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'Any Change in the Law must be for Parliament'
Breen v Williams and Patient Access to Medical Records
Ian Ireland
Law and Bills Digest Group
Major Issues
Introduction
The High Court Decision in Breen v Williams
The Facts
The Decision of Bryson J
The Decision of the New South Wales Court of Appeal
The High Court Decision
Implied Contractual Term
Proprietary Right
Fiduciary Duty
Right to Know
Government Response to Breen v Williams
Amendment to the Health Insurance Amendment Bill (No.
2) 1996
Arguments for and against the Creation of a Right
of Patient Access to Medical Records
Arguments for the Creation of a Right of Patient Access to
Medical Records
Arguments against the Creation of a Right of Patient Access to Medical
Records
Legislative Options for Creating a Patient Right
of Access to Medical Records
The Access to Health Records Act 1990 (UK)
Health Information Privacy Code 1994 (NZ)
Extension of Freedom of Information Legislation
The Senator Neal Option
A Commonwealth and State Co-operative Scheme
Concluding Comment
Endnotes
The High Court of Australia in Breen v Williams unanimously held
that under the common law a patient does not have a right of access to
inspect and or obtain copies of his or her medical records. In the course
of their judgments Justices Dawson, Gaudron, McHugh and Toohey pointed
out that any change in the law must come from the legislature.
Ms Breen appealed to the High Court from a decision of the NSW Court
of Appeal, which had dismissed her appeal by a 2:1 majority. The appeal
was based on four grounds:
- an implied contractual term between patient and doctor;
- a patient's proprietary right in the information in the medical records;
- a fiduciary relationship between patient and doctor; and
- a patient's 'right to know' all necessary information concerning his
or her medical treatment.
All of Ms Breen's arguments were rejected by all members of the High
Court.
Consumers of health care services in Australia have only a limited right
to their medical records, generally under Freedom of Information legislation.
In New Zealand, the United Kingdom, Canada and most States in the United
States, however, consumers of health care services have a legal right
of access to their medical records.
Consumer groups have been campaigning for more than a decade for recognition
of a patient right of access to medical records.
Patients have a non-statutory right to be informed of all relevant factual
information contained in medical records held by a private practitioner
through Australian Medical Association endorsed guidelines.
The Federal Government has not made clear its policy on patient access
to medical records.
On 13 December 1996 an amendment was moved in the Senate to the Health
Insurance Amendment Bill (No. 2) 1996 relating to patient access to medical
records. The amendment, which was subsequently negatived and referred
to the Senate Community Affairs References Committee for inquiry and report
by 25 March 1997, is the first attempt to establish a scheme of national
application creating a patient right of access to medical records.
Arguments for the creation of a right of patient access to medical records
are based on notions of individual rights. For example, the right to know
what personal information is held about oneself and to ensure that the
information is accurate is a fundamental privacy principle, and in the
United Kingdom, Canada, New Zealand and in most States in the United States,
patients have right of access to their medical records.
Arguments against the creation of a right of patient access to medical
records are largely based on practical difficulties. For example, much
of the information contained in medical records is incomprehensible to
the majority of patients and medical practitioners do not have the time
to explain complex medical terminology, or their notes, to their patients
and it is too costly for private practitioners to provide their patients
with access to their medical records.
Federal legislation creating a patient right of access to medical records
held in both the public and private sectors could be drafted in five ways:
(a) a separate Act along the lines of the United Kingdom legislation;
(b) extension of existing privacy legislation along the lines of the New
Zealand model; © extension of existing freedom of information legislation;
(d) legislation along the lines of that proposed by the Senate amendment;
and (e) a Commonwealth/State co-operative scheme.
It should be recognised that the scope of a federal legislative scheme
is subject to the Commonwealth Constitution. While it is beyond the scope
of this paper to detail the Commonwealth's constitutional power over health,
it is emphasised that it remains unclear whether the constitutional heads
of power on which the Commonwealth would have to rely would extend to
regulating all holders of medical records.
Putting aside constitutional concerns, if it is to be accepted that
patients should be more in control of their health care or should be better
able to understand who else has access to their medical records, then
it may be just a matter of time before a statutory right of patient access
to medical records will be created by the Australian Parliament. A comprehensive
regime similar to the New Zealand Health Information Privacy Code 1994
could be considered.
Consumers of health care services in Australia have only a limited right
to access their medical records, generally under Freedom of Information
legislation and certain State regulations governing private hospitals,
day procedure centres and nursing homes.(1) In contrast, health care professionals
and health insurance companies can all legally access personal medical
records.
Consumers of health care in New Zealand, the United Kingdom, Canada
and most States in the United States have a legal right of access to their
medical records.
Consumer groups have been campaigning for more than a decade for recognition
of a patient right of access to medical records. Consumer groups would
argue that by seeing their medical records, consumers of health care services
can become more involved and informed in their health care, more attentive
to it and more in control of it. They can better understand who else has
access to the information and thus be reassured that the information is
being kept confidential.(2)
A number of inquiries into Freedom of Information and the health care
industry have recommended that the law be reformed to provide consumers
with a right of access to their medical records and to protect their privacy.
A major issue in the debate in Australia has been the uncertainty of
the common law position on access to medical records. This issue has now
been resolved. In Breen v Williams(3) the High Court unanimously
held that under the common law a patient does not have any right of access
to inspect and or obtain copies of his or her medical records. The decision
of the High Court has sparked a call for legislative reform that would
give patients a right of access to their medical records.
The movement for legislative reform has been given added impetus by
a recent amendment moved in the Senate of the Australian Parliament. The
amendment, which was subsequently negatived and referred to the Senate
Community Affairs References Committee, is the first attempt to establish
a scheme of national application for providing patient access to medical
records.
The Federal Government has not formally responded to the High Court
decision in Breen v Williams and has not made clear its policy
on patient access to medical records. The former Federal Government gave
a commitment in 1995 to introduce legislation for patient access to medical
records.(4)
The Commonwealth Attorney-General's Department in a recent discussion
paper has proposed that legislation similar to the New Zealand model be
enacted to protect records containing personal information held within
the private sector.
This paper will: first, summarise the facts and judgments in Breen
v Williams; secondly, note the Government's response to Breen v
Williams; thirdly, summarise the recent amendment moved in the Senate
of the Australian Parliament relating to patient access to medical records;
fourthly, list certain of the arguments for and against the creation of
a patient right of access to medical records; and fifthly, outline federal
legislative options for the creation of patient right of access to medical
records.
