Understandably most people are sensitive about protecting their personal health information. For this reason, Australia’s privacy laws give heath information a higher level of protection than other types of personal data.
However, the myriad of privacy laws that apply to health information make it challenging for health providers to know and comply with their obligations.
This week’s release of new health privacy guidance by the Australian Privacy Commissioner is a welcome move, as is the recent guidance issued by the Australian Medical Association on taking clinical images with personal devices.
What is ‘Health Information’?
‘Health information’ is defined in the Privacy Act 1988 (Cth) to mean:
- information or an opinion about an individual’s health or disability, an individual’s expressed wishes about future health services provided to them, or a health service provided or to be provided to that individual
- other personal information collected to provide or in providing a health service, or in connection with organ donation
- genetic information about an individual in a form that could be predictive of their health.
Examples include medical and dental records, notes of symptoms or diagnosis and treatment provided, records about an individual held by a fitness club or gym, and photos taken of a patient’s injury or symptom.
New Draft Health Privacy Guidance
This week the Office of the Australian Information Commissioner (OAIC) released a new series of draft health privacy resources for health service providers and consumers.
The consultation drafts, released for public comment, follow on from last year’s reforms to the Privacy Act, and the publication of the OAIC’s Australian Privacy Principles (APP) Guidelines. When finalised, they will replace all existing health privacy guidelines of the OAIC.
The new draft health privacy resources provide much more detailed guidance for health service providers than is currently available in the APPs.
They include information on privacy issues that arise most frequently for the health sector and guides for collecting, handling, using, disclosing and providing access to patients’ health information (including for health management and research purposes).
The closing date for comments on the draft resources was 20 October 2015.
AMA Guide on Clinical Images and the Use of Personal Mobile Devices
The new wave of medical apps is making it increasingly easy for medical practitioners to take and circulate images of their patients’ injuries and symptoms, whether for professional (or other) collaboration with colleagues.
However, mobile health apps raise privacy concerns and potential Therapeutic Goods Administration (TGA) issues. See our recent article Mobile apps that collect health data: Will they be put under the privacy spotlight? for more on this.
Studies show that an increasing number of doctors use their personal devices to take and transmit clinical images, and then store the images personally including using offshore cloud email services such as Gmail and Hotmail.
Clinical images – whether a photo, video or audio recording – will generally be ‘health information’ which is protected under Australian privacy laws. Clinical images are part of a patient’s medical record, and the same confidentiality and privacy obligations apply.
Recognising these issues, the Australian Medical Association (AMA) last year released a guide for doctors and medical students in the proper use of personal mobile devices such as smart phones and tablets when taking and transmitting clinical images.
It highlights the legal and ethical issues that medical practitioners must be alert to, when using a personal device to take and store clinical images and sending them to others.