Can patients access their medical records?

Nerissa Ferrie

7/06/2021 11:06:22 AM

SPONSORED CONTENT: Medico-legal adviser Nerissa Ferrie examines a common issue in general practice.

Illustration of digital medical record
The OAIC states: ‘Patients have a right to access information you hold about them, unless an exception applies’.

We (or MDA National’s Medico-legal Advisory team) receive a surprising number of queries from doctors and practice staff asking whether patients are entitled to access their personal health information.
The standard position
The Office of the Australian Information Commissioner (OAIC) makes it clear that patients are generally entitled to access their personal health information. Chapter four of the OAIC’s Guide to health privacy states: ‘Patients have a right to access information you hold about them, unless an exception applies’.
The OAIC provides 10 grounds on which access may be withheld, but below are the two most commonly seen exceptions in a healthcare setting:

  • You reasonably believe that giving access would pose a serious threat to the life, health or safety of any individual, or to public health or public safety
  • Giving access would have an unreasonable impact on the privacy of other individuals
If you elect to refuse access on the basis of one the 10 exceptions, you should consult the Guide to health privacy – or contact your MDO – for advice on how to communicate this to the patient.
How long do I have to comply with the request for access?
Medical information is sometimes required urgently, but the OAIC states that non-urgent requests should not exceed 30 calendar days.
Frequently asked questions
When a patient requests a copy of their medical records, should I include specialist letters marked ‘Not to be released to a third party’?
The privacy legislation overrides this common disclaimer. If a specialist letter forms part of the medical records, it should be provided as part of the request for access. You do not need the specialist’s permission, and it is inappropriate to insist the patient makes a separate request to the specialist.
A patient has requested a complete copy of their medical records, but I have told them we can’t give them a copy – we can only release medical records to another doctor or to a lawyer. Is this correct?
A patient is entitled to access their own personal health information, or they can delegate this authority to a third party such as a doctor, lawyer or insurer. The OAIC provides guidance on the use of an intermediary, where necessary, to facilitate access which might otherwise be denied due to an exception.
The practice principal says he owns the medical records, so he can refuse the patient access. The patient’s lawyer disagrees. Who’s right?
The privacy principles allow for individuals to request information you hold about them. Although the practice might ‘own’ the medical records and be responsible for their safekeeping, patients can request access in accordance with the legislation.
An 18-year-old student requested a copy of her medical records (around 30 pages) before a move interstate. We advised the patient that our usual flat fee is $150 but she is refusing to pay, saying the cost is outrageous and she’ll complain to the OAIC. Can we rely on our practice policy and insist on full payment?
The OAIC’s position is that the cost cannot be excessive or discourage patients from seeking access.
Flat fees are not recommended. Charges should be determined on a case-by-case basis, taking into account financial hardship and any adverse consequences for the patient’s health if the information is not provided.
Doctors have an obligation to facilitate coordination and continuity of care in accordance with the Good medical practice: a code of conduct for doctors in Australia.
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This article is provided by MDA National. They recommend that you contact your indemnity provider if you need specific advice in relation to your insurance policy or medico-legal matters.

medical records medico-legal patient privacy

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Dr Peter JD Spafford   8/06/2021 8:26:46 PM

And ask a lawyer to give a client a full copy of their records at no cost? Or to read an email or text at no cost, let alone a letter. A senior lawyer in a firm will earn $400 to $700 an hour. Could any GP who has worked 40 years and runs his own practice even dream of that? So here they pontificate on how much we can charge when the Government says they want us to provide it for free. Please RACGP, stand and fight for this.

Dr At Large   22/06/2021 7:08:21 AM

ITA with Dr Peter JD Spafford, I do not correspond with my Lawyer's and accountant's [junior or senior] without ensuring that I have a substantial amount set aside for their services.