Health Privacy It’s My Business

1. Health Privacy It’s My Business An Introduction to the Health Records Act2001 (Vic) Angela Palombo Legal & Policy Officer 17 April 2013

2. Impact of privacy laws • Privacy laws provide people with more control over how organisations handle their personal information. • Privacy laws should not stop an organisation carrying out their core business, but may mean changes to the way personal information is handled. • Privacy laws promote openness and transparency in the handling of personal information. • The right to privacy has to be balanced against the necessary flow of information for provision of services

3. Privacy protection is a balancing act: Maximising the level of control that individuals have over their personal information while ensuring that the rightinformation is available to the right people at the right time in the right way to enable necessary operations and services.

4. Privacy for Victorians Victoria: • Health Records Act 2001 • Information Privacy Act 2000 - applies to all personal information (except health information) that is collected or held by – • the Victorian public sector; and • organisations funded by the public sector. • Commonwealth: • Privacy Act 1988 - extended to private sector from21 December 2001

5. Office of the Australian Information Commissioner • Began operation 1 November 2010 • The Australian Information Commissioner is the head of the Office, supported by the Privacy Commissioner and the FOI Commissioner • Independent oversight of privacy and FOI & advising Government on broader government information management

6. Key Elements • Health Privacy Principles (HPPs) - applicable to public and private sectors • Right of access to personal health information in the private sector - Breen v Williams, High Court

7. Three important aspects of Privacy: • Confidentiality • Data protection • Consumer choice

8. Objects of the Act (s.6) • To ensure responsible handling of health information • To balance public interest in protecting privacy with public interest in legitimate use of information • To enhance ability of individuals to be informed about their health care • To promote provision of quality health services

9. Who is covered by the Act? Most organisations hold health information about individuals. The Act covers: • health service providers; • any other person/organisation that collects/handles personal health information. (e.g. schools, employers, churches)

10. What is health information? • For health service providers it is all identifying personal information collected to provide a health service; • For non health service providers it is all identifying personal information about the health or disability of an individual.

11. Personal information means: • Information or opinion about an individual whose identity is apparent, or can be reasonably ascertained • Does not have to be true • Does not have to be recorded • Includes that forming part of a database

12. Minors No change to current common law situation: • A minor is capable of giving informed consent when they achieve sufficient understanding and intelligence to enable him or her to understand fully what is proposed • No set age, must be assessed on a case by case basis

13. Deceased individuals • The Act applies in relation to the health information of a deceased individual who has been dead for 30 years or less in the same way it applies to the health information of a living person.

14. Deceased individuals • Legal representative can exercise rights on behalf of the deceased individual. • Legal representative defined as executor of will or administrator of the estate. • Any consent by legal representative is void if s/he knows that action does not accord with wishes expressed by an individual whilst still alive.

15. Impact of other legislation • The Health Records Act does not override other legislation. • Existing provisions in other statutes governing the confidentiality, use and disclosure of health information and those that regulate access to certain kinds of personal information continue to apply. e.g. Health Services Act, s.141 Children, Youth and Families Act 2005 Public Health & Wellbeing Regulns 2009 (some in coded form)

16. Collection Use & Disclosure Data Quality Data Security &Retention 5.Openness Access & Correction Identifiers Anonymity Trans border Data Flows Transfer / closure ofpractice of health service provider Making information available to another health service provider Health Privacy Principles

17. A contravention of the HPPs is: “an interference with the privacy of an individual” and could give rise to a complaint to the Health Services Commissioner. Outcomes for non compliance include: • Complaints • Compliance notices – for serious or persistent breaches

18. Consent • Individual has the capacity to consent • Voluntary • Informed • Specific • Current

19. HPP 1: Collection • Only collect health information necessary for the performance of your functions or activities • Generally need consent to collect health information (either express or implied) • Provide a ‘collection statement’ to notify those you collect from about what you do with the information and that they can gain access to it.

20. When collecting personal information, tell the person: • who is collecting the information; • what it will be used for; • whether the collection is required by law; • who else the information will usually be disclosed to; • what the main consequences, if any, are for them if they do not provide the information. • how they can get access to the information.

