Greenleaf, Graham --- "ACT to legislate for health records access" [1997] PrivLawPRpr 23; (1997) 4(1) Privacy Law & Policy Reporter 13

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• Commonwealth approach rejected
  

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ACT to legislate for health records access

Australian Capital Territory Chief Minister, Kate Carnell MLA, announced on 19 May 1997 that the ACT would be the first jurisdiction in Australia to legislate for the right of consumers to have access to both public and private health records. The legislation will be based on the Information Privacy Principles in the Commonwealth Privacy Act 1988. The government has released a position paper, Health Records: Privacy and Access, for community consultation until mid-July, to be followed by the introduction of legislation into the Legislative Assembly later this year. She pointed out that at present ‘access and privacy protection for records varies greatly, depending upon where records are held. At the moment, only some public hospital patients and users of other government health services are able to see their files.’

Mrs Carnell said the ACT Government had decided to act because of the inconsistent treatment of private and public health records in the wake of the High Court’s decision that no common law right of access existed and that any change was up to parliaments [see Breen v Williams, discussed in (1996) 3 PLPR 106 — ed]. ‘This is a major issue that all governments, the health industry and consumer groups need to address in as co-operative a manner as is possible’, she said.

The legislation will also cover collection and disclosure of medical records, which are likely to be just as significant as the access rights. Mrs Carnell summarised the terms of the proposed privacy rights:

The legislation we plan to introduce will establish a series of privacy principles, relating to the collection, storage and use of information, which are consistent with those already contained in the Commonwealth’s Privacy Act. Disclosures of any information would be limited to the patient and members of a treating team. It may take the form of physical access, an explanation of a person’s records, or the provision of a copy of a records. There will be some limited exceptions to access, such as where information on a health record is provided in confidence by a third party, or where access is considered likely to result in harm to the consumer or another person. There will also be restrictions on access to records prepared prior to the passage of this new legislation.

The minimum charge for individual access is to be $20, with a maximum charge of $100 for copies.

Commonwealth approach rejected

Mrs Carnell has rejected the decision of the Commonwealth Health Minister, Dr Michael Wooldridge, to allow the medical profession to develop a voluntary code of conduct concerning access to health records. She says she will push for a national approach at the next meeting of State health ministers. In taking this approach, particularly in proposing to legislate for all aspects of medical privacy, the ACT has also partially rejected the Prime Minister’s call to the States not to legislate for privacy in the private sector.

A spokesman for Dr Wooldridge has said that federal laws have not been ruled out, but the government believed it would get a better response from doctors from a voluntary code, and would only endorse one if it gained ‘rock solid assurances’ that 99.9 per cent of access requests would be approved by doctors (Sydney Morning Herald, 20 May 1997). The doctor in Breen v Williams is presumably the lonely 0.1 per cent.

The position paper was developed by the ACT Commissioner for Health Complaints and the Department of Health and Community Care, following consultation with medical and consumer organisations such as the Consumers Health Forum and the Australian Medical Association. The president of the ACT Branch of the AMA, Colin Andrews, said the proposal was ‘a dog’s breakfast’ and the AMA’s ‘worst fears had been realised’, claiming that patient’s might go ‘doctor shopping’ if they had a right to see drafts of medico-legal reports or pre-employment reports (Canberra Times, 21 May 1997).

Copies of the position paper are available from the Department of Health and Community Care on [phone]. Submission should be made by 18 July by fax on [phone] or by mail to: Commissioner for Health Complaints, P.O. Box 1321, Canberra City ACT 2601 For further information, contact: Ken Patterson, Health Complaints Commissioner, [phone] Gary Dawson, Health Minister’s Office, [phone], 0412 487 504.

Graham Greenleaf, General Editor.