HOSPITAL INFORMATION RESTRICTION DESIGNED AGAINST LITIGATION

Grey River Argus, 16 September 1948, Page 7

HOSPITAL INFORMATION RESTRICTION DESIGNED AGAINST LITIGATION

Comments When Bill Passed "The real purpose of the clause is to prevent people in hospitals being, worried with the idea that the doctor is questioning them for purposes of litigation”. This explanation, given by the At-torney-General, the Hon. H. G. R. Mason, during the passage of the Statutes Amendment Act, 1944, has particular importance to-day following the placing of restrictions on information given by the Grey Hospital to the press, as announced yesterday. When introducing the committal of the Bill, Mr Mason remarked that Clause 31, under which the present ruling was given, prohibited unauthorised disclosure - of information by hospital staffs as to the injury of patients There were- » good many reservations and exemptions, but the clause included injury and accident, which cases commonly arose. The first Opposition Member to speak on the clause was Mr J. T. Watts, who- said that, although he had no doubt as to what the Minister had in mind, he was very dubious of the effect of the clause in one direction. “Recently, in Christchurch, in a hearing before the Supreme Court, a docto’r gave evidence in a divorce case, and referred to the treatment that an inmate of the hospital was receiving for venereal disease”, said Mr Watts. “He was very anxious that his evidence should not be published, because of the difficulty that the Hospital Board and the Health Department have in persuading people to come forward and take proper remedies”. Mr. Watts then went. on to refer to treatment for the disease and the Health Department’s efforts. PROTECTS ABORTIONISTS: “The other case where I am doubtful as to the effect of the clause is in its relation to abortion”, said Mr Waits, who added that he felt that the clause “will have a tendency to protect an abortionist”. He concluded: “I think that the Minister should consider the effects that this clause will have on the problem (of abortion) to-day, and either make some amendments that take the crime of abortion out of the confines, of this clause and mean, a step forward, or bring down-, by amendment or some other form, some provisions to tighten up the law so that the Government and police can stamp oul this dreadful practice which, I fear, is spreading steadily”. ORIGIN OF CLAUSE Mr R. M. Algie, Nationalist Member for Remuera, was the next speaker in the House to refer to the clause, and he prefaced his remarks thus: “That clause, if my memory is correct, seems to refer to a very bright and breezy passage at arms that occurred at Auckland between the Chairman of the Auckland Hospital Board and a Coroner and one-time Magistrate, Mr Hunt. If honourable members know these two gentlemen, as I do, they will realise that the passage at arms would be likely to be very bright and, at times, fairly heated. I take it that, this clause is to make law which will cover such a case as they were .arguing. ' It may be one of those hard cases that make bad law r , and we should watch its provisions pretty closely”. Referring to sub-clause (2). Mr Algie said: “I take it that the purpose of this clause is ’ to protect patients who have to consult doctors, from any disclosures which doctors might be asked to make to outsiders. If the intention is to protect the patient to that extent, I think it is a good provision”. CASES OF INFORMATION ! After speaking of the necessity for candour between doctor and patient, Mr Algie went on: “The clause goes on to say, however, that provision shall not apply to certain specific cases of information, and, up to a certain point, they are very good exceptions. One is that, if information is given in the ordinary way by doctors to relatives, that shall be allowable. One may telephone the doctor and ask how the patient is, and he tells one.. “It is a vague statement that one gets, but it may be helpful and encouraging, and the disclosure does not prejudicially affect the patient”. The original Bill had no.-provision for the giving of information to a constable, and Mr Algie, after stating that it was proposed to add these words, remarked: “If those w-ords (to a . constable) are added, it seems to me that it will destroy the value of the clause; but we can look into that at a later time, when it is before us, and we can confine our attention to the one clause which is troublesome to me4—l refer to paragraph (e) of the same sub-clause which says, in effect, that nothing which precedes shall apply with respect to information that is required by any persons or classes of persons that may be prescribed by the 'Minister. Now, that is a paragraph that I would have liked the Government to delete. Ihe point is that if sub-clause (2) says that no person shall disclose- certain information and then paragraph (e) of another clause says that the Minister may insist that information may be given to some classes of persons that he nominates, the protection vanishes”. Mr Mason: “It does not say insist’.” STRICTLY DOGMATIC Mr Algie: “Well, ‘prescribe’. I notice the Attorney-General is very much alive to the strictly dogmatic interpretation of the paragraph. At any rate, if that .paragraph remains in the Bill, then the whole purpose of the measure will be destroyed”. (Note: No clear definition of the paragraph mentioned seems yet to have been given). Mr Algie added, that he would strongly urge the Hopse in Committee. to eliminate the cltfuse because it completely destroyed the protection given a patient by sub-clause (2). REAL PURPOSE OF CLAUSE After denying that the clause was introduced following the dispute in Auckland, the Attorney-General told the‘House that the real purpose was to prevent people being worried with the idea that the doctor was questioning them for the purpose of litigation. “Now, we do not want people in hospitals to have that thought”, said Mr Mason. “The clause really is drawn to eliminate that altogether”. Mr Algie: “It is not suggested by the word”. Mr Mason: “It may seem to go’ a long way around, but it is the 1 most convenient way of expressing it. Aftex- all, how else would one express it? One must see that there must be no disclosure and then tabulate the reasons for which the disclosure may be made. When one goes through the clause, I think it will be found that it is reasonably well drawn. At any rate, it is not altogether an easy clause to draw”. Mr Mason added: It may be that, as the Member for Remuera suggests, the clause should have, been a little more severe, but, in my opinion, it i» just as well to go slowly in this mat-

