority requesting an examination for the purposes of licence application or renewal, or as a stipulation of a conditional licence. The completed form will generally be returned by the patient to the driver licensing authority, thus there is no risk of breaching confidentiality or privacy, provided only information relevant to the patient’s driving ability is included on the form.
All health professionals and driver licensing authorities should be aware of the Australian Privacy Principles9, and other privacy legislation applicable in their jurisdiction when collecting and managing patient information and when forwarding such information to third parties.