REPORT ON ACCESS TO MEDICAL RECORDS
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RECOMMENDATIONS
Chapter 2
Recommendation 1: The Committee notes the limited
constitutional heads of power for the Commonwealth to legislate in this
area. Accordingly, the Committee recommends that this legal problem needs
to be addressed without delay. Such consideration would identify the most
appropriate means of enacting national legislation to make access to medical
and other health records a real right.
Chapter 3
Recommendation 2: The Committee recommends that medical and
other health records that are the subject of legislation should be described
in the broadest possible way to include consultation notes, medical history,
test results, letters of referral, records of consultation between doctors
and other health providers, observations and opinions about the individual,
details of treatment, and any other material relevant to the individual
held in a health record, including electronic and video records.
Recommendation 3: The Committee recommends that the framing
of comprehensive national legislation enshrining the right of access to
medical and other health records in the public and private sectors commence
without delay.
Chapter 4
Recommendation 4: The Committee recommends that any access
to medical and other health records legislation should be capable of imposing
penalties and sanctions on medical and health care providers who fail
to comply with the provisions of the legislation.
Recommendation 5: The Committee recommends that the Federal
Privacy Commissioner investigates the privacy implications of record keeping
in the private sector, including the obligations of the `record-keeper',
retention, storage, transfer and destruction of medical and health records.
This investigation to be conducted without delay as an essential adjunct
to the drafting of access to medical and other health records legislation.
Recommendation 6: The Committee recommends that the Commonwealth
moves expeditiously to draft legislation for national access to medical
and other health records legislation through the creation of extended
privacy legislation to cover the private health sector, to avoid conflicting
State and Territory access to medical and other health records legislation.
Recommendation 7: The Committee recommends that industry
regulations be drafted for inclusion in extended privacy legislation to
cover the private health sector.
Recommendation 8: The Committee recommends that research
be conducted on the potential for interference to medical and other health
records in the advent of electronic records and telemedicine, and that
privacy legislation Information Privacy Principles and Codes of Practice
take this into account and include the necessary safeguards.
Recommendation 9: The Committee recommends, in line with
a recommendation made by the Federal Privacy Commissioner, that a phase-in
period should apply to allow providers and consumers to become familiar
with the legally-binding scheme, before any party faces enforceable sanctions
or is charged under the provisions of the scheme.
Recommendation 10: The Committee recommends that the Federal
Privacy Commissioner should have power to investigate and conciliate complaints
and seek enforceable assurances against repetition of breaches of a health
privacy code, the Privacy Act, and national legislation granting access
to medical and other health records. Where a breach is found to have occurred,
the Federal Court should be able to award compensation, issue restraint
orders and impose penalties for serious breaches of privacy obligations.
Chapter 6
Recommendation 11: The Committee recommends that access to
medical and other health records legislation should be prospective in
its operation, except so far as matters of fact are concerned, when an
individual will have a right of access to these, whenever the record was
prepared.
Recommendation 12: The Committee recommends that subject
to Recommendation 15, concerning general exemptions, that no further exemptions
should apply. In all circumstances, the contents of medical or other health
records should be explained to a patient by a professional who understands
the patient's clinical details.
Recommendation 13: The Committee recommends that reasons
for exemptions and refusal to grant access to medical or other health
records should be stated to the applicant, and that exemptions should
be fully supported with evidence which should be provided to the applicant.
Recommendation 14: The Committee recommends that an appeal
body should be established, that the appeal body should be independent,
and that suitably qualified people should be appointed to the appeal body.
Recommendation 15: The Committee recommends that exemptions
to access to medical or other health records be restricted to circumstances
were a medical provider or health service provider believed that allowing
access would be likely to cause serious harm to the mental or physical
well being of the patient, or to a third party, or to the privacy of a
third party. Such claims would require supportive evidence.
Recommendation 16: The Committee recommends that if a patient
wished to challenge a refusal to grant access to a medical or other health
record, then an appeal process through an independent appeal body could
be available and handled within a stipulated period.
Chapter 7
Recommendation 17: The Committee recommends that the Commonwealth
initiates immediate discussions between all stakeholders in the States
and Territories to enable the drafting and passage of national legislation
to ensure access to medical records for all individuals across the public
and private health sector.
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