Issue 41 / 28 October 2013

“THE science of medicine alone [among the professions] is kept so carefully concealed from the world, and the art must necessarily be practiced in so private a manner, as renders it difficult for the public to form a just estimate of a physician’s knowledge from the success of his practice”, Scottish physician John Gregory wrote towards the end of the 18th century.

“Accordingly, in no other profession is the reward of merit so uncertain”, he continued in Lectures on the duties and qualifications of a physician.

The confidentiality of the doctor-patient encounter has been a cornerstone of medical ethics since the days of Hippocrates, and here’s hoping it remains so in the face of widespread erosion of traditional ideas about privacy.

Patients must be able to trust their doctor if they are to reveal the personal information that could be key to successful treatment.

But what happens when a doctor can’t trust the patient?

The paragons of ethical journalism at A Current Affair recently sent one of their producers under cover to five medical practices so they could secretly film doctors who were allegedly handing out medical certificates without good reason.

“They’re the doctors who are happy to make every weekend a long one”, the program trumpeted next to a banner reading “DOCTOR’S CERTIFICATE SCANDAL”, with the word “scandal” in red letters in case you’d missed the point.

This tawdry exercise became the subject of a two-part Media Watch investigation and some of the doctors who had been secretly filmed outed themselves to complain about selective editing of the surreptitious footage.

With good reason, it would appear.

ACA has since released a longer version of two of the filmed consultations, accompanied by a whole lot of justification of the program’s actions.

Based on what has been released, I’d say the doctors involved were treated shamefully.

There are issues here around deception and filming without consent, but even more troubling to me is the misleading way the footage was used.

A few flippant remarks by the doctors were highlighted, but their attempts to question the supposed patient about his “tiredness and lethargy” and discussion of potential approaches to dealing with stress were pretty much edited out.

Viewers were left with the quite unwarranted impression that these doctors thought the issuing of medical certificates was nothing more than a big joke. And the doctors, of course, didn’t have the option of releasing their own footage to cast a different light on the encounters, leaving them vulnerable to misrepresentation and loss of reputation (although the program attempted to conceal the doctors’ identities, at least one said he had been recognised by patients).

The “reward of merit” may be uncertain when doctors are required to keep consultations private, as Gregory wrote, but that doesn’t mean the profession is protected from this kind of public shaming.

The fact that medical consultations take place behind closed doors exposes both parties to potential risks.

Patients can be deeply vulnerable when faced with a doctor who behaves unethically, but they do at least have access to formal mechanisms of redress.

It’s not always clear what avenues might be available to doctors when the boot is on the other foot.

Potential damage to reputation as seen in the ACA case is one issue, but the private nature of consultations can also raise questions of physical safety.

The MJA reported recently that almost 55% of female GPs responding to a survey had experienced sexual harassment by a patient.

The late Dr Raymond Seidler experienced more challenging encounters than most over his decades practising in Sydney’s Kings Cross. He told me once about the strategies he had come up with for averting potentially violent situations, particularly with drug-seeking patients. He would sometimes conduct a consultation on the street to avoid being alone in a confined space with a patient he thought could become threatening.

An extreme example, perhaps, but it’s worth considering how we can best preserve that vital one-on-one encounter between doctor and patient while also protecting all involved from harm.

Jane McCredie is a Sydney-based science and medicine writer.


Should doctors have access to some redress if a patient behaves unethically towards them?
  • Yes - civil action (72%, 133 Votes)
  • Yes - public apology (25%, 46 Votes)
  • No (4%, 7 Votes)

Total Voters: 186

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10 thoughts on “Jane McCredie: Privacy pitfalls

  1. judith O'Malley-Ford says:

    some patients regard the medicare card as a pseudo “credit card”, asking for services/ consultations to be charged to the  medicare card of another person / overseas visitor/ relative who does not have a medicare card. They are surprised/ annoyed when you tell them that this request is illegal .

  2. Kerry says:

    I fully agree. What surprises me however is that most commentators have focussed only on the harm to the reputation of the doctor involved and not also been concerned about the harm to all the future genuinely unwell patients who now might not be so readily believed by a doctor, especially if they have to attend a doctor who does not already know them.

  3. Bill Pring says:

    Most of us are vulnerable to being tricked by dishonest patients – because the whole of our work is based on high levels of honest communication. As a psychiatrist, I am used to dealing with issues of trust, sometimes including patients hiding parts of the history deliberately. Occasionally I have been completely fooled: but note that it is the patient who is most likely to suffer from this – not me. The media action is different, especially with the selective editing. I suspect that mostly, doctors would appear quite appropriate if the full tape was aired. The media should at least be taken to the relevant media council. Perhaps they could successfully be sued for damages to reputation.

  4. Ehud Zamir says:

    I agree with Jane 100%. However, on a practical level, I think it is important that we are all aware of the fact that digital documentation of ANY life situation (including a doctor’s consultation) has never been easier, and is still not as easy today as it will be tomorrow. It is going to be very difficult to ensure patients do not secretly record or video consultations. Some do already (I have been played a recording of another doctor’s consultation by a patient recently, to my astonishment). I am not sure how we can legally protect ourselves from misuse of secret recording, and will leave this important question to lawyers. Meanwhile, smile, as you may well be on Candid Camera. 

  5. Jennifer Torr says:

    Is the secret recording of a medical consultation by a patient uncomfortable or actually illegal? If illegal then  notices to that effect could be an option. However in this case the patient wasn’t actually a patient but a fraudster, and that is  another issue. It is fraud and entrapment pure and simple. Does the AMA have lawyers who can comment on the legalities of the behaviour of the ACA crew? Are we now reduced to asking to see photo identification for new patients? 

  6. Dr Tim Smyth says:

    A long shot I know, but how did the ACA “reporter” pay for their consultation? I assume in cash with no Medicare claim. However, this would still have required Dr’s practice to produce an invoice and a MBS item number with Medicare number on their system. There are offences under the Health Insurance Act for false documentation and aiding and abetting…….. maybe Medicare Australia could warn ACA about the liability of their “reporters” and the Nine Network.

  7. David Guest says:

    Media Watch suggests the secret filming of the consultation by A Current Affair was illegal last time, is probably illegal this time and may be illegal next time. 

  8. shambleton says:

    Great article Jane.  Steve Hambeton AMA President

  9. sw sonneveld says:

    Why not advise all members to refuse to have anything to do with the media?

    The “cold shoulder ” approach may change their attitude to misrepresentation and collusive activities such as the above. ? the contempt they deserve.


  10. Genevieve Freer says:

    This  debacle does raise a number of issues regarding medical certificates.  Education of doctors  in training and practice staff to enable them to deal with the increasing burden of documentation including patient identification  is lacking . We are trained in Medicine, not fraud. Fraudulent requests are not  limited to the producer of ACA.

    Perhaps some satisfaction can come from the sad shortage of serious scandal from which the ACA seemingly  suffers if  we scribes of certificates learn something from this story.

    We therefore  could write a user-defined  medical certificate  template for our medical software programme such as:

    ” Today I have been asked to provide a medical certificate for Mr. Producer Aca , who presents to this practice for the first time, requesting an appointment  today, stating that he is suffering from non-specific symptoms of tiredness and  lethargy, which he claims prevent him from working today. My history and examination today  have not revealed any medical condition which would, in my opinion,  prevent him from working today . However, if his symptoms persist, these symptoms  could indicate an underlying physical or mental disorder,   so I have suggested he seek further medical advice if his tiredness and lethargy persist after the weekend.  “


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