The High Court Decision in Breen v Williams
The Facts
In 1977 Julie Breen underwent a mammaplasty which involved the insertion
of a silicone implant in each breast. Ms Breen subsequently developed
breast capsules (i.e. scar-like tissue around her breast implants). In
1978 Ms Breen consulted Dr Williams, who performed a capsulotomy operation.
In 1984, another surgeon removed the implants and performed a partial
mastectomy after he diagnosed Ms Breen as having a leakage of silicone
gel from one of the implants.
In 1993 Ms Breen sought from Dr Williams photocopies of documents
relating to her medical condition. The documents were sought as a consequence
of litigation in the United States against the Dow Corning Corporation,
who were the manufacturers of Ms Breen's breast implants. Australian litigants
were given an opportunity to 'opt in' to a settlement which had been given
conditional approval by a United States court. It was a condition of opting
in that copies of medical records in support of any claim be filed before
1 December 1994.(5)
Responding to Ms Breen's request for photocopies of documents relating
to her medical condition, Dr Williams said:
As [your solicitors] well know, it is a longstanding legal
tradition in the Country that such records are the doctor's property,
an aide memoire to his treatment of the patient, and may only be released
on production of a court subpoena.
Accordingly the advice which I have received from my Medical Defence
legal advis[e]rs is that this situation still holds, but that they would
be very happy for me to release your records, were you to supply me
with a document which would release me from any claim that might arise
in relation to my treatment of you.(6)
Ms Breen did not accept Dr Williams' offer and litigation ensued.
The Decision of Bryson J
Ms Breen commenced proceedings in the Equity Division of the Supreme
Court of New South Wales. Bryson J, in rejecting Ms Breen's claim of a
right to copy or to have access to the medical records, stated:
The [respondent] was not made the [appellant's] medical
adviser for the purpose of making him a collector or repository of information
for the [appellant] to have available to her for whatever purposes she
chose. Collecting and retaining information by him was a purpose of the
relationship, but it was a subsidiary purpose, to lead only to medical
advice and treatment to be administered by him or on his referral. It
is not in my judgment unconscionable for the [respondent] to retain the
information and keep it to himself except when and insofar as it is required
for the purpose of treatment by him. A doctor is not put in a position
to receive, compile and retain information for the very purpose of having
it available when it is required and for whatever purpose it is required.(7)
The Decision of the New South Wales Court of Appeal
On appeal a majority of the New South Wales Court of Appeal (Justices
of Appeal Mahoney and Meagher) agreed with the decision of Bryson J.
In his dissenting judgment, President of the Court Michael Kirby
cited with approval the decision the Supreme Court of Canada in McInerney
v McDonald(8) which held that the doctor-patient relationship was fiduciary
in nature and that a patient is entitled to reasonable access to examine
and copy the doctor's records. La Forrest J, writing for a unanimous Court,
stated:
Information about one's self revealed to a doctor acting
in a professional capacity remains, in a fundamental sense, one's own.
The doctor's position is one of trust and confidence. The information
conveyed is held in a fashion somewhat akin to a trust. While the doctor
is the owner of the actual record the information is to be used by the
physician for the benefit of the patient. The confiding of the information
to the physician for medical purposes gives rise to an expectation that
the patient's interest in and control of the information will continue.
The trust-like 'beneficial interest' of the patient in the information
indicates that, as a general rule, he or she should have a right of access
to the information and that the physician should have a corresponding
obligation to provide it.(9)
Kirby P would have granted Ms Breen's appeal in the following terms:
(a) DECLARE that the appellant has a right, upon request,
to be given reasonable access by the respondent to examine, copy and/or
at reasonable cost, to obtain copy of records or information concerning
her, created or obtained by the respondent in the course of providing
medical treatment or advice to her, being recorded in the medical records
or in other tangible form in the possession, custody or control of the
respondent, subject to the exclusion therefrom of such records or information
as the respondent may lawfully exclude from such access;
(b) DECLARE that the respondent may lawfully refuse to provide
access to the appellant to records and information in his possession:
(i) created or obtained solely for the benefit of the
respondent in the conduct of his practice or in respect of which he
may lawfully claim legal professional or other privilege;
(ii) the disclosure of which the respondent reasonably believes
is likely to cause serious harm to the physical or mental health of
the appellant; and
(iii) the disclosure of which would found an action for breach
of confidence;
(c) ORDER that the respondent provide the appellant with reasonable
access to records or information in his possession, custody or control
as aforesaid concerning the appellant, subject to the exclusion therefrom
of records and information in respect of which the respondent has a lawful
excuse for not providing access(10)
Mahoney JA, while dismissing Ms Breen's appeal, was prepared to recognise
that in some circumstances a patient may have or acquire a right to inspect
a medical file. Mahoney JA stated:
That right may exist because she is in law the owner of
the particular file; because of terms of the contractual arrangements
existing between the patient and the doctor in respect of it; because
the relationship between her and the doctor is of such a nature as to
give rise to that right; or for other sufficient reasons.(11)
For Mahoney JA none of the above reasons had been established by
Ms Breen.
Similarly, Meagher JA was prepared to recognise that a doctor may
owe a patient a fiduciary duty.(12) Meagher JA stated:
Whilst we must, of course, acknowledge that the list of
persons owing fiduciary duties is not closed, and the boundaries of fiduciary
duties uncertain in many respects, I can discover no principle analogous
to that which Mrs Breen asserts. A fiduciary relationship usually arises
where one dominant partner has some control over the property (and perhaps
the person) of another. In that respect one could not quibble about a
doctor being treated as owing a fiduciary duty towards his patient. But,
if this be so, it is generally only to generate the usual fiduciary duties
in certain circumstances-not to profit at his patient's expense (beyond
his agreed fees) and not to put himself in a position where his interest
would conflict with his patient's All this may be conceded, but it does
not amount to a demonstration that the doctor-patient relationship is
of a fiduciary nature such as to generate in the patient a right to inspect
the doctor's notes and records.(13)
The High Court Decision
Ms Breen appealed to the High Court from the majority decision of
the New South Wales Court of Appeal. Ms Breen's appeal was based on four
main grounds: an implied contractual term between patient and doctor;
a patient's proprietary right in the information in the medical records;
a fiduciary relationship between patient and doctor; and a patients 'right
to know' all necessary information concerning his or her medical treatment.
All of Ms Breen's arguments were rejected by all members of the High
Court. The reasons why Ms Breen's arguments were rejected are outlined
below.
Implied Contractual Term
All Justices of the High Court held that some form of contract exists
between doctor and patient. As this contract is generally informal the
courts are obliged to formulate the rights and obligations of the parties
to the contracts. As Gaudron and McHugh JJ stated:
... in cases where the parties to a contract have not attempted
to spell out all the terms of their contract, the function of the court
is 'simply to establish what the contract is, the parties not having themselves
fully stated the terms'.(14)
Ms Breen argued that there is an implied term in the doctor-patient
relationship which requires a doctor to act in the best interests of the
patient and that this includes an obligation to provide the patient with
access to medical records. None of the Justices of the High Court accepted
this argument.
