Clinical Women's Health
Privacy Law and patient confidentiality

thumb_Woman_legal_scales.jpg New nose, breasts...and surgeon

At the age of 27, Brooke reacted poorly when her boyfriend broke off their relationship. Broken hearted, she sought comfort in food, rapidly gaining weight and becoming preoccupied with her appearance. The makeover TV shows seemed to offer her a way to feel good about herself so she visited her general practitioner for advice and a referral.

Dr Hayes, Brooke's GP for over fifteen years, was worried about her mood so he encouraged her towards exercise and a modified diet. She agreed but insisted on a referral for plastic surgery to her nose - to make her even more attractive for when she lost weight!

Brooke was delighted with the rhinoplasty results, so much so she decided on breast implants as well.

It was during a regular check-up soon after that Dr Hayes noted her obsession with exercise and dieting. His concerns about her mental state were amplified by a letter from her plastic surgeon marked Private and Confidential-Addressee Only.

The surgeon advised that Brooke had erratic expectations about her requested aesthetic breast surgery. Unfortunately, he expressed his concerns in disparaging language saying "she has lost it" and was "behaving as nutty as a fruitcake". He declined to see her again.

Brooke wanted a referral to another surgeon from Dr Hayes but he suggested instead that she seek some professional counselling. She stormed out of the surgery.

The next day a written request arrived from Brooke ?- for the release of her medical records.

Concerned about the tone of the plastic surgeon's letter, Dr Hayes rang him to advise he would be releasing it to the patient. The surgeon was furious but the full records were released to the patient in due course.

Brooke was understandably hurt and angry on reading the surgeon's letter. She made sure all her friends knew this doctor did not respect his patients.

Risk Management Tips

Under the provisions of the Privacy Act 1998 (as amended) all doctors in Australia are now required to release all the health information that makes up the patient's medical records. Notations on correspondence do not preclude the release of documentation.

  • Be aware of requirements for release of health information under Privacy Law - see www.privacy.gov.au
  • Always write medical notes, referrals and correspondence bearing in mind that the patient has full access.
  • The only reason a doctor can refuse to release clinical records is to claim "therapeutic privilege" - that is, release of the clinical records may cause harm to the patient or others. The threshold is very high and the doctor should contact their MDI and seek legal advice on this issue.
  • If you receive a request for the clinical records, ensure you have the patient's written authority for release of photocopies of the records. If you are concerned about the content of the records it may be prudent to contact the patient and discuss your concerns. This often relates to Family Court proceedings and Workers Compensation claims.
  • Where a request regarding a deceased patient the written authority must be obtained from the executor of the estate not the next of kin. If the patient died intestate, then in the absence of an appointed Administrator of the Estate, the Public Trustee may be authorised to provide the authority. The duty of confidentiality to the patient is maintained even when the patient dies.