Our paralegal Lauren Faulkner recently wrote about the entitlement we each have as consumers of health care services to access clinical notes from our doctor or hospital. Lauren also raised the real issues for family/next of kin in obtaining their departed loved one’s clinical notes after their death. This is often a critical problem when there is an allegation that a health care practitioner/provider caused or contributed to the death. Without the notes an aggrieved family member may never get past first base in an investigation into the circumstances of the death.

Unless the deceased estate has a personal legal representative appointed by the Supreme Court through Probate or Letters of Administration, a health care practitioner/provider is not obliged to release the deceased’s clinical notes, not even to senior next of kin. Sometimes a person’s estate is not sufficient to warrant an application to the Court for Probate, and whilst the estate vests in the NSW Trustee and Guardian until other order, there is a practical reluctance on the part of the trustee to become involved.

Fortunately, there are provisions under the Civil Procedure Act 2002 and the associated Uniform Civil Procedure Rules which allow the Court to order a health care practitioner/provider to provide the records by way of pre-litigation discovery. The Law Office of Conrad Curry recently obtained judgment in the District Court of NSW for a spouse of the deceased person for access to the GP’s notes through pre-litigation discovery.

Our client’s allegation is that the deceased died as the result of an overdose of prescription drugs. Her GP knew that she overused/abused opioid analgesics and had put in place a very careful system to ensure that she had access to only small amounts of the drugs. Unfortunately, she was very convincing and lied about a trip away for three weeks. The doctor foolishly gave her the prescription which ultimately gave her the ability to take her life.

The doctor resisted handing the documents over on the basis of doctor/patient confidentiality.

In Terence Forbes v Stanley Tang 2018/00248290 NSWDC 12 September 2018 Judge Gibson agreed to our application and ordered that the GP discover all documents in his possession relating to the deceased’s treatment. She relied on Rule 5.3 UCPR which permits access to documents even before proceedings are commenced where it can be shown that the applicant may be entitled to make a claim but having made reasonable enquiries is unable to obtain sufficient information to decide whether or whether not to bring proceedings, and where the prospective defendant (Dr Tang) has possession of documents which might assist in the enquiry and inspection.

In our case the applicant husband has suffered psychiatric injury as the result of the circumstances of his wife’s premature death. The doctor had been the treating GP for many years and had prescribed Endone and other opioid analgesics. He was well aware of the deceased’s overuse/abuse issues, including prior overdose resulting in Hospital admission. In a Police statement Dr Tang had admitted to prescribing more than the recommended dosage of the drugs. Reports obtained from the Coroner revealed that a drug overdose was the cause of death.

The Judge analysed the provisions of the Health Records and Information Privacy Act and determined that we had exhausted all reasonable enquiries and ordered that the documents be made available for our inspection. As the result of access to the documents we will shortly issue proceedings against the doctor for his breach of the duty of care.

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Access to my hospital or doctor’s medical records