Today’s question relates to confidentiality and work place medical examinations. 

A registered paramedic/ Nurse operating a remote clinic in Western Australia is asked to review a worker following a vehicle rollover (workplace incident). What is the legal status if the Work Health and Safety team or the Manager requests a copy of the examination findings? This case would be reportable to WorkSafe, which will request that an investigation is undertaken. The results of the clinical examination will form part of that investigation.

Additionally, the PCBU will also request that the injured worker be seen by an external treating medical practitioner once they return to Perth. A copy of the clinical notes would assist this process.

I believe that the notes relevant to the incident should be visible to the Work Health and Safety team and/or Manager in order to make informed decisions regarding the management of the injured worker and to seek medical opinion from external medical sources.

It really depends on the detail.  Fundamentally the medical records belong to the person writing them – they are the author’s not the patient’s records – but if the author is writing the documents as part of their employment, then the records belong to the employer (Breen v Williams [1996] HCA 57; Health Services for Men v D’Souza [2000] NSWCA 56). If the clinic is operated by the employer and the paramedic is employed by the employer then the notes belong to the employer. 

One can infer (but would need further detail to confirm) that the Australian Privacy Principles apply, but even if they don’t then they still represent good practice. That means the information recorded should only be used for the purpose for which it was obtained and the patient’s confidentiality should be protected so the information is accessed only on a ‘needs to know basis’.   One would therefore need to know the employer’s privacy and other internal policies to determine who can access the records. It is something the paramedic should know so that he or she can explain to their colleague/patients what is going to happen with the records they produce and the information they are given. 

If on the other hand, the ‘remote clinic’ is the local health service, run by an independent organisation and the paramedic is employed by that organistion (eg WA Health) then the employer could only access the records with the consent of the patient or if there was a relevant court order eg a subpoena, requiring them to produce the documents.

Conclusion

The answer does depend on material we don’t have but put simply, the question cannot be answered by what we believe is a useful, practical or even common sense approach. Assuming the clinic is established and staffed by the PCBU that employs the worker the answer should be found in the PCBU’s policies. Those policies should be explicit so ‘workers’ understand that they are seeing the employer’s health care provider. They should understand (or be capable of having it explained should they ask) whether the clinic is providing therapeutic care to them or providing a service to the employer. They need to know, if they are going to give informed consent to treatment and when deciding what information to share, what is the potential use of that information. In short there should be a relevant privacy policy that answers these questions.

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This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.