Workers’ private medical records: When are they not private?
Workers seeking compensation for a work-related injury or illness do not have an automatic right to privacy of intimate medical records.
In ZFCC and Comcare (Compensation) (2018), a worker made a claim for compensation for an adhesive capsulitis of her right shoulder, which she said arose out of a functional capacity assessment in respect of a different employment-related condition which was conducted at the direction of Comcare.
Comcare rejected the worker’s claim on the basis that it could not be satisfied that she sustained the injury as a result of the functional capacity assessment. The worker appealed the decision.
During the proceedings, Comcare served a summons on the medical practice where the worker received treatment, seeking access to her medical records. The medical centre produced the medical records to the Administrative Appeals Tribunal (AAT).
The worker objected to Comcare being granted access to the entirety of her medical records on the basis that some information was personal and not relevant to the injury and, as such, asked the AAT to redact a total of 74 pages.
The AAT stated that while the right to privacy was well established in Australian law, the right may be explicitly or implicitly surrendered by an individual in a legal context.
One such context is where an individual seeks compensation for a work-related injury or illness and the individual’s medical records are not covered by legal professional privilege and do not refer to another person in such a way as to unduly intrude on that other person’s privacy.
Further, the AAT noted that the parts of the medical records that the worker sought to have redacted may not have been completely irrelevant to her claim for compensation, as they may have served to demonstrate a connection between her prior treatment and the injury.
In light of this, the AAT disallowed the worker’s objection to Comcare’s access to her medical records.
This case illustrates that when seeking workers’ compensation, workers have a duty to disclose any of their medical records if they are needed to satisfy a decision-maker that they have suffered the requisite degree of injury.
It also highlights the right of employers have to summons these records, so long as they are not subject to legal professional privilege and do not refer to another person in such a way that they would breach the other person’s right of privacy.
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