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One of the most frequent queries received from medical practitioners arises when they receive a request for access to medical records. It may come in a variety of forms, for example a request from a solicitor or by subpoena.

Read on for some guidance from AMA(SA) preferred provider for legal services, Norman Waterhouse Lawyers.

Who owns medical records?

Invariably it is the medical practitioner or medical practice who owns the intellectual property in medical records (1). However, despite this, there are a number of statutory regimes which create a right to access medical records in certain circumstances. A few of these are discussed below.

Privacy Act 1988 (Cth)

Under the Australian Privacy Principles, medical practitioners must handle health records and sensitive health records in accordance with their privacy policy. 

A patient has the right to access and copy the records. However, a medical practitioner is entitled to charge a reasonable fee for the costs incurred in permitting access and/or copying the records.

In relation to third party enquiries (eg from a solicitor), access should only be allowed with a patient’s consent, if permitted by your privacy policy, or if required or authorised by law. All medical practices must have a privacy policy detailing how health records will be collected, used and disclosed.

Return to Work Act 2014 (SA)

Pursuant to section 183 of the Return to Work Act 2014 (SA) (RTW Act), there exists a statutory right to access medical records. Relevantly section 183(1)(c) states:

“For the purposes of this Act, an authorised officer may, at any reasonable time – 

...

 require a person who has custody or control of books, documents or records relevant to any matter arising under this Act to produce those books, documents or records”

From the RTW Act’s predecessor, the Workers Rehabilitation and Compensation Act 1986, this section has been determined by the courts to extend to the medical records of a medical practitioner (2). Importantly, this section only extends to requests made by authorised officers, who are persons authorised in writing by the Return to Work Corporation of South Australia to exercise powers under the RTW Act. 

Accordingly, a medical practitioner need only comply if the person is an authorised officer. Clarification should be sought as to the status of the person making the request. 

The provision itself is very broad, however, it cannot be misused, for example where there is no plausible link between the request and a claim for workers compensation. If a medical practitioner is concerned about the legitimacy of a request, they should seek legal advice. 

Subpoena

Subpoenas are court issued demands for the production of documents or to attend as a witness. They must be complied with provided they have been appropriately issued and served on the medical practitioner. A valid subpoena will contain the court’s heading and the seal of the court.

Occasions may arise where a medical practitioner is concerned about providing the documents because they may pose a risk, for example to the safety of others (eg in a family law context) or they are irrelevant to the proceedings. It is permissible to outline these concerns and highlight the material which should not be disclosed when providing the documentation. If this occurs, the Judge hearing the matter will determine whether the material will be disclosed to the parties. Alternatively, a medical practitioner may attend court on the return date specified in the subpoena to outline these concerns. Again we recommend seeking advice if there are concerns about providing documents.

In most jurisdictions application can be made for the payment of the reasonable costs incurred in complying with a subpoena. Each jurisdiction is different so should you wish to make an application, advice should be sought as soon as a valid subpoena is received.

Requests from solicitors

The most common request received by medical practitioners will come via a solicitor. There is no obligation to comply with the request unless it is made on behalf of the patient. In this case an original written release signed by the patient must be provided. A medical practitioner is entitled to request the payment of the costs of compliance before complying with a request. 

In all other cases, care must be taken to ensure that the documents are only released in accordance with the medical practitioner’s privacy policy.

This article was provided by Norman Waterhouse Lawyers for the AMA(SA) magazine, medicSA, on 26 August 2015. Members with any questions or issues regarding providing medical records shoudl contact the AMA(SA) or their medical indemnity provider.

Footnotes:

(1) Breen v Williams (1996) 138 ALR 25

(2) Workcover Corporation & Another v Broken Hill Proprietary Company Limited; Jagermann v Workcover Corporation of South Australia [1999] SASC 194