Case Citation: 

B v Surgeon [2007] PrivCmrA 2

Subject Heading:

Access to medical records.

Law:

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

Facts:

The complainant had been the patient of the respondent who was a surgeon and had sought a copy of their medical records from the surgeon. 

The surgeon advised the complainant that they could view their medical record under the supervision of a staff member of the surgery but they would not provide the complainant with a copy of the medical record as it was not the policy of the surgery to do so.  The complainant wrote again to the surgeon seeking a copy of the medical record, or in the alternative, an explanation as to why the surgeon could not give the complainant a copy of the medical record.

The surgeon wrote to the complainant indicating that it remained the surgery's policy not to provide copies of medical records to patients.  However, the surgeon reiterated that the complainant could access their medical record by viewing it under the supervision of a staff member.  The surgeon also advised that the report could be provided to the complainant's surgeon of choice.  The complainant wrote to the Privacy Commissioner to complain about the surgeon's refusal to provide a copy of the medical record.

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 and imminent health or safety risks; there may be an unreasonable impact on the privacy of others; where providing access would be unlawful; or providing access would reveal certain evaluative information generated by the organisation.  

While National Privacy Principle 6 does not specify the form of access it is the Commissioner's view that access should generally be provided in the form requested by the individual.

The issue for the Commissioner was whether the surgeon could claim an exemption under National Privacy Principle 6 and if not whether the surgeon's offer to provide the complainant's information to another surgeon constituted providing access.

Outcome:

The Commissioner conducted preliminary inquiries into the matter under section 42 of the Privacy Act asking the surgeon why they were not willing to provide the complainant with a copy of the medical record.

The surgeon stated that they had advised the complainant that a medical report detailing the complainant's medical history could be forwarded to a surgeon of the complainant's choice.  The surgeon also stated that they had offered to assist the complainant by allowing them to view their medical record under staff supervision.

The surgeon argued that because the complainant did not have a medical background it would be difficult for them to interpret the notes on their medical record and could result in possible misunderstanding about their health. 

The Commissioner advised the surgeon that access should generally be provided in the form requested by the individual and that in this case the Commissioner did not consider that the surgeon had given satisfactory advice as to why the individual could not be provided with a copy of the record.

In the interests of resolving the matter the surgeon responded by making an offer to provide the complainant with copies of some of the complainant's records at a reasonable administrative cost to the complainant.  However the surgeon advised that this did not include copies of consent forms, quote sheets and registration pages.  The surgeon said that the reason these documents were excluded was because the surgeon considered them commercially sensitive as they were generated with templates specifically designed by the surgeon and the surgeon did not want these documents made available to commercial competitors.  

The complainant accepted this offer and paid the relevant administrative cost for the records.  The Commissioner did not form a view on whether the Privacy Act required the surgeon to provide access to the material that was withheld.  On confirmation that the complainant had received copies of the relevant documents the Commissioner was satisfied that the respondent had sufficiently addressed the complaint and closed the complaint under section 41(2)(a) of the Privacy Act on the grounds that the respondent had adequately dealt with the complaint. 

OFFICE OF THE PRIVACY COMMISSIONER

April 2007