Brennan CJ listed three situations where there is a common law contractual
duty on a doctor to provide a patient or their nominee with information
the doctor has acquired in the course of advising or treating the patient.
As stated by Brennan CJ:
... I would hold that information with respect to a patient's
history, condition or treatment obtained by a doctor in the course or
for the purpose of giving advice or treatment to the patient must be disclosed
by the doctor to the patient or the patient's nominee on request when
(1) refusal to make the disclosure might prejudice the general health
of the patient, (2) the request for disclosure is reasonable having regard
to all the circumstances and (3) reasonable reward for the service of
disclosure is tendered or assured.(15)
For Brennan CJ there was no evidence on the facts of the case to
suggest that access to the medical records might have been necessary to
diminish the possibility of prejudice to Ms Breen's health.(16)
Dawson and Toohey JJ, while acknowledging that the treatment of a
patient may require a doctor to provide a patient with information necessary
to ensure proper ongoing care, stated:
What can be said is that it was not necessary for the reasonable
or effective performance of that obligation [to provide reasonable skill
and care] that the respondent should be obliged to give the appellant
access to her medical records There can be no suggestion that it was an
established professional practice for a medical practitioner to afford
a patient access to the patient's medical records-the evidence was entirely
to the contrary-and in our view there is no foundation for the implied
term upon which the appellant relies.(17)
Gaudron and McHugh JJ held that the common law did not imply a term
in the contract between Dr Williams and Ms Breen that he always act in
her best interests or that she had a right of access to the medical records.
For Gaudron and McHugh JJ:
... the only relevant contractual term implied by law was
to exercise reasonable care and skill.(18)
Gummow J held that it could not be said that contractual terms which
entitled Ms Breen to examine medical records and obtain copies was necessary
for the reasonable or effective operation of the contract between Ms Breen
and Dr Williams.(19)
Proprietary Right
While Ms Breen conceded that she did not actually own the medical
records, she argued that she had a form of proprietary right or interest
in them that entitled her to access to them. None of the Justices of the
High Court accepted this argument.
Brennan CJ held that documents prepared by a professional person
to assist him or her perform their professional duties are not the property
of the client.(20) Brennan CJ stated:
In the light of that principle [documents prepared by a
professional are not the property of the lay client], it is not easy to
see what relevance the law of property has to the supposed right of the
appellant to access to the respondent's records. If (as it was put during
argument) the respondent is said to have no proprietary right that would
entitle him to refuse access, the question whether the appellant has a
right to be given access still remains. On that approach, the supposed
right (if any) must find some basis other than property. But even on that
approach, the argument is flawed. Absent some right to require, or the
exercise of some power to compel, production of a document for inspection,
its owner is entitled by virtue of the rights of ownership to refuse to
produce it. As for copying, where the professional person is the owner
of the copyright, he or she has the sole right to copy or to permit the
copying of the document.(21)
Dawson and Toohey JJ held that the relationship between doctor and
patient is a contractual one under which the doctor undertakes to treat
and advise the patient and use reasonable skill and care in doing so,
and that this does not afford a basis for a proprietary interest in records
kept by a doctor for carrying out that function.(22) In rejecting Ms Breen's
argument that she had a form of proprietary right or interest in the medical
records that entitled her to access to them Dawson and Toohey JJ stated:
The appellant's contention is, however, that the information
contained in the records can be separated from the records themselves
and it is in the information that the appellant has a proprietary right
or interest entitling her to access to the records. But there can be no
proprietorship in information as information, it belongs equally to them
both.(23)
Gaudron and McHugh JJ held that documents prepared by a professional
to assist them do work for a client are the property of the professional
person, not the lay person.(24) In addressing Ms Breen's contention that
she had a proprietary right or interest in the medical records, Gaudron
and McHugh JJ stated:
The premise of this argument was that the records were not
owned by anybody. However the idea that an item of personal property that
has not been abandoned has no owner is ill-founded. Ownership may be divisible
in the sense that one or more of the collection of rights constituting
ownership may be detached and vested in a number of persons. Ownership
may also be divorced from possession in numerous circumstances. But the
notion that personal property that has not been abandoned may have no
owner is one that is foreign to the common law. Statute or contract apart,
medical records, prepared by a doctor, are the property of the doctor.(25)
Gummow J held that the medical records were literary works for the
purposes of copyright law and that on the facts of the case there was
no evidence to support the existence of any copyright licence or consent
being given to Ms Breen, either expressly or impliedly.(26)
Fiduciary Duty
Ms Breen argued that the doctor-patient relationship is fiduciary
in nature and that a doctor is in breach of a fiduciary duty if he or
she does not provide a patient with reasonable access to his or her medical
records. None of the Justices of the High Court accepted the existence
of a fiduciary duty that carries with it a right of access on the part
of a patient to medical records.
Brennan CJ held that while the doctor-patient relationship is one
where the doctor acquires an ascendancy over the patient and the patient
is in a position of placing his or her trust in the doctor, this does
not give rise to a fiduciary duty to provide access to medical records.
Brennan CJ stated:
Such a relationship [doctor-patient] casts upon the doctor
the onus of proving that any gift received from the patient was given
free from the influence which the relationship produces. But in this case
the doctor has received no gift; he has taken no step to procure an advantage
for himself. Nor has he taken any advantage of his ascendancy over his
patient or of her trust in him. His refusal to give access to his records
does not deny his patient a benefit to which the patient was entitled
either by reason of his position as the appellant's medical adviser and
provider of medical treatment or by reason of the trust she reposed in
him to provide medical treatment.(27)
Dawson and Toohey JJ, while acknowledging that duties of a fiduciary
nature may be imposed on a doctor, also found no basis for the existence
of a fiduciary relationship between a doctor and patient that carries
with it a right of access on the part of a patient to medical records.
