Hobart Occupational Medicine and Comcare were recently parties before the Commonwealth Administrative Appeals Tribunal (AAT) in relation to a dispute over Comcare’s access to a practice medical file. The return of summons hearing in February 2018 resulted in an unpublished decision to withhold consultation notes from Comcare.

The published decision Carver and Comcare (Compensation) [2019] AATA 1534 (28 June 2019) related to the professional costs of compliance with the summons and was heard in the AAT in February and March 2019. The decision delivered in late June provides useful insight into the issues that arise when an insurer seeks a summons from the AAT for the compulsory release of an entire treating doctor’s file and the doctor objects on the basis of potential harm to the patient.

While, as a party to the above matter, I cannot claim to be independent, I have tried to draw out the important messages from these decisions as objectively as I can. As far as I am aware, the issues about what are reasonable grounds for objection and who pays when a doctor spends professional time and incurs legal costs objecting to an insurer’s access to a patient’s file, have not been explored in previous published decisions.

I am aware of Comcare claimants who have objected to their medical information being accessed by Comcare and aired in Court and cases where medical practices have sought additional allowances for the photocopying, postage and printing costs of their files provided under summons, but I am not aware of any formal legal decisions where doctors have objected to insurer access to sensitive information and subsequently sought recompense for their time and effort through the courts.

Principal Implications

The AAT’s decisions supported a doctor’s right to object to a Summons, but provided only limited clarification about what might be acceptable grounds for an objection.

The formal hearing and decision referred to above related principally to the issue of a medical practice’s costs to object to a summons. The AAT’s earlier decision that most of the consultation notes should not be made available to Comcare was conducted less formally as a return of summons hearing. No written reasons were provided by the Deputy President Melick about why he considered selected documents be withheld, nevertheless he did determine that the majority of consultation notes should not be accessed by Comcare. The law focuses principally on relevance of the documents to proceedings, so presumably the decision related mostly to relevance, but I expect that the protection of privacy might have also been a factor in his decision. In her formal decision, Member Taglieri however identified a concern about lack of written reasons following a return of summons hearing and recommended written reasons be provided in future where appropriate. She did presume though a combination of these reasons:

“…..what the Deputy President appeared to accept to be legitimate objections based on privacy and relevance”

The published decision provides limited support for a doctor’s involvement in the scrutiny of records for release to the Tribunal and suggests that any concerns about privacy are primarily a matter for the patient, not the doctor.

The decision recognised that the costs of a doctor’s time to attend a formal hearing before the Tribunal regarding an objection should be paid by the party seeking the documents, in addition to payment of the “one-off” costs of a medical practice seeking independent legal advice in relation to the summons. There was however no acceptance as a reasonable cost of a doctor’s time to to consider a summons, consult with the patient, another medical or legal practitioner, prepare an objection or for communication with the various parties about the matter.

Decision Details

In its published decision, the AAT makes an important statement about overall responsibility for the processes associated with summoning medical files (para 104):

“The Tribunal is vested with the function of being the decision-maker on the review and has knowledge and expertise of the law and the issues before it. It alone has the function and power to determine relevance (added emphasis) at the hearing stage of proceedings”.

The final section of this decision includes statements that provide particularly useful insight into the AAT’s legal perspective relevant to the role of doctors and, to some extent, other parties.

The following issues are covered:

• The roles and responsibilities of doctors in these processes:

Relevance of medical records or documents (para 104) “…. are not the concern to the doctor or person who maintains the record” and (para 102) “Concerns about confidentiality or privacy of patient medical records are predominantly issues for the patient and not the doctor.”

There is however some recognition of a doctor’s responsibility where there are (para 103) “…concerns about the delicacy or sensitivity of information within a medical record” to “….separate those documents but still produce them with the balance of the documents, providing an explanatory statement about the concerns”

• Professional duty to patients:

There is a difference between a professional duty and a legal duty (para 66).

“There is, in my view, a distinction between what doctors are required to do to discharge their professional duty to patients or to practice according to standards expected by the Medical Board of Australia and that which is required by law when served with a summons” 

There is no professional duty to inform patients on a case by case basis about a summons of their file (para 102):

“Professional requirements imposed on doctors concerning record keeping can be satisfied by advising patients at the commencement of a treatment relationship that information collected by the doctor is compellable to production to courts and tribunals”

• Repeated objections 

Doctors are cautioned about repeated objections (para 107)“…on grounds that have little or no merit” due to concerns that“…they are unnecessarily delaying the review processes of the Tribunal and putting parties to expense”.

