My Health Record: Police access to require court order

Proposed legislation will require permanent deletion of My Health Record when requested

The government has introduced a bill that it says will strengthen the privacy provisions of the My Health Record system by requiring a court order before an individual’s health information is disclosed to police.

Health minister Greg Hunt this morning introduced the My Health Records Amendment (Strengthening Privacy) Bill 2018 in the lower house.

The My Health Record system has faced heightened scrutiny over its privacy provisions since the beginning of what was initially a three-month period for individuals to opt-out of having a record created. Hunt has since extended the opt-out period until November.

The government “takes seriously” the security of health information, Hunt said this morning.

The bill will amend the legislation underpinning the MHR system “to strengthen its privacy protections,” the minister said.

Hunt said that the national eHealth record system aims to “address a fundamental problem” with the Australian health system, which is that consumers’ health information is “fragmented because it is spread across a vast number of locations and systems”.

The minister said that concerns had been raised over law enforcement access to health information as well as the retention of health information after a My Health Record is cancelled.

No material has been released from the system for law enforcement purposes during the system’s six years of operation, the minister said. He also noted that the Australian Digital Health Agency (ADHA), which runs the system, has a policy of not releasing information without a court order — however, there is no requirement for this in the current legislation.

“I think it’s important to be very clear about this: The My Health Record system has its own dedicated privacy controls which are stronger in some cases than the protections afforded by the Commonwealth Privacy Act on the advice I have,” Hunt said.

“Nonetheless this government has listened to the recent concerns and in order to provide additional reassurance is moving quickly to address them through this bill,” the minister said.

Hunt said he had engaged in “productive consultations” with the Australian Medical Association as well as the Royal Australian College of General Practitioners.

“The bill will remove the ability of the system operator – that is the Australian Digital Health Agency – to disclose health information to law enforcement agencies and other government bodies without a court order or the consumer’s express consent,” Hunt said.

He said that is “consistent” with the existing ADHA policy.

There is an exception that allows the ADHA to disclose some information if it relates to unlawful activity involving the system itself and the disclosure is necessary for an investigation or reporting purposes.

An example the government gave is an ADHA employee using access to the system to blackmail someone – the ADHA would be able to report the incident to the police, though disclosing detailed health information would still require a court order

Under the bill introduced by Hunt, the ADHA will also be required to “destroy any record that includes health information that is included in the My Health Record of the healthcare recipient” other than the name and healthcare identifier of the individual who held the record, the name and healthcare identifier of the person requesting the cancellation (in those cases where a parent has made the request) and the day the cancellation decision takes effect.

The exception will be if the ADHA has been required by court order not to destroy records or is compelled to disclose records to law enforcement.

In practice, the government expects permanent deletion to take place in 24 to 48 hours under the new regime.

Currently the ADHA is required to retain the health information from a My Health Record until 30 years after an individual dies (or if the date of death is unknown, then 130 years after their date of birth). (‘Cancelling’ a record currently has the effect of rendering health information inaccessible through the system.)

“This makes it clear that the government will not retain any health information if a person chooses to cancel at any time,” Hunt said this morning. “The record will be deleted forever.”

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