Clinical Quality & Safety

Medico legal

General Information
Requests for Medical Information
Requests for Statements
- Coroners
- Police
- External Lawyers
- Medical Reports
Court related issues
- Summons to give evidence
- Subpoenas
Other Information

Introduction

The term Medico-Legal relates to the interaction of a patient/family's experience of care and the legal system

The Medico-Legal team consists of:

Medico-Legal Physician - Dr Anita D'Aprano
Medico-Legal Administrator - Ms Liz Pohlen
Medico-Legal Administrator - Ms Leanne Sawyer

Role of the Medico-Legal Office

Provide support and advice to staff with regards any Medico-Legal issues.
Notification to Hospital Insurers (VMIA) of adverse events and potential litigation.
Provide information to External Hospital lawyers
Coordination of requests by various external bodies, both legal and health related, including Police, Coroner, DHS and Lawyers
Assist staff in the writing of reports/statements
Facilitate access to medical information by patients / parents / external bodies, both legal and health related
Comply with subpoenas for Medical Records and support staff who are summoned as witnesses
Receive Writs and co-ordinate associated processes

Relevant Legislation

Children & Young Persons Act 1989
Health Services Act 1988
Information Privacy Act 2000
Health Records Act 2001
Freedom Of Information Act 1982

The Medico-Legal Office holds copies of the above Acts.

Witnessing documents and affidavits

Currently there is no Justice of the Peace at The Royal Children's Hospital. Ms Margaret Kingston, Legal Counsel is available to assist with regards witnessing legal documents.

To locate a Justice of the Peace, you can contact 1300 365 569 or for more information the Department of Justice provides the following guidelines: (new windows)

Guidelines for Authorised Witnesses
Affidavits
Statutory Declarations

Support/Advice to staff

The staff of the Medico-Legal Office are available to provide advice and support regarding Medico-Legal issues that may arise. In particular, advice with regards your legal and ethical responsibilities in relation to the release of medical information, preparing statements, reports and giving evidence.

Open Disclosure

The hospital is committed to creating an environment that facilitates open and effective communication, even when things go wrong. Open disclosure is the open discussion of incidents that result in harm to a patient while receiving health care. Policy and Guidelines have been developed.

Release of confidential health information

The hospital is committed to optimising health care by promoting good communication between RCH and outside treating agencies, however this needs to be balanced with our legal responsibility to comply with Privacy Legislation and our patients/parents reasonable expectation that their confidentiality is preserved.

The hospital receives a vast number of requests from various individuals to access to confidential health information relating to patients care and treatment. A majority of these are managed by the Medico-Legal Office.

Records of all patients are confidential and can only be released with the written authorization of the patient/parent. There are some exceptions and these are listed accordingly.

Please contact the Medico-Legal Office for clarification if at all unsure about releasing confidential health information.

The following are guiding principles with regards the release of medical information.

Communicating with the treating team

The treating team is defined as Health Providers both within and outside the hospital who are nominated by the patient/parents as being their carers.

Evidence that a health provider is part of the patients treating team is provided by:

1. The patient/parent nominating the provider as currently treating/caring for them

or

2. The hospital having records confirming that within the last 3 years there has been communication between the health care provider and The Royal Children's Hospital

Requests for a copy of Medical Records

All requests for copies of the Medical Record (or part of), are to be forwarded to the Medico-LegalOoffice. These requests are managed in accordance with the Freedom of Information Act 1982. You can provide applicants with an information sheet and application form .

Request by Parents or Guardians

Parents or guardians have the right to request release of confidential information about their dependents who are

Under the age of 18 years (written authority from the patient is required)
Or who for mental or physical reasons are in their legal guardianship.

Exceptions

A young person between the ages of 16 -18 years of age who specifically requests that personal information be kept confidential

A young person between the ages of 14-16 years who a respected health worker deems to be of adequate maturity can request that personal information be kept confidential.

Requests by individuals (patients)

Individuals have the right to request release of personal, confidential information. These include

All persons 18 years and older who are mentally competent
Any young persons between the age of 16 and 18 who is considered to be mature and competent
Young persons between the age of 14 and 16 who a respected health worker considers to be mature and competent and who has effectively has no parent or guardian.

Requests by a third party (e.g. external organisations)

A copy of the patients Medical Record (or part of) can only be released if: -

The patient or their parent/guardian has given written consent

Request by Police

A copy of the patients Medical Record (or part of) can only be released if:-

The patient or their parents/guardian has given written consent.

