Australia: Legal issues for the next generation of healthcare in an electronic healthcare environment

Recent media attention concerning the privacy breach by the Australian Red Cross Blood Service highlights privacy and cybersecurity risks with health information.

The penalty for a serious or repeated interference of privacy under the Privacy Act 1988 (Cth) can be up to $1.8 million for a body corporate or $360,000 for an individual.

The increased use of technology is revolutionising modern medical practice. Health care providers are required to uphold high standards for protecting patient privacy, whether in hard copy or electronically. They need to ensure that they have appropriate privacy and security risk management strategies in place concerning how they collect, use and disclose personal information.

What is personal information?

Personal information is information or an opinion about an identified individual, or an individual who is reasonably identifiable:

  1. whether the information or opinion is true or not; and
  2. whether the information or opinion is recorded in a material form or not.

What is sensitive information?

Sensitive information includes details about an individual's:

  • health information;
  • racial or ethnic origin;
  • sexual orientation or practices;
  • political opinions and membership of political associations, professional or trade associations or trade unions;
  • religious beliefs or affiliations and other philosophical beliefs; and
  • criminal record.

Health information is included in 'sensitive information'. As such, it requires a higher level of privacy protection than other personal information.

The legal framework underpinning changing norms

The key legislation articulating the levels of protection required for all health information in the Australian private sector is the Privacy Act 1988 (Cth) (Privacy Act). There is also State and Territory legislation including the Health Records and Information Privacy Act 2002 (NSW), the Health Records Act 2001 (Vic) and the Health Records (Privacy and Access) Act 1997 (ACT)1.

The Privacy Act regulates the collection, use and disclosure of 'personal information'.

The Australian Privacy Principles set out in the Privacy Act apply to all private sector health service providers.

Under the Privacy Act, every private sector health care practitioner is required to have and make available a Privacy Policy setting out:

  • the kinds of personal information that the entity collects and holds;
  • how the entity collects and holds personal information;
  • the purposes for which the entity collects, holds, uses and discloses personal information;
  • how an individual may access personal information about the individual that is held by the entity and seek the correction of such information;
  • how an individual may complain about a breach of the Australian Privacy Principles or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint;
  • whether the entity is likely to disclose personal information to overseas recipients; and
  • if the entity is likely to disclose personal information to overseas recipients – the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.

Overseas disclosure may be relevant, for example, if the practitioner stores information using a cloud-based provider that stores information outside of Australia and the cloud-based provider is able to access the data. Potential issues were clearly brought to light in 2014, when it was reported that Luxottica Retail Australia who provided optometry services to Australia's Defence Force lost its $33.5 million contract with the Australian Defence Force because of data storage in China, in breach of their contract.2

Each practitioner must take such steps as are reasonable in the circumstances to protect personal information from misuse, interference and loss and from unauthorised access, modification or disclosure. In addition to privacy obligations, practitioners owe obligations of confidentiality to their patients.

The Office of the Australian Information Commissioner's Pound Road Medical Centre Own Motion Investigation Report (July 2014) examined some of the security requirements required in relation to health information – refer to our previous article contained in Holman Webb's Health Law Bulletin (August 2014) available at: http://www.holmanwebb.com.au/blog/health-law-bulletin-august-2014. Sometimes, it is permitted under the Privacy Act to use health information and personal information for medical research, even in the absence of patient consent to the researchers involved provided that stated guidelines are complied with. The rationale for this rests on the public benefit that comes from research.

What are the required steps to protect patient privacy?

The first step is an analysis of what personal information is collected and held, how it is used and what are the potential security risks. This should include a review of what legal requirements and industry standards apply and how the practice's existing information systems and policies compare. Relevant polices should cover the practices, procedures, monitoring and reporting of data security, and management of complaints.

Coupled with these policies is the regular training of staff and designating accountability for the implementation, oversight and management of data breaches to a person or position within the practice.

It is also recommended to review options for technologies to enhance data security. These may include robust encryption and password protection, the protection of electronic and hard copy communications, access controls and intrusion detection.

Importantly, all of these steps should be regularly reviewed in light of new risks, the current and emerging standards of practice, and changes to compliance requirements.

What are the industry codes and guidelines?

Many medical professional organisations have guidelines relating to patient confidentiality and privacy, including in the emerging needs for electronic communications.

The Medical Board of Australia – Good Medical Practice, A Code of Conduct for Doctors in Australia requires medical practitioners to ensure that their medical records are held securely and are not subject to unauthorised access. 3

It is a breach of the Code to breach the confidentiality of the doctor patient relationship by making records available to others not involved in the care of the patient or without the patient's permission (other than as may be required by law).

What is the duty of care in relation to medical records and referrals?

Modern models of care require a multi-disciplinary team working in a collaborative manner to treat patients. In this multi-faceted environment, communication and follow up is essential. In relation to communications between specialists and other clinicians, there are a number of legal duties. These centre around clearly informing patients of the importance of proposed management plans, following up on them and ensuring that the information communicated between health care providers is accurate.

