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Insights

Health Bulletin

Russell Kennedy Health Insights 26 July 2018

The latest insights from our Health Law team.

In this edition:

Learn more about Russell Kennedy's expertise in the Health sector here.

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HealthEngine may be in breach of privacy law in sharing patient data

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Health Minister Greg Hunt has ordered an “urgent review” of Australia’s biggest online doctor appointment service, HeathEngine.

HealthEngine requests the details of patients’ symptoms and medical conditions as part of their booking process. It has been revealed that this information was passed on to a partner law firm at an average rate of 200 patients per month. This was called a “referral partnership pilot” program, and operated between March and August of 2017.

HealthEngine has denied sharing this information without patient consent, stating consent was provided by users via a simple pop-up form in the app. Further information is provided in The Australian Financial Review’s article here.

The Australian Medical Association (AMA) supports the Health Minister’s request and has serious concern for irregularities or threats related to patent privacy, patient consent, the AMA Code of Ethics, and medical ethics more broadly. This issue extends beyond HealthEngine to other apps, websites and services currently being promoted by commercial entities and health sector bodies.

Read the AMA’s media release here.

The Australian Medical Association renews its call for a sugar tax

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The Australian Beverages Council recently pledged to reduce the amount of sugar added to beverages by 20 per cent by 2020, however the Australian Medical Association (AMA) has labelled the announcement “totally inadequate”.

Dr Tony Bartone, the AMA’s President, said that the commitment was not a significant enough reduction and that the 2020 deadline was too far away.  He said the AMA believes the most effective way of preventing the harms associated with the over-consumption of high sugar beverages is the introduction of a sugar tax.

Dr Bartone referred to the success of a sugar tax in Berkeley California where, since the 2015 introduction of a tax on sugar sweetened beverages, there has been a 21 per cent reduction in the consumption of them.

With 63.4 per cent of Australian adults overweight or obese and 27.4 per cent of children, Dr Bartone said that the introduction of a sugar tax in Australia was long overdue.

You can read the AMA’s full media release here.

Voluntary Assisted Dying Review Board appointed

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The Victorian Minister for Health, Jill Hennessy has recently announced the members of the Voluntary Assisted Dying Review Board (Board).  Former Supreme Court judge, Betty King QC will chair the Board with ICU specialist, Charles Corke to act as deputy chair.  The remaining 11 members are made up of health and legal experts.

Legalised voluntary assisted dying is set to come into force in June 2019, giving the Board 12 months to prepare for its introduction.  The Board is responsible for overseeing the scheme, which includes reviewing all applications to access voluntary assisted dying to ensure medical assessment have been done correctly and the person applying is not doing so under duress.  The Board will have the power to refer cases to the police, the coroner and AHPRA.

Each of the Board members has been appointed for an initial term of 6 years.  The Board will also review the legislation in detail 5 years after its commencement.

Read the Government’s media release here.

Court of Appeal requires doctor to produce patient records to VCAT

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Dr Kemp, a medical practitioner, was asked to produce medical records to the Victorian Civil and Administrative Tribunal (VCAT) as part of a professional regulation matter despite his patient’s refusal to consent.  In November 2017, the Supreme Court found that physicians’ privilege extended to such matters (see our previous alert on the Supreme Court’s decision here).

The matter was appealed with the Court of Appeal asked to consider whether a VCAT disciplinary proceeding brought against a medical practitioner is a “civil suit, action or proceeding” within the meaning of section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the Act”).  Such a finding would prohibit the disclosure of any medical information acquired by the practitioner without the patient’s consent.

The appeal was allowed on the basis that this matter, which was referred to VCAT by the Medical Board of Australia, is not a “civil suit, action or proceeding” within the meaning of the Act. This is because the matter is heard by a tribunal that does not have to comply with the rules of evidence.

Consequently, Dr Kemp was required to disclose medical records to VCAT as the subpoenaed material was not considered privileged. Click here to read the full judgment.

Subpoenaed Medical Records - What Should Practitioners Do?

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Written by Michael Gorton AM, LLB. BComm FRACS (Hon) FANZCA (Hon), Principal, Russell Kennedy Lawyers and Stephanie McHugh, Law Graduate.