Dawson and Toohey JJ stated:
Whilst duties of a fiduciary nature may be imposed upon
a doctor, they are confined and do not cover the entire doctor-patient
relationship. Thus a doctor is under a duty to protect the confidentiality
of information given by a patient. And the doctor-patient relationship
is such that any substantial benefit received by the doctor from a patient
(other than proper remuneration) is presumed to be the result of undue
influence with the doctor bearing the onus of rebutting the presumption
We can find no basis in the law of this country for discerning a fiduciary
relationship between doctor and patient carrying with it a right of access
on the part of a patient to medical records complied by the doctor in
relation to that patient.(28)
Gaudron and McHugh JJ, while suggesting that the categories of fiduciary
relationships are not closed, held that a court cannot use the law of
fiduciary duty to impose an obligation on a doctor to maintain and provide
medical records to a patient. Gaudron and McHugh JJ stated:
In this country, fiduciary obligations arise because a person
has come under an obligation to act in another's interests. As a result,
equity imposes on the fiduciary proscriptive obligations-not to obtain
any unauthorised benefit from the relationship and not to be in a position
of conflict. If these obligations are breached, the fiduciary must account
for any profits and make good any losses arising from the breach. But
the law of this country does not otherwise impose positive legal duties
on the fiduciary to act in the interests of the person to whom the duty
is owned. If there was a general fiduciary duty to act in the best interests
of the patient, it would necessarily follow that a doctor has a duty to
inform the patient that he or she has breached their contract or has been
guilty of negligence in dealings with the patient. That is not the law
of this country In this country a court cannot use the law of fiduciary
duty to provide relief to Ms Breen which, if granted, would have the effect
of imposing a novel, positive obligation on Dr Williams to maintain and
furnish medical records to Ms Breen. It follows that Dr Williams does
not owe Ms Breen any fiduciary duty to give Ms Breen access to the medical
records that relate to his treatment of her.(29)
Gummow J held that to show a doctor owes a fiduciary duty in certain
circumstances to a patient does not demonstrate a right in the patient
to inspect and take copies of the notes and records of the medical practitioner.(30)
Right to Know
Ms Breen argued that there was a movement in the law of Australia
towards a recognition of a patient's right to know and that this was a
reason why the Court should hold a patient to have a right of access to
medical records concerning that person.(31) Ms Breen argued that this
movement is recognisable in Australian law in five ways: an acceptance
of the principle of personal inviolability; a rejection of a paternalistic
approach to the doctor-patient relationship; the rejection of the notion
that the patient's interests are to be determined solely by the medical
profession; the imposition of judicially imposed standards; and the acceptance
of patient autonomy.(32) None of the Justices of the High Court accepted
Ms Breen's arguments.
Dawson and Toohey JJ, with whom Brennan CJ concurred,(33) stated:
In any event, even if the movement in the law claimed by
the appellant were to exist it could have no significance where established
principle points to a clear conclusion as, in our view, it does in this
case.
No doubt considerations of policy (and that is what this part of
the appellant's argument involves) may justifiably influence the adaptation
or development of the law or the recognition of new categories where
that is open upon the basis of settled legal principle. But policy considerations
cannot justify abrupt or arbitrary change involving the abandonment
of settled principle in favour of a particular result which is merely
perceived as desirable
... There is more than one view upon the matter and the choice
between those views, if a choice is to be made, is appropriately for
the legislature rather than a court.(34)
Gaudron and McHugh JJ stated:
While recent decisions of Australian courts have rejected
the attempt to treat the doctor-patient relationship as basically paternalistic,
it would require a quantum leap in legal doctrine to justify the relief
for which [Ms Breen] contends.(35)
Gummow J stated that Ms Breen's argument for a legal doctrine of
the right to know was abandoned in the course of argument before the Court.(36)
Government Response to Breen v Williams
Neither the Federal Attorney-General nor the Federal Minister for
Family Services issued formal Government responses to the decision of
the Hight Court in Breen v Williams. However, in a radio interview of
12 September 1996 relating to an Attorney-General's Department discussion
paper on privacy protection in the private sector,(37) the Attorney-General
stated:
This is only a broad discussion paper suggesting a review
that might be developed through a consultation process. In its present
terms, we are not proposing any specific arrangements for medical records,
but obviously in the light of the decision of the High Court in Breen's
case, just recently, special consideration will need to be given to that,
and Dr Wooldridge, the Minister for Health and Family Services and I will
consider it in the course of the consultation process.(38)
While the formal position of the current government as to providing
patients with a right of access to medical records held by private doctors
and health care providers is at best ambiguous, it may be noted that the
Government did not oppose the referral of the amendments moved by Senator
Neal (ALP Shadow Minister for Consumer Affairs) on 13 December 1996 relating
to patient access to medical records to the Senate Community Affairs References
Committee. Senator Neal's amendments are discussed in a later section
of this paper.
It is interesting to note the position of the previous government
on patient access to medical records. On 13 December 1995, the then Minister
for Human Services and Health and the then Attorney-General announced:
... patients will have the right to access their medical
and health records held by private doctors and health care providers for
the first time.(39)
However, no details were forthcoming on how or when this access to
medical records would become available.
On 13 December 1996, Senator Belinda Neal (ALP Shadow Minister for
Consumer Affairs) moved an amendment to the Health Insurance Amendment
Bill (No. 2) 1996 relating to patient access to medical records.(40)
The amendment, which was subsequently negatived and referred to the
Senate Community Affairs References Committee for inquiry and report by
25 March 1997, is the first attempt to establish a scheme of national
application creating a patient right of access to medical records. The
proposed amendment made it a condition of receiving a Medicare benefit
that a person rendering a professional service (the provider) enter into
an agreement with the Health Insurance Commission (HIC) to allow access
to medical records that the provider holds about an individual if an application
is made in writing for that access by:
- the individual; or
- a person authorised in writing by the individual; or
- if the individual is not capable of managing his or her affairs,
a person appointed by a court to manage those affairs; or
- if the individual is dead-his or her executor or a person who may
have a claim arising out of his or her death.
The term 'medical record' was defined to mean a record containing
information about the individual's health, including his or her medical
history, information about any disabilities the individual has or has
had, or information provided by or for the individual in connection with
the donation by the individual of a body part or body substance of the
individual.
Under the proposed amendment, a provider agreement would enable the
provider to refuse access to medical records if the provider reasonably
believed that allowing the access would be likely to cause serious harm
to the mental or physical well being of an individual.
Other significant features of the proposed amendment included:
- access to medical records without paying a fee unless a copy or
extract is supplied to the applicant;
- provision for the correction or medical records, and
- an appeals mechanism for a review of a decision of the HIC that
Medicare benefits, or a specified amount of Medicare benefits, are not
payable.
As noted, Senator Neal's amendment has been referred to the Senate
Community Affairs References Committee. The full text of the motion referring
Senator Neal's amendment to the Committee is as follows:
... and that the amendments moved by Senator Neal in relation
to access to medical records be referred to the Community Affairs References
Committee for inquiry and report by 25 March 1997, with particular reference
to the appropriate scope of Commonwealth legislation in this area and,
in particular, the need for provisions including, but not limited to,
the areas of:
(a) the scope of the application of the scheme;
(b) mechanisms to protect the interests of patients and third parties
against potentially harmful disclosures;
(c) appropriate sanctions;
(d) mechanisms for decision-making and review of decisions;
(e) provision for parliamentary scrutiny and oversight of the arrangements;
and
(f) exemptions that should be applied to the scheme.(41)
As noted in the introduction to this paper, Justices Dawson, Toohey,
Gaudron and McHugh held that any change to the law relating to patient
access to medical records must come from the legislature.(42) The following
is a brief outline of arguments for and against the creation of a legislative
right of access to medical records. For the most part, the arguments for
are based on notions of individual rights, whereas those against are largely
based on practical difficulties.
