CHAIR —I welcome Mr Andrew Took, representing United Medical Defence. The committee has before it submission No. 31, which is your submission. Do you wish to make any alterations to that submission?

Mr Took —No.

CHAIR —I will now invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to put questions to you.

Mr Took —Thank you, Senator. United Medical Defence supports the view that a patient has a right to accurate information regarding their health history, diagnosis, treatment and prognosis and that, subject to certain controls, should be able to access their treating doctor's clinical notes. United Medical Defence supports the introduction of a voluntary code recently mooted by the minister and agrees that such a voluntary code should include a suitable dispute procedure. In the alternative, United Medical Defence supports the introduction of legislation as discussed in the United Medical Defence's submission. United Medical Defence opposes, for the reasons set out in the submission, unfettered access by a patient to a private treating doctor's clinical notes.

CHAIR —Thank you.

Senator NEAL —I have noticed in your submission that one of the things you have said should be a requirement if legislation were introduced to give access to medical records is that the access to the records must be accompanied by a consultation with the health professional. That is in item (g). I was wondering whether you meant the person who created the records or any health professional. Could it satisfy your concerns if the patient were to take away their medical records and speak to another professional about them?

Mr Took —With regard to that, from my personal experience, the clinical notes as opposed to a private treating doctor in their own surgery has always acted as an aide-memoire and that particular musings or particular concerns there are written in a shorthand style and is there to aid the practitioner in fulfilling that treatment plan. I think there is always a risk of misinterpretation where another health practitioner may not understand the reasonings behind it or the full import of the notes. I think the preferred method is for the practitioner who has created that aide-memoire for themselves is there to explain it to the patient.

CHAIR —How do you define `aide-memoire'? It is a lovely title. How do you define it?

Mr Took —At the risk of being brief, it is a record to assist a practitioner in planning the patient's treatment.

CHAIR —Isn't information that enables the practitioner to monitor the progress and the treatment of a condition part of that person's file, part of that person's record?

Mr Took —Yes.

CHAIR —And as such that aide-memoire is capable of being subpoenaed for, say, a coroner's court or something like that?

Mr Took —Yes.

CHAIR —You talk about shorthand style--

Mr Took —Just on that point of the coroner's court, it has always been my experience that the coroner always requests, when they subpoena the notes, a full report from the treating doctor as well as the notes. I have appeared on behalf of our doctor members at many inquests and I have never yet had a situation where the coroner has requested just the notes, without a full report outlining the treatment and management of the deceased in the case of a coroner's inquest.

CHAIR —I suppose the point I am getting at is the accuracy and the efficacy of records, how well files are being kept, because you talked also about shorthand style. In most medical records I have seen--I have not seen many recently, but certainly in the past I have seen more than my share--there was a common use of acronyms and abbreviations. Is that still not the case?

Mr Took —I understand so but I think that care must be taken with each individual file. Going back to the question of who is in the best place to go through the clinical notes and the clinical records, I think the preferred person of course is the practitioner who has created those records. But certainly amongst the medical, nursing and health fraternity certain abbreviations--we have given one in the submission; JVPNR, jugular venous pressure not raised--are common.

I think when a particular query is given, perhaps `query cancer' or something like that, and there is not sufficient information on file at the moment apart from a mere possibility--just something to check in the future--that could cause great concern to a patient if that query was not explained to them, even though the practitioner himself may think this is an extremely remote possibility and just wants to check things in the future without creating that concern at that particular time.

CHAIR —Has that got something to do with the actual way records are being made? As someone who has made medical records over the years, I have always tried to be conscious that if you are going to write a statement like that there should be some supporting comments to go with it. You don't just write a bald statement without saying why you have made that particular notation.

Mr Took —I agree with you. But leading from the original question as to who is best placed to explain the records, I think it does occur and in that sort of situation the practitioner who has created the record is in the preferred position to explain the records to a patient.

CHAIR —I was leading to the standards of the keeping of medical records.

Mr Took —I have to concede there is a great variety of standards of record keeping amongst medical practitioners.

CHAIR —Does that provide a problem for United Medical Defence when you are in the situation of having to defend--

Mr Took —Yes, it does absolutely. The old maxim that good records equal a good defence, poor records equal a poor defence and no records equals no defence still stands today.

