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.