Contact an expert

If you require general medico-legal advice, please call our Medico-legal Advisory Service. The service is available during regular business hours and, for urgent enquiries, after hours and on weekends.

Avant's Medico-legal Advisory Service (MLAS) provides expert advice to help minimise the chance of a complaint or claim occurring. The service is staffed by claims managers, solicitors and doctors in our Adelaide, Brisbane, Melbourne, Perth and Sydney offices.

Documentation and confidentiality

Legislation varies across the states. Generally patients have a right under Commonwealth or State/Territory legislation to request access to their health records, or can authorise others to receive them on their behalf (for example, lawyers, and insurance companies).

Requests for access to medical records should be done in writing and signed and dated by the patient.

There are limited circumstances when health records can be withheld from patients e.g. disclosure would cause a serious threat to the health or safety of a patient or third party.

If you are unsure about whether and what to disclose you should contact the Medico-legal Advisory Service.

You are usually entitled to receive reasonable expenses to produce documents, to cover the administrative costs of copying the documents.

If you receive a request in the form of a subpoena to produce documents to a court or tribunal do not ignore it – it is a legal document.

A patient’s consent is not required to respond to a subpoena. The patient (or their solicitor) will normally receive a copy of the subpoena if they are involved in legal proceedings. If the health records are particularly sensitive, consider letting the patient know you have received a subpoena to produce them.

The documents must be produced to the court or tribunal by the date specified on the subpoena.

Only send copies of documents not the original health records. Check with the Medico-legal Advisory Service if you are uncertain about what to send. Call 1800 128 268.

Generally if the police request records – for a criminal investigation or on behalf of a coroner, they should provide an authority from the patient, a court order or a warrant.

In some cases information can be given to the police without an order/warrant or the consent of the patient or relatives.

All health information, including correspondence from other health professionals, such as specialists’ letters, form part of the health record.

Further information:

A death certificate is a legal document. You need to be certain that you are the appropriate person to sign the certificate. The death certificate should only be signed if the cause of death is known.

A doctor who was responsible for a patient’s care immediately prior to death or one who saw the deceased after death must sign such a certificate unless the death is reportable to the Coroner.

If the death is reportable to the Coroner do not sign the death certificate. Refer the matter to the Coroner.

The legislation in each state and territory defines a 'reportable death' somewhat differently, but generally they include:

  • any violent or unnatural death
  • sudden death of unknown cause
  • death under suspicious or unusual circumstances
  • when the deceased had not been recently seen by a doctor
  • during or following an anaesthetic and /or a medical procedure
  • following an accident that contributed to the death
  • if the deceased person was a child or person in care or custody.

It is not legally necessary to view the body before signing the death certificate, but it is advisable to do so.

If you wish to discuss the matter, please contact Avant on 1800 128 268 to speak to our Medico-legal Advisory Service.

Further Information:

Useful links – for what is a reportable death in each state and territory:

State Coroner’s Office

New South Wales
State Coroner’s Court

Australian Capital Territory
Coroner’s Court

Office of the State Coroner

South Australia
Coroner’s Court

Coronial Division of the Magistrates Court

Western Australia
Coroner’s Court

Northern Territory
Coroner’s Office

Medical records should be stored securely. The rules vary across Australia, but generally adult patient records should be kept for seven years from the date of the last provision of health care. For children they should be kept until the child is 25. It is advisable to keep maternity records for 25 years.

X-rays are part of the health record and should be returned to the patient or retained as above.

Paper based records can be scanned into a computer based system and then destroyed securely.

Records should be destroyed securely and a record should be kept of the date of destruction of each record.

If you wish to discuss the matter, please contact Avant on 1800 128 268 to speak to our Medico-legal Advisory Service.

Further information:

Report requests and subpoena

Obtain the request in writing from the coroner or the police officer acting on behalf of the coroner.

Check the time that the response is due.

Send the request to Avant for advice on how to respond.

Arrange to obtain copies of relevant medical records relating to the matter.

If a response is required, start preparing a draft, but do not let this delay you in contacting us.

The report should be accurate, factual and as far as possible based on your medical records. In some cases you may be asked at a later date to give evidence in court based on your report.

