Think of the last time you fell sick and went to see a doctor at a clinic or a hospital. Your doctor tells you that you have
a pain in the ass haemorrhoids (touch wood x3) and the doctor scribbles illegibly on your medical record (or types the diagnosis into his computer). If your friend goes to the same doctor and your doctor tells your friend about your illness, there’s a good chance that you’ll feel embarrassed and hate your doctor for doing this, but did you know that it is illegal for a doctor to tell other people about your medical history/status?
According to the first principle in the Confidentiality Guidelines published by the Malaysian Medical Council (MMC),
Any doctor who ignores this principle will be subject to disciplinary proceedings conducted by the MMC. Section 30 of the Medical Act 1971 states that,
(a) order the name of such registered person to be struck off from the Register;
(b) order the name of such registered person to be suspended...;
(c) order the registered person to be reprimanded; or
(d) make any such order...
Generally speaking, medical records are confidential in Malaysia. And if doctors fail to keep yours a secret, they could lose their licence and will be forced to pay you for exposing your private medical record.
However, the Confidentiality Guidelines gives a few situations that lets doctors release their patients’ medical records, even if the patient does not consent to it.
1. If the patient MIGHT be a criminal
If you’re a suspect of a criminal investigation, your doctor will be forced to release your medical records to the police to identify the true criminal, without needing to inform you. Because there are not a lot of known Malaysian cases for this area of law, we’ll be using cases from the UK to explain. [READ MORE: Where does Malaysia get its laws from?]
In the UK case of Hunter v Mann, two patients were suspected of stealing a car and was injured while making their escape. The doctor who treated them was asked by the police to release their medical profiles to identify whether they were involved in the car theft. When the doctor refused to release the records, he was found guilty under Section 168 of the Road Traffic Act 1972 which says:
So if you happen to fall from a tree while trying to steal your neighbour’s rambutans, the doctor who treats your injury MUST release your medical profile if the police asks for it to investigate the rambutan theft.
2. When the law says so
This means that if a statute or a court asks for your medical records, your doctor CANNOT say
get lost no.
A statute is basically any written law, like the Child Act 2001 or the Road Transport Act 1987. An example of a statute which compels doctors to release records is Section 10(2) of the Prevention and Control of Infectious Diseases Act 1988 which says,
This means that medical practitioners must notify a Medical Officer of Health if they have a patient with an infectious disease. To put it in context, someone who is infected by the H1N1 virus must be referred to a hospital. If this is not done, the doctor who knew about this infection would be fined or jailed because Section 24 of the Prevention and Control of Infectious Diseases Act says,
(a) ...a first offence, to imprisonment for a term not exceeding two years or to fine or to both;
(b) ...a second or subsequent offence, to imprisonment not exceeding five years or to fine or to both;
(c) ...a continuing offence, to a further fine not exceeding two hundred ringgit for every day during which such offence continues.”
This is when a doctor is asked by the court to testify or give evidence about his patient. The Confidentiality Guidelines provide,
In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim & Anor, the prosecution asked Dr Fadzil to testify as a witness in court about his patient, Sukma who had a homosexual relationship with his adopted brother and business partner. It was legal for Dr Fadzil to speak about Sukma’s medical history because he was asked to do so by the court.
In short, when the law wants it, the law will get it.
3. When it’s done for the patient’s own good
The third situation where your consent is not needed is when your doctor sees that it is in the patient’s best interest to release his/her medical records.
A common example can be found in the Confidentiality Guidelines is the situation of a terminal illness:
So if you’re thinking of hiding a fatal illness from your mother to not worry her, know that your doctor will disregard your wishes and inform your closest family members about it.
Another example is where medical status is released for the patient’s best interest is in situations of abuse:
If a doctor attends to patients who were beaten by their spouse, the doctor must report it to the authorities. The same duty to report applies to patients who were raped. In such scenarios, the doctor must tell the authorities about the abuse to protect the patient’s wellbeing.
4. When the doctor thinks you would’ve consented anyway
Imagine that you are undergoing an operation, unconscious from anaesthesia. Suddenly, an emergency happens which requires immediate treatment or you’ll die. Your doctor cannot get you to sign a second consent form before treating you because you’re...well, unconscious. But if you think about it, even if you were awake, you would’ve consented to the treatment to save your own life anyway.
This precise emergency situation is covered by the Confidentiality Guideline as well, which reads,
Another example where you would have consented if your doctor asked you is in diagnosing your illness,
The doctors treating you might not have the expertise needed to cure you and must seek advice from a specialist. Of course, the doctors don’t need to ask for your permission before consulting specialists about the best treatment for you. We trust the doctors to cooperate and come up with the best treatment, just like how we trust Marvel Studios to produce an epic sequel to Black Panther (Subeditor: I’m still not convinced about that [Black Panther]).
5. When there is a risk to the public
This doesn’t just cover infectious diseases like dengue fever but also mentally unstable people who may be dangerous to society. Because it is dangerous to have psychopaths walking on the streets, in the malls, at the parks...
The MMC Confidentiality Guideline says,
In Tarasoff v Regents of California (Just as how we refer to UK for certain cases, the UK also refers to US in certain situations. A US case is used here because UK doesn’t have one with this level of craziness), the murderer told his psychiatrist about his intention to kill his ex-girlfriend, whom he ultimately killed. The judges decided that the psychiatrist was wrong to keep the murderer’s motives a secret because the right thing to do was to tell the police and/or the victim’s family about the murderer’s intentions.
So, must psychiatrists tell the police about your delusions or frequent mood swings? Not really, no. Before doctors can do this, they must fulfil 2 requirements based on the UK case of W v Egdell,
Malaysia applies this law as well. If such a medical case appears in our country, the doctor can only release medical records which are relevant to investigating what made the patient dangerous to the public. For example, if a patient went around stabbing people because of delusions, the doctor can only release his medical records about the delusion and NOT about the patient’s anorexic history. The extent of disclosure allowed is only the information needed to protect the public.
In a shorter explanation, you’d have to be a super obvious ticking time bomb before your doctor is allowed to tell anyone about your illness.
So, doctors only release our medical records when they are forced to do so. As long as you’re not a suspected criminal and you don’t pose a serious threat to the people around you, your medical status will remain private and confidential.