Exceptions

When a child has been notified to the Department of Human services as being at risk of physical or sexual abuse
When a notification is pending
When an alleged perpetrator is charged and police are seeking information, which relates to a child or young person who may have been the victim of physical or sexual abuse allegedly perpetrated by that person charged.

The release of the original record to police can only be given if the police provide a 'Warrent' for the history.

All 'Warrents' are to be presented to the Medico-Legal Office.

Requests for a copy of photographs

All requests for copies of photographs taken (or part of), are to be forwarded to the Medico-Legal Office. These requests are managed in accordance with the Freedom of Information Act 1982.

The release of photographs to parents/patients/third party etc is as for the Medical Record, however there are currently three areas of photography in the hospital and each of these bring with them distinct processes.

Release of photographs of a child at risk (taken by ERC)

Consent for these photographs to be released must come through the director of the Gatehouse Centre. This is because the centre will know whether a child is currently under a Care and Protection order. The director of the gatehouse will determine if a request from the police, a patient or a parent can be complied with legally.

Release of Clinical photographs (taken by ERC)

Requests for copies of photographs are processed in accordance with the Freedom of Information Act. The FOI officer will forward the request to Educational Resource Centre's Medical Photography section. They will provide copies for forwarding. If in their opinion the photographs could be of a child a risk, then they will discuss this with the head of the Gatehouse Centre, who is will determine whether the photographs can be released.

"Ex officio" photographs taken by practitioners

Currently, many practitioners are taking clinical photos for their own records or for teaching. This often occurs without adequate consent being obtained and without adequate identification being incorporated into the process.

These practices contravene RCH policy in regards to the taking, identifying and storing of medical images.

Nevertheless, if a patient, a parent or police request these images the Medico-Legal Office will endeavor to identify the "photographer" involved, advise that person as to the legality of the request and aid them in the appropriate release of the material.

Requests for a copy of XRay's, Scans's, MRI's etc

All requests for copies of medical images should be directed to the Medical Imaging Department to the attention of the Manager Clerical Support Services.

These requests are managed in accordance with the Freedom of Information Act 1982.

The release of medical images to parents/patients/third party etc requires that party to complete a Medical Imaging Freedom of Information Form and provide photo identification before the images can be released. A copy of this form is available from the Medical Imaging Department.

A cost may be associated with the supply of the images, dependent upon the patient status.

Images are principally available in soft copy format however in the case of old analogue films, hard copy format will be provided.

Requests for copies of Medical Imaging written reports must be directed to the Medico-Legal Office.

Requests for statements

The following are instances where you may be required to provide statements. These requests should come through the Medico-Legal Office. If you receive the request directly please inform the Medico-Legal Office.

Request Coroner statements

The State Coroner has a legal responsibility to investigate particular deaths with the aim of ascertaining the cause of death and how a death occurred. The mere fact that a Coroner is investigating a death does not indicate that there are suspicious circumstances.

In some cases the Coroner may choose to hold a public inquest calling witnesses, and may comment or make recommendations about public health or safety or the administration of justice, to assist in the prevention of similar deaths.

If you are asked to provide a statement to the Coroner, there are two ways this information may be used:

The Coroner will use the information you provide, in conjunction with any other material gathered, to help determine how the death occurred and the circumstances surrounding the death.
The Coroner may decide to hold an inquest, and selects the witnesses to be called. If you are called, the statement you provided will form the foundation of your evidence.

The Medico-Legal Office coordinates the information to assist the Coroner's investigation, assisting you in preparing statements in consultation with the Legal Counsel. Should you be required to attend an inquest, the Medico-Legal Office will support you in this process.

To assist you, there are guidelines to **************** preparing a statement for the Coroner

If you have received a request directly, please inform the Medico-Legal office.

Police / Department of Human Services (DHS)

Under the Children and Young Persons Act (1989) prescribed circumstances exist when staff can provide police statements without first seeking consent. These circumstances include:

When a child has been notified to the Department of Human services as being at risk of physical or sexual abuse
When a notification is pending
When an alleged perpetrator is charged and police are seeking information, which relates to a child or young person who may have been the victim of physical or sexual abuse allegedly perpetrated by that person charged.

In the process of their investigations, the police or DHS may ask for a statement from the treating doctor, we are obliged by law to provide such statements. In some instances providing a statement can avert the need to attend court.

