ACCESS TO MEDICAL RECORDS


1.         What is a Medical Record?

        At common law the position is that “the person who makes the record owns the record.” Breen v Williams
        However, the question arises as to what information makes up the medical record.
        The AMA endorses the following guidelines on patient’s access to records concerning their medical treatment:

            “The patient has a right to be informed of all relevant factual information contained       in the medical record, but all deductive opinion therein recorded remains the      intellectual property of the doctor or doctors contributing to, or recognised            employing hospital or other organisation maintaining the record…
           
            On request , the patient should be informed of any or all content of the following             sections of the medical record:
-          History;
-          Physical examination findings;
-          Investigation results;
-          Diagnosis
-          Proposed management plan.”
           There is a distinction between the right of the patient to access factual information regarding treatment and opinions of medical practitioners in the course of treatment: Breen v Williams per Gummow J.

2.         Policy Considerations for/against Access

        Arguments for usually deal with the idea of patient autonomy  that is the patient has a right to know and have available at their disposal all information relating to their health so as to ensure they make informed decisions as to future treatment
        On the other hand, medical professionals assert access may breach confidences; they may stop taking notes altogether if they knew patients could access them;

3.         General Rule on Access

The High Court of Australia in a unanimous decision held that there is no general right of access to medical records: Breen v Williams.

Breen v Williams (1996) 186 CLR 71
-          Mrs B had breast implants which were subsequently found to have leaked.
-          In order to participate in a class action against the US manufacturers, Mrs B req’d copies of her medical records.
-          She sought from Dr W (respondent) her records and he refused.
-          Later he wrote a letter saying he would be willing to provide her with a medical report of things like her history, diagnosis, investigation results, advice and treatment but not his handwritten notes. She refused this offer.
-          Mrs B went on to the Cts to seek a declaration that she had a right to examine and access her medical records.
-          High Court dismissed.
-          Mrs B argued that her right to access her medical records arose from four sources:
-                      A patient’s proprietary right/interest in the information contained in the records;
-                      An implied term of the K between doctor-patient;
-                      A fiduciary relationship between doctor-patient; and
-                      A general “right to know”
Proprietary right/interest
-                      Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ
                    Documents prepared by a professional person to assist the professional to perform his/her duty are not property of the lay client; they remain the property of the professional.
                    That property right entitles the doctor to refuse other person access to the records.
Implied term in K
-           Brennan CJ
                    In the absence of a special K between doctor-patient, doctor undertakes by the contract between them to advise and treat the patient with reasonable care and skill.
                    No term implied that doctor act in “best interests” of patient  terms limited to subject matter of K, that is, benefiting health of patient.
                    No term implied if K effective without it.
-           Dawson and Toohey JJ
                    Primary obligation under K was to use reasonable skill and care in treating and advising Mrs B.
                    Not necessary for reasonable/effective performance of that obligation to give Mrs B access to medical records.
-           Gaudron and McHugh JJ
                    Distinction between terms implied in fact and in law.
                    Mrs B argued an implication by law that doctor act in “best interests” of patient however although a relevant consideration, doctor’s primary duty owed is to exercise reasonable skill and care in provision of professional advice and treatment.
Fiduciary relationship
-           Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ
                    No definitive answer to what is a fiduciary relationship  depends on nature of relationship and facts of the case
                    Although duties of fiduciary nature may be imposed on doctor, doesn’t cover entire relationship.
                    No fiduciary relationship with respect to access to medical records
                    Generally relationship not fiduciary in nature
Access to factual information
- Brennan CJ highlighted that information with respect to a patient’s history, condition or treatment etc, must be disclosed by the doctor when:
            (i)         refusal to make the disclosure requested might prejudice the general health                    of the patient;
            (ii)        the refusal for disclosure is reasonable having regard to all circumstances;                                   and
(iii)       reasonable reward for the service of disclosure is tendered or assured

                    But the Canadian position as stated by La Forest J in McInerney v MacDonald in the Canadian Supreme Ct differs.
                    Canadian position holds that a patient is entitled to reasonable access to examine and copy the doctors records.
                    This was founded on the grounds of a fiduciary relationship between doctor-patient in that it was the duty of the doctor to act with “utmost good faith and loyalty.”
                    La Forest J in McInerney v MacDonald reached the following conclusion:

            “Information about oneself revealed to a doctor in a professional capacity remains, in a fundamental sense, one’s own. The doctor’s position is one of trust and confidence. The            information conveyed is held in a fashion somewhat akin to a trust. While the doctor is the    owner of the actual record, the information is to be used by the physician for the benefit of         the patient. The confiding of the information to the physician for medical purposes fives rise    to an expectations that the patient’s interests in and control of the information will continue.”

                    However the Australian High Ct in Breen v Williams emphatically rejected this proposition as not being the law of Australia.
                    Dawson and Toohey JJ stated that “there is no foundation in either principle or authority in this country” as such a duty of utmost good faith and loyalty “hardly fits with the undoubted duty of a doctor in this country.”
                    Gaudron and McHugh JJ said that in Australia “it is not possible to regard the doctor-patient relationship as one in which the doctor is under a general duty to act  with utmost good faith and loyalty.”

4.         Exceptions to General Rule

          There are however certain exceptions to the general rule of no access.
          The major exceptions are found under the provisions of the Freedom of Information Act 1992 (Qld) and the Privacy Act 1988 (Cth).

4.1       Freedom of Information Act 1992 (Qld)

(i)         SCOPE
          Under the FOI scheme, a person has a legally enforceable right to be given access to documents and records of an agency that is directly/indirectly supported by Govt funds.
          Therefore applies to:
-           govt dept’s, agencies etc
-           only in public sector (doesn’t extend to private health care facilities.)