• Other parties

There is more limited guidance to “the Party requesting the Summons” with advice to give due attention to their request, including a narrowed focus of documents sought, expressed in the following terms (para 108):  

“…a responsibility to carefully express the description of the documents to be produced” and “…reference to periods of time, nature of injuries or conditions or otherwise diminish the burden of compliance of recipient of the summons, that is to be encouraged”

• Legislative Issues

The AAT also identified deficiencies in the regulations relevant to this matter (paras 49 & 72):

“There appears to be some ‘disconnect’ between s 40A and s 67 of the Act.” and “I consider the ‘disconnects’ referred to in paragraph 49 and 71 are anomalies, likely arising from insufficient attention to legislative drafting when the relevant provisions were amended. This ought to be addressed in my view.”

“If a person summoned to produce documents does object and a return of summons hearing is necessary, a determination should be made formally in respect of objections taken. In appropriate circumstances reasons for the determination should be given”

• Reimbursement of a Doctor’s Expenses

No “….. allowance for the reasonable expenses incurred in producing the documents ……” (para 92(b) was determined. Paragraph 94 (when read in conjunction with paragraph 82) suggests that courier costs, postage, photocopying and printing were the expenses that could be reimbursed, but these had not been quantified hence no determination could be made.

Main messages for doctors:

• The AAT has the sole legal responsibility for determining which documents in a file are relevant to legal proceedings i.e. doctors cannot usurp that role.
• The AAT currently appears only to take into account the relevance of the documents to proceedings, at least in its formal processes. No process is evident that is directed by the Tribunal and identifies inappropriate insurer “fishing” expeditions or potential harm. Such identification relies on flagging by the patient, their lawyer or their doctor.
• The only mechanism available to a concerned doctor is to lodge a formal objection to the summons to the AAT, but the AAT urges caution about repeated routine objections.
• The decision does not clarify the scope of the AAT to exclude documents on the basis of potential harm, either on the basis of individual harm or in the “Public Interest” i.e. devaluing the confidentiality of medical records generally with potential for frequent summoning processes to undermine confidence in the medical system or deter doctor’s willingness to treat compensation patients.
• There is limited recognition of a doctor’s role in bringing sensitive documents to the AAT’s attention, with no clarification about potential risk of harm or analysis of the meaning of “sensitivity” or“delicacy” as might apply to medical records.

In relation to the costs of a doctor’s time to deal with such matters:

• There are limited prospects for financial compensation for a doctor’s time to deal with such matters in a compassionate and professional manner.
• While there was some recognition of a doctor’s role to separate out “sensitive” documents, the AAT specifically rejected reimbursement of the costs of a doctor’s time to perform such tasks, or to consider a summons, provide advice or consult with the patient, another medical or legal practitioner, or to prepare an objection or prepare for the various legal processes that might be available.
• The only accepted costs (to be paid by the party requesting the summons) were for a doctor’s time to attend a formal hearing regarding an objection, “an allowance for the reasonable expenses incurred in producing the documents ……” and potential for reimbursement of “one-off” costs of a medical practice seeking independent legal advice.

My conclusions:

• As a doctor, I do not have any legally-recognised role in determining what documents are relevant to the legal proceedings – even though some records might be obviously irrelevant. Doctors do have a role in identifying documents that have potential to cause harm if released, even though that role is not formally recognised by the legal system.
• At present, my medical practice can’t rely on the AAT to assess potential for harm from release of medical files, but a properly issued summons must be obeyed and due legal process followed.
• As a medical practitioner and practice owner, I would assess risk in consultation with the patient if there was any potential for harm from release of records. I would also consult my Medical Defence Organisation and/or Professional Body regarding my legal and professional obligations and perhaps seek formal legal advice should there be a novel set of circumstances.
• This practice will develop a streamlined process (in consultation with its Medical Defence Organisation) that commits sufficient professional time consistent with ethical and professional practice for risk mitigation. The practice won’t expect reimbursement for a doctor’s time to undertakes those processes, (only administrative costs of photocopying, copying an electronic file to a disc or postage and/or a small allowance for a doctor’s time to produce the documents).
• I would exercise caution about routinely objecting to a Summons without a legally recognized reason. There remains a need to explore what reasons for objection are considered to have merit by the AAT .