21. HPP 2: Use & Disclosure • Only use or disclose health information for the primary purpose for which it was collected or a directly related secondary purpose the person would reasonably expect. • Other use/disclosure allowed in certain circumstances – includes with consent, or as required by law, eg auditing by Victorian Workcover Authority or TAC

22. Public interest disclosure without consent • HPP 2.2(h) : disclosure is permitted if the provider reasonably believes the disclosure is necessary to prevent- (a) a serious & imminent threat to an individual’s life, health, safety or welfare, or (b) a serious threat to public health, public safety or public welfare

23. Case Study (1) – Psychiatrist writing to referring GP: Collection & Disclosure • A GP refers a patient to a psychiatrist. After visiting the psychiatrist, the patient visits the GP and realises that the psychiatrist has revealed all her conversation with him in a letter to the GP. • The patient is upset- she didn’t realise this would happen & did not want the GP to know some of the information. Did any breach of the Health Records Act occur? • Issues to consider: •    HPP 1.4 - Information given at the time of collection •    HPP 2.2(a) - Use and disclosure of health information

24. The eHealth record system • From July 2012, Australians can choose to register for their own personally controlled electronic health (eHealth) record. • The eHealth record system provides access to key health information drawn from a patient’s health records. With the patient’s consent, this information can be quickly shared between healthcare organisations and other healthcare professionals involved in the patient’s care.

25. The eHealth record system • Over time, an eHealth record will grow to contain a summary of a patient’s key healthcare events and activities, including medical history, allergies & current medications. The system is designed to be integrated into existing local clinical information systems. • An individual can control their own eHealth record, including by choosing to restrict which healthcare provider organisations can access it & what information is included.

26. The eHealth record system • The PCEHR Act limits when and how health information included in an eHealth record can be collected, used and disclosed. • Unauthorised collection, use or disclosure of eHealth record information is both a contravention of the PCEHR Act and an interference with privacy.

27. Does an eHealth record replace existing records? From ehealth.gov.au: FAQs for healthcare professionals: • eHealth records will not replace existing medical records. Healthcare professionals will continue to take and review clinical notes. More detailed patient information will be available on local clinical information systems, as per current practice. • The eHealth record system provides an active online record that follows patients as they move through Aust’s health system, and includes important clinical and treatment information. • It is expected that, in the future, the availability of eHealth records will save healthcare professionals valuable time.

28. HPP 3: Data Quality Take reasonable steps to ensure the healthinformation you hold is: • accurate, complete, and up-to-date • relevant to the functions you perform

29. HPP 4: Security & Retention • An organisation must take reasonable steps to protect the health information it holds from misuse, loss, unauthorised modification or disclosure. • A health service provider must keep health information for a minimum of 7 years since the last occasion a health service was provided. For a child the information must be kept until the child turns 25 years or 7 years after last contact, whichever is the later. • Public sector organisations retain records in accordance with the Public Records Act.

30. Management of Personal Information Physical security might include: • locking filing cabinets; • restricting access to certain areas; • positioning computer terminals so they cannot be seen by unauthorised personnel; and • questioning unaccompanied or unrecognised visitors.

31. Management of Personal Information Operational Security might include: • rules on levels of access; • audit trails to detect unauthorised access; • changing of passwords at frequent intervals; • avoiding collecting information in public waiting rooms where possible; • Use of fictitious information for training; and • procedures for dealing with employees who leave.

32. Management of Personal Information Security of transmission: • programming fax machines to avoid risk of misdialling; • retaining fax activity history reports; • controlling the type of information sent; and • telephoning intended recipient prior to transmission.

33. Management of Personal Information E-mail: • guidelines for use of e-mail; • encrypting files; • blind carbon copying address details; and • e-mail privacy notices. • Royal Australian College of General Practitioners' "Computer and Information Security Standards" published October 2011: http://www.racgp.org.au/ehealth/ciss Post: • take care not to display contents of letters through window envelopes.