This article explains what a subpoena is and what practitioners can do if they want to object to their patients’ medical records being used as evidence in court proceedings.

What is a subpoena?

A subpoena is a court order issued to a person at the request of a party in a court proceeding. A party may seek a subpoena as a way to obtain relevant information for use as evidence in a court matter. Subpoenas can be issued to compel a person to give evidence in court, produce documents to the court or both. A subpoena for production requires a person to provide the court with the documents outlined in the subpoena by a specified date and time. Importantly, these documents are provided to the court, and not to the party who requested that they be produced.

What does a practitioner need to provide?

If a practitioner has been issued with a subpoena for production of documents, the schedule to the subpoena will outline the specific documents that need to be provided to the court.  Medical practitioners are often requested to produce patients’ clinical notes, test results, reports and referrals.

Confidentiality and patient consent

The obligation for practitioners to maintain patient confidentiality is overridden when the law compels the disclosure of a patient’s medical record.

If a medical practitioner receives a subpoena to produce the whole or a part of a patient’s medical record, it is advisable that the patient should be informed promptly of the disclosure where appropriate.  However, patient consent is not required when producing medical records under a subpoena.  Even if a patient does not consent to the disclosure, a practitioner who is issued with a subpoena for production of a patient’s medical record must provide the requested documents to the court.  Failure to do so may result in contempt of court. The onus is on the patient to take action to oppose the subpoena and prevent the information being released.

Can a medical practitioner object to a subpoena?

If a medical practitioner believes that the whole or a part of a patient’s medical record should not be disclosed because it contains clinically sensitive information or for some other reason, they can make an objection to the court.  Practitioners wanting to object to the production of their patient’s medical record will need to write to the court specifying the ground under which the objection is made.  Grounds include irrelevance, abuse of process, oppression or privilege.  Subpoenas will not be valid if they amount to a mere “fishing expedition”.  This means that subpoenas cannot be issued to obtain documents which fall outside the scope of the issues in the proceeding.  Patients whose medical records have been produced to the court under a subpoena can also object to their inspection under the same grounds.

If a patient’s medical record contains sensitive information which may impact their patient’s mental health if released, a practitioner may request that the court use their discretion to limit access to those records. In forwarding information to the Court, doctors can in a covering letter identify to the Court the sensitive material, and suggest that the Court consider how, when and to whom the information is provided.

Objections should be made by the patient before the day specified for the production of the material in the subpoena. 

Where an objection is made, a judge will conduct a hearing to determine whether the material should be produced.  As such, practitioners wanting to object to the content of a subpoena should seek legal advice or advice from their indemnity insurer. 

In any case, subpoenaed material should be produced to the court and the material objected to should be placed in a separate sealed envelope with a covering letter asking for the objection to be considered by the court before allowing inspection.

Position of peak medical bodies

Medical organisations have voiced their concerns about the potential for patient confidentiality to be undermined in the context of subpoenas. 

Concerns have been expressed in submissions to the Australian Law Reform Commission’s review of the family law system.  They said that medical records are often improperly sought in custody disputes in order to damage the relationship between the children and one parent.  It has been emphasised that effective psychiatric treatment requires patients to trust their practitioner – and when medical records containing highly sensitive information are produced in court, this can re-traumatise vulnerable patients and irrevocably damage the patient–practitioner relationship.

In their Ethical Guidelines for Doctors on Disclosing Medical Records to Third Parties, the AMA makes clear their position that the public benefit of disclosing a patient’s medical record must outweigh the risk that, because of such a disclosure, a patient may not seek medical attention or falsify information given to practitioners in the future.

What you need to know:

  • Subpoenas are legal documents issued by courts which require a person to attend court and give evidence or provide documents to the court.
  • A patient’s right to confidentiality is overridden when medical records are requested under a subpoena.
  • Practitioners must comply with subpoenas and seek advice in the event they wish to make an objection to the court.
  • A failure to comply with a subpoena can result in contempt of court.

If in doubt consult your medical defence organisation or legal adviser.

For more information, please contact Michael Gorton AM, Principal on (03) 9609 1505.


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