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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions