Legislative Assembly for the ACT: 2010 Week 03 Hansard (Thursday, 18 March 2010) . . Page.. 1080 ..
MS GALLAGHER (Molonglo—Deputy Chief Minister, Treasurer, Minister for Health and Minister for Industrial Relations) (10.22): Thank you very much to Mr Hanson and Ms Bresnan for their contributions to this debate. The Health Legislation Amendment Bill 2009 (No 2), as others have said, adopts the majority of legislative amendments recommended by the ACT GP task force in its final report.
Some of the areas identified by the GP task force needing particular attention included establishing appropriate requirements for practice closures and relocations, including strengthening notification requirements and clarifying time frames. So the bill we are debating today amends the Health Records (Privacy and Access) Act to do the following things: it requires a period of four weeks notice to consumers and the community before a closure, merger or relocation of a practice; it enables the prioritisation of urgent requests for the transfer of health records; it clarifies that consumers can only ask for a copy of their health record and not an original; and it clarifies the time frames around when a requested copy of a record must be provided by a record keeper. It also introduces a requirement that practices notify ACT Health of practice closures, mergers or relocation, and it requires that, when ACT Health is notified of a closure, merger or relocation, the ACT Health Services Commissioner be promptly informed of the notification.
It was indicated by the Health Services Commissioner and the GP task force that confusion generally exists in the community regarding the law on whether or not a consumer can request an original of a health record. This issue is complicated by an incorrect public perception that health records do or should belong to the consumer to whom the health record relates. It has been settled law since 1996 following the High Court decision Breen v Williams that medical records, with the exception of X-rays, blood pathology reports and other similar reports, are the property of the health professional who created that record. The High Court in Breen also decided that consumers have no right of access to private medical records which contain medical information about them.
Back in 1997 the Carnell government engaged in extensive public consultation on this issue and enacted the Health Records (Privacy and Access) Act 1997 to recognise the consumer’s right of access to their health record, notwithstanding the High Court’s decision on the ownership of that record. The ACT’s Health Records (Privacy and Access) Act was the first of its kind in Australia and remains only one of three jurisdictions in this country to have legislation that formally recognises a right of access to those records.
Although there are various interests to consider in our debate on the issue today, the health interests of a consumer should remain the paramount consideration. This view is consistent with why health records are created in the first place. While issues of privacy and self-determination of a consumer are important, if there is reason to believe that a consumer’s health interests may be compromised by observing an unqualified right of access, careful consideration should be given to whether the rights should be left unqualified. For example, when access may be detrimental to the physical or psychological health of a person, the Health Records (Privacy and Access) Act allows a health professional to refuse access.