Arguments for the Creation of a Right of Patient Access to Medical
Records
(a) The movement in recent times to providing patients with greater
autonomy demands that patients should be given all information to enable
them to make decisions about treatment options.
(b) It is a nonsense that patients have a right of access to medical
records held by public authorities but not to medical records held by
private practitioners.
(c) As patients already have a right of access to medical records
held by public authorities and access to medical records held by private
practitioners through the court processes of subpoena and discovery, the
recognition of a general right of access to medical records would be no
more than an extension of a pre-existing right.
(d) A right to privacy enshrined in article 17.1 of the International
Covenant on Civil and Political Rights, which Australia has ratified,
supports the proposition that the Federal Parliament should create a right
of access to medical records. The right to privacy has been interpreted
to include the capacity of the individual to control perceptions of themselves
contained in medical records. The Human Rights (Sexual Conduct) Act 1994
(Cth) is an example of the incorporation into federal law of a right to
sexual privacy which flowed from article 17 of the International Covenant
on Civil and Political Rights.(43)
(e) The right to know what personal information is held about oneself
and to ensure that the information is accurate is a fundamental privacy
principle.
(f) In the United Kingdom, Canada, New Zealand and in most States
in the United States, patients have right of access to their medical records.
(g) Kirby P in his New South Wales Court of Appeal dissenting judgment
in Breen v Williams listed nine reasons why the law should uphold the
patient's right of access to information in his or her medical records
held by a medical practitioner. As stated by Kirby P, these reasons included:
...
(2) The information concerns the personal integrity and autonomy
of the patient. Whilst the medical practitioner has some interest in
the records, that interest is secondary to the patient's, whose physical
and mental well-being is the very subject of them;
(3) Our society is more mobile today. Patients moving from one
place to another should not be obliged to depend upon the willingness
of a medical practitioner to provide access or to offer a summary. Whatever
may have been appropriate in earlier times, a summary is not now an
effective or adequate discharge of the duties to the patient inherent
in the medical relationship;
(4) Changes in technology, including information technology and
the technology of medical practice, make the provision of access to
a patient's information file (and, ordinarily, the provision of a printout
or copy) more realistic and inexpensive today than was hitherto the
case;
(5) Patients typically enjoy a different relationship to medical
practitioners (and other professionals) today than was the case in earlier
generations. Patients, mirroring the rest of the community, are typically
better educated, less blindly trustful, more assertive of their entitlement
to information about themselves and medical care and to legal or other
redress where this is not adequately provided. Rogers, in the High Court
of Australia, illustrates the way in which our law upholds patient's
reasonable rights, even as against settled practices and opinions of
the organised medical profession…
...
(7) The principles of common law and of equity should, so far as
possible, develop in an harmonious way with developments of statute
law. Such law has now afforded enforceable rights to access to medical
records held on a patient in a public hospital or in other public records,
both Federal and State. The Court was not made aware of any particular
difficulties which this development of the law had occasioned either
for the medical practitioners involved or for their relationships with
patients(44)
Arguments against the Creation of a Right of Patient Access to Medical
Records
(a) Access to medical records will promote and provoke baseless medical
malpractice litigation.
(b) Patients already have a right of access to medical records held
by private practitioners through the court processes of subpoena and discovery.
(c) Much of the information contained in medical records is incomprehensible
to the majority of patients.
(d) Medical practitioners do not have the time to explain complex
medical terminology, or their notes, to their patients and it is too costly
for private practitioners to provide their patients with access to their
medical records.
(e) The information contained in medical records could cause the
patient unnecessary distress.
(f) Medical practitioners would have to keep in mind patient's reactions
when making or annotating a patient's records and this would have an inhibiting
effect on the information recorded.
(g) Patients already have a non-statutory right to be informed of
all relevant factual information contained in medical records held by
a private practitioner. At its meeting on the 29th and 30th October 1993,
the Federal Council of the Australian Medical Association (AMA) endorsed
the following guidelines on patients' access to records concerning their
medical treatment:
The patient has a right to be informed of all relevant factual
information contained in the medical record, but all deductive opinion
therein recorded remains the intellectual property of the doctor or doctors
contributing to, or recognised employing hospital or other organisation
maintaining the record. Where appropriate, such deductive opinion may
be separately recorded.
On request, the patient should be informed of any or all content
of the following sections of the medical record;
History
Physical Examination Findings
Investigation Results
Diagnosis (Diagnoses)
Proposed Management Plan
The patient should be allowed access to any other contents of the
medical record (such as reports by specialists) beyond the materials
above specified only at the discretion of the doctor or doctors who
completed the additional section or sections, or by hospital administration
after consultation with the doctor(s) who completed such section or
sections, or as the result of a legal requirement.
Doctors and hospitals are entitled to recoup their costs of providing
information contained in a medical record from the patient or other
legally authorised request for the information.(45)
Federal legislation creating a patient right of access to medical
records held in both the public and private sectors could be drafted in
five ways: (a) a separate Act along the lines of the United Kingdom legislation;
(b) extension of existing privacy legislation along the lines of the New
Zealand model; © extension of existing freedom of information legislation;
(d) legislation along the lines of that proposed by Senator Neal; and
(e) a Commonwealth-State co-operative scheme. Each of these options is
outlined below.
It should be recognised that the scope of a federal legislative scheme
is subject to the Commonwealth Constitution. While it is beyond the scope
of this paper to detail the Commonwealth's constitutional power over health
and the constitutional problems inherent in establishing a federal scheme
providing patient access to medical records, it is emphasised that it
remains unclear whether the constitutional heads of power on which the
Commonwealth would have to rely would extend to regulating all holders
of medical records. It may be noted that a co-operative scheme involving
the Commonwealth and States would not be subject to these limitations.
