Volume 186 - Issue 1
Gone fishing
Author: Paul Nisselle
Med J Aust 2007; 186 (1): 47. || doi: 10.5694/j.1326-5377.2007.tb00793.x
Published online: 1 January 2007
Published online: 1 January 2007
Comment: Agents for a workers compensation authority commonly assert they have the right to see the patient’s entire medical history to assess whether the injury arose from work or from another past or current illness or injury.
Two points need to be underscored.
Firstly, patients have a right to waive their right to privacy. A consent for total disclosure, given when initiating a claim for compensation, could be invalid, as it is a consent given under (economic) duress — that is, payments will not commence unless the patient consents to full disclosure. A doctor may feel a duty to point out to the patient that full disclosure will reveal distressing matters from the patient’s past that the doctor believes are not relevant to the claim. The doctor may recommend that the patient seek legal advice on how to object to full disclosure. Whether the patient objects or agrees to total disclosure is a decision for the patient, not the doctor, with the help of legal advice. Doctors should not give that advice.
Secondly, the legislation governing statutory compensation schemes in Australia gives extraordinarily broad powers to the relevant authority to demand information. For example, section 239 of Victoria’s Accident Compensation Act 1985 states that the Victorian WorkCover Authority (and its agents) may “require any person – to furnish the Authority with such information as the Authority requires . . . and may require the person to produce all books in the custody or under the control of the person relating thereto.” Doctors and medical records are not excluded from the broad sweep of section 239.
Notwithstanding such clauses, a claimant can object directly to WorkCover about a request or demand to supply his or her entire medical history if the claimant believes there are matters not relevant to the claim that he or she does not wish to be disclosed. If that process fails, the claimant then has a number of legal avenues that can be pursued.
Pearn-Rowe may be concerned at the David–Goliath imbalance of power between patient and insurer, but that does not justify omission of information because the doctor thinks it is not relevant. The Medical Defence Association of Victoria recently settled a case in which a member, asked to provide a “Personal medical attendant’s report” for a patient applying for a new disability insurance policy, omitted information about the patient’s history that would have affected the insurer’s assessment of the application. The patient had signed a consent for full disclosure. The insurer issued the policy, and a short time later the patient was diagnosed as suffering a major illness, the premonitory symptoms of which were described in the omitted information. Whether or not it was a deliberate omission was not the point — it was a negligent omission.
In summary, the patient has a right to object to disclosure. If the patient chooses not to, the doctor has a legal obligation to comply with the literality of the patient’s signed consent for disclosure.
Competing interests
I am a Senior Advisor for Risk Management at the Medical Defence Association of Victoria and Convenor of Medical Panels in Victoria’s WorkCover scheme.