But no one told me! Know your obligations surrounding disclosing your patients' health records

16 May 2016

Health service providers in the ACT should be aware that there are likely to be changes introduced in the near future surrounding the release of health records.

The ACT Health Services Commissioner recently prepared the Protecting Privacy of Personal Health Information in Court or Tribunal Proceedings report for the Attorney General, Simon Corbell, and it was tabled in the ACT Legislative Assembly on 11 February 2016.

Concern has arisen in patients who are not parties to court or tribunal proceedings and have had their records produced pursuant to a subpoena or other notice for production – without being advised of the production or given the opportunity to object and, if appropriate, redact parts of the records.

Patients affected by the disclosure of such records have complained to the Health Services Commissioner. In some cases, these patients have had their names, personal and medical information made available not only to the litigants but also published in court or tribunal decisions without being given prior notice. The circumstances of particular sensitivity which have caused greatest concern have been disclosure of a victim’s records to a criminally accused, and records produced in family law or child protection proceedings.

The ACT reforms being considered include mandatory notification to the patient of any court or tribunal ordered release of their records, redaction of identifying or irrelevant information and specific prohibitions on improper use of the material produced.

Health service providers will need to be alert for any reform requiring that they notify their patients of the request to produce records.

Current obligations on health service providers

There are numerous legislative avenues by which health service providers in the ACT can be compelled to disclose a patient’s records, including the Court Procedures Rules 2006, Coroners Act 1997, Criminal Code 2002 and the Health Records (Privacy and Access) Act 1997.

The difficulty for a health service provider is that when compelled to produce a patient’s records, they are not informed of the purpose of the proceeding or the request, or even whether the documents are relevant, in order to advocate in any way on the patient’s behalf.

What you need to know

More stringent requirements to notify a patient of when their records will be produced may expose health service providers to increasing numbers of complaints to the Health Services Commissioner for breach of the Privacy Principles in the Health Records (Privacy and Access) Act 1997. 

Until the legislation is changed, health service providers are encouraged to:

  1. Maintain clear internal policies to ensure that their staff are aware of their obligations in complying with court ordered production of documents;
  2. Consider adopting a policy of immediately notifying the patient whose records have been requested; and
  3. Seek legal advice if they have any concerns about the validity of the request, the scope of the documents sought, the sensitivity of a patient’s records, or that disclosing them might cause harm to a patient.

Whilst measures to protect and preserve patients’ privacy is welcomed, health service providers will need to be ever more vigilant in knowing their rights and obligations when faced with requests or court orders to disclose health records.

This article was written by Sarah McJannett Special Counsel and Richard Garnett, Partner.

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