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Title : An Important Contribution To The Discussion Around The Legitimacy Of And Ethics Around The myHR.
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An Important Contribution To The Discussion Around The Legitimacy Of And Ethics Around The myHR.

I came upon this paper this week:

Health Privacy and Confidentiality

Health Privacy and Confidentiality, Chapter 23, in Tensions and Traumas in Health Law, I Freckelton and & K Petersen (Eds) (2017) Sydney: Federation Press, Forthcoming

17 Pages Posted: 14 Apr 2017  

Danuta Mendelson

Deakin University, Geelong, Australia - Deakin Law School

Gabrielle Wolf

Deakin Law School

Date Written: February 15, 2017

Abstract

The notion that a patient has the right to maintain the confidentiality of information disclosed in the course of a therapeutic relationship with a health practitioner has been entrenched in Western civilisation for thousands of years. For the first time, however, we have begun to witness an erosion of this entitlement, especially in Australia in recent years. The Australian Federal Parliament has created a system of co-linked national electronic health records that, by virtue of new technology, permits government bodies and myriad other third parties to access and disseminate individuals’ health information both lawfully and without authority, almost invariably in the absence of patients’ knowledge and consent. Commonwealth legislation has also facilitated the substitution of patients’ traditional right to confidentiality of their health information with a much broader and less clearly defined right to “personal privacy”. This chapter examines how these changes have led to a fundamental upheaval of longstanding understandings about the protection of information communicated and learned in the once secluded space of the consulting room.

Keywords: patients, confidentiality, electronic health records, Big Data, assymetry of power,

JEL Classification: C55, C 89, I18, I19, K19, K39

Suggested Citation:

Mendelson, Danuta and Wolf, Gabrielle, Health Privacy and Confidentiality (February 15, 2017). Health Privacy and Confidentiality, Chapter 23, in Tensions and Traumas in Health Law, I Freckelton and & K Petersen (Eds) (2017) Sydney: Federation Press, Forthcoming.

Available at SSRN: https://ssrn.com/abstract=2952275

The detailed and scholarly article provides a summary of the nature of patient confidentiality / privacy through time (back to the Greeks) and then provides many pages of discussion around the myHR.

The concluding remarks are as follows:

Conclusion

“Technological advances have made possible the development of a system of national electronic health records. While the digitization of health information does not inherently undermine the confidentiality of patients’ health information, the My Health Record system that the Commonwealth Parliament has legislated to create, and the technology used to operate it, has enormous potential to do so. The old adage, “knowledge is power”, can be

interpreted in several ways, including as a shorthand for saying that, the more the State knows about its citizens, the greater the power that it can exert over them for good and for bad. The My Health Record system exponentially expands the knowledge that Australian governments, but also other third parties, can acquire about individuals’ health information and, consequently, their authority over them. The creation of the My Health Record system has coincided with the substitution of the concept of patients’ right to the confidentiality of their health information with a much broader and less defined right to personal privacy. Both developments have significantly eroded our former capacity to secure information disclosed in the course of therapeutic relationships with our health practitioners.”

I find this all rather chilling to say the least. It is not an accident that Tim Kelsey is keen on working in Australia because of our laws which seem to have eroded many of our previous assumptions regarding the our control of our personal information – and not for the better I must say. The AusHealthIT poll of July 23 shows many agree with the position expressed in this paper in terms of the privacy risks etc.

David.

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