Women's Health Action - Patients' rights and ethics

Health records

McGoogan report provides reality check on progress on cervical screening - WHU April 2002
Health information at fingertips - WHU Jan 2002
Law changes for auditing the National Cervical Screening Programme: How far should they go? - Sandra Coney, Executive Director, Women's Health Action Trust Statement on Submission paper
Health Information & Technology Management Plan, Submission of WHA, 2000
Who's reading about me?, (article about various health databases, electronic records / systems, and the MOH's WAVE project), Penny St John, WHW Dec 2000
Who's been looking at my file? Medical records and centralised databases (report on efforts by WHA to get public discussion on proposals to introduce electronic record sharing), Sandra Coney, WHW June 1998
Privacy Commissioner scrutinises medical record databases (report on Privacy / Commissioner's report Medical record databases - just what you need?. This followed complaints from WHA and others regarding plans to introduce such systems), WHW June 1998
Records to be kept for 10 years (report on new law on retention of health records), WHW March/April 1997
Confidentiality of patient communications and records - What you must know, Warwick Gendall (report on paper to National Medico-Legal Conference, August 1992), WHW Oct/Nov 1992

Confidentialitv of Patient Communications and Records - What You Must Know

Warwick Gendall, barrister (to the National Medico-Legal Conference)

Medical confidence was primarily an ethical issue, while medical 'privilege' was an evidentiary rule that enabled a patient to prevent their communication to a doctor being given in evidence to a court or tribunal, Warwick Gendall said.

The doctor/patient relationship was a fiduciary one, ie, a relationship of absolute trust and good faith which gave the consulting patient the freedom to disclose. The doctor's dutyof faith carried a strong, ethical obligation to observe strict confidentiality.

In civil proceedings, under the Evidence Amendment Act (No 2) 1980, a doctor could not disclose, without the patient's consent, any communications made by the patient when the patient believed the communication was necessary to enable the doctor to examine, treat or act for the patient.

If a doctor was asked to give evidence on a patient's records or communications, a doctor was bound to attend. But, the patient's consent was needed for the doctor to give evidence. The 'privilege' belonged to the patient.

If consent was not given, the doctor must give evidence only on clinical data or diagnoses - not the patient's communications. This was unless the judge excused the doctor on the grounds of "breach of a duty of confidence".

Exceptions included when the sanity or testamentary capacity of the patient was in dispute, or if the communication was made to obtain life insurance, or for any criminal purpose. Unless the accused was being treated for drug dependency or a condition or behaviour which appeared as criminal conduct.

Patients' Records
They existed solely for the treatment of the patient. "If the welfare of the patient requires that he/she or their nominee - whether another doctor or not - see those records, then they should be made available if requested. They cannot be retained as the doctor's property," he said.

There was a difference between personal notes or aids to memory, and clinical data recorded in the notes. The patient was entitled to the latter. "It is not the notes but rather the information on them that must be made available if the patient requests." Also, lab reports, x-rays, letters to and from consultants, 'belong' to the patient in the sense that they have paid for them and are entitled to them in contract, he said.

The doctor's personal notes remained the doctor's property. It might be difficult to keep the categories separate, but doctors might be wise to try to. But, he said, if they were related to, or necessary to, the management of the patient they ought to form part of the clinical notes.

Full notes were "essential", he said, and many doctors had "paid the price" of having poor notes when asked to produce them.

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	Health records McGoogan report provides reality check on progress on cervical screening - WHU April 2002 Health information at fingertips - WHU Jan 2002 Law changes for auditing the National Cervical Screening Programme: How far should they go? - Sandra Coney, Executive Director, Women's Health Action Trust Statement on Submission paper Health Information & Technology Management Plan, Submission of WHA, 2000 Who's reading about me?, (article about various health databases, electronic records / systems, and the MOH's WAVE project), Penny St John, WHW Dec 2000 Who's been looking at my file? Medical records and centralised databases (report on efforts by WHA to get public discussion on proposals to introduce electronic record sharing), Sandra Coney, WHW June 1998 Privacy Commissioner scrutinises medical record databases (report on Privacy / Commissioner's report Medical record databases - just what you need?. This followed complaints from WHA and others regarding plans to introduce such systems), WHW June 1998 Records to be kept for 10 years (report on new law on retention of health records), WHW March/April 1997 Confidentiality of patient communications and records - What you must know, Warwick Gendall (report on paper to National Medico-Legal Conference, August 1992), WHW Oct/Nov 1992 back to top Confidentialitv of Patient Communications and Records - What You Must Know Warwick Gendall, barrister (to the National Medico-Legal Conference) Medical confidence was primarily an ethical issue, while medical 'privilege' was an evidentiary rule that enabled a patient to prevent their communication to a doctor being given in evidence to a court or tribunal, Warwick Gendall said. The doctor/patient relationship was a fiduciary one, ie, a relationship of absolute trust and good faith which gave the consulting patient the freedom to disclose. The doctor's dutyof faith carried a strong, ethical obligation to observe strict confidentiality. In civil proceedings, under the Evidence Amendment Act (No 2) 1980, a doctor could not disclose, without the patient's consent, any communications made by the patient when the patient believed the communication was necessary to enable the doctor to examine, treat or act for the patient. If a doctor was asked to give evidence on a patient's records or communications, a doctor was bound to attend. But, the patient's consent was needed for the doctor to give evidence. The 'privilege' belonged to the patient. If consent was not given, the doctor must give evidence only on clinical data or diagnoses - not the patient's communications. This was unless the judge excused the doctor on the grounds of "breach of a duty of confidence". Exceptions included when the sanity or testamentary capacity of the patient was in dispute, or if the communication was made to obtain life insurance, or for any criminal purpose. Unless the accused was being treated for drug dependency or a condition or behaviour which appeared as criminal conduct. *Patients' Records* They existed solely for the treatment of the patient. "If the welfare of the patient requires that he/she or their nominee - whether another doctor or not - see those records, then they should be made available if requested. They cannot be retained as the doctor's property," he said. There was a difference between personal notes or aids to memory, and clinical data recorded in the notes. The patient was entitled to the latter. "It is not the notes but rather the information on them that must be made available if the patient requests." Also, lab reports, x-rays, letters to and from consultants, 'belong' to the patient in the sense that they have paid for them and are entitled to them in contract, he said. The doctor's personal notes remained the doctor's property. It might be difficult to keep the categories separate, but doctors might be wise to try to. But, he said, if they were related to, or necessary to, the management of the patient they ought to form part of the clinical notes. Full notes were "essential", he said, and many doctors had "paid the price" of having poor notes when asked to produce them. back to top