Australia: E-Health & Privacy Update

Last Updated: 11 May 2009
Article by Alison Choy Flannigan

E-health and privacy update – including the Law Reform Commission Report and Freedom of Information Reform.

The journey towards individual electronic health records has progressed with the federal HealthConnect initiatives and the publication by the National E-Health Transition Authority Limited (NEHTA) of its 'Privacy Blueprint for the Individual Electronic Health Record' for public comment in July 2008.

The National Health and Hospitals Reform Commission Interim Report published in February 2009 has stated that 'an electronic health record that can be accessed - with the persons agreement, by all health professionals and across all settings is arguably the single most important enabler of truly person-centred care. It is one of the most important systemic opportunities to improve the quality and safety of health care in Australia.'

Healthcare providers should keep abreast of the developments in e-health to ensure that they are well placed to adopt the technology upon its introduction.

Proposed changes in privacy laws will also affect healthcare providers who may need to review and update their privacy policies and procedures when they commence.


Once established, the individual electronic health record (IEHR) will enhance both the quality and timeliness of health information, offering benefits to patients, health care providers and the healthcare system as a whole.

It is proposed that the core elements of the IEHR will include:

  • Allergies.
  • Current medications and ceased medications.
  • Problems and diagnosis of active or persistent disorders.
  • Family and social history.
  • Immunisations.
  • Implanted devices.
  • Screening results.
  • Key physiological measurements such as height, weight and BMI.
  • Planned activities.
  • Histories of recent and past procedures.

The IEHR will not be comprehensive and it is not intended to replace the primary care record to be maintained by private hospital operators and medical practitioners. Existing arrangements such as reporting notifiable diseases will continue.

The IEHR will contain sensitivity labels so that information would be labelled as either:

  • Clinical care - used for clinical information that may be accessed by all providers involved in the care of the individual.
  • Privileged care - used to mark data that the individual is sensitive about and will only be accessible by providers who have been nominated by the individual.

To enable the IEHR, there will need to be national standards adopted across Australia, including public hospitals, private hospitals, health professionals such as medical practitioners and physiotherapists, etc. These standards include coding standards for allergies, alerts, diagnosis and procedures, as well as privacy and security architecture, and minimum standards for the technical environment and software.

The IEHR will work on an 'opt in basis'. That is, everyone receiving healthcare in Australia will have the opportunity to choose to be part of the new IEHR system. A person can decline to continue participating at any time.

In order for healthcare providers to participate in the IEHR, they must meet a number of criteria, including registration with a HPI-O. This is a unique identifier for provider organisations currently being developed. You will also need to sign up to a participation agreement.

In relation to emergency situations, it is proposed that authorised providers will be able to assert a 'need to know' access relationship. This can only occur where all three of the following criteria are met:

  • The individual is in need of critical care (emergency situation).
  • An access relationship with the individual cannot be established (for example, the individual is unconscious).
  • The provider has good reason to believe that the individual's IEHR will provide relevant information.

All assertions of a 'need to know' will be audited. NEHTA also notes the importance of a transparent and accountable governance structure.


The Australian Law Reform Commission (ALRC) published its report 'For Your Information: Australian Privacy Law and Practice' on 11 August 2008. The key recommendations include:

  • Simplifying and streamlining the Privacy Act 1988 (Commonwealth) and related laws (including State and Territory privacy laws).
  • Implementing uniform privacy principals and national consistency to all Federal and State and Territory government agencies and the private sector.
  • Further regulating cross-border data flows – making the organisation that transfers personal information outside the country accountable for it. This may occur for example with the use of health call centres or IT help desk support services which are provided off-shore.
  • The rationalisation of exemptions and exceptions.
  • Improved complaint handling and stronger penalties.
  • Organisations will be required to notify individuals where there have been data breaches and there is a real risk of serious harm occurring as a result.
  • The introduction of a private cause of action where an individual has suffered a serious invasion of privacy.
  • The drafting of new Privacy (Health Information) Regulations.

The Privacy (Health Information) Regulations will cover issues such as:

  • Collecting family medical histories.
  • The collection of health information necessary to provide a health service to an individual.
  • The disclosure of health information to carers.
  • The use and disclosure of genetic information.
  • Where providing access to health information would likely pose a serious threat to the life or health of an individual.
  • When a health service is sold, transferred or closed.
  • The use of health information for the funding, management, planning, monitoring or evaluation of a health service.

Further, the Privacy Commissioner will develop a set of 'research rules' to minimise confusion for institutions, researchers and Human Research Ethics Committees dealing with health and medical research. These will replace the National Health and Medical Research Council (NHMRC) section 95 and 95A Guidelines.


There has been recent debate over whether a person who has had their privacy invaded should have further rights in addition to the rights granted by the Privacy legislation and a general cause of action for breach of confidentiality, which currently exist.

The ALRC stated that in Australia, no jurisdiction has passed legislation to create a cause of action for breach of privacy, however, the door to the development of such a cause of action has been left open by the High Court case of Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 63.

The issue of a cause of action for breach of privacy has recently been reviewed by the Court of Appeal of the Supreme Court of Victoria in Giller v Procopets [2008] VSCA 236, which involved the publication of a videotape of sexual activity. In this case, the Court found in favour of the plaintiff for breach of confidentiality and therefore it was unnecessary to consider the generalised tort of invasion of privacy. Healthcare providers should be mindful of their obligations of both confidentiality and privacy in relation to patient information.

One of the key recommendations made by the Law Reform Commission is that federal law should provide for a private cause of action where an individual has suffered a serious invasion of privacy, in circumstances in which an individual has a reasonable expectation of privacy. Courts should be empowered to tailor appropriate remedies, such as an order for damages, an injunction or an apology.

Freedom of Information Reform

Australia's Freedom of Information laws are currently being reformed. The Government has invited submissions on the following draft Bills:

  • Information Commission Bill 2009
  • Freedom of Information Amendment (Reform) Bill 2009

The closing date for submissions is 15 May 2009.

The principal object of the reform is to promote a prodisclosure culture across Government.

The Bill creates the Office of the Information Commissioner who will be vested with all functions and powers under the Privacy Act and the FOI Act.

There are numerous reforms, including:

  • It is proposed to extend the FOI Act to contracted service providers and subcontractors delivering services for and on behalf of the Commonwealth.
  • The draft Bills propose to repeal exemptions for Executive Council documents; documents arising out of companies and securities legislation and documents relating to the conduct of an agency of industrial relations.
  • A single form of public interest test will apply instead of the multiple different existing formulations of the test.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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