Hot Topics 64 - Health and the Law - Legal Information Access Centre

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treatment, and also that health service providers have a responsibility to protect the confidentiality and privacy of health service users. For further information see www.nt.gov.au/omb_hcscc/hcscc/index.htm elecTrOnic HealTH recOrds Traditionally, health information has been collected and stored in paper-based systems, with information about one individual held in a number of disparate locations, such as general practitioners’ records, hospital records, pathology laboratory records and medical specialists’ records. However, health information is increasingly collected, stored and transferred in electronic form and health information about large numbers of health consumers is collected into central databases, such as the Medicare database and cancer registers. Another important trend is the move to integrate health information systems and to create shared electronic health records. Sharing and linking of health information about particular individuals has the potential to achieve better health outcomes for consumers – by allowing health service providers, regardless of their location, better access to health information – but have also given rise to privacy concerns. A large number of electronic health information systems are being developed at the local, regional and national levels across Australia. Some important national initiatives are being developed by the National E-Health Transition Authority (NEHTA). NEHTA is developing a national approach to Shared Electronic Health Records (SEHRs) – records that will contain selected health information about a health consumer, which can be shared among multiple authorised health service providers. An important precursor to SEHRs is the development of Unique Healthcare Identifiers (UHIs) for individuals and healthcare providers to ensure that information is attributed to the right patient and the right provider. For further information see www.nehta.gov.au cHildren and YOung peOple The Privacy Act does not set a minimum age at which an individual can make decisions regarding his or her own personal information. Guidelines developed by the Office of the Privacy Commissioner provide some assistance in dealing with children and young people. The Guidelines to the National Privacy Principles suggest that each case must be considered individually, and give guidance on when a young person may have the capacity to make a decision on his or her own behalf: As a general principle, a young person is able to give consent when he or she has sufficient understanding and maturity to understand what is being proposed. In some circumstances, it may be appropriate for a parent or guardian to consent on behalf of a young person; for example if the child is very young or lacks the maturity or understanding to do so themselves. The Guidelines on Privacy in the Public Health Sector stress that where a young person is capable of making his or her own decisions regarding personal information, he or she should be allowed to do so. The guidelines further suggest that, even if the young person is not competent to make a decision, his or her views should still be considered. Generally, state and territory privacy legislation and administrative schemes adopt the same approach to children and young people as the Privacy Act. Some state and territory legislation provides guidance regarding the capacity of children or young people to make decisions regarding their own personal information. For example the Health Records and Information Privacy Act 2002 (NSW) and the Health Records Act 2001 (Vic) both provide that an individual is incapable of making such decisions if he or she cannot understand the general nature and effect of such a decision, or cannot communicate his or her decisions. The Health Records (Privacy and Access) Act 1997 (ACT) links the test of capacity to the individual’s ability to understand the nature of, and give consent to, a health service. Some legislation also includes express provisions on how, and by whom, decisions can be made on behalf of a child or young person unable to make his or her own decisions. deceased indiViduals DWSPL/A Hampton. image u navailable The federal Privacy Act does not protect the personal information of deceased individuals, except for special provisions dealing with declared disasters and emergencies. However, the Privacy and Personal Information Protection Act 1998 (NSW), the Health Records and Information Privacy Act 2002 (NSW) and the Health Records Act 2001 (Vic) cover personal information about individuals who have been dead for less than 30 years. This reflects the 30 year period after Health privacy in Australia 9
which government archival records are generally open to public access. The Northern Territory Information Act, which combines privacy, freedom of information and archives provisions, covers personal information within the first five years after an individual dies. Tasmanian privacy legislation extends to the personal information of individuals who have been dead for less than 25 years, and the Health Records (Privacy and Access) Act 1997 (ACT) covers deceased individuals without imposing any time restrictions. laW refOrm and THe priVacY Of persOnal HealTH infOrmaTiOn There have been a number of important recent inquiries intothelawregulatingtheprivacyofpersonalinformation. Both the Australian Law Reform Commission (ALRC) and the NSW Law Reform Commission were tasked with inquiring into whether existing legislation provides an effective framework for the protection of the privacy of the individual. The Commissions were asked to look at a range of issues including whether a more consistent approach to privacy across Australia would be desirable. The ALRC has produced a number of consultation documents in the course of its inquiry, including Discussion Paper 72: Review of Australian Privacy Law. These documents – and in particular the ALRC’s final report, presented to the Australian Attorney-General in May 2008 – provide more detailed information on all of the issues discussed above. paTienT access TO THeir medical recOrds In Breen v Williams , 12 the High Court of Australia unanimously held that health consumers do not have a right of access to their medical records at common law. This means that health consumers must rely on legislation, such as privacy and freedom of information legislation, to provide them with a right of access to medical records. The exceptions to IPP 6 include, for example, those situations in which a record-keeper is required or authorised to refuse access under the Freedom of Information Act 1982 (Cth) (the FOI Act) and the Archives Act 1983 (Cth). In relation to private sector health service providers, NPP 6 provides that private sector organisations must provide individuals with access to their personal information, including their health information, on request, subject to a number of exceptions. In the case of health information, organisations are not required to provide access if doing so would pose a serious threat to the life or health of any individual. 13 Health consumers who apply for access to their medical records and are refused, may lodge a complaint with the federal Office of the Privacy Commissioner. NSW legislation There is also privacy legislation regulating access to health information at the state and territory level in a number of jurisdictions. In NSW, the Health Records and Information Privacy Act 2002 provides a right of access to health information held by NSW public and private sector health service providers. Under that Act, organisations that hold health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information subject to a number of exceptions. If a health consumer requests access to his or her medical records and is refused, the health consumer may lodge a complaint. In relation to public sector agencies, the consumer must complain to that agency and the agency must inform the NSW Privacy Commissioner. In relation to private sector organisations, the consumer may complain directly to the Privacy Commissioner. Commonwealth legislation The Privacy Act 1988 (Cth) regulates access to health information held by Australian Government public sector agencies and private sector health service providers. In relation to Australian Government public sector agencies, IPP 6 provides that: Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the recordkeeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents. 12. Breen v Williams [1995] HCA 63; available at www.austlii.edu.au/au/cases/cth/HCA/1995/63.html 13. Privacy Act 1988 (Cth) sch 3, NPP 6.1(b). 10 HOT TOPICS 64 > Health and the Law
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Hot Topics 64 - Health and the Law - Legal Information Access Centre

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