Carver and Comcare

I recently published an article, Privacy of Medical Records – What does a recent AAT decision mean for patients and doctors? in the new O.M.I.T. (Occupational Medicine in Tasmania) newsletter. The article refers to a recent AAT decision (Carver and Comcare (Compensation) [2019] AATA 1534 (28 June 2019) about insurer access to medical files via summons.

In that article I summarised the main messages for doctors and highlighted some of the implications for medical practices where insurers invoke compulsory mechanisms through the courts to gain access to medical files.

The AAT decision drew a distinction between  a doctor’s professional duty and a legal duty, in the following terms:

“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” 

It would seem to me that doctors are legally required to act professionally and if there is validity to the above statement, the boundaries between practicing legally and practicing professionally need to be explored further by the medical profession.

Objecting to a Summons or Subpoena

In my experience summoning of medical files is becoming much more common, but at present the practice seems confined to Commonwealth jurisdictions. Well almost, soon after my initial draft of this article, I received a “Notice to Attend” from the Tasmanian Workers Rehabilitation & Compensation Tribunal (TWRCT) to produce a patient’s file.

My practice files have been summoned 5 times in the last year or so. In two of those cases, the patients file had previously been summoned. Due to my concerns, I have explored the legal system response to various approaches to legally opposing the summons.

While I have been obliged to provide my file to the relevant Court/Tribunal in each case, I have had variable success with my objections to the release of consultation notes, particularly that they be withheld from the insurer involved.

Firstly, questioning the validity of a summons duly issued by a Court or Tribunal does not appear to be an effective approach. I now routinely attempt dialogue with the agency requesting the summons, but in one case I was rudely stonewalled when I asked about the purpose of the summons and questioned its scope. I had reason to suspect an ulterior motive by the requesting party. Nevertheless, the Tribunal required the release of my file for their consideration rather than directing, as I had requested, that the requesting party respond to my queries about the basis and scope of the summons.

In another case my entire file was provided to the insurer, but in two other cases the Tribunal determined that my consultation notes be withheld from the insurer. It has not been possible to establish the Tribunal’s reasons, whether the notes were deemed irrelevant or protection of privacy and concerns about potential harm were factors.

In the recent matter before the WRCT, my entire file, including consultation notes, was provided to the solicitors for the insurer, but not to the insurer itself, presumably as a result of my objection. Interestingly, I only found out the Tribunal final decision in relation to my objection when I subsequently appeared as an expert witness in a hearing relating to the same patient and the insurer’s solicitor cross-examined me about my own consultation notes. The parties were informed that my objection to release of consultation notes was dismissed but, as the doctor making the objection, I am yet to be officially notified. The dismissal of my objection however came as no surprise given the Chief Commissioner’s comments when he heard my objection. I will await the formal decision with interest.

Hopefully as a result of the decision in Carver & Comcare, the reasons for future decisions about objections will be provided in writing.

In one of the five cases however,  I was gratified that the insurer actually withdrew the request for my file after I explained to the insurer’s solicitors the basis for my objection, referred to my own conclusions about the implications of the Carver and Comcare Decision and raised the potential need to seek my own legal advice. I am not sure why they withdrew, but I like to think insurers might now consider the necessity of medical file information before embarking on the rather oppressive and intrusive process of forcing a medical practice to release a file.

The Future

I hope that more respectful approaches will be adopted where insurers require medical information from treaters, i.e.  polite written requests accompanied by the patient’s consent or even a request for case conference. If a “forensic” examination of records is important, perhaps they could identify the issue, rather than the intrusive and scattergun approach of a file summons. The term “fishing expedition” comes to mind.

There remains a need for the medical profession to put forward its views on the professional duties of a doctor in relation to confidentiality of medical records and professional obligations in a response to a summons. The RANZCP statement Patient–psychiatrist confidentiality: the issue of subpoenas is a good starting point. The AMA also have some guidelines for their members – Guidelines for Doctors on Disclosing Medical Records to Third Parties

I have had feedback from patients who have experienced unwanted access to their file and felt the unnecessary intrusion. One such patient wrote to me:

“The patient in this process (making a compensation claim) has to waive rights to privacy; their personal medical information is routinely disclosed to their employer, rehab case managers and to other medical practitioners for IME consultations. The patient has no say in who is given what information. While it is important that employers properly manage an injured worker’s injuries and assign appropriate work accordingly, in my experience, disclosures can be to anyone in the organisation and not always for this purpose. Disclosures seem to increase if the patient questions the process. I have routinely annotated consent forms to restrict disclosures of my personal information to only information about my workplace injuries, and only to a limited group of people, but this has caused me problems.”

