Privacy Law and Policy Reporter
The Federal government has been concerned to reduce ''over servicing' of patients under the Medicare system for many years. In particular, pathology services have been seen as a field rich with the potential for over-servicing. The Health Legislation (Powers of Investigation) Act 1994 (the Act) is part of the legislative response to this perceived problem. The Act has two main components empowering the making of regulations with respect to the record keeping of ''approved pathology authorities'; and granting extensive powers to the Health Insurance Commission (HIC the body which administers Medicare) to obtain information, including the power to obtain and execute search warrants. The Act was assented to on 23 June 1994 after being the subject of consideration by the Senate Standing Committee on Legal and Constitutional Affairs.
The Act amends Pts IIA and IIB of the Health Insurance Commission Act 1973 (Cth) (HIC Act) in relation to records kept by approved pathology authorities and medical practitioners providing diagnostic imaging services. Included in the amendments are provisions authorising the compulsory production of records to authorised officers of the HIC. However, these powers only authorise production of records to medical practitioners employed by the HIC. Only such medical practitioners may retain copies or extracts of the records. The Act is silent as to what may occur to those copies or extracts once they are made. Nothing in s130 of the HIC Act, the secrecy provision, prevents disclosure to non medical practitioners employed by the HIC. The result is that medical practitioners employed by the HIC act as filters in the collection of information, but then play no special role in relation to its use or disclosure.
The Act gives general powers of investigation to the HIC. By the new s8P of the HIC Act, the Managing Director of the HIC is empowered to issue written notices to any person requiring them to give information or produce documents relevant to the eligibility of any person to receive Medicare benefits or pharmaceutical benefits or the amount of such a benefit. As a result of the recommendations of the Senate Committee, the notices may not demand production of a patient's clinical details from persons other than a patient who has claimed Medicare or pharmaceutical benefits in respect of the treatment to which the documents relate. Non-compliance without a reasonable excuse is an offence. As is increasingly common in Commonwealth legislation, the privilege against self-incrimination may be overridden by the HIC (s8S). However, there is a derivative use immunity in respect of information obtained in this fashion.s8U and 8V empower authorised officers of the HIC to enter and search premises, when to do so is reasonably necessary to ascertain whether an offence against the HIC Act or the National Health Act has been committed. This general power to search premises (including the power to inspect and copy documents) is dependent on the consent of the occupier to allow entry to the premises. Such powers would, no doubt, be relied on for routine investigations by the HIC's compliance officers.
The Act also establishes non-consensual powers of search and seizure. An elaborate series of provisions (largely based on those contained in the Crimes(Search Warrants and Powers of Arrest) Act 1994 (Cth)) set up procedures for the granting of search warrants by magistrates. The purpose of the warrant is to facilitate the search and seizure of ''evidential material' relating to offences against the HIC Act and the National Health Act. Given the recent amendments to the provisions of the Crimes Act 1914 (Cth) in relation to general search warrants it is somewhat surprising that a separate regime is to be established in the HIC Act. However, there are a number of major differences between the two regimes.
First, before issuing an HIC warrant the magistrate must be satisfied that the execution of the warrant will not cause an unreasonable invasion of any patient's privacy. Secondly, the Crimes Act warrants must be executed by a ''constable', i.e. a member of the State, Territory or Federal police forces, whereas an HIC warrant may be executed by an authorised officer of the HIC. Thirdly, the HIC warrants cannot authorise some of the more intrusive activities, such as the taking of fingerprints, the conduct of a frisk search and the taking of forensic samples, which may be contained in a general search warrant. In addition, the HIC regime imposes certain reporting obligations in respect of searches involving documents containing clinical details of any patient. Each patient whose records have been searched must be advised in writing of what has occurred, unless to do so would prejudice the investigation. Also, the HIC must include statistics in its annual report in relation to a wide range of matters including the number of search warrants executed and patients advised.
It is most instructive to compare the text of the Act as assented to with that of the Bill as read a first time. The impact of the Senate Committee's report was substantial in terms of safeguarding patients' privacy. Prior to the report the Bill did not require magistrates issuing search warrants to specifically consider the privacy of patients, nor did it restrict the power of the HIC in the predecessor to s8P to obtain records containing clinical details from medical practitioners. The result is legislation which authorises intrusive activities in relation to sensitive information, but which recognises the nature of that information and attempts to balance that consideration against the need to combat fraud. The only difficulty in relation to the safeguards on HIC search warrants is that they may be by-passed by obtaining a regular search warrant. The only disincentive to this course is that a police officer must execute the warrant.