Applying for access to a deceased person's health records by kellena87


									                                                                             Legal Unit
                                                                   Administrative Law Team

                                                                Applying for access to
                                                          a deceased person's health records

                           Processing under FOI legislation                      The decision to require payment of the
                                                                                 application fee is a decision to which rights of
                           Given the level of sensitivity of information in      internal and external review attach.
                           health records, and the inability to consult with       (sections 52A(1)(e) and 101C(1)(h), FOI Act)
                           the deceased patient, all applications for access
                           to health records of deceased persons (except         Next of kin / Executor / Administrator
                           those made under specific statutory authority)
                                                                                 An access applicant's status as next of kin, or
                           must be processed under the Freedom of
                                                                                 executor/administrator of a deceased person's
                           Information Act 1992 (FOI Act). This process
                                                                                 estate does not entitle them to make an FOI
                           facilitates a detailed consideration of the health
                                                                                 application in a representative capacity on
                           record and public interest arguments for and
                                                                                 behalf of the deceased person. The applicant
                           against release.
                                                                                 remains a discrete legal personality and while
                             (see Queensland Health's 'Health Information:       the medical records of the deceased person to
                              Disclosure and Access Policy' (2005), page 6)      which access is sought may be of interest to the
                                                                                 applicant, they do not concern the applicant's
                           'Non-personal' FOI application fee                    personal affairs.

                           Under the FOI Act and the Freedom of                    (see Re Turner and Northern Downs Health
                           Information Regulation 2006, where an                    Service District, paragraph 26)
                           applicant seeks access to a document that             Power of Attorney
                           concerns their personal affairs, no FOI fees or
                           charges are payable in relation to the                By law, both general and enduring powers of
                           application. However, where documents sought          attorney are revoked on the death of the
                           do not concern the applicant's personal affairs,      principal. Therefore, such instruments cannot be
                           the applicant must pay, at the time the               relied upon as authority for obtaining a
                           application is made, an FOI application fee.          deceased person's health records.
                             (section 35B, FOI Act; section 3, FOI Regulation)     (see sections 19 and 51, Powers of Attorney Act
                                                                                    1998 (Qld))
                           Key principles
                                                                                 Parent / Guardian
                           The single criterion for determining whether an       Section 50A of the FOI Act sets out a process for
                           FOI application fee is payable is whether a           a parent or guardian to make a 'personal' FOI
                           document to which access is sought concerns           application on behalf of a child. However, that
                           the applicant's personal affairs.                     mechanism does not apply in situations where
                             (see the Information Commissioner's decision        the child concerned is deceased.
                              in Re Turner and Northern Downs Health Service       (see Dept of Justice & Attorney-General FOI
                              District (1997) 4 QAR 23, paragraph 15)               Guidelines (2007), at page 123)

                           A person's health records clearly concern the         Processing and access charges
                           personal affairs of that person (as a record of
                           their medical history, diagnosis and treatment).      In addition to the mandatory application fee,
                             (see the Information Commissioner's decision        there are also prescribed 'processing charges'
                              in Re Stewart and Department of Transport          and 'access charges' which apply to non-
                              (1993) 1 QAR 227, paragraph 79)                    personal FOI applications that take more than
                                                                                 two hours to process.
                           The application fee must be paid if even one of
                           the documents covered by an FOI access                If it is determined that such charges apply to
                           application does not contain any information          an access application, the FOI decision-maker
                           concerning the applicant's personal affairs.          is required to send the applicant a 'Preliminary
                                                                                 Assessment Notice' setting out the charges and
                             (see Re Stewart and Department of Transport,        how they were calculated, and explaining to
                              paragraph 121)                                     the applicant the various options available to
                                                                                 them. Those options include:
                           The application fee must be paid at the time the
                           application is made (before any assessment of            consultation regarding the application's scope,
                           documents has been made in order to decide               with a view to reducing the charges payable
                           whether access will be granted).                         agreeing to pay charges as assessed
                             (section 35B(2), FOI Act)
                                                                                    lodging an 'objection notice' to challenge the
                           Where it is payable, the FOI application fee is          preliminary assessment
                           mandatory and cannot be waived.                          seeking a waiver of charges on grounds of
                             (section 35C(1), FOI Act)                              'financial hardship'.