“These records are not just released to the tribunal, but subsequently to the insurer and their lawyers and may also appear in a publicly available decision document.”

“I am now very careful to divulge only the minimum information required to seek medical intervention as a result, but I rarely go to doctors anymore, despite medical need. I will not tell anyone which doctor I see now. So it’s not just practitioners who are deterred.”

Patients also seem to be disempowered. Again to quote from the same patient:

“There is an imbalance of power in a workers comp case and the patient is already broken and intimidated, while trying to manage an injury/illness, rehab process, legal case, distress, work and family.”

“For patients there is no real avenue or forum for any feedback to the system or for discussion in the public domain of what happens to us.”

From my recent experiences, I see a twofold need:

• Firstly, insurers and their legal advisers need to be made aware of the repercussions of a legal system that routinely forces doctors to release their files. Not only is there potential for psychological harm to the patient, but such practices undermine patient confidence in the medical system. This might lead to non-disclosure of important information for the doctor’s decision making. Repeated unwelcome legal intrusions might deter some doctors from being prepared to treat compensation patients. What has been labelled “Refusal to Treat” has already been identified by researchers as an issue affecting access to treatment for patients in compensation systems. There is not much published on this subject but some research is emerging. See link:  “Is clinician refusal to treat an emerging problem in injury compensation systems?”
• Secondly, if the Court system has ultimate control and responsibility for the legal processes that require doctors to release their file (as they do and there is no prospect that that can change), that responsibility should extend beyond just the legal considerations of relevance of the documents to the matter before the courts. The Courts have the power to reject or modify requests from insurers, but I have seen little evidence of the exercise of that power. There needs to be a proper process adopted by tribunals and courts that considers the legal need, along with an assessment of potential harm. Harm can occur both at an individual level and at the level of the overall public interest. The public interest is seriously undermined if patients no longer disclose important confidential information to their doctors or doctors are no longer prepared to treat compensation claimants.

Conclusion

I believe summoning an entire medical file should be a “last resort” where medical information from treaters is essential for justice and alternative means to obtain necessary information have been unsuccessful.

The Carver and Comcare Decision identified some deficiencies in the legislative provisions relating to summoning files. There is an opportunity for a more comprensive review of  Legislation, Practice and Procedure.

In the interim, it seems appropriate for medical professional organisations to publicise this issue amongst their members, explore issues of professional duty and provide education about what options doctors currently have when their medical files are summoned without patient consent.

Further Developments

I recently delivered a presentation – Medical Files – Access by insurers via court demand at an AMA sponsored forum that included consideration of this subject. In preparing my presentation, I contacted the AAT to clarify the procedures relating to the process leading up to the issue of a summons for a medical file.

As I understand it, the party wanting access to a medical file drafts the Summons and makes a request in writing to the Tribunal so that a registrar of the tribunal can consider:

• the reasons given for requesting the summons;
• the person to whom the summons is directed; and
• the description of the documents the person will be required to produce.

The only currently-accepted grounds for rejection of a request include that the information is not relevant to proceedings or if the summons is too broad or incomprehensible. The same principles apparently apply in the TWRCT.

The AAT were not however able to provide any answer to the following query:

“How many Summons requests for medical and other health professional files are issued annually by the AAT? How many are issued as requested, how many are modified and how many are refused completely? Can you summarise the reasons for refusal or modification?”

I understand that there are about 1000 applications each year to the AAT in workers compensation matters. I further understand summons requests are a subset of that group. In my experience summons’ are often issued to multiple health providers as part of a single application, so I expect 100’s (if not more) of medical files are obtained by this process and remain on insurer and lawyers computer servers for long periods. It would be interesting to obtain an accurate answer to my query, if that is possible.

My communication with the AAT did offer some hope. In answer to my query about any plans to review processes relating to summons procedures, I received the following answer:

“We are currently looking at practice and procedure in that area of our work as well as at our practices relating to summonses more generally. We would welcome the views of stakeholders in relation to these matters, including any concerns or suggestions relating to summons procedures. Should you or the AMA wish to provide any views, these can be forwarded to: legalandpolicy@aat.gov.au”

Where To From Here?

I hope that medical organisations will take an interest in this important issue and lobby appropriately. I also hope that the AAT (and other Courts and Tribunals) review their procedures and flag the need for legislative change where the current law presents a barrier to new procedures that take account of harm. Updated procedures should not only consider the relevance to legal proceedings of confidential medical files where an insurer considers that they contain potentially important evidence.

I also think a doctor’s consultation notes need to have special protected status given their primary role is to aid treatment, the inclusion of most sensitive material in those notes and the potential for misinterpretation by non-medical people.

I am interested in any feedback on this issue.