Senator KNOWLES —I do not think you were here when I asked Mr Puplick a moment ago about any increase in litigation with the access to private records now and also the public record system. Are you aware of any increase in litigation since that has been available to patients?

Mr Took —Since 1991 we have kept records of dramatically increasing litigation against private doctors. Whether it is causally related to the records or not I cannot say. Unfortunately, I do not have the statistics here with me, but we have certainly noticed a substantial increase in the number of claims being brought against our members.

Senator NEAL —Private doctors?

Mr Took —Private doctors, yes.

Senator KNOWLES —Would you be able to provide that statistical information to the committee, please?

Mr Took —I could seek instructions about providing that information, certainly.

Senator NEAL —There is no right of access at the moment. If there is no right of access to the medical records of private practitioners, how could that be linked at the moment to increasing litigation?

Mr Took —It has always been in our view of our members that their patients have a right to the information. We have always encouraged our members to provide a report to the patient regarding their care, treatment, prognosis, et cetera.

Senator NEAL —I think Senator Knowles was suggesting that there was a link between access to medical records and increasing litigation.

Mr Took —I am unable to provide any link other than saying that since 1990 we have noticed a dramatic increase in litigation generally. I am unable to say whether that is causally related to the access problem.

Senator KNOWLES —I am talking about access to records in the public and private hospital system, not private doctors through the hospital system.

Mr Took —No, I do not have access to those figures. All I can refer to is the private doctors' figures. Those figures could be provided by the state department of health. They would be the ideal people to contact in regard to that.

Senator NEAL —That is probably a good idea. The Australian Law Reform Commission giving a right of access to medical records may in fact reduce the level of litigation. A lot of people who are for some reason upset about their medical care or the results of their medical care and cannot get access may well commence proceedings in order to be able to access subpoenas and discovery. They look at it and then say, `Really I do not have any complaint and drop off.' Is that a view you agree with?

Mr Took —I think I agree. That is why I want to encourage our members to provide a full report on request setting out the medical care. It has never been a policy of ours to not provide patients with information on request or advise our members that full information should be given, but again, for the reasons we have recently canvassed, we believe it is best in the form of a report which sets out and consolidates the abbreviations in a report, et cetera.

CHAIR —You would be aware of the New Zealand, the US and the UK models?

Mr Took —Yes.

CHAIR —Have you a preference for one of them? Do you think that one has better safeguards, standards or compliance requirements than the others?

Mr Took —I think the United Kingdom's access to medical records legislation provides a useful starting point.

Senator KNOWLES —You mentioned that legislation in your opinion is desirable. However, you also say that the doctors should therefore not have to put in annual reports. How do you know the effectiveness of the legislation if the doctors do not put in an annual report?

Mr Took —First of all, the position I think since recently is that the United Medical Defence supports a voluntary code and an alternative legislative response. The effectiveness of it can be judged by having an effective disputes procedure whether it is in the voluntary code or in the legislation. Probably the most effective method of looking at whether the legislation is working or not is through the disputes procedure, through the tribunal or whatever that is regulating the disputes procedure. Those records would possibly show, with the most accuracy, whether there is a problem with the legislation or not.

CHAIR —What sort of dispute resolution mechanisms would you foresee or would you like to see?

Mr Took —I think it should be one that is readily available and perhaps on a tribunal level or something like that. If a request in writing has been made and refused then that can be appealed quickly and cost efficiently. As to actual mechanics or whatever then that is a difficult situation to answer at this stage.

Senator NEAL —I have interrogated everyone about the exemptions, so I will ask you as well. What is your view as to what exemptions should be provided? You said there was physical or mental injury to the patient caused by the access of one exemption you have mentioned. Are there any other exemptions that you believe should be provided for in any legislation?

Mr Took —Depending on what scheme you go for, whether it is a voluntary code or legislation, you should have quick and easy disputes. I think it should be reasonably broad. There are always situations in clinical practice that are incapable of being statutorily defined. If you have a protective disputes procedure and a complaint about access can be brought, depending if you have an appropriate membership on that disputes panel, then in my experience the wide variety of problems that may arise in clinical practice can be dealt with providing there is not an overly restricted definition. United Medical Defence would tend to support having a broad definition.

