Independent advice about police access to My Health Records has now been heavily edited

Rossini’s The Barber Of Seville at the Sydney Opera House. Patrick Riviere/Getty Images
  • Analysis about access by law enforcement to digital health records has been heavily edited after a complaint by the Health Department.
  • But the report still shows police have the law on their side if they want to access an individual’s digital health record.
  • And police themselves are worried that their own records might be accessed.

Analysis by the Parliamentary library in Canberra, which concluded police could access without a court order the digital health records of millions of Australia, has been highly edited.

Dianne Heriot, the Parliamentary Librarian, took down the report about law enforcement access to My Health records after a complaint yesterday from the Federal Health Department about “potential inaccuracies and omissions”.

Australians have until October 15 to opt out of the scheme or they will automatically have an electronic health record. The idea is that an individual’s health history can be accessed by doctors, nurses, pharmacies and diagnostic clinics, making for easier and safer health care.

At issue is whether or not these records will have the same protections that paper records now have. Currently doctors will not release medical records without a warrant or a court order.

The new version of the report by the highly regarded Parliamentary Library is now missing the line “significant reduction in the legal threshold for the release of private medical information to law enforcement”.

And also deleted is the statement: “It seems unlikely that this level of protection and obligation (currently) afforded to medical records by the doctor-patient relationship will be maintained, or that a doctor’s judgement will be accommodated, once a patient’s medical record is uploaded to My Health Record.”

The new version has also edited out a comment on Federal Health Minister Greg Hunt:

“The Health Minister’s assertions that no one’s data can be used to ‘criminalise’ them and that ‘the Digital Health Agency has again reaffirmed today that material … can only be accessed with a court order’ seem at odds with the legislation which only requires a reasonable belief that disclosure of a person’s data is reasonably necessary to prevent, detect, investigate or prosecute a criminal offence.”

However, the report from the Parliamentary Library still makes it clear that warrantless access by authorities, including police and other agencies such as Immigration and the Australian Tax Office, is allowed under current legislation.

Section 70 of the My Health Records Act 2012 enables the Australian Digital Health Agency to “use or disclose health information” contained in an individual’s record.

To do this, the Australian Digital Health Agency must reasonably believe that disclosure is needed to investigate or prosecute someone for a criminal offence or protect public revenue or remedy “seriously improper conduct”.

“This should mean that requests for data by police, Home Affairs and other authorities will be individually assessed, and that any disclosure will be limited to the minimum necessary to satisfy the request,” says the edited version of the Parliamentary Library report.

Law enforcement access to health records held by GPs currently is subject to the Privacy Act 1988 which means disclosure can only be forced through a court order.

Dr Tony Bartone, the president of the Australian Medical Association (AMA), is seeking a face-to-face meeting with Health Minister Greg Hunt, to ensure the privacy and security of the My Health Records.

“I will do whatever it takes to ensure that the security concerns are raised and cleared up as a matter of urgency,” he says. “This may involve examining the legislation.”

The AMA is a big supporter of the the project to create digital records for patients, saying the clinical benefits are enormous.

The Australian Digital Health Agency has stated that it “has not and will not release any documents without a court/coronial or similar order”.

However, the Parliamentary Library report says the My Health Records Act 2012 does not mandate this and it does not appear that the Australian Digital Health Agency’s policy of not releasing documents without a court order is supported by any rule or regulation.

Police themselves have concerns.

The Queensland Police Union has told its members that records can be accessed by fellow police if they come under investigation.

“This means that your My Health Record may be able to be accessed if you are being investigated for disciplinary matter,” the union says.

And Mark Burgess, the CEO of the Australian Police Federation, representing 60,000 officers, said: “Someone is going to need to amend the legislation to build in that protection, not only for officers but, I would suggest, for the wider community.”

The Australian Federal Police is referring media questions to the Health Department and has offered no comment to the questions: Has the AFP developed a protocol to deal with accessing health records held digitally? Is a court order required or would the AFP just make an official request to My Health Record?

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