The Access to Health Records Act 1990 (UK)
The Access to Health Records Act 1990 (UK) came into effect in November
1991. That Act was passed as a result of a decision of the European Court
of Human Rights which held that the refusal to allow access by the applicant
to certain health records was in breach of the European Convention for
the Protection of Human Rights and Fundamental Freedoms 1950.(46)
Under section 3 of the Act an application for access to a health
record, or to any part of a health record, may be made to the holder of
the record by any of the following:
- the patient
- a person authorised to make the application on the patient's behalf
- where the record is held in England and Wales and the patient is
a child, a person having parental responsibility for the patient
- where the record is held in Scotland and the patient is a pupil,
a parent or guardian of the patient
- where the patient is incapable of managing their own affairs, any
person appointed by a court to manage those affairs and
- where the patient has died, the patient's personal representative
and any person who may have a claim arising out of the patient's death.
The term 'health record' is defined in section 1(1) of the Act to
mean:
... a record which-
(a) consists of information relating to the physical or mental
health of an individual who can be identified from that information,
or from that and other information in the possession of the holder of
the record; and
(b) has been made by or on behalf of a health professional in connection
with the care of that individual;
The Act extends to health records made or held by both public and
private sector: registered medical practitioners; registered dentists;
registered opticians; registered pharmaceutical chemists; registered nurses,
midwives and health visitors; registered chiropodists, dietitians, occupational
therapists, orthoptists and physiotherapists; clinical psychologist, child
psychotherapists and speech therapists; art and music therapists employed
by a health service body; and a scientist employed by a health service
body as a head of a department.(47)
Section 5(1) of the Act places limits on the right of access to health
records. Section 5(1) provides:
Access shall not be given under section 3(2) above to any
part of a health record-
(a) which, in the opinion of the holder of the record, would disclose-
(i) information likely to cause serious harm to the physical
or mental health of the patient or of any other individual; or
(ii) information relating to or provided by an individual, other
than the patient, who could be identified from that information; or
(b) which was made before the commencement of this Act.
The third party identification exclusion contained in paragraph 5(1)(b)
does not apply where the individual has consented to the application,
or where the individual is a health professional who has been involved
in the care of the patient.(48)
The Act also provides, where necessary, for an explanation of terms
used in a health record.(49) Where an individual considers that information
in a health record is misleading or incomplete, section 6 of the Act provides
a right to request that the record be corrected. Where the holder of the
health record agrees with the request a copy of the correction must be
provided to the person requesting the correction. Where the holder refuses
a request, a note of the matters in respect of which the information is
considered to be inaccurate is to be attached to the health record and
a copy of the note provided to the person requesting the correction.
Review of a decision to refuse access to a health record is by application
to a court.(50) Where a court finds the holder of a health record has
failed to comply with any requirement of the Act, the court may order
the holder to comply with that requirement.(51) For the purpose of determining
any question whether an applicant is entitled to be given access to any
health record, or any part of a health record, the court may require the
record, or part thereof, to be made available for its own inspection,
but must not, pending determination of the matter in the applicant's favour,
require the record or part of it to be disclosed to the applicant or their
representative.(52)
Health Information Privacy Code 1994 (NZ)
The New Zealand Privacy Act 1993 provides for codes of practice to
be issued by the Privacy Commissioner to regulate the information practices
of particular agencies and sectors. The first code to be issued under
the Act was the Health Information Privacy Code 1993 (temporary). The
1993 Code was subsequently replaced by the Health Information Privacy
Code 1994.
The Code operates in conjunction with the Privacy Act 1993 (NZ),
that is, where there is no specific provision within the Code regulating
a matter, the Privacy Act applies. A breach of the Code has the same effect
as a breach of the equivalent provision under the Act and attracts all
the Act's remedies.
The Code applies to the following information or classes of information
about an identifiable individual:
- information about the health of that individual, including their
medical history
- information about any disabilities that individual has, or has
had
- information about any health services or disability services that
are being provided, or have been provided, to that individual
- information provided by that individual in connection with the
donation, by that individual, of any body part or any bodily substance
of that individual or derived from the testing or examination of any
body part, or any bodily substance of that individual or
- information about that individual which is collected before or
in the course of, and incidental to, the provision of any health service
or disability service to that individual.(53)
It may be noted that the Code applies only to health information
about identifiable individuals.
The Code lists the categories of organisations and health professionals
who are defined as 'health agencies' and bound by the Code. These include:
- an agency which provides health or disability services
- within a larger agency, a division or administrative unit (including
an individual) which provides health or disability services to employees
of the agency or some other limited class of persons
- the Public Health Commission, a regional health authority, or an
agency declared by the Minister of Health to be a purchaser for the
purposes of the Health and Disability Services Act 1993 (NZ)
- an agency having statutory responsibility for the registration
or discipline of professionals under a health registration statute and
- an agency which provides services in respect of health information,
including an agency which provides those services under an agreement
with another agency.(54)
Rule 1 of the Code provides that health information must not be collected
by any health agency unless for a lawful purpose connected with a function
or activity of the health agency and the collection is necessary for that
purpose.
Rule 3 of the Code requires a health agency to give certain explanations
to the individual when it collects information from that person, including:
- the fact that the information is being collected
- the purpose for which the information is being collected
- the intended recipients of the information
- the consequences (if any) for that individual if all or any part
of the requested information is not provided and
- the rights of access to, and correction of, health information
provided by rules 6 and 7.
Rule 3 of the Code also extends to representatives of a child or
of a person unable to exercise their rights (e.g. where the individual
has a disability).
Rule 6 of the Code provides individuals, or their representatives,
to a right of access to personal health information, providing that information
is held in a way that is readily retrievable. Where an individual is given
access to health information, they must be advised that under rule 7 of
the Code they may request the correction of the information. This rule
applies to health information obtained before or after the commencement
of the Code.
Under Rule 7 of the Code, where a health agency is not willing to
correct a person's health information in accordance with their request,
the agency must take such steps, as are reasonable, to attach to the information,
any statement provided by the individual of the correction sought. The
person seeking the correction is not entitled to physically change their
health information themselves, but is entitled to see and authorise any
correction made by a health agency. Rule 7 of the Code applies to health
records composed before or after the commencement of the Code.
A health agency can only refuse to provide access to health information
in the circumstances specified in Part IV of the Act. Where information
is withheld the individual being refused access is entitled to be given:
the reason for the refusal; if the individual so requests, the supporting
grounds for the refusal; and information concerning the individual's right
to make a complaint to the Privacy Commissioner and to seek an investigation
and review of the refusal.(55)
Under Part IV of the Act, a health agency may refuse to provide access
to health information for reasons including:
- likely to prejudice the security or defence of New Zealand or the
international relations of the Government of New Zealand
- likely to prejudice the maintenance of the law, including the prevention,
investigation, and detention of offences, and the right to a fair trial
- likely to endanger the safety of any individual
- would involve the unwarranted disclosure of the affairs of another
individual or of a deceased individual, and
- would breach an express or implied promise which was made to the
person who supplied the information and which was to the effect that
the information or the identity of the person who supplied it or both
would be held in confidence.
