Accessing Personal Medical Records
In New South Wales the general position is that a health practitioner or organisation is said to own the medical records they create. However, in most cases a person is still able to access their personal records. This is because the law views ownerships rights and access rights separately. Access can involve providing the person with: (1) a copy of the records, or (2) a reasonable opportunity to inspect and take notes from the records.
The right to request and receive access to medical records held by public providers (i.e. public hospitals) is outlined within the Government Information (Public Access) Act 2009 (NSW). For private providers (i.e. private practitioners), this right manifests in the Information Privacy Act 2002 (NSW) and the Privacy Act 1988 (Cth). Moreover, the Health Records and Information Privacy Act 2002 (NSW) was recently enacted and applies to both public and private sector organisations. Under schedule 1 of this Act, Health Privacy Principle 7 states “an organisation must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.”
There are however limited grounds on which access may be refused. For example, access may not be granted if provision of records poses a serious threat to the life or health of the person requesting the records, or providing access is said to unreasonably impact on the privacy of other individuals. In circumstances where access is denied, the patient is to be notified of the reason/s for such a denial.
Accessing Medical Records of Loved Ones After Death
There is no specific legislation in NSW governing access to medical records involving a deceased patient. Unless there is an obvious probate dispute, or the deceased person clearly wished otherwise, access should be given to the personal legal representative of the deceased person (an appointed executor or administrator of their estate).
It is good practice to make such a request in writing and include relevant documentation (such as a certified copy of the deceased’s death certificate and will).
The difficulty arises where the deceased person’s estate is not the subject of a grant of probate or letters of administration. Whilst the NSW Trustee and Guardian assumes the role for all deceased persons (as the deceased estate vests in the NSW Trustee at first instance) until a personal legal representative is appointed, the practical reality is that the office is reluctant to become involved in such matters, leaving the family of the deceased person in a very difficult situation where the documents become necessary in a medical negligence dispute.
Access to Clinical Governance Documents
Clinical Governance is employed throughout New South Wales with the goal of ensuring practitioners, management and board members are held accountable for the role they play in delivering health services. Australian’s place a high degree of faith in practitioners and health service organisations to deliver safe and quality care. Unfortunately, sometimes there is a failure to provide this level of treatment and preventable adverse outcomes result.
The Clinical Governance Framework compels open disclosure about such failures. As a result, incidents are to be reported and acknowledged without fear of inappropriate blame. This allows people to learn from personal mistakes or those made by others. Staff are required to participate in investigations and ultimately implement any endorsed recommendations.
A Root Cause Analysis (“RCA”) is compulsory for all incidences carrying a severity assessment code of 1. An RCA may be undertaken for less severe incidences, but generally this only occurs where there is a belief that the incident was a result of a serious systemic problem. A Detailed Investigation Report is completed for all other incidences allocated a severity assessment code.
The purpose of an RCA is to create an understanding of how and why the incident manifested. Further, the process identifies way to improve system failures, with the aim of preventing similar incidences in the future.
The NSW Government Incident Management Policy states that information regarding severity assessment code 1 and 2 incidents should be offered to patients, and/or support persons, and/or family. Although the investigation stage of the RCA is privileged, the final report is able to be disseminated to the patient and the above-mentioned persons. It cannot however be used as evidence in any legal proceedings where a claim arises in relation to careless or inadequate treatment. This is different to documents in existence prior to the RCA being conduct, which can be relied on as evidence in legal proceedings.
