Plain English Guide to YOUR MEDICAL RECORDS IN WESTERN AUSTRALIA

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1 Plain English Guide to YOUR MEDICAL RECORDS IN WESTERN AUSTRALIA NOTE: When the Mental Health Bill 2013 becomes operative, parts of this guide related to the Bill may not be accurate MENTAL HEALTH LAW CENTRE (WA) INC. Justice, Fairness, Equity for People with a Mental Illness April 2014 Sale Price $25

2 Plain English Guide to Your Medical Records in Western Australia Acknowledgements Sandra Boulter, Principal Solicitor and General Manager of the Mental Health Law Centre (WA) Inc. coordinated and supervised this project, and edited the final version of this booklet. The initial researcher was solicitor Michelle Nguyen, with contributions from solicitors Sandra Boulter, Christos Eleftheriou, Deneale Perkins, Lee Vickers, Kate Willcox, Nikki Wilson; and volunteer law students Jennifer Catalano, Simi Chugani, Ebony Creek, Siao-Sun Hoon, Alison Hornsby, Lucie Ingram, Michelle Pontre, Vera Ruhayel, Angela Saldanha, Michael Workman, Celeste Truran, Ashiba Sultana, Madeleine De Leo, Clarence Ling and document design by Mia Kotze. Printed by Quik Impressions Text the Mental Health Law Centre (WA) Inc. Current as at April 2014 This first edition Published by the Mental Health Law Centre (WA)Inc Parry Street, Perth, Western Australia, 6000 PO Box 8466, Perth Business Centre, Western Australia 6849 April 2014 ISBN: Disclaimer of Liability While care has been taken in the preparation of this booklet, the writer and publisher disclaim any liability for action taken or not taken as a result of the contents of this booklet or for any errors or omissions in the information presented. This booklet is written for people affected by the laws of Western Australia. i

3 Table of Contents Definitions: some words in this booklet have special meaning... 1 What is this guide about?... 3 Medical records in Western Australia... 4 Hospital medical records... 7 Mental health medical records... 9 Understanding my medical records Retention and management of medical records Intellectual Property Accessing my involuntary mental health medical records Accessing my voluntary mental health medical records Accessing my medical records from psychiatric hostels Public health service providers Accessing my medical records from public health service providers Private health service providers Accessing my medical records from private health service providers Accessing my prison medical (including mental health) records Accessing another person s medical records in Western Australia Accessing a child s medical records from public health service providers Accessing medical records (other than my own) held by public health service providers Mental Health Review Board (MHRB) Mentally Impaired Accused Review Board (MIARB) Amending my medical records held by public health service providers Amending my medical records held by private health service providers Amending my prison medical records The Psychiatric Service On Line Information System (PSOLIS) database The Open Patient Administration System (TOPAS) Web Patient Administration System (webpas) Personally Controlled Electronic Health Record (ehealth) Privacy Confidentiality What can I do if my medical records have been released without my consent? Making a complaint about public health service providers? Making a complaint about private health service providers Health and Disability Services Complaints Office (HaDSCO) Lawyers and my medical records Western Australia police records Law practices and client records Closed circuit television (CCTV) in secure wards Miscellaneous Index of Sample Letters Access to involuntary medical records from authorised hospitals To an authorised hospital to access your involuntary mental health medical records under the Mental Health Act 1996 (WA) ii

