Your right to your medical records

According to a judicial ruling, there are only a few limited circumstances where a healthcare provider can refuse to disclose a patient’s own medical records to them upon request. — TNS

Everyone seeks medical attention at some point in their lives.

Whenever there is an interaction with a healthcare facility, a medical record is generated.

The doctor makes entries into the medical record(s), which include, among others, the patient’s personal information; the doctor’s clinical notes; discussion records; laboratory, imaging, monitoring, electronic, prescription and communication records; nurses’ reports; operation records; consent forms, etc.

Access to a patient’s medical records can be sought for various purposes, ranging from seeking a second opinion to employment and litigation.

Responses to requests for access to a patient’s medical records can likewise range from facilitation, with the issuance of a medical report, to obfuscation and/or denial.

The latter has often led to forced compliance by the medical facility following the issuance of a court order.

It is often not appreciated by healthcare providers that patients have both ethical and legal rights to access their own medical records.

Ethical rights

The Malaysian Medical Council (MMC) exercises disciplinary jurisdiction over all registered doctors.

The doctor may be punished if found guilty of contravention of the MMC’s Code of Professional Conduct, guidelines or directives.

The MMC Guideline on Medical Records and Medical Reports states in section 1.7, which is titled “Patient’s expectations and rights to medical records”, that: “It is generally accepted that the patient should have access to records containing information about his/her medical condition for legitimate purpose and in good faith; know what personal information is recorded, expect the records are accurate, and know who has access to his/her personal information.

“While patients have right of such access to their Medical Records, they may be permitted to inform the practitioner of any factual errors in the personal patient information.”

The patient’s access to medical records may be denied in certain specific circumstances as stated in the MMC’s Code of Professional Conduct.

These circumstances were reiterated in the judicial decision below.

Legal rights

A patient’s legal right of access to their medical records was clearly stated in the High Court case of Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors (2015).

The judge Datuk Vazeer Alam Mydin Meera (currently a Federal Court judge) held that: “Based on the legal duties and rights that arise from the physician-patient fiducial relationship, and further having regard to the provisions in the guideline and the common law principles, the legal position in Malaysia vis-à-vis the patient’s right of access to medical records can be summarised as follows:

“(a) The ownership of a patient’s medical record vests with the physician or hospital as the case may be.

“However, the physician or hospital must deal with the medical records in the best interest of the patient;

“(b) The patient has an innominate and qualified right of access to his medical records and there is a corresponding general duty on the part of the physician or hospital to disclose the patient’s medical records to the patient, his agents, medical advisers or legal advisers;

“(c) The physician or hospital may refuse to disclose partly or wholly the medical records to the patient in certain limited circumstances, such as, but not limited to, situations when such disclosure would be detrimental or prejudicial to the patient’s health in that the information is likely to cause serious harm to the physical or mental health of the patient or of any other individual contained in the medical records; or when such disclosure would divulge information relating to or provided by an individual, other than the patient, who could be identified from that information;

“(d) When the circumstances giving rise to such qualification for refusal to disclose does not present itself, and when the request for disclosure is reasonable, having regard to all the circumstances, the physician or hospital shall give copies of the medical records to the patient upon payment of reasonable copying charges.”

A request for access to medical records in the public sector is not uncommonly met with a response that a court order is necessary.

However, paragraph 3.4.3 of the guideline referred to, i.e. Garis Panduan Pengendalian dan Pengurusan Rekod Perubatan Pesakit di Fasiliti KKM, only states that medical records cannot be disclosed, disseminated or transmitted to anyone without the consent of the medical director/administrator of the facility, or a court order.

Medical directors/administrators of government facilities should heed the legal position in the case of Nurul Husna in which it was further held:

“Physicians and hospitals would be well advised to grant access to patient’s medical records unless there were circumstances warranting the withholding of the same for reasons discussed earlier.

“If access is withheld unreasonably and the patient is to put to cost and expense to procure a court order to compel production of the medical records, for instance, under the provisions of O. 24 r. 7A of the Rules of Court 2012, then the patient would in such circumstance be entitled to cost on a solicitor-client basis [italics added].”

Ownership vs access

The ownership of medical records is not the same as a patient’s right of access to their medical records.

Some private healthcare facilities deny patients their rights because of a misperception of Regulation 44(1) of the Private Healthcare Facilities and Services Regulations 2006, which states: “A patient’s medical record is the property of a private healthcare facility or service.”

In the case of Nurul Husna, it was held that: “It is clear that reg. 44(2) does not primarily deal with the patient’s right of access to medical records.

“It deals with the security of the original medical records.

“Regulation 44(2) does not stipulate that whenever a patient wishes to have access to his medical records, he must get a court order.

“Therefore, the reliance of private healthcare operators on reg. 44(2) to withhold patient’s access to medical records until the patient obtains a court order is entirely misconceived.

“There is no requirement in law that the patient first obtains a court order to get access to his medical records [italics added].”

The MMC Guideline on Medical Records and Medical Reports reinforces patients right to their medical records: “It is important to appreciate the confidential nature of the Medical Records and though the practitioner and the healthcare facilities and services have rights of ownership, they should still obtain consent from the patient or next of kin before any release of information from the medical records to any third person [italics added].”

In summary

It is generally accepted that a patient’s access to their medical records provides them better understanding of their illnesses and impacts positively on the patient-doctor relationship.

Hospitals, both public and private, and doctors should be mindful of the legal position whenever patients request access to their medical records.

In addition, doctors have an ethical duty to ensure patients right of access to their medical records.

The MMC Guideline on Medical Records and Medical Reports states: “The withholding of information of the care, diagnosis, treatment and advice given to the patient, and relevant copies of the medical records, is unethical [italics added].”

Dr Milton Lum is a past president of the Federation of Private Medical Practitioners Associations and the Malaysian Medical Association. For more information, email [e-mail]. The views expressed do not represent that of organisations that the writer is associated with. The information provided is for educational and communication purposes only, and it should not be construed as personal medical advice. Information published in this article is not intended to replace, supplant or augment a consultation with a health professional regarding the reader’s own medical care. The Star disclaims all responsibility for any losses, damage to property or personal injury suffered directly or indirectly from reliance on such information.