MHR debacle week 2, electric boogaloo

Just as we thought some of the gas was escaping from the My Health Record opt out Hindenburg, yet another drama exploded at the start of the week as the media and the privacy lobby seized on the wording of section 70 of the My Health Record Act, a couple of paragraphs of legalese that is either quite straight forward or a stain on humanity depending on your point of view.

Various interpretations of exactly what s70 means abounded, but it in effect lays out the circumstances under which the My Health Record system operator, namely the Australian Digital Health Agency (ADHA), would be authorised to release health information to law enforcement officials, including the police and the immigration department.

The problem with the wording is that it does not explicitly state that police need a court order to inspect data on the system. It certainly implies it and other health records and health information systems operate under the same standards. In fact, the wording of s70 is exactly the same as the wording in the original PCEHR Act 2012, and it is our understanding that it is very similar to wording used to cover law enforcement access to Medicare.

Going by the debate this week though, it appeared that the legislation and the whole idea of opt out was something new that the government was foisting upon an unwilling populace. Anyone who was around for the great debates over the PCEHR concept of operations in 2011 and its enabling legislation in 2012 will know differently.

There were also great debates in 2015, when the government accepted the Royle Review's recommendation to move to opt out and introduced legislation to allow this. This was debated in the upper and lower house, there was a Department of Health discussion paper and a Senate committee inquiry with over 120 submissions, all covered in detail in the medical press and certain health IT publications, as well as the wider media.

This week though, things got a little out of hand. The highly regarded and independent Parliamentary Library was forced to amend an article it had produced on s70, which originally claimed that the current act watered down privacy provisions. “It represents a significant reduction in the legal threshold for the release of private medical information to law enforcement,” the library said, an accusation that finally roused the Department of Health from its slumber. It appears that the article was wrong and has since been amended, but not before it dominated column inches and social media this week.

Unfortunately, it also overshadowed what was a pretty terrific speech at the National Press Club on Wednesday by new AMA president Tony Bartone, who gave an impassioned, compelling plea for the proper funding of primary care. Most questions were not about helping the ailing general practice sector or about preventative healthcare, but about the horrors of the My Health Record. Dr Bartone was forced to promise to do whatever it takes to reassure the public about it, including asking the government to amend the legislation. The RACGP then announced on Thursday that it would push for the same.

Asked about all of this yesterday, Health Minister Greg Hunt was forceful in his reiteration that law enforcement cannot access the system without a court order. A lawyer by training, Mr Hunt said there was a difference between the legislation and the formal policy interpretation of that legislation. In a nutshell, he said ADHA cannot and will not issue any records without a warrant. “They’ve been operating for six years, not one record has been released to the police in that time and they cannot and will not release without a court order,” he said.

That didn't really placate the privacy lobby and in these polarised political times, it is not likely to placate the half of the country that does not believe a word the government says. Just today, the Consumers Health Forum – which like the AMA has always been in favour of opt out – issued a quite sensible position statement, saying that perhaps an amendment to the legislation should be made.

We'll see if that is necessary or if the whole furore dies down in the meantime. What it does illustrate is what we argued last week – that ADHA's marketing and information campaign has been an absolute disaster, no two ways about it. The fact that the agency seems to be relying on GPs and pharmacists to sell the system to the great unwashed on its behalf is another indictment on those responsible. It might be time for some heads to roll.

That brings us to our poll for the week: Has the opt-out mess fatally damaged trust in My Health Record?

Sign up to our weekend edition to vote or leave your thoughts below.

Our poll last week asked: Will more than 2% opt out of My Health Record, or less? Three-quarters (75.5 per cent) of you said more will opt out, while 24.5 per cent had a more optimistic outlook.

In other news, Pulse+IT has set up an eHealth discussion group on Facebook for readers interested in discussing the latest health IT news in an informal setting. We can't promise that Zuckerberg won't sell your data to the Russians, but with Facebook having lost more money this week than any US company in history, anything is possible.

The Pulse+IT team is off to HIC 2018 in Sydney next week so if you are there, you can track us down wherever the good coffee is being dispensed.

Comments  

# Peter Lawrance 2018-07-30 09:04
About half the medical professionals I have spoken to in the last week or so about My Health Record say they can't see that it will help them in their daily work. Of the non-health professionals I have spoken to about it in the last week, 100% say they have already opted out or are planning to.
# Ivor Jones 2018-07-30 14:44
Kate, of course you are right that the marketing and comms around opt-out has been an object lesson in ineptitude, and of course it is fair to question why this is so, given the time that was available to prepare. But I do admit the possibility that there may be underlying reasons for it, and if so it would be far too easy to make ADHA the scapegoat – again. While they could have and should have done better, the extent to which they can is constrained by the resources and direction (or lack of it) provided by the political masters. For example, numerous commentators have expressed surprise that there has been no TV advertising for opt-out as there was for the PCEHR back in the day. A pertinent question might be – did the ADHA just overlook this channel, or did they intend to use it and got knocked back on cost grounds? And if they overlooked it, was that due solely to ineptitude, or to contradictory priorities from the political masters, or even simply to being distracted by the plethora of other preparatory tasks necessary for opt-out, e.g. upgrading the infrastructure? (Might be quite important, that last one, even at a 20% opt-out rate). So if heads do roll, let’s all keep a sceptical eye on the possibility that it might be a diversionary tactic – again.

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