Overview

The development of the Privacy Act 1988 (the Act) and state and territory privacy and health records legislation has increased corporate awareness of privacy legislation and an individual's right to privacy.

However, the current Australian privacy regime contains different public, private, and federal/state regulations and law. This often makes it difficult for medical practitioners to comply with the myriad privacy requirements. Health information can be held across various jurisdictions that all give different levels of protection to health information.

Detailed Comments

Statutory cause of action for privacy breaches - proposal 5-5

This proposal provides for an exhaustive list of defences to a statutory cause of action for invasion of privacy. The AMA is keen to ensure that all possible defences to such an action properly cover all defences available to medical practitioners in cases where consent has been questioned. As an example, the list would need to include the gathering of third party family and medical information without consent to assist in the provision of a complete health service.

Remedies for invasion of privacy - proposal 5-6

The AMA has concerns with this proposal because it does not provide the enforcer of the legislation the discretion to allow for "mistakes" in the collection or release of information. Additionally, a court-imposed order to 'destroy' information would be inappropriate for medical records.

Consistency of definition and key terms - proposal 12-1

Australian privacy law is a mix of different definitions and key terms. This is confusing to both medical practitioner and patients. Inconsistent definitions add to the complexity of privacy laws.

The AMA urges that privacy law be made uniform across Australian jurisdictions for both the private and public sector and supports consistency in both federal and state/territory legislation that regulates the handling of personal information. 

Consolidation of the Information Privacy Principles (IPPs) and National Privacy Principles (NPPs) - proposal 15-2 

The AMA supports the consolidation of the IPPs and NPPs into a single, unified set of privacy principles as a means of reducing the confusion around privacy law.

Anonymity and pseudonymity - proposal 17-4

The ability of medical practitioners to provide medical care is affected by a patient's desire to remain anonymous or use a pseudonym. There needs to be a qualification in the proposal that individuals may not remain anonymous or use a pseudonym if this will affect the ability of practitioners to provide medical care, or in circumstances where they have legislative obligations to report individuals, such as in child protection and public health scenarios.

Delegation of health privacy complaints - proposal 56-1

The delegation of the power to handle complaints under the Act to state and territory health agencies is a matter of concern to the AMA. The Office of the Privacy Commissioner has achieved a good working relationship with the AMA and has worked cooperatively with the AMA in sharing information and clarifying particular sections of the Act when requested by the AMA. An example of this is the obtaining of a Public Interest Determination (PID) in relation to the collecting of social and medical histories.

There are advantages to handling complaints at a local level through the Office of the Privacy Commissioner. At a local level, the person handling or dealing with the complaint often has contact and relationships with local providers and is in a better position to conduct conciliation conferences.

There is also a concern that the various state/territory health complaint agencies are neither trained nor appropriate for handling complaints about privacy issues. Furthermore, if they were to take on this responsibility it would create a conflict of interest in their dual role of also hearing cases against medical practitioners for misconduct. As an example, in NSW there is also a Privacy Commissioner who currently handles privacy complaints and this would interfere with this established role.

Amending the definition of 'health information' - proposal 57-1

The AMA is concerned about the proposal to amend the definition of 'health information' to make express reference to information or an opinion about the physical, mental, or psychological health or disability of an individual. The problem with this proposal is its scope and the inclusion of a doctor's private or preliminary views in the thinking processes required for full medical assessments, accurate diagnosis and the formulation of treatment programs.

The issue of patient access to their medical records is a particular concern for mental health practitioners. Often, with patients of this nature, their reading of the treatment notes, information or opinion compiled by their treating medical practitioner can 'inflame' their condition, and interfere with their counselling sessions and the therapeutic value of those sessions.

Legal 'fishing' expeditions

It is clear from reports to the AMA that legal advisers and insurance companies often request or 'fish' for patients' entire health records from their treating doctor, using the method as a way of obtaining information for medico-legal or insurance purposes. Medical practitioners continue to report their concerns over the disclosure of their medical records to patients and lawyers through the use of subpoenas rather than seeking a medical report.

