This article forms part of the series “Contractors – Shifting Sands for Medical and Allied Health Practices

Upon the termination of a relationship between the practice and practitioner, who will retain the patient records? Where will they be stored? Is the practitioner permitted to access the records, or make a copy? The answer to these questions depends on whether the practitioner is, or was, an employee or contractor, and the agreements under which the individual in question was engaged. Even more confusingly, answers to these questions might also influence whether or not the practitioner was really your employee all along.

As a general rule, an employee of a practice does not own patient (or business) records, and an independent contractor will own their patients’ medical records, which will form part of the business undertaken by the contractor.

Notwithstanding this, we are seeing Australian case law suggesting that even where a practitioner is contractually engaged by a practice to provide a service and patients are primarily attracted by the practice’s advertising, the practitioner acquires no property in the medical records of those patients. Unfortunately, the outcome is always highly circumstantial, and in certain circumstances there are legal and regulatory requirements for certain parties to hold and own patient records.

The prudent approach is to expressly provide for property rights and clearly set out the circumstances in which the practitioner may access medical records (particularly in respect of post-employment/contract access, to the extent legally permissible).

Overall, there are significant commercial benefits to owning patient records, and the choice of which party does so must be balanced with other factors – the courts have clearly identified this issue as being a key determinative factor in whether a “contractor” is indeed carrying on an independent business, or in fact, a mischaracterised employee with the associated risks.

Contracts engaging either contractors or employees should be appropriately written to mitigate the risk of disputes arising over who owns what.

Next steps

Consider your current arrangements and review your practice structure. We invite you to contact us with any questions.

Rod Payne
T: 03 5226 8541

Paul Gray
Principal Lawyer
T: 03 5225 5231

Sonia McCabe
Senior Associate
T 03 5226 8558

Harriet Burton
T: 03 5225 5215