Medico Legal Requests

06/03/2002

Am I obliged to provide access to the patient of a medico-legal report?
A patient has asked me to forward their medical records to a solicitor. Should I?
Can I disclose the report to the commissioning agent?
Am I obliged to provide access to the patient of a medico-legal report?
The Privacy Act provides patients with a general right to access personal information held about them. Opinions expressed in medical reports prepared at the request of lawyers on behalf of clients form part of the health record to which the Privacy Act applies. The intellectual property rests with the author of the report. But, subject to certain exemptions, a person is entitled to know and see what information is held about them. Sometimes a person requests a copy of a medico-legal report written about them before the agreed fee for the preparation of the report is paid.
Three distinct situations must be appreciated:
1. Where a doctor other than a treating doctor of the patient, is requested by a third party - say the insurer of a defendant to a legal proceeding - to prepare a medico-legal report. The patient's consent is required before the patient is examined by the doctor for the purpose of preparing the report. The report, commissioned by a third party, is the subject of legal professional privilege, and exempt from the access requirements under the Privacy Act.
2. Where a third party commissions the report - say for insurance purposes rather than for legal proceedings - where no legal professional privilege applies. The patient is, subject to other restricted exemptions under the Privacy Act, entitled to access that report. Doctors might be concerned that a patient might then use the report for other unrelated commercial purposes - for pending litigation, or for some other commercial purpose such as to obtain a pilot's licence.
While under the Privacy Act the doctor is not entitled to ask a patient why access is required, in the case of a medico-legal report, it is reasonable for the doctor to assert copyright over it. In that event the doctor can provide access on the condition that the report not be further published or reproduced without the doctor's permission. In this way the doctor can then ascertain whether the patient was attempting to use the Privacy Act to avoid paying the appropriate fee.
3. Where the treating doctor has been asked to provide a report for medico-legal or other commercial reasons, on behalf of the patient - though a commercial fee for the preparation of the report is agreed, the patient accessing the report through the Privacy Act could circumvent its payment. Where a doctor has concerns about this occurring, the problem might be avoided by the doctor asking for the agreed fee to be paid before the patient is examined and the report prepared.
The Federal Privacy Commission has vowed to include in its public education program the need for the public to make sensible and honest use of the Privacy Act.
A patient has asked me to forward their medical records to a solicitor. Should I?
While a doctor is not entitled to ask the reason why access is requested, it is appropriate to seek clarification of the request so that the nature of the access and the appropriate cost can be agreed. Where a patient seeks that their notes be forwarded to their solicitor it is likely that the material is to be used for medico-legal purposes. It is improper for lawyers to use the Privacy Act as a back-door method of obtaining access to medical opinions. It would be appropriate to ask the patient to clarify what part of the notes is required. The doctor then, as in every case where copies of the whole or part of a file are required, should go through the notes to identify any information as to which access should be restricted (such as information about other people collected in the course of history taking). Then, whether part or all of the notes are required, the doctor should request that the reasonable administrative costs incurred in the doctor reviewing the notes and the photocopying costs be paid before their release to the solicitor.
Can I disclose the report to the commissioning agent?
If you are not the treating doctor, and you are commissioned by a third party, the report, if requested in anticipation of, or for the purpose of litigation, is the subject of legal professional privilege, and while the patient has no right of access to it, it can be disclosed to the commissioning party. The patient has consented to an examination and the report being prepared and would reasonably expect it to be used and disclosed for the purpose it was prepared.
If the report was commissioned for other purposes, say for production to a Mental Health Tribunal, or Parole Board, the disclosure is authorised or permitted by law, whether or not the patient has consented to the disclosure. Generally speaking, the patient is likely to be able to access the report.
In some states Work Cover legislation authorises the release of information to a statutory board and requests are made to doctors for information without providing the patient's consent. Generally, the patient having made application for some benefit under the Work Cover legislation covers the consent requirement. If the release of information is authorised by the relevant legislation, no further consent is required, but good clinical practice would surely dictate that the doctor should inform the patient of the request and of the fact that it has been met.
If an insurance company or employer commissions the report, so long as the person has given authority for the report to be prepared, then it follows that the report can be disclosed to the commissioning agent, the purpose for which the material was collected. However, if an employer seeks information from a doctor to verify a sickness certificate, the doctor should obtain the patient's consent before dealing with this inquiry. Similarly, if a family member makes an inquiry as to whether of not a patient has made an appointment to see the doctor, this information should not be given without the patient's consent, if the patient has capacity or maturity to make their own decisions about the management of their health information.