34. HPP 5: Openness • Organisations must have a document with clearly expressed policies on: • how they manage the health information they hold; and • the steps an individual may take to obtain access to health information about them held by the organisation • Make privacy policy available to all who ask

35. HPP 6: Access & Correction • Individuals have a right to seek access to heath information about them held in the private sector. • They also have a right to correct it if it is inaccurate, incomplete, misleading or not up-to-date. • The FOI Act continues to give individuals a right of access to health information about themselves held by public sector organisations.

36. Mandatory limits to access Access must not be granted where: • an organisation believes on reasonable grounds that granting access would pose a serious threat to the life or health of the person making the request or any other person; or • the information was given in confidence by another person (but not a health service provider), unless that person consents.

37. HPP 10: Transfer/closure of practice of a health service provider • Health service providers whose business or practice is being sold, transferred or closed down, without the individual continuing to provide services, must give notice of the transfer or closure to service users. Letter to current clients, notice at the premises and advertisement in local paper. • Aims to encourage individuals to apply for their health information while it is still readily available. • Enables individuals to provide their current treating practitioner with their existing health information.

38. HPP 11: Making information available to another health service provider • If you’re a health service provider, you must make health information relating to the individual available to another health service provider if requested by the individual. • This must be done as soon as practicable.

39. Exemptions • The judiciary and quasi-judicial bodies (Courts & tribunals) when exercising their judicial or quasi-judicial functions; • Genuine news activities carried out by organisations whose dominant function is disseminating news; • Information relating to personal, family or household affairs.

40. HSC Complaints Process • Many people make enquiries without lodging a formal complaint. • Approx 50% of telephone inquiries result in lodgement of a complaint. • Complaints must be received in writing. • A person must have standing to make a complaint. • Consent is obtained from complainants to send their complaint to the respondent.

41. HSC Complaints Process (2) • Approx 90% of complaints are resolved informally. • Approx 10% of complaints go to conciliation. • If a complaint is not resolved through conciliation the complainant may request the complaint be referred to VCAT for hearing.

42. Case study (2)- Second opinion disclosed to first doctor • A man has a surgical procedure of a cosmetic nature. Is dissatisfied & obtains a second opinion from another surgeon • The man discovers the first surgeon had obtained a copy of the reviewing surgeon’s letter to the referring GP • -HPP 1.4: Collection statement -HPP 2.1: Disclosure permitted for primary purpose for which the information was collected -HPP 2.2(a) Disclosure based on patient’s reasonable expectation

43. Case study (3)- Disclosure to work colleagues • A woman complained her employer disclosed to staff members she was absent from work because she was on stress leave and seeing a psychiatrist. • The employer stated he thought it was necessary in order to make staff aware of the need to cover her role until her return. • After discussions with OHSC, employer accepted it had not been necessary to tell other staff the reasons for the absence. He apologised to the woman who was satisfied with this outcome.

44. Key points • Privacy lawsdo not prevent the legitimate flows of information necessary for the provision of a health service. • Become familiar with the privacy principles and apply them to the way you handle personal information.

45. Key points • Collect only the information you need. • Advise people why you need the information and how it will be used and disclosed. • Use and disclose for the primary purpose of collection unless the person consents or an exemption applies. • Take steps to ensure the quality of the information. • Secure the information.

46. Health Records Act 2001Online training now available • Is your organisation regulated by the Health Records Act 2001 (Vic)? Do you or your staff need training? • The Office of the Health Services Commissioner has contracted e3Learning Solutions to operate a low-cost online training course available to organisations regulated by the Health Records Act 2001 (Vic).

47. Online training The training course: • is free; • is suitable for staff of all organisations regulated by the Act; • provides basic training for staff and organisations regulated by the Act; and • includes the production of a Certificate of Completion for staff who successfully complete the course.

49. Health Services Commissioner Contact Details: Level 30 570 Bourke Street Melbourne Tel: 03 8601 5222 Toll free: 1800 136 066 Website: www.health.vic.gov.au/hsc Email: hra@dhs.vic.gov.au Fax: (03) 8601 5219 TTY: 1300 550 275 DX: 210182