Privacy concerns go beyond just My Health Record

3 minute read

A fundamental principle of privacy in medicine is that information should be only collected for the purpose for which it was intended, writes Dr Harry Nespolon

The controversy around the privacy provisions, or the lack of them, has raised some fundamental issues regarding medical records.

While many have characterised this as debate about being just about My Health Record, it is much broader.

One of the fundamental unspoken contracts every time a patient sees a doctor is that all the information obtained and recorded during a consultation will be kept confidential unless the patient decides to release this information to a third party.  This is the basis of the doctor-patient relationship.

Any breach of this confidential relationship can have devastating consequences on the way that doctors and patients work together. I have started to see this concern creep in with an increasing number of patient’s saying: “Please don’t record this.”

These requests will become even more common as, for example, the use of genomics becomes more mainstream.

How doctors deal with these situations can be confusing and place you in a difficult situation.  Do you support the patient’s request while at the same time putting yourself at risk of not having sufficiently recorded the consultation?

Section 70 “Disclosure for law enforcement purposes, et cetera” was written in 2012 and is a clear over-reach and it has been called out as such. It may have been copied from the Medicare legislation, but these are fundamentally different pieces of legislation.

One of the fundamental principles of privacy, especially in medicine, is that the information should be only collected for the purpose that it was intended.  A pregnant patient who is seeing a doctor for her antenatal care would never presume that Centrelink could be viewing her record.

The difficult to understand decision by this government to make this an opt-out record was based on “participation trials” involving thousands of participants. To me, this was always no better than a very elaborate focus group test.

In politics and in business the ultimate retort to any failures is that “it tested well in focus groups”.  However, the opt-out for MHR should have failed the “pub test”.

The federal minister for health should be genuinely congratulated to listening to our lobbying on the changes that he intends to make to the legislation. The changes involve removing section 70 and removing the 130-year retention, neither of which will, in any way, limit the potential usefulness of the MHR. This will help to restore some trust in a system that was designed to assist the Australian public.

The lack of privacy provisions should never have been put in the original legislation.  While only historical, it would be instructive to understand why such a provisions were put into the legislation.

The RACGP has supported an eHealth record that will help to coordinate the healthcare of patients. These changes get us closer to an acceptable electronic record.

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