Do I own my medical records? Rights and access in personal injury compensation claims

Most people assume that they own their own medical records. After all, the records contain some immensely personal information about our health and medical treatment. In this article we look at who owns your medical records and who has access to them.

Almost 25 years ago the High Court of Australia determined that medical records are owned by the doctor, hospital or other health professional who creates and maintains that medical record, but that a patient had a general right to access those records.

States and territories across Australia have confirmed that right of access in legislation.

In Victoria, the relevant laws relating to access to medical records are:

• the Freedom of Information Act (for public hospitals and health services); and
• the Victorian Health Records Act 2001 (for individual doctors, health professionals and private hospitals).

These laws are supported by Australian privacy standards which establish a general rule that organisations are required to provide you with access to personal information (such as medical records) held about you.

Private health providers and organisations are entitled to charge fees for access (including for collation and copying records), according to a specific schedule published in the Health Records Act. Providers are not required to charge however, and may choose to provide access to health information without charging.

The fees which apply to accessing information under the Health Records Act are subject to limits.

For accessing information from public hospitals, the cost involved will vary according to each request. In some instances, the application fee normally payable for a Freedom of Information (FOI) request may be waived if you can provide evidence of financial hardship, Health Care Card or Pension Card.

While there are a number of legal protections which prevent third parties (such as your employer or insurers) from accessing your medical records, you generally waive these protections when making a claim for personal injury compensation or an insurance benefit in Victoria.

This is because making a claim for compensation or insurance benefits for personal injury will almost always involve an analysis of your medical records before and after sustaining and injury or disability.

For instance, if you suffer a back injury as a motorbike rider and make a claim for compensation, insurers, their lawyers and courts are entitled (within reason) to understand your medical history. In particular they will want to know whether you had a history of similar injuries or complaints, so that a ‘before and after’ comparison of your health, activities and lifestyle can be made.

As a result, when making a TAC or Workcover claim, when you lodge your claim you give the insurer permission to access your medical records and to contact your treating doctors.

In cases where your claim for compensation leads to litigation, courts, tribunals and medical panels have the power to require your doctor or other health treater to hand over health information which is relevant to your claim.

Additionally, a defendant (or their lawyers) can also require you to provide health information in your possession which is relevant to the claim, under a Court ordered process called “discovery”. They can also serve a subpoena on your treaters which requires them to provide relevant documents to a Court.

The health information which may or may not be relevant to a claim for compensation will be different in each case.

A failure to comply with a request for information in a compensation claim can lead to delays in the claim progressing, and can also increase the chances of a case (or the request for information) needing to be determined by a court or tribunal.

If an insurer or a lawyer requests information which you do not believe relates to your compensation claim, you should:

1. Have a discussion with your treating doctor about the information and ask whether they would be prepared to advise the person requesting the information that some or all of the information is irrelevant to the compensation injuries and should not be provided; and/or
2. Speak to your lawyer about how this information can be excluded from the claim or otherwise protected. You should explain why this information is not relevant to the claim being made. For instance, your claim for compensation may be for a back injury suffered at work and the documents requested might go to your gynaecological history. Having this conversation will allow your lawyer to make a plan regarding the information and may be resolved by the lawyer writing to the other party to explain why the request for information should be withdrawn or amended.