20 Aug 1999, 09:00

The complainant retained the services of a midwife for the birth of her child. She later complained about the midwife to the Nursing Council and made a claim to the ACC on the grounds of medical misadventure. She made it clear that she did not want any contact with the midwife. 

The ACC contacted the midwife and asked her to comment on some aspects of her care of the complainant. Subsequently the midwife went to the hospital where the complainant’s medical notes were stored and obtained access to, and photocopied, them.  The complainant alleged that the midwife should have obtained her authorisation or obtained the information directly from ACC. 

I formed the opinion that the complaint did not have substance. 

The midwife explained that, in order to answer the ACC queries, she needed some information from the notes she had written about the birth. These were stored with the complainant’s medical notes. The midwife asked the hospital for the notes. The midwife asked the hospital for the notes and was told her request would be looked into. 

Shortly after that, the midwife was at the hospital for another matter and went to see the person she had spoken to about the notes.  That person was not there, but the file was, with the midwife’s name clipped to it. The midwife assumed the file had been obtained for her and photocopied the information she required to answer ACC’s queries.  She later discovered that she was not supposed to have access to the file until the complainant’s authorisation had been obtained. The midwife destroyed her copy after responding to ACC. 

Rule 2 of the Health Information Privacy Code 1994, requires health agencies to collect information directly from the individual concerned except in certain circumstances.  One of those is where the individual authorises collection from another source.  However, there are others. Rule 2(2)(d) provides that health agencies do not have to comply with rule 2 if they believe on reasonable grounds that compliance is not reasonably practicable in the circumstances of the particular case. 

The information required by the midwife was held by the hospital and, in the circumstances, the midwife did not consider it was reasonably practicable to obtain the information from the complainant. I accepted that the midwife had reasonable grounds for this belief. Nothing in rule 2 required the midwife to seek the complainant’s authorisation before she could rely upon rule 2(2)(d). 

Rule 4 limits the collection of health information by means which are unlawful, unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned. 

When the midwife photocopied the information from the complainant’s file, she did so in the belief that the hospital had considered her request and acquiesced to it by obtaining the file from the records department. In the circumstances I considered this was a reasonable belief.  I did not consider the means she used to be unlawful or unfair. Nor did I consider they intruded to an unreasonable extent upon the complainant’s affairs, given that the midwife would have been entitled to see the records had she applied to ACC. 

After forming the opinion that the complaint did not have substance, I closed my file.

Indexing terms: Collection of personal information - Midwife - Medical file copied without authorisation - Collection of information relevant to ACC claim for medical misadventure - Collection from complainant “not reasonably practicable” - Health Information Privacy Code 1994, rule 2(2)(d) 

Collection of personal information - Midwife - Medical file copied without authorisation - Collection of information relevant to ACC claim for medical misadventure - Means of collection not unfair or unreasonably intrusive - Health Information Privacy Code 1994, rule 4

August 1999