4 To an authorised public hospital to access your involuntary medical records under both the Mental Health Act 1996 (WA) and the Freedom of Information Act 1992 (WA) To an authorised private hospital to access your involuntary medical records under both the Mental Health Act 1996 (WA) and the Privacy Act 1988 (Cth) Chief Psychiatrist: Undertaking by a patient s legal representative not to divulge information to the patient100 Access to voluntary medical records from mental health service providers To a public health service provider to access your voluntary mental health medical records under the Freedom of Information Act 1992 (WA) To a private health service provider to access your voluntary mental health medical records under the Privacy Act 1988 (Cth) To a public health service provider for an internal review of the initial decision to refuse your application. 102 Complaint to the Information Commissioner of Western Australia (public health service provide voluntary mental health medical records) Complaint to a private health service provider Office of the Australian Information Commissioner: Privacy Complaint form (private health service provider)104 Access to medical records from psychiatric hostels To a psychiatric hostel to access your medical records under the Privacy Act 1988 (Cth) Complaint to a psychiatric hostel Office of the Australian Information Commissioner: Privacy Complaint form (psychiatric hostel) Access to general medical records To a public health service provider to access your medical records under the Freedom of Information Act 1992 (WA) To a public health service provider for an internal review of the initial decision to refuse your application. 108 Complaint to the Information Commissioner of Western Australia (public health service provider general medical records) To a private health service provider to access your medical records Complaint to the Australian Information Commissioner, if you believe you have been charged an excessive fee by your private health service provider Complaint to a private health service provider Office of the Australian Information Commissioner: Privacy Complaint form (private health service provider)110 Access to medical records from the Department of Corrective Services (DCS) DCS: Freedom of Information Application for access to documents form To the DCS for an internal review of an initial refusal Complaint to the Information Commissioner of Western Australia (Department of Corrective Services) Providing consent to the DCS Accessing a child s medical records Ta public health service provider to access a child s medical records To a public health service provider for an internal review of the initial decision to refuse your application to access a child s medical records Complaint to the Information Commissioner of Western Australia (child s medical records) Accessing non-personal medical records Toa public health service provider for accessing non-personal medical records T a public health service provider for an internal review of the initial decision to refuse your application to access non-personal medical records Complaint to the Information Commissioner of Western Australia (non-personal medical records) Amend medical records To a public health service provider to amend information in your medical records To a public health service provider for an internal review of a decision refusing to amend your medical records 118 Complaint to the Information Commissioner of Western Australia if a public health service provider refuses to amend your medical records To your private health service provider to amend information in your medical records To the Department of Corrective Services to amend information in your medical records To the Department of Corrective Services for an internal review of a decision refusing to amend your medical records Complaint to the Information Commissioner of Western Australia if the Department of Corrective Services refuses to amend your medical records Psychiatric Services On-Line Information System iii

5 9.1 To PSOLIS administrator to block your PSOLIS mental health medical records Complaints Complaint to public health service provider if privacy has been breached Office of the Australian Information Commissioner: Privacy Complaint form (private health service provider privacy has been breached) Health and Disability Services Complaints Office: Complaint Form Complaint to HaDSCO Western Australian Police Freedom of information application to the Western Australia police To the Western Australia police to change or amend your personal information Contact Details Registered Authorised hospitals in Western Australia North Metropolitan Area Mental Health Services South Metropolitan Area Mental Health Services Psychiatric Hostels Public hospitals in Western Australia Metropolitan Public hospital Services Public Rural Hospital Services Private hospitals in Western Australia Metropolitan Private Hospital Services Rural Private Hospital Services Prisons in Western Australia Metropolitan Prisons Regional Prisons Youth Detention Centres in Western Australia Legal Help Mental Health Law Centre (WA) Inc Legal Aid WA Aboriginal Legal Service WA Non-Government Organisations Health Consumers Council WA (Inc.) Government Organisations Mental Health Commission Office of the Chief Psychiatrist Health and Disability Services Complaints Office The Director General of Health The Corruption and Crime Commission Council of Official Visitors The Royal Australian and New Zealand College of Psychiatrists State Ombudsman Corrective Services Complaints (Prisons) The Office of the Australian Information Commissioner The Office of the Inspector of Custodial Service State Attorney-General Commonwealth Attorney-General Services for People with Hearing or Speech Impairments Australian Health Practitioner Regulation Agency Documents for 100 Point Identity Check iv

6 Definitions: some words in this booklet have special meaning Australian Health Practitioner Regulation Agency (AHPRA) supports 14 National Boards in Australia responsible for regulating health professionals authorised hospitals means hospitals in Western Australia, which are authorised by government to detain patients with a mental illness without their consent Chief Psychiatrist is the appointed independent head psychiatrist in Western Australia responsible for upholding the objects of and other prescribed functions under the Mental Health Act 1996 (WA) Community Treatment Order (CTO)" is as an involuntary order made under the Mental Health Act 1996 (WA), which requires you to have treatment of your mental illness as an involuntary patient, while living in the community Gazette means the Government Gazette that advertises government information: see, "WA Information Commissioner is an independent officer who reports directly to the Western Australia Parliament about matters under the Freedom of Information Act 1992 (WA) (FOI Act). The Office of the Information Commissioner is established under the FOI Act "involuntary patient means an adult or minor who is, for the time being, the subject of an order under the Mental Health Act 1996 (WA) and detained in an authorised hospital, or is subject to a Community Treatment Order mentally impaired accused person means a person to whom the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) applies Office of the Australian Information Commissioner is an independent Australian government agency established under the Australian Information Commissioner Act 2010 (Cth) Official Visitor means a person appointed by a WA Minister to help people who are involuntary patients under the Mental Health Act 1996 (WA) PCEHR is the Personally Controlled Electronic Health Records system established under the Personally Controlled Electronic Health Records Act 2012 (Cth) personal information in the Glossary of the Freedom of Information Act 1992 (WA) means information or an opinion, whether true or not, and whether recorded in a material form or not, about a person, whether living or dead (a) (b) whose identity is apparent or can reasonably be ascertained from the information or opinion; or who can be identified by reference to an identification number or other identifying particular such as a fingerprint, retina print or body sample private hospital is defined in the Hospital and Health Services Act 1927(WA) as a hospital that is not a public hospital PSOLIS is the Psychiatric Services On-Line Information System established by the WA Department of Health as a mental health clinical information database public hospital is defined in the Hospital and Health Services Act 1927(WA), as any hospital that is constituted or managed by a board or Minister under the Act, or declared to be a public hospital by notice published in the Gazette by the Minister 1

