When seeking medical records to support a legal claim, access to a clear and complete treatment history is essential.
Health records are vital to understanding treatment history in a personal injury or medical negligence case. However, accessing records can be a protracted and frustrating process. The process is even more difficult when seeking the records of a deceased family member.
Access to health records is regulated under NSW law, and navigating these regulations can be challenging. Below is a guide to your rights and options when facing obstacles in obtaining clinical records.
Who Owns Health Records?
It is a common misconception that patients own their health records. Legally, health records are owned by the healthcare provider, not the patient. In New South Wales, the Health Records and Information Privacy Act 2002 (HRIPA) and the Government Information (Public Access) Act 2009 (GIPA) govern the collection, storage, and sharing of health information. Under the legislation sensitive health information typically can’t be released without the patient’s consent.
This becomes particularly challenging for families seeking information about a deceased loved one’s medical care. HRIPA outlines limited scenarios where access can be granted, sometimes allowing family members access on compassionate grounds. However, this access often doesn’t include full records, and the decision of what information to release is left to the provider.
How to Request Access
HRIPA provides a structured process for patients seeking their health records. While it is possible to request these records, healthcare providers are allowed to deny access under certain circumstances. Unfortunately, there is no specified legal process for family members to access a deceased individual’s records, aside from the option of “compassionate access.” This limited provision means healthcare providers may release some information to families, but there’s no guarantee of full disclosure.
For public institutions including hospitals, GIPA allows requests for health records and other information to be made. The decision to provide access is based on many factors, including a “public interest test,” which considers factors for and against disclosure. This means family members of a deceased patient may receive access only if the public interest outweighs the privacy concerns.
Options if Access is Denied
If access is refused, here are some steps you can take:
- File a Complaint: Under HRIPA, you can file a complaint with the Privacy Commissioner if a provider unreasonably denies access in violation of a health privacy principle.
- Appeal the GIPA Decision: Decisions made under GIPA can be reviewed by the Information Commissioner and by the NSW Civil and Administrative Tribunal, especially if you believe the decision unfairly limits access.
- Seek Court-Ordered Preliminary Discovery: A more direct approach involves applying to the Court under Rule 5.3 of the Uniform Civil Procedure Rules 2005 NSW. Through a discovery order, the Court may direct the healthcare provider to release the records. This can be used when suspected medical negligence needs investigation, legal proceedings are being considered and the records are necessary to determine whether or not to commence proceedings.
How We Can Help
At the Law Office of Conrad Curry, we understand the critical importance of accessing health records when investigating potential medical negligence or assessing the quality of care provided. We have experience in navigating the legal processes and can assist you in obtaining the records you need, including advocating for access in cases where providers fail to meet their obligations under HRIPA.
If you need help accessing your health records or those of a deceased loved one, contact us today. Legal support can make all the difference in ensuring your access rights are respected and help you understand the care received.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
