Case Citation:

V v Medical Practitioner [2007] PrivCmrA 24

Subject Heading:

Access to personal medical records used in legal proceedings

Law:

National Privacy Principle 6.1(e)

Facts:

The complainant was involved in a worker's compensation claim and underwent a medical examination requested by legal representatives of the company against which the claim had been made.

Following a tribunal decision in favour of the company, the complainant requested a copy of their complete medical records, as held by the medical practitioner who performed the examination. This included a copy of the clinical notes taken during the examination. The medical practitioner claimed that the notes had been virtually duplicated in reports tendered in the tribunal, to which the complainant had access. However, the medical practitioner denied access to the notes themselves. The medical practitioner claimed "medico-legal" professional privilege and stated that as the complainant was expected to appeal the original decision, the notes were part of ongoing legal proceedings.

Issues:

National Privacy Principle 6.1(e) states if an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual, except to the extent that:

(e) the information relates to existing or anticipated legal proceedings between the organisation and the individual, and the information would not be accessible by the process of discovery in those proceedings.

Outcome:

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

As the notes had been presented to the tribunal as part of a report submitted during the compensation case, the Commissioner was of the view that they had been accessible in the proceedings.

As the substance of the information had already been provided to the court, the medical practitioner could not rely on legal professional privilege to withhold the notes from the complainant. Consequently, the medical practitioner could not rely on the exception in National Privacy Principle 6.1(e).

Given these findings, the medical practitioner granted the complainant full access to the medical records, including the clinical notes.

Satisfied that the complaint had been adequately dealt with, the Commissioner closed the matter under section 41(2)(a) of the Privacy Act.

OFFICE OF THE PRIVACY COMMISSIONER August 2007