Conditional bulk-billing unethical but not illegal

The scheme reflects the conflicting roles of health corporations, which operate as both a business and health provider.

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Medical group Cornerstone Health has come under further fire for only offering bulk billing to patients who download their app and join its rewards program.

Thirteen multidisciplinary clinics across Queensland, NSW and Victoria are currently operated by Cornerstone Health under Our Medical, which told The Medical Republic that Our Medical “has not and will not ever use personal data for commercial purposes and share it with third parties for financial gain”.

Professor Jeannie Paterson, a professor of law and co-director of the Centre for AI and Digital Ethics at the University of Melbourne told TMR her objection was “to make signing up for an app that takes people’s data, and that people may not be comfortable using because they’re not good at apps, a condition of access to bulk billing”.

“You might not want to bulk bill, and you might want people to have joined-up records, but you shouldn’t force them to do it in this way,” she said.

Professor Paterson said that companies like Cornerstone Health had conflicting duties, being both a health service and a business.

Doctors have ethical obligations like duties of care and confidentiality, but “the second you step into the app space, everyone seems to think they’re outside of that”, she explained.

“What we’re seeing here and in some other areas is that you can make an app that will solve a commercial problem or a practice problem, and that it’s okay to ask people to sign up to the app and hand over data that will be used by the app provider.

“There’s an assumption that that’s okay. And it’s not okay. It’s not okay to fool, or to push people into using something that they may not want to use in order to get a benefit.”

Failing to take a patient’s values into account may well be a factor that affects the business’ reputation and revenue.

Professor Paterson conceded the scheme was likely legal, as the company is open about their activities, but acknowledged that this might change in the future.

The NSW Supreme Court ruled in Dalima Pty Ltd v Commonwealth of Australia that it is illegal for practices to impose additional fees as a condition of bulk billing, with the court observing the “bulk-billing system manifests a policy objective of limiting expenditure on medical services, whilst retaining the traditional doctor/patient relationship”.

While the requirement that patients download an app and join the clinic’s rewards program is not a monetary charge, it is arguable that the condition infringes on the fidelity of a traditional doctor/patient relationship by potentially coercing patients to abide by requirements they aren’t comfortable with in exchange for an accessible service.

That said, Professor Paterson’s view is “you can’t make a law that says you offer an equitable service to your clientele”.

Medical record apps, which store patient data that can then be used for a variety of purposes – like booking appointments and linking patients with specialists – may at some point “go beyond the law”, as there are limits to “the data that should be collected by businesses”.

“There’s nothing that requires businesses to think carefully about people’s preference for privacy in the law, but that might change,” Professor Paterson said.

“At the moment, as long as you give people notice and you’ve got a reasonable justification of the data that’s collected, then it’s lawful, but I hope that we will soon see mores that say to firms. ‘you need to give people choices about opting in and out of each aspect of the data use’,” she explained.

Professor Paterson said that when compared to other countries, Australia’s digital privacy regulations “probably sit in the middle”.

“But we’re all waiting to see what happens.

“I would hope to see some better guidelines on how much can be collected and put the onus on the business to decide it’s fair and reasonable and medical practice. In this case, there’s a business so they need to do what’s fair and reasonable, as opposed to just flicking off to the customer to decide.”