|Can I please see Mum's file and records?|
|Monday, 28 September 2009 ||
Simple question needing a simple answer, yes? Well, actually no. At least, not when it comes to aged care.
Many people are apparently confused - including aged care providers, residents and their family members, about their respective rights to withhold and to have access to information which may have been accumulated about a particular person while that person has been in a residential care facility.
First, let’s be clear about the law which applies to this area. The sources of law are to be found in the Aged Care Act 1997 and the Privacy Act 1998 and in the various State and Territory laws which apply to medical record keeping. I shall just confine this discussion to the Commonwealth laws.
There are better rights to access available under the laws of New South Wales, Victoria, and the ACT.
In addition, the Privacy Commissioner has released a Public Interest Determination (PID) in relation to the NPP 10, which deals with collection of information.
“PIDs 10 and 10A clarify that third party health information can also be collected from ''a person responsible' for an individual where the individual lacks the capacity to provide that informational themselves. The expression ''responsible person' has the same meaning as in the Privacy Act...”
In NPP 2, the circumstances under which information is disclosed (as opposed to collected) are stated. However, the Privacy Commissioner takes the view that -
Subclause 2.1 (which contains the defined circumstances for disclosure) does not override any existing legal obligations not to disclose personal information. Nothing in subclause 2.1 requires an organisation to disclose personal information; an organisation is always entitled not to disclose personal information in the absence of a legal obligation to disclose it. (more information)
The NPP goes on to state that a health service provider may disclose health information to a person who is responsible for the individual, if:
(a) the individual:
(b) a natural person (the carer) providing the health service for the organisation is satisfied that either:
(c) the disclosure is not contrary to any wish:
(d) the disclosure is limited to the extent reasonable and necessary for a purpose mentioned in paragraph (b).
A person is responsible for an individual, according to the Privacy Act, if the person is:
(a) a parent of the individual; or
(b) a child or sibling of the individual and at least 18 years old; or
(c) a spouse or de facto spouse of the individual; or
(d) a relative of the individual, at least 18 years old and a member of the individual's household; or
(e) a guardian of the individual; or
(f) exercising an enduring power of attorney granted by the individual that is exercisable in relation to decisions about the individual's health; or
(g) a person who has an intimate personal relationship with the individual; or
(h) a person nominated by the individual to be contacted in case of emergency.
The problem which these sections present becomes important, where the Residential Care Facility (RCF) may have its own concerns about the way in which care has been provided in the particular case, and the family, carer or person responsible may also be worried that something has happened to affect the health and wellbeing of the person concerned which has not been fully discussed or disclosed. In the absence of a request for health records by the person themselves (for example if they lack capacity to make the request), there may indeed be a problem, which their carer or near relative will need to confront, if they wish to see the records.
In such a case, as will be seen from the information given above, there needs to be a legal obligation in order to be sure that the RCF will provide all necessary information to the carer, relative, guardian or attorney.
Here is yet another example of important inclusions in the residential care agreement which are almost never discussed or addressed and which need to be made at the time of entry into care. The alternative is to rely upon the goodwill of the RCF and to hope that the need to see the records (in circumstances where there is real doubt about poor care and attention) does not arise.
Author: Copyright 2009 Rodney Lewis. Solicitor, practising in Elder Law (Mona Vale, NSW)