Ireland, Ian --- "Breen decision provokes amendments" [1996] PrivLawPRpr 70; (1996) 3(8) Privacy Law & Policy Reporter 153

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BREEN DECISION PROVOKES AMENDMENTS

Health Insurance Amendment Bill (No 2) 1996 (Cth) -- proposed amendments

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. 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 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:

• the individual;
• a person authorised in writing by the individual;
• (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.

Senate Committee reference

The text of the motion referring Senator Neal's amendment to the Community Affairs References 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.

Ian Ireland.