The new statutory tort covering invasion of privacy doesn’t include the same exemptions for doctors as the Privacy Act – here’s how it works.
Australians now have recognised protection from breaches of privacy and the right to sue for compensation, but there is no specific carve-out exempting doctors and healthcare.
The amendment to the Privacy Act 1988, which passed the Senate last week, introduced a statutory tort for serious invasions of privacy through either intrusion upon seclusion or misuse of private information.
While the Privacy Act itself contains exemptions that specifically permit the handling of personal health information for medical research purposes, the tort does not.
Its passage opens up the risk of doctors being sued under the tort for things like collecting reports from other specialists without explicit patient consent, disclosing health information to family members or using personal data in medical research, even where the doctor has complied with the Act.
Related
The AMA raised these concerns with politicians.
The association now claims that amendments it pushed for – specifically, Senate amendments that shift the onus onto plaintiffs to prove no greater public interest and allow courts to consider public health without defendants lodging evidence – will reduce the risk of spurious claims against healthcare workers.
In the next round of amendments to the Privacy Act, the AMA said it would push for the exemptions on healthcare and health research to apply to the statutory tort.
An addendum to the tort’s explanatory memorandum also states that the tort would be unlikely to affect the proper activities of healthcare providers given all the elements, high thresholds and defences included.
“The elements of the tort should ensure that legitimate practices, such as medical care and research, do not attract liability,” the memorandum reads.
“For example, it would be highly unlikely an individual could establish they had a reasonable expectation of privacy and there was no countervailing public interest in relation to their medical history, in the context of its use when engaging with a healthcare provider to support the diagnosis and treatment of a family member.
“Similarly, it would be expected that the strong public interest in broadly beneficial medical research, if conducted appropriately, would outweigh a single individual’s interest in their own privacy.”
One of the approved defences to suits brought under the tort is that the defendant “reasonably believed that the invasion of privacy was necessary to prevent or lessen a serious threat to the life, health or safety of a person”.
The same bill also introduced criminal offences for “doxxing”, whereby personal information is released onto the internet in a manner considered menacing or harassing.
