Can a Colleague Hold Your Patient Health Records? What the Australian Privacy Principles Say

When practitioners think about contingency planning, one assumption comes up again and again: if something happens to me, a colleague can hold my records. The instinct behind it is usually generous rather than careless. Colleagues agree, in good faith, to support one another if one of them becomes unexpectedly unavailable, falls ill, or dies.

Under Australian privacy law, though, this is rarely as simple as it sounds. A colleague storing another practitioner’s patient health records purely for safekeeping is, in most cases, not a lawful arrangement — and the reason isn’t trust, competence, or goodwill. It is consent.

This article explains why informal colleague arrangements usually fail under the Australian Privacy Principles, why consent is the issue that makes this especially difficult for archived or historic patients, and why dedicated record custodianship exists to solve a problem colleagues are rarely well placed to solve themselves.

Health records are sensitive information

Under the Privacy Act 1988 (Cth), health information is classified as sensitive information, which means it attracts a higher legal threshold for collection, use, and disclosure than ordinary personal information. Two Australian Privacy Principles (APPs) matter most here: APP 3, which governs when sensitive information may be collected, and APP 6, which governs when it may be used or disclosed for a purpose other than the one it was originally collected for.

Consent is part of this picture, but it is not the whole picture. Collection must also be reasonably necessary for the recipient’s own functions, and use or disclosure must be something the patient would reasonably expect. This is where most informal colleague arrangements run into trouble.

Why an informal arrangement usually doesn’t hold up

It helps to separate two very different situations. If a colleague becomes a patient’s new treating practitioner, with that patient’s knowledge and consent, that is a clinical handover — governed by ordinary transfer-of-care arrangements, and a different matter entirely. What this article is concerned with is something else: a colleague who is not treating the patient, agreeing to store or manage another practitioner’s records as a personal favour.

It isn’t the original purpose of collection

The original purpose of collecting those records was the provision of a health service by the treating practitioner — not by the colleague who has agreed to hold onto them. When the treating practitioner becomes unavailable or dies, that therapeutic relationship ends. No assessment or treatment is taking place, and storage on its own is not treatment. The records are being held for a different purpose than the one they were collected for, which is precisely what APP 6 is designed to restrict.

Patients don’t reasonably expect it

The Australian Privacy Principles ask, in effect, whether a patient would reasonably expect their full clinical record to be held indefinitely by a practitioner they have never consulted, simply because that practitioner had a private arrangement with their treating practitioner. For most patients, the honest answer is no. They might reasonably expect their records to stay with the original practice, to be transferred to a new treating practitioner at their request, or to be managed by a properly authorised custodian after the practice closes. They do not generally expect their most sensitive information to sit with someone they have never met, on the strength of a professional favour they were never told about.

There is no function that makes it necessary

APP 3 requires that any collection of sensitive information be reasonably necessary for the collecting entity’s own functions. A colleague who isn’t treating the patient, has no custodial role, and isn’t legally responsible for the records doesn’t have a function that the collection serves. Good intentions and professional solidarity do not create that function — and without it, the collection is not lawful, even temporarily.

Where this gets harder — consent

This is the point at which the updated OAIC guidance, released in May 2026, becomes most relevant. The guidance sharpens the focus on consent: whether it exists, whether it was properly obtained, and whether it actually covers what is being asked of it.

For patients currently in treatment, this is at least a known quantity — there is an existing relationship, and consent, where it exists, was given recently and for a specific purpose. The position is considerably harder for archived or historic patients. Many of these patients have not been seen in years. Consent, if it was ever sought at all, is unlikely to have contemplated a colleague taking on indefinite responsibility for their records. Practitioners cannot assume old consent automatically extends to a new, informal custodial arrangement, and going back to ask former patients individually is rarely practical.

This is, in short, the heart of the problem: consent is hard to get right even when a practitioner sets out to do it properly, and an informal colleague arrangement offers no real assurance that it has been. That gap is exactly why a dedicated, purpose-built custodianship arrangement — designed around consent, authority, and retention from the outset — is the more reliable path, rather than something colleagues are well placed to improvise.

Death shifts authority to the estate

There is a further complication that is often overlooked. Any informal authority a colleague might have assumed they had ends the moment the treating practitioner dies. It does not expand, and it cannot be assumed without a formal legal appointment. After death, authority over the records shifts to the practitioner’s estate, and the retention obligations attached to those records do not go anywhere — they simply become the estate’s problem to manage, often without the systems or knowledge to do it well.

If a practitioner has not documented their wishes clearly in advance, their estate can be left holding sensitive patient health records with no clear mandate and no infrastructure to manage them properly. This is one of the strongest reasons to plan for record custodianship well before it is needed, rather than leaving an executor or family member to work it out under pressure.

Why patient access over time matters

These obligations do not expire quickly. Under Australian law, patient health records must generally be retained for a minimum of seven years from the date of last entry for adult patients, and longer again for patients who were minors when treated. Throughout that period, patients have the right to know where their records are, who holds them, and how to request access when they need it.

Informal colleague arrangements make all of this progressively harder to guarantee. A colleague holding someone else’s records might later retire, relocate, or die themselves — and at that point, the records may pass to a third party the original practitioner never authorised, with no clear chain of accountability the patient ever agreed to.

The professional indemnity problem

There is also a practical risk that is frequently underestimated. Most professional indemnity policies cover the practitioner’s own professional practice — not the storage or management of another practitioner’s patient health records. An arrangement like this can fall outside what is actually insured, leaving the colleague personally exposed if something goes wrong, sometimes years after the original arrangement was made and long after the clinical relationship that prompted it has ended.

Why dedicated custodianship is the better-placed option

None of this is really about whether a particular colleague can be trusted. It is about whether the arrangement has a lawful basis that holds up over the years a record needs to be retained — and that requires more than goodwill.

A genuine record custodian exists for exactly this purpose. Its defined function is the secure, ongoing management of patient health records — not the provision of its own separate clinical practice — which means questions of consent, retention, access, and eventual lawful destruction are built into how it operates from the outset, rather than improvised after the fact. That is the gap PracMinders is designed to fill: administrative custodianship for practitioners who want their patients’ records properly protected, without asking a colleague to take on a responsibility they were never set up to carry.

In summary

Colleagues generally cannot lawfully take on this responsibility as an informal personal favour — and the more historic the records, the harder that position becomes to defend. Recognising this early, well before retirement, incapacity, or practice closure forces the issue, is what allows practitioners to put a proper, lawful custodianship arrangement in place instead.