Doctors have reported that the possible disclosure of their medical records inhibits their full and frank recording in case notes, which may ultimately be detrimental to patient safety. The broadening of the scope of this definition will subject a doctor's private or preliminary views on a patient to use for these purposes. 

Definition of 'health service' - proposal 57-2

Medical practitioners understand health care to encompass the welfare, emotional, physical and spiritual well-being of a person as opposed to focusing on the assessment, recording and maintenance of a patients' health. In order to provide and support holistic health care, a health service should provide for the care of a patient over all the stages of that person's life.

There are many different organisations that provide a wide range of services to benefit the health and well being of people. Currently disability, aged-care and palliative health services do not fit neatly into the existing definition of 'health service' in the Act.

During their life, it is reasonable to assume that at some point in time a person may require a disability service, palliative care service or aged-care service as part of, and as adjunct to, their overall health care. The proposed definition focuses on the provision of health services that could possibly be excluded in an exhaustive definition based on the provision of conventional medical services.

The AMA supports broadening the definition of health service in the manner outlined in the proposal.

Collection of health information without consent proposal 57-3

The AMA is firmly of the view that the taking of family and social histories must extend to the collection of health information about third parties to ensure that medical practitioners continue to provide a complete health service. Medical history taking is central to the accuracy of medical assessments. The practice of doctors taking family and social histories is reasonably expected by third parties who interrelate with the patient, whether or not the doctor is collecting information for the purpose of diagnosis or treatment.

Medical practitioners should not be unrealistically curtailed in their work, nor exposed to legal liability for a lack of accuracy or thoroughness in a diagnosis, as a result of the prohibition on the taking of medical histories about a third party without consent.

The AMA supports the ALRC's view that public interest determinations (PIDS 9 and 9A) should be given statutory effect. The collection of health information about family members and others is routine practice and essential in the provision of appropriate health care to individuals.

The AMA has previously expressed the view in a submission to the Office of the Privacy Commission Review that the primary purpose of collection should generally be "to provide for the person's health care and general well being…unless another meaning is specifically agreed to between the doctor and the patient". The AMA also noted that the primary purpose for the collection of health information should not be limited to a particular episode of care as health care is an ongoing process that spans from conception through to death.

The AMA supports the collection of health information about third parties without consent where it is necessary to enable health service providers to provide a health service directly to the consumer, and the information is relevant to the family, social or medical history of that patient.

Sale, amalgamation, or closing down of health service providers - proposal 57-7

The AMA recognises the importance of ensuring that health information is handled correctly when a health service closes, is sold, amalgamated, or a health service provider dies. The AMA recommends to doctors that they take steps to ensure that patients are advised of these occurrences so that they continue to have access to their health information.

The AMA has heard of patients experiencing difficulties accessing records when a medical practice is sold or closed following the death of the medical practitioner. The AMA is concerned about the inaccessibility of medical records in these circumstances, as there are various places that the records could be located. As an example, in cases of the death of a sole practitioner, records are often transferred with the estate.

The AMA has enunciated clear guidelines of a general nature in relation to the selling, amalgamation or closing down of a medical practice. The AMA Privacy Handbook states that where a practitioner retires and another doctor takes over the responsibility for the patient's records, it is appropriate for a circular to be sent out notifying patients of the doctor's retirement and advising that the nominated doctor in the practice will hold the records. If this is not feasible then the AMA considers it appropriate for the practice to inform the patient and provide the patient with the opportunity of having the records transferred to another doctor.

The AMA also advises medical practitioners that if no arrangements can be made to transfer the records to another doctor, then suitable arrangements should be made so that they can be easily accessed if required and steps taken to ensure that patients are informed of the new arrangements.

Transfer of medical records

Anecdotally the AMA is aware of situations that occur where a medical practitioner leaves a practice and their patients follow them to the new premises. This often results in requests from the original practice for copies or transfer of medical records. The AMA encourages doctors to follow best clinical practice and relevant codes of ethics to ensure that all medical records required by a new practitioner are provided.

