Australia: What do you do if a patient disputes the accuracy of their medical records? BMS v St Vincent's Health Network Sydney Limited [2015] NSWCATAD 177

Last Updated: 18 September 2016
Article by Alison Choy Flannigan

What happens if a patient, particularly a mental health patient, does not agree with their medical record?

Section 11(2) of the Health Records and Information Privacy Act 2002 (NSW) requires a health service provider organisation to whom the Act applies to comply with the Health Privacy Principles stated in that Act." There are similarities between the NSW legislation and the Commonwealth Privacy Act 1988 (Cth) which applies to private sector health and aged care providers nationally.

In the case of BMS v St Vincent's Health Network Sydney Limited 26 BMS (a pseudonym) was hospitalised in April 2013. A note was made in the progress note that BMS had stated a fact. BMS denied making the statement and applied for the deletion of the statement from the medical record.

HPP 8 requires an organisation, at the request of the individual to whom the information relates, to make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information is accurate. If an organisation is not prepared to amend the health information in accordance with a request, the organisation must take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement of the amendment sought provided by that individual.

In the circumstances, two issues arose for the hospital:

  1. Was the information accurate?
  2. If so, was it necessary to retain that information in the medical record?

Sometimes it is necessary to retain information in the medical record in order to accurately treat the patient or for documentation retention purposes, for example, under the State Records Act 1998 (NSW).

In this case:

  1. In the hospital's opinion, the information was accurate; and
  2. the respondent was required to retain the medical record, however, was prepared to seal the record (restricting access), attaching a copy of a letter by the applicant to the medical record and making a notation against the relevant record.

Under oath, the applicant denied having made the statement.

The Tribunal noted that nothing in HPP8 requires an agency to amend information that it considers accurate, however, in those circumstances it must attach to the information any statement provided by the applicant of the amendment sought. It follows that a finding by the Tribunal that the information is inaccurate is a necessary pre-condition to a consideration of the appropriate amendment, whether by correction, deletion as sought by the applicant, or additions.

The hospital submitted the affidavit of the treating doctor, Dr Millard and relied upon contemporaneous progress notes.

At the hearing Dr Millard gave a detailed description of the room in which the review took place and testified that the notes were contemporaneous. His role at the psychiatric review was to take notes. His usual practice is to write down what is said as it is said. In his affidavit, Dr Millard noted that the statement appeared amongst other notations of episodes of a particular genius and that he believed the notation was of a statement made by the applicant during the review.

In summary, the applicant denied the review took place and gave evidence by reference to the nursing progress notes that she was elsewhere.

The progress note was a contemporaneous note containing either paraphrasing or direct quotes of statements made by the applicant during the review. The Tribunal accepted the submissions of the respondent that the notes were of things said at the time and that they were taken during a continuous period of time during the interview and comprise a distinct three and a bit pages in the progress notes without interruption. The respondent also submitted that the applicant has made no complaint about the accuracy of the rest of the notes.

The Tribunal was comfortably satisfied that the statement in the medical progress notes was an accurate record of the interview. It followed that there is no obligation for the agency to amend the record. It does, however, have an obligation to take steps as are reasonable to attach to the progress notes any statement provided by the applicant of the amendment sought. The Tribunal was satisfied that the respondent had met the obligation contained in HPP8. No further action was required to be taken by the respondent.

Holman Webb acted for St Vincent's Health Network in the above matter.


26 BMS v St Vincent's Health Network Sydney Limited [2015] NSWCATAD 177 (J Kinross, Senior Member)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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