7 suitably qualified person for the purposes of accessing information under the Mental Health Act 1996 (WA) includes a consultant psychiatrist and/or your lawyer TOPAS is The Open Patient Administration System webpas is the Web-based Patient Administration System Where they appear in this Guide the above defined terms will appear underlined. 2

8 What is this guide about? This Guide is written to help you understand: the different types of medical records that are kept in Western Australia; how you can access your medical records; how you can obtain copies of your medical records; and how you can correct and/or or amend your medical records, having particular emphasis on mental illness medical records. If you have any questions about accessing your medical records, or you encounter difficulties with obtaining access to your medical records, you can seek legal advice. However, we suggest that you first try to resolve the matter with your health care provider. If you are unhappy with the response by the health care provider, you can lodge a complaint with the relevant complaint-handling body. A list of organisations that can help you with issues relating to your medical records is provided at the end of this Guide. Template letters for requesting copies of and/or amending your records are provided at the end of this Guide. 3

9 Medical records in Western Australia How are medical records 1 held in Western Australia? Every time you visit a health service provider in Western Australia, your health practitioner, such as your doctor or nurse, records the details of your consultation or treatment in your medical records. Every health service provider you visit should have some form of recordkeeping about your attendance, consultations and treatment(s). Your health practitioner should make your medical record as a written or electronic record, or both. Your written medical record should be kept in your patient file. Depending on your health service provider, your information may be recorded on a number of different electronic systems. Current electronic medical record systems include: Psychiatric Service On Line Information System (PSOLIS) The Open Patient Administration System (TOPAS) Web-based Patient Administration System (WebPAS) Personally Controlled Electronic Health Records (PCEHR). See, this Guide about PSOLIS, TOPAS, WebPAS and PCEHR for more information about these electronic medical records systems. Who records information in my medical records? Your health practitioners will record information about your attendance, non-attendance, medical history, consultation and/or treatment in your medical records. Health practitioners who keep a record of your information must be registered with one of the 14 National Boards listed on the Australian Health Practitioner Regulation Agency (AHPRA) website. 2 Each of the 14 National Boards must keep a public national register of their practitioners. You can access the AHPRA register. The 14 National Boards are the: Aboriginal and Torres Strait Islander Health Practice Board of Australia 3 Chinese Medicine Board of Australia 4 Chiropractic Board of Australia 5 Dental Board of Australia 6 Medical Board of Australia 7 1 For research about improving records communications see Oliver-Baxter J, Bywood P Communication between health professionals across sectors Research Roundup Issue 27, January The Australian Health Practitioner Regulation Agency website is 3 Practitioners who must be registered on the Register of Aboriginal and Torres Strait Islander Health Practitioners include Aboriginal and Torres Strait Islander health practitioners, Aboriginal health practitioners and Torres Strait Islander health practitioners. 4 Practitioners who must be registered on the Register of Chinese Medicine Practitioners include acupuncturists, Chinese medicine practitioners, Chinese herbal medicine practitioners, Chinese herbal dispensers and Oriental medicine practitioners. 5 Practitioners who must be registered on the Register of Chiropractors include chiropractors. 6 Practitioners who must be registered on the Register of Dental Practitioners include dentists, dental therapists, dental hygienists, dental prosthetists and oral health therapists. Dental specialists include dento-maxillofacial radiologists, oral and maxillofacial radiologists, dental radiologists, endodontists, oral and maxillofacial surgeons, specialists in oral medicine, oral pathologists, oral surgeons, orthodontists, paediatric dentists, paedodontists, periodontists, prosthodontists, specialists in public health dentistry, specialists in special needs dentistry, forensic odontologists and forensic dentists. 4

