One of the more ridiculous arguments put up by the Australian Medical Association against giving patients access to medical records was that doctors have kept their patients information confidential for more than 6000 years. The federal vice-president of the association, Trevor Mudge, argued that many people could be harmed by looking at their own records, such as psychiatric patients, children and adolescents.
The comments came after the federal privacy commissioner, Malcolm Crompton, published draft health privacy guidelines which, subject to a consultation process, will come into force in December. Under the guidelines, people’s medical records, including doctors’ written opinions, would be made available to patients for free within a month of a personal request. Doctors are resisting. In doing so, they are putting forward quite a few spurious arguments which are just a decoy for what is probably their real concern: that their diagnoses and treatment prescriptions might be exposed to questioning, either informally or through formal complaints or legal avenues. The President of the National Council for Civil Liberties, Terry O’Gorman, made a pertinent point when he said, “It is those doctors who practise on a pedestal and look down their noses at patients, as it not being entitled to any information, who have something to fear from these proposals.””
Fortunately, the AMA does not stand for all doctors. Very good doctors – – those that have excellent relationships with patients, take good records, make good diagnoses and prescribe best-practice treatment – – have no difficulty with giving patients access to their records.
The president of the AMA, Kerryn Phelps, has argued that there are two types of medical record. The first comprises the information, past history and results that patients have provided a doctor. The second comprises the private thoughts of doctors as they go through formulating a diagnosis and treatment management plan. She argued that there was no difficulty with giving the first sort of record to patients but that the second sort was the intellectual property of the doctor.
No-one questions the doctor having intellectual property in his or her writing about a patient and that the law should protect such intellectual property when it comes to publishing medical research or other writing, subject to privacy protection. However, the protection of the intellectual property is still consistent with giving individual patients copies of their own records. It is not as if an individual patient could write up a medical case history for a learned journal thereby infringing the doctor’s intellectual property.
The case for giving access to records is very strong. In the modern information age a critical part of privacy legislative regimes is that people have knowledge of what information about them is being stored and that they have a right to see that information and an opportunity to correct it or supplement it if appropriate.
If patients ultimately have the right to access their medical records and doctors are aware of this right, doctors will be more likely to be more diligent about their record keeping. Medical care is more likely to improve with greater communication and information flows between doctors and patients. Moreover, if the records are well kept a patient’s access to them is more likely to result in greater confidence in the doctor and a greater understanding of the process of making a diagnosis and selecting a treatment regime.
In any event, doctors’ fears about the affect of such a reform are exaggerated. In the ACT, legislation has been in force since 1997 giving patients a right to access medical records. Since then, according to the health complaints commissioner, Ken Patterson, there has not been a flood of people seeking access to their records.