Deep concerns over privacy remain in relation to the Australian Government’s upcoming implementation of its My Health Record scheme, with vulnerable Australians potentially being put at risk thanks to problems with the drafting of the My Health Record legislation.
The Law Council of Australia has raised concerns that Australians experiencing family violence could be being put at serious risk by the scheme. Law Council of Australia President Morry Bailes and several other members of the Law Council appeared before a Senate inquiry into the My Health Record scheme last week to discuss these concerns and called on the Government to amend the legislation.
All Australians holding a Medicare card are to be automatically enrolled in the system and an online medical record created for them, unless they choose to opt out, which around a million Australians have already chosen to do.
The problem with the scheme in relation to Australians experiencing family violence is that the digital record, in its current form, could be legally accessed by parents who have an Apprehended Domestic Violence Order against them, allowing them to access their children’s medical information and residential address, causing obvious safety issues.
The problem lies in the definition of “parental responsibility” in the My Health Records Act. The definition is currently “too broad”, says the Law Council:
“The definition of parental responsibility includes a person who merely has an order that a child spend time with a person. But a parent can retain parental responsibility for a child even if subject to a parenting order preventing them from contact with the child, or requiring their contact with the child to occur only under supervised conditions.”
“The definition of parental responsibility under the Act should be amended so that a person must have a parenting order for the child to spend unsupervised time with that person. It should also be stipulated that a person does not have parental responsibility if the person has a restraining order or personal protection order preventing them from spending time with the child.”
A state-based ADVO still allows a parent to hold parental responsibility under the Family Law Act, meaning they are then considered to be an authorised representative under the currently planned system. Mr Bailes said “This creates serious issues for children and parents who may be at risk of harm if their location was to be disclosed through My Health Record to the perpetrator of violence.”
The Law Council has called on the Government to urgently amend the legislation, so that no parent with a restraining order or personal protection order against them could be able to access the child’s health records and residential address.
Some additional privacy protections were introduced by the My Health Record Amendment (Strengthening Privacy) Bill 2018, but the Law Council says there are still major concerns.
“The legislation needs to protect the location and identity of victims of family violence from being shared with perpetrators,” Mr Bailes said.
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 of family violence. 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).
“When the record is suspended no representatives can access the child’s health information in their My Health Record,” the ADHA spokesperson said. “The record cannot be re-activated until the legal authority of the parent or guardian is verified.”
Many Australians have concerns over privacy generally, and are dubious 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.
For a good discussion of the overall problems of the My Health Record scheme, you may wish to read this.
If you hold a Medicare card, a My Health Record will automatically be created for you unless you choose to opt out during the opt out period, which has been extended until 15 November 2018. To opt out, visit the My Health Record website.
Do you need help with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other 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.