Someone’s knocking at the door
During the course of your practice you may be approached by various government or other authorities such as police, an officer of WorkCover or a health insurer, who is seeking information or may even wish to have access to your clinical records. What are your rights in such circumstances? If you are approached by an authority, your reaction and level of co-operation may depend on who is seeking the information. If a police officer attends your practice, you may feel obliged to reveal all for fear of repercussion. However, if a health insurer officer attends, your desire to co-operate may be somewhat diminished.
As a professional who holds a special relationship with your patients, it is paramount for you to consider your patients’ entitlement to privacy and your confidentiality obligations (as governed by federal and state law) before responding to requests for information.
Their authority
The powers of various authorities and bodies are governed in a myriad of ways. Government bodies and authorities, such as the police, WorkCover and professional registration bodies, are constituted by state and federal legislation. Accordingly, what they can and can’t do is predominantly dictated by the provisions of such legislation and any resultant regulations.
As you are aware, you cannot allow access to a patient’s clinical records without that patient’s written authority. However, some laws grant certain authorities investigative powers which override a patient’s right to privacy.
Entities such as health insurers, however, are not directly constituted by legislation but are private/public companies. The terms and conditions under which an officer of those companies can act are generally dictated by agreements the insurer holds with its members (your patients) or any particular agreement the insurer may hold with your practice. Hence, a health insurer’s right to access health information may be contained in those agreements.
Needless to say, it is impossible to provide specific advice on the powers of various authorities as each and every request for information, or access to clinical records, would need to be addressed on a case by case basis. However, there are a number of general recommendations we can provide to assist you when you are faced with such a situation.
Be polite
It is trite to say that if you are approached by an authority or body requesting information, it is prudent to be polite and considerate of that officer or representative, who is simply doing their job, as opposed to threatening them with charges of trespassing or assaults to their person.
If you listen quietly to the person’s request and express a preliminary desire to assist as much as you reasonably are able, the attendee will less likely pressure you into compliance and will provide you with the time necessary to make further investigations.
Be firm
As a professional, you are entitled to advise the officer or authority that whilst you wish to assist as much as possible, you must consider and act in the interests of your patients, in particular their privacy, which is your professional responsibility.
Accordingly, do not proffer any information or allow access to clinical records until the authority has established that they are authorised to make such enquiries or access such documents. As stated, the power to conduct such activities is governed by relevant statute. You are certainly entitled to request in writing under what statute they are empowered to make such enquiries and to sight this particular statute. We recommend that if you have any enquiries in relation to the authority of access in this regard, and are insured with Guild Insurance, they can arrange for Guild Legal to contact you and make the necessary enquiries on your behalf.
Advise your client
Whilst you are conducting investigations in relation to the inquirer’s authority, it would be prudent to advise, in writing if possible, the relevant patient/s of the investigation being conducted and exactly what information the inquirer is seeking. That way, if the patient has an issue with such a request, they can be directed to liaise directly with the inquirer. This will not exclude you from satisfying the inquirer’s requests but at least the patient will be aware of what is happening. If the inquirer is from the patient’s health insurer, the patient may even withdraw his or her consent for the insurer to access such information – a matter which the patient and health insurer will need to sort out.
Tell your insurer
As an inquiry by such an authority may reflect an issue by that authority against your patient or against your own practice, we strongly recommend that you advise your professional indemnity insurer so that the protection of your interests may be considered under the terms and conditions of your policy.
If you are insured with Guild Insurance, they can arrange for you to seek legal advice on the issue from Guild Legal.
Obtain legal representation
If you believe the inquiry may result in an adverse finding for you, either through an allegation of fraudulent claims on a health insurer or negligent treatment of a patient or like issue, immediately advise your professional indemnity insurer so that they can retain legal representation for you before you answer any questions or provide access to any documents.
Whilst you may still be obliged to answer any questions and/or provide copies of documents, a legal representative will ensure that, to the best of your ability, you will not incriminate yourself or breach your duties of confidentiality to your patients. If you are insured with Guild Insurance such assistance will be provided, subject to the terms and conditions of your policy, via arrangement with Guild Legal.
Complying with information requests
If you are satisfied that the inquirer is empowered to obtain such information, you must ensure that their inquiries are restricted to the relevant patient/s – for example, do not allow access to an appointment book which lists many of your patients.
The inquirer may seek copies of your clinical records and you are entitled to charge for search and/or copying fees.
Conclusion
Remember, if you are approached by an officer of an authority or government body, remain cool, calm and professional. Whilst being polite, do not relent to the person’s requests for information or access to documentation without ensuring their authority to do so first.
Should you have any concerns or be in doubt as to your next actions and are insured with Guild Insurance, contact them on 1800 810 213 to obtain the legal assistance available under the policy and ultimately, peace of mind.
Guild Insurance Limited AFSL No. 233791
