Finding your way – Missing Persons, Medical Records and Privacy

Discussion

According to the Australian Federal Police,¹ an estimated 35,000 people are reported missing each year in Australia. Thankfully, 99.5% of missing persons are eventually located (85% within a week). Medical records may be requested to assist the search.

Access to medical records which do not have the patient’s consent is governed by state and commonwealth privacy legislation and professional standards, including the Medical Board of Australia’s Code of Conduct. Third parties requesting records may be completely oblivious as to the obligations a doctor must consider.

You face an unenviable decision – release some or all of the records and face a backlash from the patient if they are found, or refuse to release the records and risk hindering the investigation.

In this case, the police suspected the patient had met with foul play. The GP sought advice and determined that the history of IV drug use was relevant to the enquiries and agreed to release information in the form of a written summary (but not records) to the police. The GP also communicated the strict need not to disclose this information to the public or family. Dental records and other identifying information (orthopaedic plate) were also provided.

Medico-legal issues

Exceptions to duty of confidentiality and privacy under the Commonwealth Privacy Act

In private practice, the Commonwealth Privacy Act 1988 (Section 16A (1))^2,3 is relevant to missing persons’ record requests. The Act contains a number of exceptions whereby a doctor’s duty of confidentiality and privacy may be outweighed by public interest in disclosing information (termed “permitted general situations” under the Act).

There is an exception in the Act relevant to locating “missing persons”. Where you have received a request from a specific “locating body” (a defined list including federal or local police, Salvation Army Family Tracing Service, Australian Red Cross Tracing Service, International Social Service Australia, Link-Up services, Department of Foreign Affairs and Trade), records can be released if the following conditions are met:

1. You have a reasonable belief that the information is necessary for locating the person.

2. It is unreasonable or impractical for you to obtain consent from the person.

3. The information to be provided is limited to that which is reasonably necessary to make contact with, or offer proof of life of, the person reported as missing.

4. There is no prior contrary wish made by the missing person regarding disclosure.

5. The release of the information does not pose a serious threat to the life, health or safety of any individual.

Your obligations

You must make a written note of the disclosure in the patient’s records including the:

• date of disclosure
• details of the information disclosed
• details of the locating body, e.g. police
• basis of your reasonable belief that the information was necessary to assist in locating the person (this could be a copy of the request, if the request was provided in writing).

You should ensure you understand why the information sought from you is likely to be useful to the locating body – as this may determine what information is provided to the locating body, and will determine the reasons you put in your records. You may choose to limit what records you provide.

References

1. Australian Federal Police. Statistics on Missing Persons.
2. Privacy Act 1988 (Cth). Available at: austlii.edu.au/au/legis/cth/consol_act/pa1988108/s16a.html
3. Office of the Australian Information Commissioner. Chapter C: Permitted General Situations. Available at: oaic.gov.au/agencies-and-organisations/app-guidelines/chapter-c-permitted-general-situations