The Federal Privacy Bill and access to medical records

The Australian Plaintiff Lawyers Association (APLA) is a non-profit organisation representing plaintiff lawyers and other interested persons across Australia. The Association’s members represent most, if not all, firms having significant personal injury claim practices throughout Australia.

When the House of Representatives Standing Committee on Legal and Constitutional Affairs (LACA) called for submissions regarding the Privacy Amendment (Private Sector) Bill, it was important for APLA to contribute. But not, however, for reasons that one may first assume. For APLA, the inquiry into the Bill presented an opportunity to reactivate its campaign on access to medical records.

So what does the federal Privacy Bill have to do with medical records? And why is this so important to APLA?

Under the Bill, access and correction of personal information about an individual is regulated by a set of National Privacy Principles (proposed Clause 6 of Schedule 3). This includes access by a patient to medical information relating to them; and third party access to medical information.

This proposed regime is inadequate and inappropriate for dealing with access to medical records, and will operate to further erode patients’ already weak rights. APLA is not alone in holding these views. A number of other organisations, such as the Public Interest Advocacy Centre, the Australian Consumers Association and the Health Issues Centre have made similar submissions to LACA, calling for medical records to be dealt with in separate legislation altogether.

Current Access to Medical Records

Medical records in the private sector are the sole property of the doctor in most states of Australia. Patients rely on the discretion of the doctor, who can deny access or even charge a fee for what is incorrectly seen as a privilege, not a right. The situation has been hampered further by the common law. In late 1996, the High Court confirmed that doctors are not obliged at common law to make medical records available to patients.

At present, the ACT is the only State or Territory in Australia with legislation that permits access to personal health records in both the public and private health sectors. This contrasts heavily against other common law countries such as the UK, New Zealand, and the USA, who each have legislation that enables patients to obtain access to their records.

It is imperative that we obtain an enforceable legal right for patients to access their records in Australia. At present, this right only exists when a patient chooses to commence legal proceedings.

Access to Medical Records and Litigation

Many doctors fear giving access to records will lead to an increase in litigation but the opposite has been shown to be the case. Under current laws, lawyers must begin litigation in order to get access to medical records. If patient access became a right, unworthy litigation could be avoided.

The possibility of litigation is also reduced as a result of three of the demonstrated benefits of patients having access to their records — improved communication between patients and doctors, reduced anxiety, and improved accuracy of the records.

In any case, a patient’s access should not be restricted simply to prevent them from learning something the doctor has done wrong.

The Australian Medical Association (AMA) opposes patient access to medical records. This opposition is based on manifest self-interest, in that access may expose suspected clinical error giving rise to an entitlement to seek compensation.

Previous Senate Inquiry

Unfortunately, the strength of the AMA lobby has curtailed reform in Australia. A classic example is the Senate Community Affairs References Committee inquiry on access to medical records in 1996/97. This attracted considerable community response and in June 1997, the Senate Committee recommended Australia implement comprehensive national legislation to enshrine a patient's rights to access medical records. Yet today, three years later, the Federal Government has failed to implement those recommendations.

Specific Deficiencies of the Privacy Bill

(a) The Inadequacy of a Voluntary Code
The Privacy Bill supports an inappropriate framework for dealing with medical records. This includes >a new national voluntary code that does not offer any new rights for patients.

At least four voluntary codes already exist.⁽¹⁾ Further, as the AMA and other medical bodies have been publicly unsympathetic to providing patients access to medical records, such a code is only likely to reinforce professional attitudes rather than change them. Without underlying law reform, a voluntary code of practice on patient access is unlikely to achieve any change

(b) Exemptions
The list of proposed exemptions to Clause 6.1 of Schedule 3 (National Privacy Principles) effectively means that access to personal information will be denied more often than granted. APLA considers the phrases used in the exemptions such as "frivolous or vexatious" will be given a broad meaning by organisations and result in frequent denials of access. The ‘Access Principle’ described in the Key Provisions also includes a list of ten reasons a doctor may use in order to justify a refusal of access.

Further, while it is proposed that an organisation must provide reasons for denial of access or refusal to correct personal information, there appears to be no sanction for either the failure to provide such reasons or the actual denial of access.

(c) Third Party Access to Medical Information
It is categorically unfair to enhance the access of a third party to medical records when the proposed provisions deny patients satisfactory access to their own medical records at the same time. But the Bill does this too – allowing government agencies and researchers increased access to the medical records of others.

Conclusion

The Federal Privacy Bill may at first appear to enhance rights to privacy, yet this is clearly not the case. The Bill supports a manifestly inappropriate framework for dealing with medical records, particularly given the attitude of the medical profession to patients’ rights.

The AMA lobby is well resourced and, as the past demonstrates, strong enough to prevent the implementation of Senate Committee recommendations for federal legislation. But patients’ rights and community support on the issue are worth continuing the fight. APLA encourages your support in its campaign on access to medical records in Australia, and leaves you with an extract from its submission to LACA:

1. The four voluntary codes in existence are: the draft Royal Australian College of General Practitioners Code of Practice for Computerised Medical Records (1993); the NHMRC Guidelines for Medical Practitioners on Providing Information to Patients (1993); the Australian standard — Personal Privacy Protection in Health Care Information Systems (1995); and the Australian Medical Association’s Guidelines on Access to Medical Records (1997)