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Domestic violence

My Health Record deadline extended but family law concerns remain

By January 24, 2019November 1st, 2021No Comments

Australians are being reminded that if they hold a Medicare card, a My Health Record will automatically be created for them unless they choose to opt out during the opt out period, which has been extended until 31 January 2019.  An electronic health care record will also be created for all kids unless their parents opt out or cancel their My Health Record. To opt out, you need to visit the My Health Record website.

And as the deadline looms, we are taking the opportunity to remind those of our clients whose matter involves family violence issues to urgently take steps to opt out, as along with many professionals in the family law industry, we still have concerns that the new system could expose vulnerable Australians to safety risks.

The issue for parents and children who might be at risk of harm is that their location and other sensitive information could be disclosed to their abuser through the My Health Record system, instead of protecting the confidential information of victims.

The My Health Record (MHR) system is the Commonwealth government’s digital health record system where people’s record will contain their health information, including treatments they have received, healthcare providers they have visited and medicines they have consumed.

It was originally intended to be an opt-in system but the Government changed that in 2017 as there had not been enough voluntary uptake. Initial concerns that stakeholders expressed for vulnerable Australians resulted in amendments being made to the My Health Records Act 2012 via the My Health Records Amendment (Strengthening Privacy) Bill 2018.

But although the Government has been tinkering with the legislation, it has not managed to assuage privacy concerns, with access to kids’ records especially problematic where there is shared parental responsibility with a potential perpetrator of family violence.

There are also worries over potential security vulnerabilities caused by having a centralised database with such broad access; for example, there remains the fact that unauthorised access to a healthcare record holder’s information is only trackable to an organisation level rather than an individual end-user level. (For a good discussion of the overall problems of the My Health Record scheme, you may wish to read this.)

Many Australians have concerns over privacy generally, and are dubious about whether the potential benefits of the system outweigh the risks. The chief benefits are seen as enabling health care professionals to access critical information (for example, about medications or allergies) which could save lives in an emergency. Delivery of health care is also supposed to be improved by medical professionals’ greater access to patient information.

Responding to the criticisms around family violence risk, the Australian Digital Health Agency, which is the governmental body in charge of implementing the scheme, argues there are strong systems in place designed to protect victims. There are options for authorised representatives to control sensitive information in the child’s My Health Record, such as suspending the record, opting the child out of having a record, instructing health care providers not to upload information, cancelling the record or cancelling the child’s registration (meaning documents in the record are kept online but cannot be viewed by anyone except in an emergency).

Further, the recent legislative amendments mean that now, a person can’t become an authorised representative of a child’s health record if they are subject to a court order or a state or federal law that requires them to be supervised when with the healthcare record holder, or that would put that person’s life, health or safety at risk.

But the onus is on the person who feels their safety could be at risk to alert the ADHA (Australian Digital Health Agency) and Medicare and provide supporting official documentation such as orders, together with the request that the potential abuser not be allowed to have access to the child’s records.

As the Lawyers Weekly article puts it:

“The burden is placed back on victims to protect their safety and to take further steps and ‘prove’ the risk through provision of court orders, rather than the MHR system being built to protect by default.”

At Alliance Legal Services we take these privacy and safety concerns seriously and are therefore recommending to any concerned clients that they should cancel their child’s My Health Record if they have not opted out by the deadline.

If you would like assistance with a  parenting or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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