Australian Medical Association president Dr Tony Bartone says that he has received written undertakings from health minister Greg Hunt and the Department of Health that an individual’s My Health Record data will not be accessed by law enforcement agencies in the absence of a court order.
In a statement released earlier this month the Australian Digital Health Agency, which operates the MHR system, said it “has not and will not release any documents without a court/coronial or similar order.”
“No documents have been released in the last six years and none will be released in the future without a court order/coronial or similar order,” the agency said.
However, earlier this week an article released by the Parliamentary Library argued that Section 70 of the act that established the MHR system “represents a significant reduction in the legal threshold for the release of private medical information to law enforcement”.
“Currently, unless a patient consents to the release of their medical records, or disclosure is required to meet a doctor’s mandatory reporting obligations (e.g. in cases of suspected child sexual abuse), law enforcement agencies can only access a person’s records (via their doctor) with a warrant, subpoena or court order,” the article states.
Under Section 70 of the My Health Records Act, the ADHA, as the MHR system operator, is authorised to disclose data to an enforcement agency if it “reasonably believes” that the disclosure is “reasonably necessary” for:
• “the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;”
• “the enforcement of laws relating to the confiscation of the proceeds of crime;”
• “the protection of the public revenue:
• “the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;” or
• “the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal.”
The article noted that although the ADHA has said its operating policy is to require the use of a warrant, the legislation does not impose such a requirement.
Bartone told a National Press Club event that he intended to seek a meeting with Hunt to ensure “any ambiguity is put to rest”.
“The priority of the AMA at all times has been to support the My Health Record, and its precursors, for the important clinical benefits it will deliver to doctors, patients, and the health system,” Bartone said in a statement issued following his speech.
“The AMA has always been protective and vigilant about the privacy of the doctor-patient relationship, and this should not be affected by the My Health Record.
“Given the public debate this week, I support calls for the government to provide solid guarantees about the long-term security of the privacy of the My Health Record.”
The AMA head said that Hunt contacted him following his NPC address “to set up a meeting to discuss all aspects of the rollout of the My Health Record.”
“He has made a commitment to clear up any perceived ambiguity in the original 2012 legislation with a response that meets the AMA’s expectations and satisfaction,” Bartone said.
Opposition leader Bill Shorten said that although he backed digital health records the federal government “has the reverse Midas touch”
“I actually think it would be smart of the government to suspend the rollout of the My Health Record system until all of the privacy concerns are actually addressed,” Shorten today told journalists.
“I get the impression they’ve consulted some people in the health profession, but the broader community is not aware of who will have access to your records”.
Earlier this week Labor’s health spokesperson, Catherine King, called for an extension of the three-month period during which individuals can opt-out of the MHR system. If individuals do not opt out, a record will automatically be created.
The opt-out window began on 16 July.