Rule 9 of the Code prohibits a health agency from retaining health
information for longer than is required for any lawful use. The destruction
of a document containing health information is not required if it is necessary
or desirable to retain that information to provide health or disability
services to the individual concerned. Rule 9 of the Code applies to health
information obtained before or after the commencement of the Health Code.
Rule 10 of the Code prohibits the use of health information for purposes
other than the purpose it was obtained for, unless one of the specified
exceptions apply. The exceptions include:
- that the use of the information is authorised by the individual
concerned or their representative where the individual is unable to
give their authority
- the purpose for which the information is used is directly related
to the purpose in connection with which the information is obtained
- the source of the information is a publicly available publication,
and
- the use of the information is necessary to prevent or lessen a
serious and imminent threat to public health or public safety, or the
life or health of the individual or another individual.
Rule 11 of the Code lists the circumstances where a health agency
may disclose health information. These include:
- that the use of the information is authorised by the individual
concerned or their representative where the individual is unable to
give their authority
- the purpose for which the information is used is directly related
to the purpose in connection with which the information is obtained
- the disclosure of the information is essential to facilitate the
sale or other disposition of a business as a going concern
- disclosure of the information is required for the purpose of a
professionally recognised accreditation of a health or disability service,
a professionally recognised external quality assurance programme, or
for risk management assessment
- to avoid prejudice to the maintenance of the law by any public
sector agency, including the prevention, detection, investigation, prosecution
and punishment of offences, or
- the use of information is necessary to prevent or lessen a serious
and imminent threat to public health or public safety, or the life or
health of the individual or another individual.
Complaints of a breach of the Code must initially be directed through
the relevant health agency which must designate a person/s to deal with
complaints. Complainants also have a right under the Act to complain to
the Privacy Commissioner. Civil proceedings may be brought before the
Complaints Review Tribunal where complaints have not been resolved. The
Tribunal has authority to grant a number of remedies, including: damages
up to $NZ 200 000, restraining orders, orders requiring certain actions
to be taken, and declarations.
The Commonwealth Attorney-General's Department in a recent discussion
paper has proposed that legislation similar to the New Zealand model be
enacted to protect records containing personal information held within
the private sector.(56)
Broadly, the approach of the Attorney-General's Department would
involve the application of statutory Information Privacy Principles (IPPs)
to the collection, storage and security, access and correction, use and
disclosure of personal information to the private sector. Enforceable
Codes of Practice based on the IPPs would be developed for particular
industries.(57)
Extension of Freedom of Information Legislation
The Commonwealth, all the States and the Australian Capital Territory
have freedom of information legislation which provides individuals with
a right of access medical records held by public authorities.(58)
The scope of existing freedom of information legislation could be
extended into the private sector. Existing exclusions, such as that contained
in section 41(3) of the Freedom of Information Act 1982 (Cth) could be
retained if this option were adopted. Section 41(3) provides an exception
to access where disclosure might be prejudicial to the physical or mental
health of the applicant.
It is should be noted that the Australian Law Reform Commission (ALRC)
and Administrative Review Council (ARC) have rejected the idea of extending
freedom of information legislation to the private sector,(59) but in relation
to access to medical records proposed the extension of the Privacy Act
1988 (Cth).(60)
The ALRC and ARC rationale for not recommending a general extension
of the Freedom of Information Act 1982 (Cth) to the private sector was
that:
... the democratic accountability and openness required
of the public sector under the FOI Act should not be required of the private
sector. As a general rule, private sector bodies do not exercise the executive
power of government and do not have a duty to act in the interest of the
whole community. Private sector bodies should not be under an obligation
to disclose to any member of the public any document in their possession
In the Review's view strong justification would be needed to subject private
sector bodies to the additional resource burden and potential threats
to commercial operations that could result from a general extension of
the FOI Act. The Review does not consider that such justification exists.(61)
In relation to access to medical records, the ALRC and ARC stated:
The Review considers that access to health and medical records
in the private sector could be dealt with in the context of a comprehensive
national privacy regime. The importance of this issue points to the need
for a national regime to be implemented quickly.(62)
The stated ALRC and ARC rationale for extending the Privacy Act 1988
(Cth) in relation to medical records included:
The Review considers that people should have access to their
personal medical records whether they are held in the private or public
sector. The Review does not consider that that extending the Privacy Act
to the private sector will place undue hardship on private medical practitioners.(63)
The Senator Neal Option
As noted, Senator Neal's proposed amendment made it a condition of
receiving a Medicare benefit by a person rendering a professional service
(the provider) to enter into an agreement with the Health Insurance Commission
(HIC) that they allow access to medical records that they hold about an
individual if an application is made in writing for that access by certain
persons.
The amendment proposed by Senator Neal was minimalist in its scope,
that is, it only applied to a 'professional service' as defined in section
3 of the Health Insurance Act 1973.(64) The amendment does not: extend
to public hospitals; regulate the collection, storage, security and disposal
of medical records; regulate the retention of medical records; or regulate
the use and disclosure of medical records. It may be possible to extend
Senator Neal's minimalist model to public hospitals by making it a condition
of the receipt of payments for hospital services under the Health Insurance
Act 1973 that an agreement be entered into between a hospital and the
HIC. It should be recognised, however, that the Commonwealth does not
directly fund public hospitals.
However, it may be noted that it would be possible to construct a
legislative scheme making health grants to the States and Territories
subject to a requirement that the States and Territories require all holders
of medical records to provide patient access to those records.
A Commonwealth and State Co-operative Scheme
A co-operative Commonwealth and State scheme is also a legislative
option for creating a patient right of access to medical records. The
advantages of such a scheme include uniform laws throughout Australia
while State control is retained and avoidance of any Commonwealth constitutional
uncertainties. Disadvantages include that implementation and amendments
would require unanimous agreement and enactment.
The High Court of Australia in Breen v Williams unanimously held
that under the common law a patient does not have a right of access to
inspect and or obtain copies of his or her medical records.
In contrast to health care professionals and health insurance companies,
consumers of health care have only a limited right to access their medical
records.
There is a movement in developed nations to provide patients with
all the information that enables them to make informed decisions about
treatment options.
Is it to be accepted that patients should be more in control of their
health care? Is it to be accepted that patients should be more involved
and informed of their health care? Is it to be accepted that patients
should be better able to understand who else has access to their medical
records?
Putting constitutional concerns aside, if the answer to each of the
above questions is 'yes' then it may be just a matter of time before a
statutory right of patient access to medical records will created by the
Australian Parliament. A comprehensive regulatory regime similar to the
New Zealand Health Information Privacy Code 1994 could be considered.