   Prepared by:              Administrative Law Team, Legal Unit                                                         Page 1 of 3
   Revised:                  April 2008
                                                                                Applying for access to a deceased person's health records

                           The 'personal affairs' exemption                         22. Accordingly, the fact that the matter in
                                                                                      issue comprises information concerning
                           The right of access to documents under the FOI             the personal affairs of a person other
                           Act is subject to a number of exemptions,                  than the applicant for access will be
                           including section 44(1), which provides:                   determinative (in favour of non-disclosure
                                                                                      of the matter in issue) in the absence of
                            (1) Matter is exempt matter if its disclosure             identifiable public interest considerations
                                would disclose information concerning the             favouring disclosure of the matter in
                                personal affairs of a person, whether                 issue, which have sufficient weight to
                                living or dead, unless its disclosure would,          justify a finding that disclosure of the
                                on balance, be in the public interest.                matter in issue would, on balance, be in
                                                                                      the public interest.
                           Key principles

                           The Information Commissioner (Qld) has issued         Meaning of 'public interest'
                           several decisions that have explained the proper      In the decision in Re Eccleston and Department of
                           application of s.44(1) of the FOI Act when
                                                                                 Family Services & Aboriginal and Islander Affairs
                           dealing with applications for health-related
                                                                                 (1993) 1 QAR 60, the Information Commissioner
                           information about another person.
                           The following extract from the Information
                                                                                   55. While in general terms, a matter of public
                           Commissioner's decision in Re Bultitude and
                           Princess Alexandra Health Service District                interest must be a matter that concerns
                           (Decision No. 01/2000, 20 April 2000, (2000)              the interests of the community generally,
                                                                                     the courts have recognised that: 'the

                           5 QAR 352) explains the relevant principles:
                                                                                     public interest necessarily comprehends an
                             20. In applying s.44(1) of the FOI Act, one             element of justice to the individual' (per
                               must first consider whether disclosure of             Mason CJ in Attorney-General (NSW) v
                               the matter in issue would disclose                    Quin (1990) 64 ALJR 627). Thus, there is
                               information that is properly to be                    a public interest in individuals receiving fair
                               characterised as information concerning               treatment in accordance with the law in
                               the personal affairs of a person. If that             their dealings with government, as this is
                               requirement is satisfied, a prima facie               an interest common to all members of the
                               public interest favouring non-disclosure is           community.
                               established, and the matter in issue will be
                               exempt, unless there exist public interest             Similarly, the fact that individuals and
                               considerations favouring disclosure which              corporations have, and are entitled to
                               outweigh all identifiable public interest              pursue, legitimate private rights and
                               considerations favouring non-disclosure, so            interests can be given recognition as a
                               as to warrant a finding that disclosure of             public interest consideration worthy of
                               the matter in issue would, on balance, be              protection, depending on the circumstances
                               in the public interest.                                of any particular case.
                             21. ... Information concerning the health or
                               ill-health of an identifiable individual falls    Pursuit of legal remedies
                               within the core meaning of information
                                                                                 The Information Commissioner has recognised
                               concerning personal affairs: see Re Stewart
                                                                                 several public interest considerations weighing
                               and Department of Transport (1993) 1
                               QAR 227 at pp. 256-257, paragraph 79.             in favour of disclosure, such as the public
                               Moreover, the public interest in respecting       interest in Queensland Health's accountability
                               the privacy of an individual's medical            for the provision of public sector health care
                               records is a strong one, which will               services, and the public interest in a person
                               ordinarily (subject to the existence of           who has suffered, or may have suffered, an
                               mitigating factors of the kind referred to in     actionable wrong, being permitted to obtain
                               Re Summers [and Cairns District Health            access to information which would assist the
                               Service (1997) 3 QAR 479] at p.484,               person to pursue any remedy which the law
                               paragraph 19) be deserving of considerable        affords in those circumstances.
                               weight in the application of a public
                               interest balancing test, as has been              However, the Information Commissioner has
                               recognised in my previous decisions (see,         stated that 'the mere assertion by an applicant
                               for example, Re Summers at p.484,                 that information is required to enable pursuit of
                               paragraphs 18-19; Re Fotheringham and             a legal remedy will not be sufficient' to warrant
                               Queensland Health (1995) 2 QAR 799 at             disclosure, and that even if a public interest
                               paragraphs 11, 24-25, 33) and in decisions        favouring release was found to exist in a
                               of other tribunals (see, for example, Re          specific case, it would not necessarily be
                               McPhedran and Minister for Health                 determinative. (See paragraphs 17-18 of the
                               (Australian Capital Territory Administrative      Information Commissioner's decision in Re
                               Appeals Tribunal, Professor L J Curtis
                                                                                 Bultitude for a detailed discussion of the
                               (President) and Mr N J Atwood (Member),
                                                                                 relevant analysis which is to be undertaken by
                               No. C92/103, 2 June 1994, unreported) at
                                                                                 the FOI decision-maker in such cases.)
                               paragraph 8).

