Privacy Law and Policy Reporter
The question of whether people have a right of access to their own medical records is one that surprisingly few Australian courts have had to consider. Until recently, there has been no Australian authority directly on this question. On 10 October 1994, Bryson J of the NSW Supreme Court handed down his judgment in the matter of Breen v Williams, and in doing so, dealt a severe blow to the argument that every individual should have a legally enforceable right of access to his or her medical records.
The plaintiff, Julie Breen, sought access to the records of Dr Cholm Williams, a plastic surgeon who had provided advice and treatment to her in relation to silicone breast implants she had received in 1977. She was contemplating legal proceedings against the manufacturer of the implants, and believed that Dr Williams' records could be relevant to those proceedings. She did not voice any complaints about the treatment provided by Dr Williams, and there was no suggestion that he was a likely co-defendant in any legal proceedings.
It was common ground between the parties that if the plaintiff were to commence proceedings against the manufacturer of the breast implants, she would be able subject to the court's discretion to obtain access to Dr Williams' records on subpoena. Ms Breen wished, however, to test her right to have access to her records independently of a court subpoena.
When Ms Breen had first requested access to her records from Dr Williams, he had written to her stating that he would be prepared to provide her solicitor with copies only if she first agreed to release him from liability in relationto his treatment of her. Ms Breen contended that this condition was unconscionable.
At the hearing, however, Dr Williams argued that Ms Breen should not be permitted access to her records regardless of whether a release was signed. He maintained that the records belonged to him and contained ''conclusions, commentary and musing' which were private to him and which would be recorded differently if his patients were entitled to have access to their records at any time. He expressed concern that his patients would be caused confusion and unnecessary worry and stress if their notes were made available to them without adequate explanation. He offered to provide Ms Breen with a report that contained what he considered to be the relevant information for her purposes, but did not agree to give her access to the original notes themselves.
The case was acknowledged by both parties and by the judge to be a test case on the question of patient access to records. It needs to be understood in the light of developments in recent years, both in Australia and overseas, that have moved towards permitting greater rights of access by individuals to medical information about them held by third parties.
In Australia, freedom of information legislation now entitles all patients in public hospitals to have access to their medical records, subject only to an exemption for information which might be harmful to their health or well-being. Many private hospitals and individual doctors have followed suit by adopting a policy of providing copies of a patient's record upon request. This perhaps partly explains why it has taken until now for a test case to reach Australian courts.
In the UK, the Access to Health Records Act 1990 enacted a general right of access by individuals to all medical records, both public and private. Just a short while later, the decision of the Supreme Court of Canada in McInerney v MacDonald (1992) 93 DLR (4th) 415 held that while the records themselves are the property of the doctor, patients have a right of access based upon the fiduciary duty owed by doctor to patient. This fiduciary duty had been recognised by US courts for many years.
Against this background, Bryson J's decision in the Breen case is a marked departure from the trend in recent years towards greater access to records. He held that Dr Williams was not obliged to make Ms Breen's record available to her, whether on the basis of principles of ownership, rights at common law, equitable notions of unconscionability or fiduciary duty, or the recognition in international law of the right of self-determination.
The question of ownership has often been given great importance in debates about rights of access to records and often inappropriately so, because of a failure to distinguish between ownership of the physical records themselves and rights in relation to the information they contain. Bryson J held that Ms Breen's records always remained the property of Dr Williams since they were created by him primarily for his own use and were never intended to become the property of the patient.
He then turned to consider whether a right of access might exist that would override Dr Williams' prima facie right, as owner, to control the records. He found that there was no common law authority that recognised a patient's right to have access to medical records. Somewhat surprisingly, he relied upon the High Court's decision in Rogers v Whitaker  HCA 58; (1993) 175 CLR 479 which established the legal duty of doctors to disclose all relevant information to patients to enable them to make informed treatment decisions as authority for denying access to records, on the basis that the High Court had limited the duty of disclosure to only that information that was material to the patient's treatment decision. In fact, the High Court in Rogers v Whitaker made no mention of access to medical records, and its decision which emphasised the right of patients to make their own decisions about medical treatment could more easily be used to justify recognising a general right of access.
Bryson J then went on to consider whether a right of access to medical records could be derived from the equitable doctrines of unconscionability or breach of fiduciary duty. He held that to do so would be to make new law in Australia, and he was unconvinced as to the desirability of extending equitable principles in this way. Moreover, he found that doctors themselves have an interest in the information contained in medical records which must be protected:
The doctor has his own position, independent of the patient, and is not the delegate of the patient to collect the information, or to do anything. The fact that he has collected the information, and retained it, is an economic advantage of his in relation to being further consulted by the patient, and it is legitimate for him to have this advantage and keep it for himself, while by contrast it would in my judgment be markedly unfair if any patient could decide to cease consulting a doctor and to consult someone else, but at the same time have an entitlement to take to the new adviser everything which the earlier doctor had kept on record.
To recognise the doctor's ''economic' interest in the medical records as a basis for denying the patient access would seem to favour the doctor's interests over those of the patient to an astonishing extent. Indeed, it is hard to think of a parallel, even in other professional relationships. No lawyer whose retainer has been terminated by the client is entitled to withhold the client's file merely because it might be more profitable to do so!
Finally, in response to Ms Breen's argument that a legal basis for access to medical records could be found in the right to self-determination contained in the International Covenant on Civil and Political Rights, Bryson J chose to construe this right narrowly stating that it covered only civil and political rights enjoyed by people in their relationships with governments and did not protect individual or bodily integrity.
The decision in Breen v Williams is disappointing in its steadfast refusal to recognise changing approaches to the privacy of personal information and the right of individuals to have access to personal information about them and to control its use. In this regard, it reveals a discordance between the evolving ethical analysis of the rights of patients in their interaction with their doctors and the legal definition of the doctor-patient relationship.
There is now ample legal authority upon which a right of access to medical records could be based if Australian courts were minded to do so. A further such opportunity will arise when the Breen decision comes before the NSW Court of Appeal. In the meantime, a person's access to information about his or her own health remains dependent to a large extent upon the goodwill of the doctor
Julie Hamblin, Partner, Ebsworth & Ebsworth.