Introduction

A disability case will inevitably require the production of medical records. The law will clearly allow the production of medical records once the plaintiff has chosen to put his or her medical status in controversy. The issue becomes what controls, if any, are put in place to prevent the need to produce medical information which is not relevant to the action, how to define such relevance and what steps should be taken to preserve the confidentiality of medical records once they have been produced.

In addition, also reviewed are the issues arising from the independent medical examination, the ensuing report and also the medical report of the treating physician. This is an important issue as often the physician may take on the role of an overly enthusiastic sponsor of the patient’s application and in so doing risks a loss of objectivity which ironically may be fatal to the doctor’s reliability as a witness. Counsel for the patient may be rightly reluctant to be seen as a guiding influence on the physician as he or she advocates on their patient’s behalf.

Counsel should be alive to the remedies available when the contents of medical information provided to the employer through the litigation process or otherwise has been misused. This may include a remedy by the human rights process in the correct context, such as the employer failing to honour the confidence of medical information.