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Privacy Law and Policy Reporter

Privacy Law and Policy Reporter (PLPR)
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Waters, Nigel --- "Medical privacy - under threat again" [1997] PrivLawPRpr 62; (1997) 4(6) Privacy Law & Policy Reporter 114

Medical privacy — under threat again?

Nigel Waters

Pharmacies online to Medicare? — Trying again

On 12 November the Minister for Health, Dr Wooldridge, announced that a pilot would commence of a new scheme to electronically link pharmacies to the Health Insurance Commission’s Pharmaceutical Benefits Claims Database. The link is primarily to allow pharmacists to check customers eligibility for concessional benefits, and to lodge claims for re-imbursement, but will also be used to give access to prescription histories to avoid inappropriate dispensing. The Minister announced that the trial, to take place in several locations, would be conducted in close consultation with the Privacy Commissioner, Moira Scollay. Ms Scollay confirmed in an interview with the Australian that the pilot would be on the basis of informed consent, and did not therefore raise immediate privacy concerns.

Readers with long memories will recall that the Health Insurance Commission has tried twice before in the last decade to establish on-line links with pharmacies, as part of their overall strategy to control the burgeoning costs of the pharmaceutical benefits scheme, improve prescribing behaviour and ensure that patients only receive the necessary and appropriate medication.

At the last attempt, in 1991, the proposal was withdrawn after criticism both on privacy grounds and by the National Audit Office of the poor cost-effectiveness case. At that time, pharmacists themselves were opposed to the scheme, partly because of concerns about patient privacy but mainly because they were being asked to perform a ‘policing’ function for little extra reward. This time, the Pharmacy Guild is a joint proponent of the scheme along with the Health Insurance Commission and federal Department of Health. It would appear that the government has overcome their objections, perhaps by offering improved financial arrangements. The proposal is said to be modelled on the Pharmanet scheme which was introduced in British Columbia over the strong objections of the Province’s Privacy Commissioner, David Flaherty, who has major concerns about access to prescription histories and the absence of adequate controls over secondary uses. Flaherty also fears, as did the first Australian Commissioner at the time of the previous proposal, a remorseless ‘function creep’ as health care professionals and administrators ‘discover’ more uses for an integrated on-line system.

The proposal was actively canvassed by the HIC and Pharmacy Guild in submissions to the House of Representatives Family and Community Affairs Committee Inquiry into Concession Card Availability and Eligibility. In its report Concessions — Who benefits? released on 17 November, the Committee strongly endorses the proposed pharmacy online links, in association with a proposed multi-function smart card (see below), paying hardly any attention to the concerns expressed by the Privacy Commissioner and others about the privacy risks and wider implications. Neither is there is much evidence of the HIC having had to justify the scheme on cost-benefit grounds, although this may still be a hurdle they will have to cross before funding is provided for a full implementation.

The Australian Medical Association (AMA) greeted the Minister’s announcement of the trial with expression of major concern about both the threat to patient privacy and the risk of inappropriate interference with doctor’s prescribing judgements. Given the chequered history of privacy and medical politics, the AMA’s opposition to the scheme may owe more to perceived threats to their professional autonomy (and incomes) than to genuine concerns about patients’ privacy, but their (at least temporary) questioning of the proposal on privacy grounds is nonetheless welcome.

The balance to be struck between greater use of computers and linked databases in health care and administration, and patient privacy, is shaping up to be one of the key privacy issues of the next few years. It is clearly not tenable for privacy advocates to reject all proposals for exchange and comparison of patient data, which offer many real health care benefits as well as the prospect of major savings in a massive area of government expenditure. At the same time, there need to be some very clear limits placed on the extent to which ‘nurse know best’ and patient data is used without their free and informed consent.

Multi-function smart cards — the Australia Card re-emerges?

The House of Representatives Family and Community Affairs Committee’s support for a single concession smart card (see above), should also be read in conjunction with their other report released recently (24 November) on Health Information Management and Telemedicine, and particular note taken of the committee’s dismissive attitude to privacy concerns. Although the reports are only just available, their flavour can be judged from the tabling statements.

Introducing the Telemedicine report, Committee chair John Forrest (National) said:

The committee has very seriously considered questions of individual privacy, confidentiality and security throughout the process of the inquiry. The committee has concluded, however, that concerns in this regard are often overstated and that the advent of electronic health records can in fact enhance the security of records, given the serious deficiencies of the insecure paper based system which currently exists.

Unfortunately the committee seems to have slipped into the all-too-common trap of equating privacy concerns solely with confidentiality and security. Mr Forrest went on to say:

The report also recommends the introduction of a patient held electronic health card system and links very well with the committee’s report tabled last week with respect to concession cards. This will resolve the question of ownership and patients’ rights of access to their own health information. The allocation of a unique patient identifier is also recommended. This will reduce the possibility of data being incorrectly attributed.

Again, it is very disappointing that the committee’s analysis is so simplistic — while a smart health card may assist with some aspects of patient access and control, it will almost certainly create a number of other very significant privacy issues, depending on the design and implementation of the system. The submission and oral evidence from the Privacy Commissioner clearly failed to persuade the committee of the importance of these concerns, and privacy advocates now face an uphill struggle, yet again, to rein in the ambitions of the health bureaucrats. The scale of this task is illustrated by the comments of ALP committee member Harry Quick, who, speaking to the concession cards report on 17 November, said:

To the civil libertarians, who are going to jump out of the woodwork over this issue: go and hide. The recipients need it, want it and they are going to get it. Find something else to worry about.

Nigel Waters, Associate Editor.

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