(ii)        GENERAL

Section 21- Right of access
Subject to this Act, a person has a legally enforceable right to be given
access under this Act to—
            (a)        documents of an agency; and
(b)        official documents of a Minister

(iii)       EXEMPTIONS
          There are certain documents to which access may be refused: s.22

Section 22 - Documents to which access may be refused
An agency or Minister may refuse access under this Act to—
            (a)        a document that is reasonably open to public access (whether or
                        not as part of a public register) under another enactment, whether
                        or not the access is subject to a fee or charge; or
            (b)        a document that is reasonably available for purchase by members of                                the community under arrangements made by an agency; or
            (c)        a document that is reasonably available for public inspection under                                   the Public Records Act 2002 or in a public library; or
            (d)        a document that—
                                    (i)         is stored for preservation or safe custody in the                                                       Queensland State Archives; and
                                    (ii)        is a copy of a document of an agency; or
            (e)        adoption records maintained under the Adoption of Children Act                            1964.

          There are also certain categories under which there are exempt matters

Section 44 - Matter affecting personal affairs
(1)        Matter is exempt matter if its disclosure would disclose information concerning the        personal affairs of a person, whether living or dead, unless its disclosure would, on     balance, be in the public interest.
(2)        Matter is not exempt under subsection (1) merely because it relates to information         concerning the personal affairs of the person by whom, or on whose behalf, an     application for            access to a document containing the matter is being made.
(3)        If—
                        (a)        an application is made to an agency or Minister for access to a                                          document of the agency or an official document of the Minister                                         that contains information of a medical or psychiatric nature                                             concerning the person making the application; and

                        (b)        it appears to the principal officer of the agency or the Minister                                          that the disclosure of the information to the person might be                                         prejudicial to the physical or mental health or wellbeing of the                                          person;
            the principal officer or Minister may direct that access to the document is not to be        given to           the person but is to be given instead to a medical practitioner nominated by   the person and approved by the principal officer or Minister.
(4)        An agency or Minister may appoint a medical practitioner to make a decision under        subsection on behalf of the agency or Minister.

Section 46- Matter communicated in confidence
(1)        Matter is exempt if—
                        (a)        its disclosure would found an action for breach of confidence; or
                        (b)        it consists of information of a confidential nature that was                                                  communicated in        confidence, the disclosure of which could                                                     reasonably be expected to prejudice the future supply of such                                       information, unless its disclosure would, on balance, be in the public                                       interest.
(2)        Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless     its disclosure would found an action for breach of confidence owed to a person or          body other than—
                        (a) a person in the capacity of—
                                    (i) a Minister; or
                                    (ii) a member of the staff of, or a consultant to, a Minister; or
                                    (iii) an officer of an agency; or
                        (b) the State or an agency.

Section 42- Matter relating to law enforcement or public safety
(1)        Matter is exempt matter if its disclosure could reasonably be expected to—
                        (a)        prejudice the investigation of a contravention or possible                                                    contravention of the law (including revenue law) in a particular case;                                            or
                        (b)        enable the existence or identity of a confidential source of                                                             information, in relation to the enforcement or administration of the                                  law, to be ascertained; or
                        (c)        endanger a person’s life or physical safety; or
                        (d)        prejudice a person’s fair trial or the impartial adjudication of a                                          case; or
                        (e)        prejudice the effectiveness of a lawful method or procedure for                                         preventing, detecting, investigating or dealing with a contravention                                               or possible contravention of the law (including
                                    revenue law); or
                        (f)        prejudice the maintenance or enforcement of a lawful method or                                      procedure for protecting public safety; or
                        (g)        endanger the security of a building, structure or vehicle; or
                        (h)        prejudice a system or procedure for the protection of persons,
                                    property or environment; or
                        (i)         facilitate a person’s escape from lawful custody; or
                        (j)         prejudice the wellbeing of a cultural or natural resource or the                                          habitat of animals or plants.
(1A)     Matter is also exempt matter if—
                        (a)        it consists of information given in the course of an investigation of a                                  contravention or possible contravention of the law (including                                             revenue law); and
                        (b)        the information was given under compulsion under an Act that                                          abrogated the privilege against self-incrimination.
(2)        Matter is not exempt under subsection (1) if—
                        (a)        it consists of—
                                                (i)         matter revealing that the scope of a law                                                                               enforcement investigation has exceeded the limits                                                              imposed by law; or
                                                (ii)        matter containing a general outline of the                                                                            structure of a program adopted by an agency for                                                                 dealing with a contravention or possible                                                                                contravention of the law; or
                                                (iii)       a report on the degree of success achieved in a                                                                   program adopted by an agency for dealing with a                                                                contravention or possible contravention of the law;                                                                         or
                                                (iv)       a report prepared in the course of a routine law                                                                  enforcement inspection or investigation by an                                                                      agency whose functions include that of enforcing                                                                 the law (other than the criminal
                                                            law or the law relating to misconduct under the                                                                   Crime and Misconduct Act 2001); or
                                                (v)        a report on a law enforcement investigation that                                                                 has already been disclosed to the person or body                                                                 the subject of the investigation; and
 (3)       A certificate signed by the Minister stating that a specified matter would, if it      existed, be exempt matter mentioned in subsection (1), but not matter mentioned in   subsection (2), establishes, subject to part 5, that, if the matter exists, it is exempt      matter under this section.
(4)        A reference in this section to a contravention or possible contravention of the law            includes a reference to misconduct or possible misconduct under the Crime and        Misconduct Act 2001.

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