Patient Records

Access to Records

‘Do I have to give a patient access to their health records and can I charge for the service’ is a frequently asked question. The short answer is yes, subject to some exceptions.

As a provider of a health service, a chiropractor is subject to the Privacy Act 1988 (Cth), as well as any applicable Act in your state dealing with health records.

The Privacy Act only covers health records held by private practitioners, leaving the regulation of health records held by public practitioners to state based health records Acts.

Both the federal Privacy Act and the state based health records Acts provide mechanisms for an individual to gain access to their health records.

The principles in these Acts complement the existing culture of confidentiality that is fundamental to your professional practice obligations. Under these Acts you must allow the patient access to their health records without unreasonable delay or expense, subject to the following exceptions:

• Providing access would pose a serious threat to the life or health of any individual
• Providing access would have an unreasonable impact on the privacy of other individuals
• The request is frivolous or vexatious
• The information requested relates to an existing or anticipated legal proceeding and the information would not be accessible by the process of discovery in those proceedings (medical records are generally discoverable in legal proceedings so this exception will rarely apply)

This is not a complete list but does represent the exceptions that are most relevant to the practice of chiropractic. I think you will agree that there will be very few occasions when access could legitimately be denied to the patient.

Bear in mind that you are entitled to charge for the cost of providing a patient with access to their health records, however the cost must be ‘reasonable’. There have been several complaints made to the Privacy Commission where the Commission has intervened to advise that the costs proposed to be charged by the health professional to access records were unreasonable. Usually these matters can be resolved simply by reducing the fee to a more reasonable figure.

Closing up shop

For whatever reason you may decide to close or sell your practice. In doing so there are a number of considerations with respect to records for you to consider from a patient risk management perspective.

Specifically, whilst you may be tempted to dispose of all your client records, don’t. It is necessary for you to retain client records for as long as possible(subject to statutory periods) in the event of a possible enquiry being raised into your treatment of a patient or an enquiry from a health insurer, statutory health body or otherwise. If you are selling your business, these clinical notes will generally be taken into possession by the purchaser. If you are not selling your business but are simply closing up shop, you will need to arrange for storage of such client records for as long as possible.

Telling your clients

It is important to advise your clients of your change in circumstances in a timely manner and in writing to protect your professional and personal reputation. We recommend that you take the following steps to preserve the goodwill that exists between you and your clients:

• advise them of the date of your close of business/sale of your business and the relevant details of the purchaser if applicable
• provide a referral to an appropriate health practitioner who can take over conduct of their care (if you do not wish to specify any practitioners, refer them to your peak body/association)
• advise your clients how they can access their clinical notes, including x-rays and the like, if necessary. (In our view an advertisement in a local newspaper to that affect does not suffice.)

Complex cases

For patients with a complex history, it may be worthwhile writing a report or referral for such patients, setting out the circumstances of their condition and your treatment, for future carers. Attach a copy of the patient’s records to the letter and provide it to the patient or to another practitioner with their written authority.

Inform your professional association

It is necessary for you to inform the chiropractic registration board in your state of your change in circumstances and also to inform your professional indemnity/public liability or other insurer.

Conclusion

Don’t forget that even if you have closed up shop and/or are no longer in practice, you can still be held responsible for grievances by patients about incidents which have occurred whilst you were in practice. You may need to respond to these grievances after you have moved on. Adopting the above recommendations should either limit any grievance borne by a patient or assist you to defend your actions whilst in practice, should they be brought into question at a later time.

Further, although you are the creator and therefore owner of the clinical records, a patient has a right to access health records and you should comply with a request for access unless you can rely on one of the exceptions mentioned earlier. You are also entitled to charge a reasonable fee for the provision of those records. Please remember, however, that the fee needs to be reasonable.

If you require any further information about your rights and obligations under the Privacy Act, please go to the Commissioner’s website at http://www.privacy.gov.au/.

This article was written by Kate Hickey of Meridian Lawyers on behalf of Guild Insurance Limited AFSL No. 233791.