- Under the New South Wales Private Hospitals Regulation 1990, Day
Procedure Centres Regulation 1990 and Nursing Homes Regulation 1990,
patients treated in private hospitals, day procedure centres and residents
or former residents of nursing homes can gain access to their medical
records by making a written request to the licensee of the health establishment.
As soon as practicable, the licensee must make the medical record available
for inspection to the patient, the patient's representative or a person
nominated by the patient or their representative. There are certain
exceptions to this access including if the medical practitioner in charge
of the patient's care advises that the request should be refused because
it would be prejudicial to the patient's physical or mental health.
The patient or the patient's representative must be given reasons why
the request for access to the medical record has been denied. Where
the patient or their representative disagrees with the information contained
in the record, their own comments must be attached to the record on
request. A patient or their representative may appeal to the Director-General
of the Health Department against a decision of a licensee to refuse
access to the patient's clinical record.
- Public Interest Advocacy Centre, Whose Medical Records? - An Issues
Paper, May 1996.
- (1996) 70 ALJR 772.
- Minister for Human Services and Health, Press Release, 13 December
1995.
- It may be noted that Ms Breen could have obtained access to the
medical records by compulsory court process. Ms Breen could have applied
for an order for discovery of the records through the equitable jurisdiction
of the Supreme Court of New South Wales. Another avenue for obtaining
the records was by way of letters rogatory. As stated by Dawson and
Toohey JJ:
These were obtained by from the United States court
by several litigants in her position and orders were made by the Supreme
Court of New South Wales compelling the production of medical records
to the Court in aid of the United States proceedings. The appellant
did not avail herself of this procedure because, she said, the time
available was too short; supra, note 3 at 777.
Kirby P, in his dissenting judgment in the New South Wales
Court of Appeal, stated:
There is no doubt that access to the medical records could
be secured by compulsory court process. Letters rogatory were secured
from Judge Pointer in the case of several litigants. These in turn,
resulted in orders by judges of the Supreme Court of this State
for compulsory production of medical records to the Court in aid
of the United States proceedings. The costs, delays and complications
of this procedure were, self-evidently, significant. The time available
was short. It was therefore decided by those advising Ms Breen and
others in a like position (said to number 2,000 in a group represented
by Ms Breen's solicitors and others in co-operation) to launch a
"test case"; Breen v Williams (1994) 35 NSWLR 522 at 527.
- supra, note 3 at 778.
- Quoted by Gummow J in Breen v Williams, id. at 796.
- (1990) 66 DLR 479.
- Quoted by Kirby P in Breen v Williams, supra, note 8 at 545.
- id. at 550.
- Breen v Williams (1994) 35 NSWLR 522 at 551.
- A fiduciary duty is a relationship where one person is bound to
exercise rights and powers in good faith for the benefit of another.
As Brennan CJ states in Breen v Williams:
Fiduciary duties arise from either of two sources, which
may be distinguished one from the other but which frequently overlap.
One source is agency; the other is a relationship of ascendancy or
influence by one party over another, or dependence or trust on the
part of that other: supra, note 1 at 776.
- supra, note 8 at 570.
- supra, note 3 at 787.
- id. at 774.
- id.
- id. at 781.
- id. at 789.
- id. at 800.
- id. at 775.
- id.
- id. at 780.
- id.
- id. at 786.
- id. at 787.
- id. at 802.
- id. at 776.
- id. at 781 & 785.
- id. at 794.
- id. at 807.
- id. at 794 per Gaudron & McHugh JJ.
- id.
- id. at 777.
- id. at 785 & 786.
- id. at 794.
- id. at 799.
- Attorney General's Department, Privacy Protection in the Private
Sector Discussion Paper, AGPS, September 1996.
- P.M., 12 September 1996.
- Minister for Human Services and Health, Press Release, 13 December
1995.
- Senate Hansard [Proof], 14 December 1996, at 6968.
- id., at 6972.
- supra, note 3 at 786 per Dawson and Toohey JJ; at 795 per Gaudron
and McHugh JJ.
- Article 17 of the International Covenant on Civil and Political
Rights provides:
1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor
to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against
such interference or attacks.
- supra, note 8 at 547 & 548.
- Quoted by Gummow J, supra, note 3 at 795.
- id., at 784.
- Section 2, Access to Health Records Act 1990 (UK).
- id., Section 5(2).
- id., section 3(3).
- id., section 8.
- id., section 8(1).
- id., section 8(4).
- Subclause 4(1), Health Information Privacy Code 1994 (NZ).
- id., subclause 4(2).
- Section 44, Privacy Act 1993 (NZ).
- supra, note 37.
- id., at 4.
- Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW)
Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1982 (Qld)
Freedom of Information Act 1991 (SA)
Freedom of Information Act 1992 (WA)
Freedom of Information Act 1989 (ACT)
- Australian Law Reform Commission and Administrative Review Council,
Open government: a review of the Freedom of Information Act 1982, ALRC
Report No. 77 & ARC Report No. 40, December 1995, at 197.
- id., at 208.
- id. at 195 and 196.
- id., at 207.
- Australian Law Reform Commission and Administrative Review Council,
Freedom of information, Discussion Paper No. 59, May 1995 at 127.
- The term 'professional service' is defined by section 3 of the
Health Insurance Act 1973 (Cth) to mean:
(a) a service (other than a diagnostic imaging service)
to which an item relates, being a clinically relevant service that is
rendered by or on behalf of a medical practitioner; or
(b) a prescribed medical service to which an item relates, being
a clinically relevant service that is rendered by a dental practitioner
approved by the Minister for the purposes of this definition; or
(ba) a service specified in an item that is expressed to relate
to a professional attendance by an accredited dental practitioner, being
a clinically relevant service that is rendered by an accredited dental
practitioner to a prescribed dental patient; or
(c) a service specified in an item that is expressed to relate
to a professional attendance by a participating optometrist, being a
clinically relevant service that is rendered by an optometrist, being
a participating optometrist or an optometrist acting on behalf of a
participating optometrist; or
(d) a pathology service that is rendered by or on behalf of an
approved pathology practitioner pursuant to a request made in accordance
with subsection 16A(4) by:
(i) a treating practitioner; or
(ii) another approved pathology practitioner to whom the treating
practitioner has made a request for the service; or
(e) a pathology service (other than a service referred to in paragraph
(d)) that is a clinically relevant service rendered by or on behalf
of an approved pathology practitioner other than a medical practitioner;
or
(f) a diagnostic imaging service that is rendered by or on behalf
of a medical practitioner pursuant to a subsection 16B(1) request; or
(g) a diagnostic imaging service (other than a service referred
to in paragraph (f)) that is a clinically relevant service rendered
by or on behalf of a medical practitioner.
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