10 Medical Radiation Board of Australia 8 Nursing 9 and Midwifery 10 Board of Australia Occupational Therapy Board of Australia 11 Optometry Board of Australia 12 Osteopathy Board of Australia 13 Pharmacy Board of Australia 14 Physiotherapy Board of Australia 15 Podiatry Board of Australia 16 Psychology Board of Australia. 17 You can check to see if your health practitioner is registered with the relevant National Board by visiting the Registers of Practitioners on the AHPRA website. 18 Who owns my medical records? Generally, your medical records are owned and controlled by the health practitioner who created the medical records, or by the health service provider employing that health practitioner. Your written and electronic medical records are subject to intellectual property rights: see, "Intellectual Property at page 15. What information is kept in my medical records? The information kept in your medical records will depend on your treatment provider and/or the place where they are employed. Generally, information collected about your health and any disability (past, present and future) is recorded in your medical records. This information must or may include: the date and time of your consultation/attendance/non-attendance the name of the health practitioner you attended notes on your symptoms and diagnosis, and the treatment provided your specialist reports and test results 7 Practitioners who must be registered on the Register of Medical Practitioners include general practitioners, specialists in addiction medicine, anaesthetists, dermatologist, emergency physicians, intensive care physicians, medical administrators, obstetricians and gynaecologists, occupational and environmental physicians, ophthalmologists, paediatricians, neonatologists, pain medicine physicians, palliative medicine physicians, general pathologists, anatomical pathologists, haematologists, immunologists, microbiologists, forensic pathologists, cardiologists, clinical geneticists, clinical pharmacologists, endocrinologists, gastroenterologists and hepatologists, general physicians, geriatricians, haematologists, immunologists and allergists, infectious diseases physicians, medical oncologists, nephrologists, neurologists, nuclear medicine physicians, respiratory and sleep medicine physicians, rheumatologists, psychiatrists, public health physicians, radiation oncologists, radiologists, rehabilitation physicians, sexual health physicians, sport and exercise physicians, cardio-thoracic surgeons, general surgeons, neurosurgeons, orthopaedic surgeons, otolaryngologist (head and neck) surgeons, oral and maxillofacial surgeons, paediatric surgeons, plastic surgeons, urologists and vascular surgeons. 8 Practitioners who must be registered on the Register of Medical Radiation Practitioners include medical radiation practitioners, diagnostic radiographers, medical imaging technologists, radiographers, nuclear medicine scientists, nuclear medicine technologists and radiation therapists. 9 Practitioners who must be registered on the Register of Nurses include nurses, registered nurses, nurse practitioners and enrolled nurses. 10 Practitioners who must be registered on the Register of Midwives include midwives and midwife practitioners. 11 Practitioners who must be registered on the Register of Occupational Therapists include occupational therapists. 12 Practitioners who must be registered on the Register of Optometrists include optometrists and opticians. 13 Practitioners who must be registered on the Register of Osteopaths include osteopaths. 14 Practitioners who must be registered on the Register of Pharmacists include pharmacists and pharmaceutical chemists. 15 Practitioners who must be registered on the Register of Physiotherapists include physiotherapists and physical therapists. 16 Practitioners who must be registered on the Register of Podiatrists include podiatrists and chiropodists. 17 Practitioners who must be registered on the Register of Psychologists include psychologists

11 your appointment and billing details your prescriptions and other pharmaceutical purchases your hospital and day surgery, admission and discharge records your dental records your genetic information other personal information such as your race, sexuality or religion. 6

12 Hospital medical records What is the difference between inpatient and outpatient medical records? Information collected when you were a patient in a hospital for treatment comprises your inpatient medical records. Information obtained by a health practitioner during your visit as an outpatient to a public or private hospital for diagnosis or treatment comprises your outpatient medical records. The difference between what is kept in your medical records as an inpatient or outpatient depends on your consultation or treatment with your doctor/health practitioner. Is there a difference between accessing my inpatient and outpatient medical records held by public or private hospitals? There is no difference between accessing your inpatient and outpatient medical records, but when requesting copies of your records, you should ask for both. Access to your inpatient and outpatient medical records held by public hospitals is regulated by the Freedom of Information Act 1992 (WA). Access to your inpatient and outpatient medical records held by private services is regulated by the Privacy Act 1988 (Cth). Can I request access to my medical records from my health service providers? Yes. You can request access to your medical records from any health service provider you attend for treatment. The legislative authority and process response depends on the type of medical records you request and your health service provider s status. Access to medical records from mental health service providers Involuntary mental health medical records Under the Mental Health Act 1996 (WA), you have a right to your involuntary mental health medical records created while: you were receiving treatment as an involuntary patient in an authorised hospital; living in the community on a Community Treatment Order; or while you were a mentally impaired accused person receiving treatment in an authorised hospital. 19 See, Accessing my involuntary mental health medical records at page 16. Voluntary mental health medical records You can request your voluntary mental health medical records from a public mental health service provider under the Freedom of Information Act 1992 (WA), or from a private mental health service provider under the Privacy Act 1988 (Cth). See, Accessing my voluntary mental health medical records at page If your records were made in a private hospital, you may apply to access involuntary mental health records under the Privacy Act 1988 (Cth), noting some exceptions, for example in the National Privacy Principles. 7

