Case Citation: 

K v Health Service Provider [2007] PrivCmrA 13

Subject Heading:

Access to medical records

Law:

National Privacy Principle 6 in Schedule 3 of the Privacy Act 1988 (Cth)

Facts:

The complainant sought access to two documents held by a medical centre. 

The medical centre denied access, arguing that to provide the complainant with the first of the requested documents would pose a risk to the complainant's health, and to provide access to the second document would impact upon the privacy of another individual.

The complainant wrote to the Privacy Commissioner to complain about the refusal to provide a copy of the documents.

Issues:

National Privacy Principle 6 provides that individuals may access personal information that organisations hold about them unless certain exceptions apply.  These exceptions address a range of situations including where there are serious health or safety risks for individuals (National Privacy Principle 6.1(b)) or there may be an unreasonable impact on the privacy of others (National Privacy Principle 6.1(c)).

National Privacy Principle 10, which deals with the collection of health information, may have also been relevant to this complaint.  However, it was not the case in this particular complaint as the collection of personal information occurred prior to 21 December 2001, when the private section provisions came into effect.

National Privacy Principle 6 is applicable as the information collected prior to 21 December 2001 was used and disclosed by the medical centre after that date.

Outcome:

The Privacy Commissioner investigated the matter under section 40(1) of the Privacy Act 1988 (Cth).

An external medical consultant, arranged via the Royal Australian and New Zealand College of Psychiatrists, was called in to judge whether disclosing the first set of documents posed a serious threat to the complainant's health.  The engagement of the external medical consultant was within the scope of the Commissioner's powers under section 27 of the Privacy Act.  The document was provided to the medical consultant for assessment with the complainant's consent. 

The medical consultant believed that the documents posed no such threat.  The Commissioner agreed with this, and decided the first document could not be withheld under National Privacy Principle 6.1(b).  The medical centre provided the complainant with a copy of the record.  The complainant was satisfied with this outcome and this aspect of the complainant was closed under section 41(2)(a) of the Privacy Act on the basis that it was adequately dealt with by the medical centre. 

In the case of the second document the complainant sought access to a copy of a letter a family member had sent to the medical centre concerning the complainant.  In deciding if access could be withheld the Commissioner took into account a number of factors that in combination enabled a reliance on National Privacy Principle 6.1(c).  Firstly, the family member had specifically requested the information not be released to the complainant; secondly, the family member had not been informed at the time of the possibility of the information being disclosed at a later time; and thirdly, the information was not of a commonplace nature, and so the disclosure of it would have serious consequences for the family member and their relatives.

In light of these factors, the Commissioner found that the medical centre was able to rely upon National Privacy Principle 6.1(c) in denying access to the second document.  The Commissioner subsequently closed this aspect of the complaint under section 41(1)(a) of the Privacy Act on the basis that withholding this record did not interfere with the complainant's privacy.

OFFICE OF THE PRIVACY COMMISSIONER

June 2007