Staff are not empowered to provide statements to the Police without parental/guardian's consent if:

There has been no notification or intent of notification;
The Police are engaged in preliminary investigations and no charges have been laid.

The Medico-Legal Office acts as the liaison between the police and clinicians and ensures appropriate authority has been provided to release information. We coordinate the process and can assist you in preparing statements.

There are guidelines to assist you in *************preparing a statement for the police

External Hospital Lawyers

The Royal Children's Hospital's insurer, VMIA, will apoint external lawyers to investigate any incident which it has identified may lead to legal action.

The role of the lawyer is to prepare the Hopital's defence should legal action be taken. This requires gathering as much information from all the clinicians involved in the patient's care.

If you receive a request for a statement regarding your involvement in the care of a particular patient please make it's completion a HIGH PRIORITY.

The Medico-Legal Office acts as the liaison between the lawyers and clinicians and coordinates the process of gathering information. We will assist you in preparing statements in consultation with the Legal Counsel and support you should the matter proceed to trial.

There are guidelines to assist you in preparing a statement for lawyers *********************

If you receive a request directly, please inform the Medico-Legal Office.

Requests for medical reports

Such reports are often requested from external bodies such as TAC, Lawyers, these fall into two categories :

Expert opinion These requests comprise a specialist opinion about the degree of injury sustained and /or the amount of disability which might be suffered by the patient and these are directed to the appropriate Specialist Doctor for completion
General reports - can be written by a nominated doctor and/or the treating doctor.

Do not release confidential information about a patient to a third party without written authority from the patient / parent.

The Medico-Legal Office provides a report writing service for general reports. You can forward requests that you receive to the Medico-Legal Office, where the request will be written and invoiced accordingly.

If you or your department wish to write and invoice your own general medical reports, you may do so. There are guidelines to assist you in writing these. Medical Reports for Solicitors or TAC (word)

Requests for medical information

General Practitioners (GP)

If a GP contacts the hospital seeking information, Health Information Services (HIS) will send that GP photocopies of correspondence, results and discharge summaries if that GP is clearly identified in the medical record as part of the patients treating medical team.

This can be established by ascertaining that the practitioner has either been sent a letter by RCH regarding ongoing care or that the GP originally referred the patient to this Hospital. The Medico-Legal Team has decided that either of these events have to have occurred less than 12 months ago. This timing, is not a legal requirement but is prudent in that no practitioner should have the unlimited right to access a patients information simply because the GP has treated them in the past.

If these requirements are not met then signed authority will be required from the parent/patient. Signed consent is preferable wherever possible. A form can be provided to the patient/parent or GP - Release of information request form (PDF).

Department of Human Services (DHS) / Others

Requests received indicating that they are seeking information (not a report), should be accompanied with a written authority from the patient / parent. Please forward such requests to the Medico-Legal Office.

Summons to give evidence in court

If you have been served with a subpoena to appear in court, the Medico-Legal Office can provide support and guidance. Information sheets "being served with a subpoena" and "tips for attending court and giving evidence" are available.

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Subpoenas

A subpoena is a document issued by a court requiring the person named to attend at the court to give oral evidence and/or produce documents. There are three types of subpoena:

subpoena for production;
subpoena to give evidence;
subpoena for production and to give evidence

If you have received a subpoena, you must comply with it. Failing to comply with a subpoena is a serious offence.

You may be guilty of contempt of court.
A warrant may be issued for your arrest and you may be ordered to pay any costs caused by your non-compliance.

All staff who received a subpoena should contact the Medico-legal Office to discuss the requirement of the subpoena before responding and/or attending court.

Accepting Subpoenas

If the subpoena is made out to a specific person, eg the treating doctor, direct the person serving the subpoena to the correct department.

No one is legally required to accept a subpoena on someone else's behalf.
Personal telephone numbers or addresses should not be released
If the staff member is not in the hospital, the person serving the subpoena should be asked to return when the staff member is at work.

The Medico-Legal Office accepts subpoenas for the production of documents only, and can only accept these during office hours (9am - 1630hrs Mon - Fri) Outside of these hours the person delivering the subpoena is to be instructed to return the next working day.

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Resources for Staff

Corporate Counsel
Medical Reports for Solicitors & TAC
Open Disclosure
Preparing a statement for the Coroner
Preparing a statement for Police
Processing and Invoicing
Being Served with a subpoena
Giving evidence in court