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: 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.


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)
2 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
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:
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
11 Office of the Australian Information Commissioner:

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

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

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”

Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.