Background
Patient A, an infant, was born with both male and female genitalia and was admitted to the NICU at the Hospital in which the Practitioner was employed full-time. The Health Care Complaints Commission (HCCC) alleged that between 23 and 28 June 2020, the Practitioner engaged in unsatisfactory professional conduct by:
- using her personal mobile phone to take photograph(s) of Patient A’s medical records, specifically, a photograph of Patient A’s genitalia;
- inappropriately disclosing to two colleagues confidential information about Patient A, including that they were a NICU patient and the reason for their admission;
- inappropriately showing two colleagues the photograph(s) of Patient A’s genitals;
- inappropriately disclosing confidential information about Patient A to the public at a local community club, including Patient A’s NICU admission and the reason for their admission;
- inappropriately disclosing to her partner confidential information about Patient A, including that they were a NICU patient and the reason for their admission; and
- acting contrary to Standard 2 of the Enrolled Nurses Standards for Practice (Complaint One).
After an investigation into the above conduct, the Nursing and Midwifery Council of NSW (the Council) imposed conditions on the Practitioner’s registration. The HCCC separately alleged that the Practitioner had engaged in:
- professional misconduct for providing false and/or misleading information in her declaration that she was not employed as a nurse at her new job (Complaint Two); and
- unsatisfactory professional conduct for contravening a condition of her registration by failing to provide evidence to the Council that a copy of her conditions was given to her new employer (Complaint Three).
The HCCC alleged that her conduct as a whole constituted professional misconduct, and suspension or cancellation of her registration was justified.
The Practitioner did not admit the allegations and did not file any material or participate in the hearing.
Outcome
Complaints One, Two and Three were established.
In relation to Complaint One, the NSWCATOD held that obtaining Patient A’s personal information, and disclosing that information, either by showing the photograph(s) or discussing Patient A, was a gross violation of Patient A, Patient A’s family and the public.
The NSWCATOD said that these breaches of confidentiality were to be taken seriously and denounced as it was not only in the public interest to maintain a patient’s confidentiality but there were additional subjective factors to take into account, including Patient A’s gender ambiguity and ethnicity. There were real and significant consequences for Patient A and their family, which may be detrimental in the future.
In relation to Complaint Two, the NSWCATOD said that whether inadvertent or not, the judgment possessed, and care exercised by the Practitioner in providing false and/or misleading information was improper.
In relation to Complaint Three, the NSWCATOD acknowledged that the Practitioner may have been under a misapprehension about her job description as a nurse, noting the role was at least 75% administrative. However, she ought to have been aware that the role did include nursing as this was clear on the documentation provided to her.
The NSWCATOD was satisfied that the Practitioner’s conduct as a whole constituted professional misconduct as she had fundamentally failed to fulfil her ethical obligations to respect the gender and ethnicity of her patient and to ensure privacy and confidentially when providing care.
The NSWCATOD cancelled the Practitioner’s registration and made an order that the Practitioner not be permitted to apply for re-registration for a period of 12 months.
Implications
The case emphasises the ethical and legal obligations of all health practitioners to protect the privacy of their patient’s personal information and medical records. We recommend that practitioners familiarise themselves with the content of their duty of confidentiality to ensure best practice.
For a quick refresher, we refer you to the Ahpra Code of Conduct, which requires that any disclosure of personal information be made with informed consent (preferably written) or be otherwise required/authorised by law, or necessary in the event of an emergency.
To read the decision in Health Care Complaints Commission v FLX [2022] NSWCATOD 185, click here.
