12 September 2018
Phelps warns of hidden landmines in MHR legislation
Former AMA president Dr Kerryn Phelps has demanded a full review of the My Health Record legislation to look for more “hidden landmines” after an outcry by doctors over access loopholes.
Dr Phelps has also told a Senate inquiry into the MHR that it should seek a public examination of the business case for the Australian Digital Health Agency to guard against possible future privatisation and monetisation of patients’ data.
“We have to ask what is the real underlying motivation for this massive exercise in data mining. Surely it’s not primarily the patients’ best interests,” she said, addressing the Senate Community Affairs committee by videolink on Tuesday.
The high-profile Sydney GP said she had been alarmed at the access provisions revealed when she read the MHR legislation, despite assurances by the health minister and the ADHA that “policy” was in place to protect patients.
“Under the legislation, warrantless access to My Health Record by not only the police but other designated agencies like the tax office, Centrelink, social security, ASIO and border protection would inevitably corrode and destroy the principles on which the public health system has operated so successfully,” she said.
Australia would never have been able to mount a successful response to the HIV-AIDS epidemic of two decades ago if the proposed MHR had been in play, because key patient groups would not have trusted the system, she added.
Dr Phelps said proposed amendments seem to reinstate judicial review for delegated access to patients’ records, but the amendments had to be seen in the context of the full legislation.
“Just as we were reassured about third-party access provisions in the legislation, we need to look at what other hidden landmines there are.
“Only a full review of the legislation, and all of its possible implications, now and in the future, will be acceptable,” Dr Phelps said.
She called on the Senate committee to look closely at the potential monetisation and privatisation of the MHR data base, including the business case.
“This aspect of the legislation has been completely lost in public debate and should now be reintroduced in these Senate hearings.
“At time of the revamp of the My Health Record legislation by cabinet, it is a reasonable assumption that a business case for the digital health agency was prepared or considered by agencies and cabinet.
“The question as to whether such a business case exists should be asked and it should be published.”
Dr Phelps told the Senate Community Affairs Committee that many of her GP colleagues were opting out of the MHR and predicted doctors would not upload patients information unless they were “100% confident” it was secure.
She called for a 12-month suspension of the MHR roll-out while concerns were resolved, saying parliament needed to take charge of the legislation.
Dr Phelps said the Senate committee should dismiss advice that problems with the roll-out were due to inadequate communication about the benefits of the central health database.
“The problem has not been about communication at all. The problem is the content – or to be more precise, the lack of content. It’s also about the lack of protections for privacy and security.
“Not only has information about who has access to personal records been deliberately concealed, doctors and the public could rightly feel that they have been misled.”
Doctors’ concerns had been initially dismissed by the Health Minister Greg Hunt and ADHA CEO Tim Kelsey, she said.
“We were told, trust us, we have a policy.
“I was told the current ADHA policy did not allow access without a warrant or court order. As we all know, policies can change unless there is legislative protection and parliamentary oversight to protect that.
“So, let’s say, one day in the near future the ADHA was to be privatised and that policy was no longer convenient or profitable.
“What if private health insurers could access this information and come up with an algorithm for insurance coverage. Some patients would find their insurance would become unaffordable and the sickest patients would be uninsurable.”