The AMA is aware that it may be logistically impossible to contact all patients, for example where thousands of medical records have been kept manually, so expansion of the terms "reasonable" and "appropriate" to allow for this as an exemption should be incorporated. Also, general practitioners have an ongoing relationship with patients. This is different in cases of referrals to specialists who often deal with single episodes of care. Informing patients about the arrangements for storage of records and providing ongoing access to them is an excessive burden in small, understaffed and overworked general practices.

The AMA is keen to ensure the development of proposals to deal with the management of medical records following the closure, sale or amalgamation of medical practices, and would be delighted to participate in that progress.

Collection, use and disclosure of health information without consent - proposal 57-9

The AMA is concerned about this proposal, the key issue being the collection of health information without consent which has the potential to impact on the provision of quality health care and the doctor-patient relationship of trust and confidentiality.

The problem with this proposal is the broadness of the concept of 'funding, management, planning, monitoring, improvement or evaluation' of a health service. Almost any activity could be encapsulated by these terms and there is the potential that they will allow organisations and government to use individual health information for a range of secondary purposes.

The AMA is aware that currently some information about patients is provided to Medicare and private health funds for billing and medical rebate purposes. There are also circumstances where a medical practitioner is legally bound to disclose personal information such as the requirement to report a communicable disease. However, the AMA supports keeping the disclosure of information without a patient's consent to a minimum.

The AMA is also concerned about the definition of impracticable under proposal
57-9(b) and questions the scope of when it would be considered impracticable for an organisation to seek an individual's consent before the collection, use or disclosure of the information.

This proposal could inadvertently be used to provide data for the use of medical research based on the argument that it would be considered impractical because of convenience and cost, in the case of a busy general practice to obtain consent from patients in relation to the collection use and disclosure of health information, and easier to collect this information without consent.

In addition to the issues identified above, the AMA is concerned that this amendment may result in the addition of substantial compliance costs for the medical provider and ultimately the patient.

Young people as patients - proposal 60-1

Currently the Act provides no guidance on the age at which young people should be able to make decisions about their own information. Medicare recognises the capacity of young people under 18 to consent to medical treatment independently of their parents. A doctor may bulk bill Medicare for consultation with or without advising the parents. A separate Medicare card may be issued to a patient older than 15 years.

Studies both in Australia and overseas have highlighted that for young people there are a number of barriers in accessing health services and issues of confidentiality is a significant concern.

The AMA recognises the importance of the doctor/patient communication and the patient's right to be informed about their health care. AMA policy states that where possible and developmentally appropriate, doctors should afford young people the same respect, rights and responsibilities as older patients. If a young person is able to make autonomous decisions regarding medical treatment and wishes that treatment to remain confidential, the doctor must respect and maintain that confidentiality.

The AMA is aware of situations where difficulties have arisen from a parent or step-parent having access to a young child's clinical notes in which a doctor has included suspicions about parental care as a cause of injuries in the course of an examination or consultation. In circumstances where parents wish to access their child's medical records without the consent of the child, there is a risk that granting the access may adversely affect the relationship between the young person and his or her medical practitioners and discourage young people in need of medical care from seeking that treatment. The AMA believes that the right of children to be free of abuse and neglect takes priority over the rights of adults.

The AMA is also concerned about the potential for requirement for consent for the collection and disclosure of health information to become muddied with the consent for medical treatment, which in NSW clearly requires parental consent under the age of 14.

Assessing the decision making capacity of children and young people - proposal 60-6

The AMA considers it impracticable and inappropriate for the staff of an organisation to be charged with the ability to make assessments on whether a person under the age of 18 has decision-making capacity in relation to their personal records.

Other concerns

It would be useful if the legislation dealt with the issue of who has the right to release an individual's information in the circumstances where a record contains information created by more than one person. This is particularly relevant in the context of medical treatment as a general practitioner's files often contain specialist letters and referrals. The AMA is keen to obtain clarification of this issue.

In conclusion

The AMA supports a comprehensive review of Australian privacy law. The goal of the review should be to provide greater protection for sensitive health information without imposing onerous barriers to clinical practice, including administrative practice.

The AMA would be happy to elaborate on this submission further, if required and answer any questions. We thank you for the opportunity to participate in this review.