Suppose a local health district (LHD) has used a patient's electronic medical record (eMR) for training purposes. Upon learning that they have done this, the patient is displeased and tells them so. The LHD responds, "we had implied consent", and the patient begrudgingly accepts.
However, let us now suppose that the patient realises, "hey, express refusals always override claims of implied consent." So he prepares an express refusal to consent to the use of his health records for training purposes and delivers it to the LHD.
The express refusal notice is lawful. However, let us suppose that the patient learns that the LHD has continued to use his medical records for training purposes, meaning they have failed to honour the patient's stated wishes.
Now, to avoid ambiguity about what has happened:
- The express refusal notice is accepted as valid and lawful by the LHD
- The reason why the LHD is unable to stop using the is due to technical limitations of the eMR system
- This is the first time any patient has ever withdrawn consent -- it has to do with a particular type of training use that the patient knows is occurring but the public at large is unaware of it.
- The LHD could have cancelled training if they wanted to. Or bused people to another LHD for training. Or designed a system that did not have this limitation. Or designed a system that did not require the use of patient records.
Am I correct in arguing that the LHD never really had implied consent to begin with? In other words, does the failure to honour the express refusal inform us about the legitimacy of prior claims of implied consent?
I believe that it does. This is my argumentation:
The LHD never had implied consent, because it never had any intention of honouring any expression of autonomy that was orthogonal to its own self-interest. In effect, when the LHD started using the patient's health records for eMR training, it did so hoping that nobody would ever work out that they could exercise their autonomy and refuse to consent to such uses.
The inability of the LHD to honour the express refusal invalidates any claim that it ever had implied consent to begin with. What it has done is no different to someone taking a book from my bookshelf without asking, then claiming it was borrowed and not stolen, but then failing to return it when I ask for it back.
The LHD never had implied consent to use the patient's health records for eMR training, nor did it ever have implied consent to use the records of any other person for training.