In our June 2008 Bulletin we published an article about section 110 of the Workers Rehabilitation and Compensation Act 1986 (SA) which provided authorised representatives of the WorkCover Corporation (as it then was) wide-ranging powers of entry and inspection, particularly to access medical information about a worker (the patient) without the patient’s consent.
Commencing on 1 July 2015, the Return to Work Act 2014 (SA) (“the Act”) replaced the Workers Rehabilitation and Compensation Act and the powers previously set out in section 110 are now set out in section 183 of the Act.
We are often contacted by our members after they receive correspondence about this area and we thought it might be helpful to remind our members of their obligations regarding section 183.
Insofar as it applies to medical practitioners, section 183 states that:
“For the purposes of this Act, an authorised officer may, at any reasonable time –
- Require a person who has custody or control of books, documents or records relevant to any matter arising under this Act to produce those books, documents or records;
- Examine, copy and take extracts from any such books, documents or records;
- Require (directly or through an interpreter) any person to answer, to the best of that person’s knowledge, information and belief, any question relevant to any matter arising under this Act.”
From the previous legislation, this power has been determined by the courts to extend to the health records of a medical practitioner. Therefore, pursuant to section 183, a medical practitioner can be required to produce his or her records to an authorised officer and to comply with any requests for an interview. It is an offence to refuse to do so without a lawful excuse.
Dos and don’ts
If a request is made of a medical practitioner for an interview and/or the production of health records, the practitioner should:
- Request production of, inspect and retain or copy the authorised officer’s section 183 authority
- Having received that written authority, satisfy himself/herself of the scope of the authority by asking the authorised officer to outline the matter arising under the Act which is the subject of the investigation
- Only produce notes and answer questions relevant to the matter. The type of section 183 requests that should be complied with include:
- Information regarding a patient’s medical condition and history only so far as it relates to the claim (i.e. entitlement to income support, lump sum payment or medical expenses) and may include any pre-existing injuries of a similar nature
- An investigation of alleged fraud by a patient in relation to their claim
- Not provide information if that information is subject to legal professional privilege; examples of documents that may be privileged include correspondence from solicitors and medical reports prepared at a solicitor’s request
- Not answer a question if the answer would tend to incriminate the medical practitioner of an offence.
Although compliance with a section 183 request is mandatory, arrangements for an interview or inspection of documents should be made in advance and at a time convenient to the medical practitioner.
Section 183 does not give an authorised officer an entitlement to simply write to a medical practitioner and request a copy of the health records without prior inspection. The section permits production of “documents or records” (which includes health records) to an authorised officer for inspection and then copy of relevant records/documents.
Importantly this section does not entitle the authorised officer to access the entire health record of the patient, in particular, information that may not relate to the claim.
Medical practitioners are often asked to view a video and then submit to an interview and possibly change a Work Capacity Form/Certificate previously completed. Often, video of a patient is used to challenge a patient’s purported level of disability. As long as the practitioner has provided information and opinions honestly based on the patient’s presenting symptoms and complaints and findings on examination, then the practitioner need not be concerned by an apparent inconsistency on viewing a video. Medical practitioners should be circumspect when responding to questions following a video and remember that often a video shows only a very limited view of an overall presentation.
We recommend that practitioners request the opportunity to discuss the video with the patient prior to completing any amended form/certificate.
Can you tell your patient?
If a practitioner has provided information pursuant to a section 183 authority then the practitioner is at liberty to advise the patient.
Charging a fee
The medical practitioner should render an account for the time occupied in an interview or collating and copying health records. The fee should be charged in accordance with the Act/Medical fee schedule. The authorised officer should provide you with guidance in this regard. If they do not, then ask them.
If there is any doubt regarding the operation of section 183 or compliance the practitioner should seek advice from MIGA without delay.
For doctors in other jurisdictions
Similar obligations exist for practitioners in other States and Territories. If you are unsure of your obligations, please contact one of the Solicitors in the Claims and Legal Services department.