Senator NEAL —Some people have suggested your proposal and others have suggested that there should be a number of very narrow, clearly defined exemptions.

Mr Took —I think there is always a problem with attempting to have a limited definition. There is always going to be a clinical situation that does not fit into one of the listed examples. I think the necessary safeguard is having an appropriate disputes resolution.

Senator KNOWLES —Who should bear the responsibility of the cost of a patient going and seeing--

Senator NEAL —I just said the patient according to the submission.

Senator KNOWLES —Having read these coming over from Perth last night, I could not quite recall what you said. You are saying the patient should bear that responsibility?

Mr Took —Yes.

Senator KNOWLES —Not the taxpayer via Medicare?

Mr Took —That would be something, from United Medical Defence's position--after sitting down and going through it in a clear way and taking into account history--that doctors should be compensated for. Whether the patient pays for that privately or is entitled to a Medicare rebate is something that is also a possibility.

Senator KNOWLES —But you do not have a preference?

Mr Took —I think we are getting fairly technical because quite often it really depends on the reason the patient wants access for it. One could think of very good reasons why Medicare should pay. For example, if they are moving into state and they want a copy of their records plus a report to go to their forwarding doctor. It is a different situation if it is just a matter of interest and the patient wants every month to get a new report and a new copy of the report. It is something that is probably outside my area of useful comment as far as the mechanics of how that would work apart from saying that the doctor should be compensated for their time in providing a copy and explaining that report.

CHAIR —How much of a problem is discovery in litigation--actually having to take out an injunction or start proceedings to actually get hold of a file?

Mr Took —It depends on what you are in. For example, in Queensland they have a system of pre-writ discovery. Before actually commencing litigation they are entitled, by approaching the court, to seek an order like a subpoena, if I can put in lay terms. In New South Wales, as I understand it, if access is refused, which is rare in my experience as it is UMD's policy to encourage members to provide a report on request, proceedings must be commenced before a subpoena or a issue of discovery can be issued. I do not think I could provide any other useful comments on the rest of Australia, but I think Queensland is a good one to highlight the differences.

CHAIR —So they have the discovery before--

Mr Took —Pre-writ discovery.

CHAIR —You have no idea of how many cases actually get to the discovery stage in New South Wales and then get dropped out?

Mr Took —I cannot provide you with any statistics apart from my own personal experience. I do not know whether those figures would be useful to you.

CHAIR —But it is an issue that requires addressing?

Mr Took —I think it does. Again from my own practice, approximately 40 per cent of proceedings that are commenced are baseless. The plaintiff will discontinue the action because they realise that the evidence is not there to support an action of negligence. That is for my own practice. I cannot comment generally.

CHAIR —But you are obviously dealing with a lot of medical--

Mr Took —Yes, I do.

CHAIR —So your experience would be an indication of what the mainstream--

Mr Took —Unfortunately, a number of cases in my experience commence without even asking the treating doctor for a report initially. They get an adverse result. Solicitors are instructed that they commence proceedings and some time down the track they seek access to medical records and clinical notes and then the action is discontinued.

CHAIR —How much responsibility do you think your fellow lawyers have in those instances?

Mr Took —I think there would be some degree there. I would not like to be drawn too much on that particular issue. I do not know whether it would be particularly useful to you.

CHAIR —It is a problem in New South Wales, but not in Queensland? They are the two that you are familiar with?

Mr Took —I am not sure. I do not practice in Queensland. I am not familiar with the rates of action that are taken and how many discontinued prior to hearing. As I said, the figures will have to be taken guardedly because they are just an indication from my own practice.

CHAIR —How do you think that problem can be overcome? Do you think it would be by instituting like the Queenslanders have, a pre-injunction--

Mr Took —I do not think it would make any difference. As I have indicated, if they had sought a report prior to instituting proceedings, if it was one of our members, a report would have been provided which would provide the details of care and treatment. In these cases because an action has been commenced or because a patient has had an adverse result of some kind, it is a matter of filtering through and hopefully something will come up in the process. We refer to them as fishing expeditions in the submission.

CHAIR —There being no further questions, I thank you very much for your time today.

Luncheon adjournment