Despite the Victorian media accusing the AFL of joining “a concerted effort to keep from the public a drug scandal that has rocked a top Melbourne club”, as the Sunday Herald-Sun put it, this is an unfair characterization of the issue.
The facts of this matter that we currently know are that a woman, who says she found medical records outside an Ivanhoe drug and alcohol rehabilitation clinic, sold those records to Channel 7.
Channel 7 aired allegations about what the records are alleged to contain in its 6pm news bulletin. The records are alleged to contain details of a group of players drug use.
The players belong to the one club, and according to the Herald-Sun it is a club that will be playing in the finals. It has now emerged that the media records may be have been stolen from the Ivanhoe clinic.
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The doctor to whom the records belong has not consented to their contents being divulged, and nor have the patients.
Victorian Supreme Court Justice Kim Hargrave, in an urgent Saturday hearing, continued a suppression order to prevent further details being published by the media.
In short, this is not simply a case where it can be said the AFL, the club, players, doctors and clinic involved are “covering up” to prevent a scandal emerging in the media. There are a range of complex legal and ethical issues which the courts will need to sort through to determine what is a fair outcome.
Surely, even the media must recognize that Channel 7’s conduct in purchasing the medical records was morally objectionable. Every individual, it does not matter who or what they are, is entitled to know that doctor-patient confidentiality is sacrosanct. There can be no release of medical records without the informed consent of the patient.
Secondly, if these records were stolen and Channel 7 knew them to be stolen, those at Channel 7 who purchased the records may have committed a criminal offence. Likewise the woman who sold the records.
Thirdly, there are major implications for privacy law if a court decides that medical records can be published by the media, where there has been no consent from the doctor and patient.
Fourthly, there are ethical and moral, if not legal issues, on which the media must inform itself in relation to the impact that publication of the medical records might have on the patients involved. There are cases where, for example, release to a third party of a patient’s medical records is clearly not in the patient’s best interests. This is particularly the case in the area of mental health.
AFL chief Andrew Demetriou hit the nail on the head when he said over the weekend that the use of these players’ medical records by the media has nothing to do with the AFL Drugs Policy, but is “more of a moral and ethical issue.”
However, the media’s only interest here unfortunately is in selling copy and making a buck. What a pity.