13 Medical records from psychiatric hostels You can request access to your medical records, which were created during your stay at a psychiatric hostel, under the Privacy Act 1988 (Cth). See, Accessing my medical records from psychiatric hostels at page 23. Access to medical records from public health service providers If your medical records are held by a public health service provider, you have a right to access your medical records under the Freedom of Information Act 1992 (WA). See, Accessing my medical records from public health service providers at page 27. Access to medical records from private health service providers If your medical records are held by a private health service provider, such as a GP or specialist in private practice or a private hospital, you have a right to access your medical records under the Privacy Act 1988 (Cth). See, Accessing my medical records from private health service providers at page 33. Access to medical records from prisons You have a right to access your prison medical records from the Department of Corrective Services under the Freedom of Information Act 1992 (WA). See, Accessing my prison medical (including mental health) records at page 38. Can I request changes or amendments to my medical records held by health service providers? Yes. You can request corrections of/or amendments to your medical records. The authority and process for requesting corrections or amendments to your medical records varies, depending on the health service provider. Changes or amendments to medical records held by public health service providers If your medical records are held by a public health service provider, you have a right to request corrections or amendments to your medical records, under the Freedom of Information Act 1992 (WA). See, Changing or amending my medical records held by public health service providers at page 48. Changes or amendments to medical records held by private health service providers If your medical records are held by a private health service provider, such as a doctor in private practice or by a private hospital, you have a right to request corrections or amendments to your medical records under the Privacy Act 1988 (Cth). See, Changing or amending my medical records held by private health service providers at page 50. Changes or amendments to medical records held by prisons You have a right to request that the Department of Corrective Services correct or amend your prison medical records under the Freedom of Information Act 1992 (WA). See Changing or amending my prison medical records at page 51. 8

14 Mental health medical records Is my treating psychiatrist required to keep a record of my mental health treatment? Under the Mental Health Act 1996 (WA), your treating psychiatrist must keep a record of your admissions to an authorised hospital. 20 If you are an involuntary patient (including living in the community on a Community Treatment Order or a mentally impaired accused person detained in an authorised hospital) your treatment provider must keep a record of your attendance and the treatment you receive. 21 What are registered authorised hospitals in Western Australia? Under the Mental Health Act 1996 (WA), the Governor of Western Australia by an order published in the Gazette, can authorise a public hospital or part of a public hospital to be an authorised hospital for the reception, assessment, admission and detention of involuntary patients for psychiatric treatment under the Mental Health Act 1996 (WA). 22 The Mental Health Act 1996 (WA) authorises a private hospital whose licence is endorsed under the Hospitals and Health Services Act 1927 (WA) to be an authorised hospital. 23 For a list of registered authorised hospitals in Western Australia, current at the date of this publication, see page 131 and check the Gazette online 24 for updates. Who holds my mental health medical records? If you are a voluntary or involuntary patient of an authorised hospital or place where psychiatric treatment is given (for example a mental health clinic), your mental health medical records will be kept by the person in charge of the hospital or place, or a person employed by the hospital or place to undertake that role. 25 Where are my mental health medical records recorded? Depending on your treating health service provider, your mental health medical records may be recorded on the Psychiatric Services Online Information System (PSOLIS), the Open Patient Administration System (TOPAS) and/or as a written medical record. Your mental health medical records can also be recorded in the Web-based Patient Administration System (WebPAS) and the Personally Controlled Electronic Health Records (PCEHR). What are the different types of mental health medical records? Your mental health records can be categorised into two types, depending on whether you are receiving treatment for your mental illness as an involuntary patient or a voluntary patient. 1. Involuntary mental health records Your psychiatrist must keep a record of your treatment while you are an involuntary patient detained in an authorised hospital, living in the community under a Community Treatment Order, or if you are a mentally impaired accused person. 20 Mental Health Act 1996 (WA) s204(1) 21 Mental Health Act 1996 (WA) s204(2) 22 Mental Health Act 1996 (WA) s21(a) 23 Mental Health Act 1996 (WA) s21(b); Hospitals and Health Services Act 1927 (WA) s 26DA Mental Health Act 1996 (WA) s204(1)-(2) 9

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