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
In the case of BMS v St Vincent's Health Network Sydney
Limited26 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:
Was the information accurate?
If so, was it necessary to retain that information in the
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:
In the hospital's opinion, the information was accurate;
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
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
Holman Webb acted for St Vincent's Health Network in the
26BMS v St Vincent's Health Network
Sydney Limited  NSWCATAD 177 (J Kinross, Senior
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
We discuss this recent decision which considered classification levels.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).