Pathology and diagnostic imaging in the Personally Controlled Electronic Health Record system

18 July 2014

Our reference: 13/001311

eHealth consultations
Department of Health
By email: ehealth.consultations@health.gov.au

Dear Sir/Madam

Pathology and diagnostic imaging in the Personally Controlled Electronic Health Record (PCEHR) system

The Office of the Australian Information Commissioner (OAIC) welcomes the opportunity to comment on the Department of Health’s consultation papers on Pathology and the PCEHR System and Diagnostic Imaging and the PCEHR System (theconsultation papers).

Office of the Australian Information Commissioner

The OAIC is an independent statutory agency headed by the Australian Information Commissioner, supported by the Freedom of Information (FOI) Commissioner and the Privacy Commissioner. The OAIC brings together the functions of information policy and independent oversight of privacy protection and FOI in one agency, to advise on the development of consistent, workable information policy across all Australian Government agencies.

The OAIC is the independent regulator of the privacy aspects of the PCEHR system. The privacy aspects of the PCEHR system are set out in the Privacy Act 1988 and the Personally Controlled Electronic Health Records Act 2012, which give the Information Commissioner a range of functions and enforcement powers to ensure compliance with privacy requirements. In addition to these enforcement functions, the OAIC carries out a number of other activities relating to the PCEHR systems, which are set out in a Memorandum of Understanding with the Department of Health. The OAIC also performs similar functions in relation to the Healthcare Identifiers service.

Inclusion of pathology and diagnostic imaging results in PCEHR system

The OAIC has reviewed the proposed models for the inclusion of pathology and diagnostic imaging results in the PCEHR system, as set out in the consultation papers. We understand that the key premise behind the models is that an ‘Authority-to-Post’ (ATP) message must be provided by a reviewing healthcare provider prior to the diagnostic imaging or pathology provider making a report available in the PCEHR system.

The consultation papers state that, when reviewing a pathology or diagnostic imaging report, a healthcare provider may choose to authorise that a report is made available in the consumer’s PCEHR by sending an ATP message to the pathology or diagnostic imaging provider. The healthcare provider can choose whether or not they need to consult with the individual prior to sending the ATP message.

Standing consent

The OAIC would welcome clarification on whether consumers will have the opportunity to request that their results are not uploaded to the PCEHR system, which is a key feature of the standing consent model for the upload of health information to the PCEHR system. When consumers register for the PCEHR system, they must indicate that they provide a standing consent for records containing their health information to be uploaded to the PCEHR system by registered healthcare provider organisations involved in their care, subject to any express advice they give to their healthcare providers not to upload a particular record, a specified class or records, or any records. Healthcare providers must comply with a request from a consumer not to upload information to their PCEHR.

Under the proposed model, there is a risk that consumers will not have an opportunity to request that their test results are not uploaded to the PCEHR system, if a healthcare provider decides that it is not necessary to consult with the consumer before the test results are uploaded to their record. This could mean that test results will be uploaded based on the consumer’s standing consent, when the consumer’s preference might be that the results are not shared.

The OAIC understands that it will not always be necessary for healthcare providers to discuss test results with consumers; for example, if they are routine tests that do not show any abnormal results. However, in order to reduce this risk of test results being shared against consumers’ wishes, the OAIC recommends that guidance should be provided to healthcare providers which indicates that they should advise consumers when referring them for a pathology or diagnostic imaging test that the test results may be uploaded to their PCEHR without further consultation. This would allow consumers to exercise their right to request that the test results are not uploaded to their PCEHR.

The OAIC notes that consumers will still be able to ‘effectively remove’ pathology or diagnostic imaging results that have been uploaded to their PCEHR or use other access controls if they do not want these results to be shared with other healthcare providers. As we understand it, documents that have been ‘effectively removed’ are not available for the consumer or any healthcare providers to view, but can be accessed by the System Operator. Ideally then, consumers should have an opportunity to request that these results are not uploaded, rather than having to remove them after they have been uploaded.

If you would like to discuss these comments in more detail, please contact Mr Jacob Suidgeest, Director, Health and Audit, at [contact details removed].

Yours sincerely

[signed]

Timothy Pilgrim
Australian Privacy Commissioner
18 July 2014

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