Access to medical records

Contributed by Susan Brooks and current to 1 September 2005

A doctor, a hospital or any other health provider can collate patient records. They may include files, documents, notes and other written material compiled by a practitioner and concerned with the patient’s medical history and treatment. A patient may own records that they have paid for, such as x-rays, but records compiled by the practitioner are deemed to be the property of the practitioner or the health facility (the practice or hospital).

Until recently, the practitioner’s ownership of the records meant that they could refuse to show the records to patients and others unless compelled to produce them to a court. This principle (confirmed in the High Court decision in Breen v Williams [1995] HCA 63; (1996) 186 CLR 71) has since been overridden by recent amendments to the Privacy Act 1988 (Cth).

These amendments have extended the ability of a patient to gain access to their medical records from public (Commonwealth) and private health providers. Similar legislation has not yet been enacted Western Australia, so patients must use Freedom of Information Act 1992 (WA) processes to access their records in state-run facilities.

Under the provisions in the Privacy Act a doctor owns the records but a patient has a right to look at them and take copies. There are exemptions where access would:

• pose a serious threat to the life or health of any individual;
• have an unreasonable impact upon the privacy of other individuals; or
• not be available through the discovery process in existing or anticipated legal proceedings between the individual and the organisation;
• be unlawful;
• be likely to prejudice an investigation of possible unlawful activity.

Under s.36 (1) the Privacy Commissioner can hear complaints from patients who have been denied access to their records.

The Freedom of Information Act 1982 (Cth) allows patients to access their records in Commonwealth-run hospitals or health facilities. The Freedom of Information Act 1992 (WA) similarly allows patients to access their records that are held in a state hospital or health facility. Private hospitals, doctors and other private health providers are not subject to the freedom of information legislation.

See further PRIVACY RIGHTS .