In more detail, medical practitioners' duty of care can be summarised by the following:

  1. The law recognises that a doctor has a duty to warn a patient of a material risk in the proposed treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner was or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. 4
  2. Therefore, if the patient has a serious medical condition then the medical practitioner should advise them of the seriousness of the situation and the importance of attending further referred tests, and appointments etc.
  3. There is a duty to ensure that the medical records are accurate. This includes ensuring that medical records communicated to other clinicians are accurate. 5
  4. A medical practitioner has a duty of care to find out the outcome of a test he or she has requested. He or she must be sure to know of the test results and to offer appropriate treatment to the patient in light of the report. 6
  5. There is also a duty of care to follow up patient who does not return for further testing or consultation despite being asked to do so. There can be two types of negligence. Under the first scenario, an allegation can be made that the medical practitioner was negligent by failing to tell the patient to return in the appropriate timeframe regardless of their ongoing symptoms.
  6. Under the second, the medical practitioner fails if he or she has not created a robust follow up system. However, the courts recognise that if a patient knows of the risks but makes his own decision not to undergo testing, then provided that the medical practitioner has established that they appropriately advised the patient of the risks, the medical practitioner will not be negligent.7

The standard required of a person practising a profession in Australia is that they must act in a manner that is widely accepted in Australia by peer professional opinion as competent professional practice at the time the service was provided. A person practising a profession ('a professional') does not incur a liability in negligence arising from the provision of a professional service if it is established that his or her behaviour conformed to that standard.8

What to do in case of a data breach?

The Office of the Australian Information Commissioner offers a guide for managing data breaches of patient information.9
  1. Prevention: Take a proactive approach to data security and privacy protection.
  2. Containment: Assess the events that lead to a breach and if you can retrieve or secure the data.
  3. Evaluation: Assess the risks that could or have arisen from the breach, including the potential harm that could result to minimise them?
  4. Notification: Determine if you will contact affected parties, and, if so, how? Determine if you should contact the relevant privacy authority (Office of the Australian Information Commissioner).
  5. Future prevention: What changes should be made in light of learning from this breach to prevent future issues and to better respond in case of a future breach?

Mandatory Data Breach Notification Laws

In Australia it is currently not mandatory to notify affected individuals, however, the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Commonwealth) will come into effect within the next twelve months. Refer to the article in this Health Law Bulletin on that development.

The current guidance is that it is considered good practice and highly recommended to communicate any breach that could harm affected individuals.

What does the future hold?

In 2014 70% of Australian GPs reported using electronic medical records exclusively (i.e. were paperless).10 The movement away from letters, fax and handing papers to patient to electronic transmission has been slower across the health care systems.

The Royal Australian College of General Practitioners has noted that the majority of medical communication is not conducted through secure electronic channels.

Does the means of communication change the privacy requirements?

Privacy obligations apply regardless of the mode of communication. Practitioner's privacy obligations equally apply to the use of new technologies.

The Office of the Australian Information Commissioner has stated that "email is not a secure form of communication and you should develop procedures to manage the transmission of personal information via email".11

What does this mean in the context of collaborative care?

Quality communication is critical for collaborative care. Best practice in collaborative care will require modern, secure and accurate communication between all those involved in patient care – including the primary care, hospitals, and, in some cases, the patient themselves.

Clinical innovation and information technology offer significant advances in modern health care and improved communication with patient outcomes.

The use of secure messaging and secure cloud-based technologies, which enable practitioners to store and to send information securely, can assist practitioners with their duties of care. Such technologies can create additional opportunities to better identify patients, manage their health information and assist with patient follow up, to clearly track patient attendances across health care providers, which can improve patient care and outcomes and decrease practitioners' medico-legal risks.

Patients are demanding the best and latest technologies with appropriate privacy and cybersecurity protection.

Footnotes

1 Privacy Act 1988 (Cth); My Health Records Act 2012 (Cth); Health Records (Privacy and Access) Act 1997 (ACT); Health Records and Information Privacy Act 2002 (NSW); and Health Records Act 2001 (Vic)
2http://www.news.com.au/national/luxottica-loses-contract-with-adf-after-sending-diggersdata-offshore/news story/12ce2059969a116dcff308ce28293bf4
3 Paragraph 8.4(2) of Good Medical Practice: A Code of Conduct for Doctors in Australia
4 Rogers v Whitaker (1992) 175 CLR 479. Available at http://www.healthlawcentral.com/rogers-v-whitaker/
5 Kite v Malycha (1998) 71 SASR 321
6 Kite v Malycha (1998) 71 SASR 321
7 Kite v Malycha (1998) 71 SASR 321; Grinham v Tabro Meats Pty Ltd & Anor; Victorian WorkCover Authority v Murray [2012] VSC 491
8 For example, section 50 of Civil Liability Act 2002 (NSW)
9 Office of the Australian Information Commissioner: https://www.oaic.gov.au/agencies-andorganisations/guides/data-breach-notifcation-a-guide-to-handling-personal-informationsecurity-breaches
10 Britt H, Miller GC, et al. General practice activity in Australia 2013–14. General practice series no. 36. Sydney: Sydney University Press, 2014. Available at https://ses.library.usyd.edu.au/bitstream/2123/11882/4/9781743324226_ONLINE.pdf
11 Office of the Australian Information Commissioner: https://www.oaic.gov.au/agenciesand-organisations/guides/guide-to-securing-personal-information

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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