   Prepared by:             Administrative Law Team, Legal Unit                                                              Page 2 of 3
   Revised:                 April 2008
                                                                                 Applying for access to a deceased person's health records

                           In keeping with the approach which the
                           Information Commissioner has endorsed, an
                           applicant seeking to rely on this public interest
                           consideration would have to provide particulars
                           of the basis on which they believe that a legal
                           remedy is, or may be available to them in the
                           particular circumstances of the deceased
                           person's death, and how the requested records
                           will assist in pursuing that remedy.

                           Emotional 'need to know'

                           In Re Summers and Cairns Health Service
                           District (1997) 3 QAR 479, the applicant argued
                           that disclosure of her adult daughter's medical
                             '... would satisfy an emotional need of the
                             applicant ... . It would give her peace of mind
                             to understand the treatment by the Cairns
                             Base Hospital prior to the admission during
                             which her daughter died ... . Disclosure of the
                             matter in issue would help her come to terms
                             with her daughter's death. The applicant

                             submits that there is a public interest in
                             provision of such information as this to a
                             mother with respect to her deceased
                             daughter, in circumstances such as are
                             present in this case (i.e., where the death was
                             sudden, and unexpected, and the deceased
                             had apparently been healthy). The applicant
                             also submitted that disclosure of the matter in
                             issue would assist the daughter of the
                             deceased (i.e., the applicant's grand-
                             daughter) at the appropriate time'.

                           However, the Information Commissioner
                           concluded (at paragraph 24 of his decision):

                             'While I have considerable sympathy for the
                             position of the applicant, I consider that the
                             matters set out ... above can only be properly
                             characterised as a personal interest of the
                             applicant, rather than a genuine public
                             interest consideration which could afford a
                             legitimate basis for a finding that disclosure of
                             the matter in issue would, on balance, be in
                             the public interest.'

                           For further information

                           Copies of the Information Commissioner
                           decisions referred to above, and FOI Concepts:
                           'Fees and Charges' and 'Personal Affairs' are
                           available on the Information Commissioner's

                            This summary, prepared by the Administrative
                            Law Team, Legal Unit, Queensland Health,
                            discusses matters of general principle only.

                            Any queries should be directed to the
                            Administrative Law Team:

                               Telephone     (07) 323 41735
                               Facsimile     (07) 323 41977

   Prepared by:             Administrative Law Team, Legal Unit                                                               Page 3 of 3
   Revised:                 April 2008

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