Legal confusion: Whose medical record is it anyway?

08 February 2019 | Georgie Haysom, BSc, LLB (Hons), LLM (Bioethics), GAICD, Head of Research, Education and Advocacy and Catherine Hughes, BA (Hons), LLB (Hons), MA, Communications Manager, Research, Education and Advocacy, Avant

The frustration in your practice manager’s voice is obvious.

“Here’s another solicitor’s letter saying send all Ms Lee’s records. They’re not her records, they belong to the practice. Do we really have to hand them all over?”

Technically it’s true that patient records do not belong to the patient. However, under Australian law, patients are generally entitled to access them.

They can also request that you provide a copy to a third party.

What authority do I need?

Check who the third party is acting for. Even if the request is coming from the patient’s solicitor, you should confirm that you have the patient’s authority, that it is in writing and signed by the patient.

It should indicate clearly to whom the records can be released and which records are covered.

As a guide, you should query authorities more than 12 months old. In some states, verbal consent is sufficient; but this does not provide the same certainty as written consent. If you have any doubt, you should contact the patient to clarify.

Why do they want the record?

A request could be for any number of reasons. It doesn’t mean the patient is making a complaint.

Even if the patient is unhappy with your care for some reason, providing the records may resolve the issue. Withholding the records may make the situation worse.

Should I send the whole record?

This will depend on the request, so check it carefully and make sure you only send records covered by the request.

For example, the solicitor may be acting for an insurer who is relying on a compulsorily acquired authority from the patient. These may not necessarily permit the disclosure of a complete copy of your records.

Sometimes a solicitor acting for an insurer or someone other than the patient will request the complete record. You may have concerns about this, particularly if it contains sensitive information.

The patient may not be aware that everything in the medical record will be provided. Check the patient is aware which records may be included and confirm that they can be released. Document any conversations you have with the patient.

You also need to be careful that you do not include information about other people.

If specialists’ letters are included in the records to be released, these are still part of the patient’s medical record and should be produced. You do not need specific consent from the specialist, even if the records contain a note stating they should not be supplied to third parties without the specialist’s consent. Only send copies of documents, not originals.

Can I claim my costs?

You are usually entitled to receive ‘reasonable expenses’ to cover the costs of responding to the request. This could include the cost of locating archived files, reviewing the records, photocopying and sending the documents. In the ACT and Victoria there are prescribed maximum fees that you can charge.

What is the deadline?

Response times in NSW, Victoria and the ACT are covered by legislation. In NSW and Victoria you must respond within 45 days and in the ACT within two weeks. In the other states and territories you are required to respond within an ‘appropriate time’ after the request is made. What constitutes a reasonable time frame will depend on the circumstances, but the Office of the Australian Information Commissioner suggests that generally responses should be within 30 days.

Releasing records without patient consent

You may also be compelled by law to provide documents to a third party; for example, by a warrant from the police. Generally, if the police request a record they should provide an authority from the patient, a court order or a warrant. Sometimes police will request information without a warrant and this can be complex.

Refusing to provide information

There are some situations in which you can decline to provide the patient access to their records. For example, when you believe that supplying the records would pose a serious threat to the health or safety of an individual (either the patient or a third party).

Key points

  • Check there is an appropriate authority from the patient or you are required by law to provide the records.
  • Try to obtain some understanding of the reason for the request and what the third party is looking for in the records.
  • Provide the patient or third party with a copy of all notes you have available, including reports and specialist letters that did not originate from you or your practice.
  • Be careful that you do not include information about other people.
  • If in doubt, contact Avant.

You may have seen recent media articles about insurers’ access to medical records. We continue to monitor the issue, this article still reflects the current position.

If you are in a situation where you are unsure about providing medical records, call our Medico-legal Advisory Service on 1800 128 268 for expert advice, available 24/7 in emergencies.

More information

Listen to our medico-legal advisory podcast series on common questions about medical records:

Storage and retention of medical records 

Deceased patients’ medical records

Making changes to the medical record

Providing records to a third party.

Download our factsheet: Providing medical records to a third party. A version of this article was originally published in AusDoc.Plus on 23 October, 2018.

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