Please contact Avant on 1800 128 268 to speak to our Medico-legal Advisory team if you require advice about providing information to the police or the coroner.

Further information:

Ensure that you have the patient’s consent to provide the information.

The insurance company or solicitor should provide a written, signed and dated authority from the patient or the patient’s authorised representative (e.g. parent or guardian).

Clarify if you are being asked to provide a “treating doctor’s” report or an “expert” report.

You are not legally obliged to provide a report unless ordered to do so by a court or tribunal, but medical practitioners have an ethical obligation to assist patients in providing information which in some cases may require production of a “treating doctor’s” report.

If you agree to provide an expert report you must be aware of the ramifications of doing so, including your duties to the court as an expert. Seek advice from Avant if you are unsure whether to take on this role.

Gather together all correspondence and a copy of the patient's medical records.

The report should be accurate and referable to your medical records.

In some cases you may be asked to give evidence in court based on your report or receive a subpoena to give evidence.

If you wish to discuss the matter, please contact Avant on 1800 128 268 to speak to our Medico-legal Advisory Service.

Further information:

You do not have to be a witness in a court or tribunal proceeding unless you receive a subpoena or other form of court order to attend a hearing.

If you have received a subpoena to give evidence you cannot ignore it as it is a court order and you could be arrested for failing to attend court. Check the date and time you are required to attend the hearing.

If you are not going to be available at the nominated time you must inform the person or organisation that has served the subpoena. Try to arrange an alternative time / date. However, it is often difficult for solicitors and prosecutors to provide a specific time for your attendance until shortly before or once the hearing has commenced.

If you are interstate, overseas or a long distance from the location of the hearing you can ask to give evidence by telephone or video link.

Courts and tribunals are generally good at accommodating the time constraints of doctors, so ensure you have informed the appropriate people about your availability.

You should be served “conduct money” with the subpoena. You may also be entitled to fees or payment of expenses for your attendance at a hearing, but these can vary depending on the jurisdiction. Some jurisdictions have set fees.

Ask the relevant person about what expenses you are entitled to claim. It can be stressful being a witness and it is important to prepare when giving evidence.

If you wish to discuss the matter, please contact Avant on 1800 128 268 to speak to our Medico-legal Advisory Service.

Further information:

Workplace and patient relationships

A beneficial doctor-patient relationship is based upon trust and effective communication. If you decide that there has been an irrevocable breakdown in the relationship and it would not be in the best interests of the patient to continue treatment you may need to end the relationship.

There are various reasons for ending the doctor – patient relationship: loss of trust, conflicts of interest, unacceptable behaviour, non-compliance with treatment, boundary issues, non-payment of bills or the patient has made a formal complaint or issued legal proceedings.

A decision to end the doctor-patient relationship should not be made in haste and a discussion with a senior colleague may help you to get matters into focus.

It is not appropriate to end the relationship during an acute illness. In an emergency a doctor has a duty to provide assistance.

Contact Avant on 1800 128 268 to speak to one of our experts in the Medico-legal Advisory Service if advice is required.

Further information:

If you are concerned that a colleague may not be practising safely and may be putting patients at risk, you have an obligation to report another health practitioner unless an exemption applies.

You are required to notify Ahpra when you have a ‘reasonable belief’ that a practitioner has engaged in ‘notifiable conduct’ – that is, the practitioner has:

  • practised the profession while intoxicated by alcohol or drugs
  • engaged in sexual misconduct in connection with the practice of the practitioner’s profession
  • placed the public at risk of substantial harm because the practitioner has an impairment
  • placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

If you have concerns about a colleague, we recommend that you carry out some research and obtain advice from your colleagues (confidentially), your college or professional body, or Avant so that you can be satisfied that the threshold is met and a mandatory report is required.

Contact Avant on 1800 128 268 to speak to one of our experts in the Medico-legal Advisory Service if advice is required.

Further information:

Our practice has a problem with an employee / contractor

Document your concerns, in particular the date and time of discussions which have caused you concern.

Make sure you have available a copy of your contract or, if you have no written contract, copies of letters, emails, etc., relating to your terms of service.

Please contact Avant on 1800 128 268 to speak to one of our experts in the Medico-legal Advisory Service or send us a request for assistance.

Further information:

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This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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