Resource Medico-legal FAQ
Can I release my patient’s medical records?
Doctors have a professional and legal duty to maintain patient confidentiality and privacy. Release of records should occur only if:
The patient (or their legal representative) provides authority.
A patient has a general right to access a copy of their records held by a doctor in private practice under the Privacy Act (Cth) 1988 (Australian Privacy Principle 12) (certain limited exceptions apply).
You are compelled by law.
For example, you receive a subpoena or a summons. There may be other situations where there is a specific legislative requirement to produce records.
There is a public interest exception that favours release.
This typically involves a situation where there is a serious risk to an individual’s life, health or safety, or to public health or safety.
A request for medical records may be routine or may give rise to complex considerations where an exception to the release of patient records may apply.
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
Can I release another doctor’s letter marked “not to be released to a third party without the permission of the author”?
Yes. On receipt of an appropriate authority, letters which form part of the patient’s medical record can be released without the permission of the authoring doctor.
• Medical Records
• OAIC FAQ
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
How long should I keep my medical records?
In ACT, NSW and Victoria, there is legislation which outlines the minimum period of time in which medical records should be kept which is:
• an adult – seven years from the date of the last entry in the medical records
• a child – until the age of 25 years.
MDA National considers these requirements to be appropriate in all Australian states and territories.
Some situations may be complex and there may be exceptions to how long records should be kept, such as a patient who is subject to a guardianship or other court or tribunal order, where records should be kept indefinitely or until seven years after the patient’s death.
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
How should I respond to a subpoena for my patient’s medical records?
A subpoena overrides your duty of patient confidentiality and privacy and the records should be provided to the Court. Failure to comply with a subpoena without a lawful excuse is a contempt of Court.
The subpoena indicates the date by which the records must be received/produced to the Court. The records should be sent to the Court/Tribunal, not to the party who subpoenaed the records. The records are typically first made available at the Court to the patient (and/or their legal representative). A patient and/or their legal representative may object to some or all of the records being made available to other parties in the proceedings.
You can inform the patient that you have received a subpoena for their medical records, but their permission to send the records is not required, nor can the patient override your obligation to comply with the subpoena. In the unusual circumstance where you may want to object to the production of records under subpoena or you have concerns about the records being viewed once provided to Court, contact us for advice. This may require you to draft a statement (affidavit) to the Court and/or to appear in Court to give evidence as to why the records should not be provided.
A cheque is usually attached to cover production costs (conduct money). If this is insufficient, you can ask the issuing party to pay your reasonable costs of complying with the subpoena.
• Subpoenas for medical records
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
Can I end the doctor-patient relationship?
There is generally no legal obligation to continue to see a patient (or consult with a patient in the first place) unless it is a genuine emergency. The reasons for not seeing a patient must not be discriminatory. You may have an obligation arising from your employment to see a patient, for example if working in a public hospital.
When ending a doctor/patient relationship, doctors have a professional obligation to:
• ensure the patient is informed of your decision
• facilitate handover
• pass on relevant clinical information e.g. transfer their medical records.
While you are not required to arrange for another practitioner to take over care, this issue may be more complex if the patient’s health condition places them at short term risk while they are ‘in between’ doctors.
These matters can be complex and may require sending a letter to the patient. We are happy to discuss the circumstances giving rise to a need to end care and assist you with drafting a letter.
• Ending the Doctor-Patient Relationship
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
I have concerns about my patient’s fitness to drive – what should I do?
All States and Territories have legislation which governs how and when patients and their doctors can provide information to the Driver Licensing Authority. Only South Australia and the Northern Territory have mandatory driving fitness notification requirements for doctors.
• Patients generally have an obligation to report to the Driver Licensing Authority any long-term or permanent injury or illness, or physical or mental incapacity that would affect their ability to drive.
• Doctors (outside of SA and NT) are not mandated to report their concerns about a patient’s fitness to drive, but legislative protections are in place for notifications made by doctors about their patients to a Driver Licensing Authority.
• Notifications can be made to other bodies (e.g. police) on the basis that there is a significant risk to the life, health or safety of a person or to public health or safety. These notifications do not have the same legislative protections afforded to Driver Licensing Authority notifications.
Ideally the doctor should discuss their concerns about fitness to drive with the patient before a patient is notified to the Driver Licensing Authority, so that the patient is aware of their own requirement to report and the patient understands why the doctor considers they need to make a notification.
• Fitness to Drive
• Austroads Guidelines
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
I am writing a medico-legal report and my patient doesn’t want me to include information – what should I do?
A doctor has an obligation to be honest, accurate, and to take reasonable steps to verify the content of a report, as per the Medical Board of Australia’s Code of Conduct (at 8.8). They must also not deliberately omit relevant information.
Additionally, when preparing a document for a Court matter, the doctor is acting as an expert and has an overriding duty to assist the Court impartially on matters relevant to their area of expertise.
Because these matters involve balancing the patient’s consent to provide information to a third party with the doctor’s professional obligations, it is likely that a report cannot be provided where the patient will not allow the doctor to include relevant information in the report.
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
I have been asked to provide a retrospective sickness certificate – what should I do?
When providing a medical certificate a doctor has a professional obligation under the Medical Board of Australia’s Code of Conduct (at 8.8) to be honest, accurate, and to take reasonable steps to verify the content of a certificate.
Certificates that require the provision of backdated information (even though the certificate itself has the date that the doctor wrote it) can be challenging and may give rise to professional and ethical dilemmas, including the need to decline a certificate.
• Sickness Certification by Sara Bird in Good Practice June 2015
If you have any questions, please contact our Medico-legal Advisory Services team for advice on 1800 011 255 or complete our Contact Us Form.
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