ter, and not to make the clause more restrictive or more severe than it will be after the insertion of the amendment that has been circulated”.' POLICE INVESTIGATION At the request of the Speaker, the Minister explained that the amendment circulated provided for information to be given to the police, and was put in at their instigation. “Now the point about that, for present purposes, is that it does not compel the. Hospital Board .to give information”. Mr Algie: “It does not stop it”. Mr Mason: “It does not stop it—exactly. Let us have no 'misunderstanding.' A misunderstanding might have arisen by what the Member for Remuera said. The clause, in its - amended form will not bear on the discussion between those two gentles men in Auckland;"it will leave that s little problem' where it is”. - THE ABORTION PROBLEM 1 The Prime Minister: “The honourf able Member for Riccarton said that, t as far as abortion was concerned, it t still would not help to prevent abor- - tion”. / , Mr Mason: “Whether that be so or f be not so” — s Mr Fraser: “That is a matter , the House might well consider — whether the time has not arrived ) to make notification compulsory". I Mr Mason, in reply to Mr Fraser, j said that the Bill did not touch that , question, “All that we are doing, after the insertion of that amendment, ' is to leave the problem untouched". Mr Oram: “Why have the clause ? at all?” ' PROTECTING PATIENT l . Mr Mason: “I have tried to explain ’ to the honourable gentleman that ’ the clause is in the Bill to prevent ' the patient from being troubled with . the idea that the questions the doctor . is asking are for the purpose of litigation”. , He went on to comment that all sorts of civil claims might be at issue, and the clause provided a definite restriction in respect to the questioning of patients. In Committee, the word “constable” was added to paragraph (d) and the Bill was read a third time and passed without, further amendment on December 5, 1944. FURTHER QUESTIONS: When the Bill came before • the Legislative Council a few days later, the Hon. W. Grounds raised the question as to whether the clause went far enough. “Does that clause ensure that the position which it is designed to cover is adequately covered?” he asked. “There are serious misgivings in the minds of many people as to whether this clause, as drafted, covers the position which, it is well-known, has arisen. I gather from the reports of the discussions that have taken place elsewhere that this clause really leaves the position as it was; so one wonders whether it is desirable that a clause should be in a Bill if it pnerely leaves the position as it was, when, in fact, it is ostensibly designed to cover very grave evils that have been so prominent before the public jn recent months”. STATEMENT DENIED: The Hon. W. H. Mclntyre (Buller) denied that the clause left the position as it was. He had been a member ,of the executive of the Hospital Boards’ Association practically since the inception of the association, and the matter had been considered from time to time. "We have had several legal opinions on the matter of whether a Hospital Board has the power, or whether it is advisable, to grant reports of cases that have been in hospital, or whether it would be improper to grant such reports to people outside”. said Mr Mclntyre, who told the Council that in 1935 the association had issued advice to all boards that “no medical reports shall bp given to outsiders without the consent of the patient”. The clause in the Bill had made that provision mandatory, and it had the support of the association.’ STRONGLY ADVISABLE: Referring to sub-clause (f) of subclause (3) Mr Mclntyre had this to say: “The paragraph is very desirable, for it gives' the Minister discretionary power in connection with releasing reports. It is conceivable that cases may arise in which it vVould be in the interests of the patient that the reports should be available. “The hospital boards are strongly against insurance companies or others being furnished with reports from their medical officers which may be used against a patient’s interests. The amendment stops that”. Replying to Mr Grounds, the then Leader of the Council, the Hon. A. McLagan, said that he disagreed with the view that the clause left the position as it was. “The clause provides that certain information shall not be supplied except in certain cases to certain persons”, said Mr McLagan. “It lays down definitely that information shall not be supplied to other persons, and, to that extent, it clearly improves the present situation’’. Speaking of the reference to insurance companies, and the action of' the Hospital Boards, Mr McLagan said: “That step was taken because of representations made to the Hospital Boards owing to the leakage of information to insurance companies concerning hospital patients, which information was used against the interests of the patients at a later stage. The clause lays it down, definitely, that the information is not to be supplied in those circumstances, or similar circumstances, and it applies to all Hospital Boards and not only to the Hospital Board thats that have taken action voluntarily”. The Bill was given its third reading in the Legislative Council on December 7, 1944, and passed. It is noteworthy that no member on either side of the House or of the Council, referred to the question of information as to accidents or injuries which might be given to the press. INFORMATIONFOR NEXT OF KIN . (To the Editor) Sir.—There is a statement reported in your paper on Wednesday, September 15, which as it reads does not express the true position. I ratner think that this is not due to any misreporting, but to a slip of the tongue on my part, and I, therefore, wish to correct this statement, which correction you may, of course, publish, u you think fit. „ Next of kin or near relatives of patients are specifically exempted by Clause 3 (b) of Section 31 of the Statutes Amendment Act, 1944, from the general restrictions imposed by that section. What I meant to say, but apparently did not, was that, although we were legally entitled to tell next of kin about patients, there ; were cases when, although legal, it would not be ethical for us to do so. i Such cases are not frequent, but do occur, and it is then the doctor’s duty, i in the interests of his patient, not to : reveal information:. even to' next ot ’ kin. I regret that my remarks were ’ apparently incorrect or ambiguous on this point, and am therefore taking , this opportunity of providing a cor- , rection. I am, etc., : S’. BARCLAY, > Surgeon Superintendent, Grey River Hospital, Sept. ■