Health records revealed in family dispute

JOELLE DALLY
Last updated 05:00 11/11/2013

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The Canterbury District Health Board appears to have reached a deal to avoid legal action over a doctor's 2007 privacy breach.

The case could have proved a test case for whether DHBs are vicariously liable for their staff breaching patient confidentiality by accessing electronic records without permission, something virtually untested in New Zealand.

University of Canterbury law professor Ursula Cheer said she was unaware of any cases in New Zealand where an individual had been sued, let alone a DHB, over such a privacy breach.

Suing was an expensive and complicated thing to do. There were other avenues to complain.

Often parties settled if there was doubt on both sides as to whether they would be successful in court.

Cheer believed it would be difficult to hold the organisation responsible if it had clear policies, training and procedures in place.

If the matter had proceeded, it would have been a "test case" and all DHBs would have wanted to see the question clarified.

"It's unheard of as far as I'm concerned," Cheer said.

"That would have tested who was responsible. They might have settled because they didn't want it to go further."

Cheer said privacy laws were quite undeveloped in New Zealand, but this was not to say a similar case may not crop up in future.

University of Canterbury law professor Stephen Todd, an expert in vicarious liability law, believed the complainant would have had a case to argue in this situation.

It also comes at a time patient records are becoming more accessible than ever, with CDHB general practitioners, pharmacists and community nurses now able to access their information through the Shared Care Record View (eSCRV) system.

A former CDHB patient lodged civil proceedings with the High Court in Christchurch on July 23, seeking a combined $110,000 in damages from the doctor and CDHB.

The doctor, Valerie Pollard, twice accessed the woman's mental health records in 2007 ahead of a Family Court dispute involving the woman's partner and Pollard's girlfriend.

When Pollard inadvertently learned the woman had been admitted to Hillmorton Hospital, she disclosed the information to a mutual friend and again at a Family Court hearing.

Pollard was censured and fined in 2010 by the New Zealand Health Practitioners Disciplinary Tribunal after admitting professional misconduct.

She resigned from the CDHB in 2009.

The statement of claim against the CDHB was on the basis that "through the actions of [Pollard]" it disclosed the confidential information.

It said the plaintiff had suffered "significant harm, humiliation and distress as a result" of the breach.

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Pollard settled with the complainant for a confidential sum, but the CDHB signalled it would defend the matter in court.

When approached by The Press, a CDHB spokeswoman said it would not comment as the matter was before the courts. The civil court confirmed a hearing date was to be set.

However, it appears a deal has been struck in the last few days.

The complainant's lawyer Kerry Cook said on Tuesday, "The matter been resolved and the proceeding will be withdrawn".

He declined to comment further.

The complainant, who has name suppression, told The Press, "I have closure now".

Official Information Act data shows district health boards dealt with 20 privacy breaches in the first seven months of this year.

They included the instance where four South Island clinicians accessed cricketer Jesse Ryder's medical records as he fought for his life in Christchurch Hospital.

The CDHB said earlier the eSCRV system would save time without compromising privacy, and patients could opt out.

- The Press

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