Chapters

Access to Information

The patient has no real legal right of access to medical information. The records belong to the institution or individual that created them, and access to them is dependent on the policy of the owner. The Tasmanian Department of Health and Human Services does, as a matter of policy, support the rights of patients to see what information is held about them by a health authority.

Within hospitals and community health centres, initial requests are directed to the doctor involved with the patient. That doctor may grant access to the records or refuse access on the ground that it may be harmful to the patient’s physical or mental condition. Requests should preferably be in writing, giving as many details as possible to help identify the records.

In the case of court actions, the court can order that medical records be produced. However, the patient is likely to need the records much earlier than this so that lawyers can decide whether or not legal action would have any chance of success. An uncooperative individual or institution can make life very difficult for a patient who wants to take action over harm suffered while in their care.

Public hospitals usually charge for search and release of medical records. Doctors may charge up to $100 or more depending on the length of the report, photocopying, and the trouble taken. Pensioners may be able to get a waiver of this fee.

Confidentiality

While patients have some legal right to expect that information held by a hospital or doctor will not be disclosed to others without their consent, that right is difficult to enforce.

The widest protection for the patient, at least as far as information held by doctors is concerned, comes from the rules contained in the Code of Ethics published by the Australian Medical Association. These rules are not laws. If a patient suffers as a result of breach of the code, it may be evidence of negligence. The patient cannot, however, sue for breach of confidence purely on the ground that an ethical rule has been broken. See: http://ama.com.au/codeofethics for a copy of the Code of Ethics.

In order to sue a hospital or doctor because of a breach of confidence, the patient must have suffered some harm as a result of the breach. Harm in this sense might be, for example, the loss of a job because the employer found out about a medical condition. Hurt feelings or pride do not usually give rise to legal rights. If loss has been suffered, the patient may, according to the circumstances, sue on the grounds of breach of contract, negligence and possible breach of an equitable duty of confidence.

Where a patient is paying for health services, a contract exists between the patient and care provider. A basic term of that contract (implied, even though it is rarely expressed) is that the patient’s secrets will not be disclosed without their consent.

The patient’s consent may, of course, be implied in some situations. For example, information given to allied health professionals or other hospital staff who ‘need to know’, would have the patient’s implied consent.

In other situations, information is given because it is required by law. A doctor or hospital could not be sued for breach of contract if records are subpoenaed, or if there is a legal obligation to notify some authority. For example, doctors must notify the Health Department if their patients have certain infectious diseases. They are also under a duty to report cases of known or suspected child abuse. It may be that a patient’s consent would be implied in the case of information given to relatives, but not if the patient has expressly said they don’t want relatives to know. Relatives, even ‘next-of-kin’, have no right to demand information about the patient, unless they are the parent of a child patient, or a patient’s legal guardian. This restriction extends to wives or husbands who may be denied access to ‘sensitive’ information.

In the case of children and certain mentally ill or intellectually disabled patients, the contract is between the doctor or hospital and the person who arranged the treatment. It is therefore that person’s consent which is needed for any disclosure.

An equitable duty of confidentiality may exist in cases where there is no contract (patients in public hospitals probably do not have a contract). All doctors and allied health professionals with access to information about the patient are probably subject to this duty. There are no cases directly on the point, and the law is not clear in this area. A patient would probably be able to obtain an injunction to prevent disclosure of such information except to hospital staff who ‘need to know’.

Negligence is a possible cause of action for breach of confidentiality. A patient who had suffered some harm could claim negligence if it could be proved that the risk of harm ought to have been foreseen by the person who, having a duty of care toward the patient, made the disclosure. It is in such a situation that the Code of Ethics would prove useful in demonstrating lack of due care.

All of these actions are expensive, time consuming and without any real guarantee of success for the patient concerned. They provide inadequate protection for the patient who has suffered, or could suffer, real loss as a result of disclosure of information and they provide no protection for those who merely want to retain their privacy.

Most health professionals are quite ethical when it comes to confidentiality. However, those cases where abuses do occur tend to have such severe consequences for the patient that there is a good argument for new laws to regulate information practices.

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