Privacy Law and Policy Reporter
In 1997 the ACT Legislative Assembly passed the Health Records (Privacy and Access) Act 1997 . The Act replaced both the Privacy Act and the Freedom of Information Act and applied to all services, public and private, in the Territory. It was designed to address the particular issues of concern to consumers of health services and the health industry.
The ACT Government hoped that experience with the Health Records Act would inform decisions about how to frame legislation with similar intent but national coverage.
Before the Act was introduced some health service providers, mainly doctors, were concerned that patients would only seek access to their records if they were ‘trouble makers’ who, presumably, would want to use the records against the practitioner in some way. They were also concerned that patients would misinterpret records if they were provided without explanation. The comments of critics were directed almost entirely at the access provisions of the legislation, not at the other privacy principles.
I have a responsibility to deal with complaints relating to the privacy principles and to review decisions to exempt records from access. The following comments are based on my experience with the implementation of the Act.
The legislation deals very carefully with the issue of misinterpretation. A record keeper may offer to discuss a record if concerned about misinterpretation. If the offer is refused the record keeper might refuse access on the ground of likely harm to the patient, and in that case the patient can ask that the record go to another practitioner from the same profession (presumably a current treating practitioner) and that practitioner can discuss the record with the patient, after which serious misinterpretation is much less likely to occur. That practitioner can then review the matter and decide whether to provide the record or maintain the exemption. These provisions have rarely been used so far, but I have no reports yet of problems arising through misinterpretation.
The ‘trouble maker’ concerns have proved to be groundless. About 90 per cent of the matters referred to me have involved requests by patients to have their records made available to current treating doctors so that they can continue to be treated safely. They don’t want access for themselves. They want their doctors to have access. They don’t want to make trouble. They want to help their doctors to treat them. Their complaints have been that doctors have not made records available to other doctors. The most important sections of the Act, in practice, has been two privacy principles added to those transferred from the Privacy Act which require records to be passed on to current practitioners when patients move or practices close.
The important point to come out of this is that health records are created in order to be used, and to be used in the patients’ interests. While privacy considerations ensure that the wrong people do not have access to the personal information in health records, it is even more important that the right people do have access. When the Health Records Act was being drafted the intention was to ensure that the people who should share information (the patient and the treating team) have easy access unless there is very good reason why not, while other people should not have access unless there is very good reason why.
Some other issues have arisen during the implementation phase which suggest that the Act could be improved. In particular:
It will also be necessary to prepare regulations relating to archiving of records. These will cover the retention of records for minimum periods, destruction schedules and the like.
Ken Patterson is ACT Health Complaints Commissioner, with responsibility for investigating complaints under the Health Records (Privacy and Access)