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Public interest determination application from Dr Steve Hambleton

[Address block]

14 October 2011


Mr Timothy Pilgrim
Privacy Commissioner
Office of the Australian Information Commissioner
GPO Box 5218
Sydney NSW 2001


Dear Mr Pilgrim

Application for new Public Interest Determination replacing Public Interest Determination 10 and 10A

Further to the issue of the Public Interest Determinations 10 and 10A, which became effective on 11 December 2007, I wish to make an application seeking a Public Interest Determination to continue the current arrangements which exempt providers of health services, in certain circumstances, from complying with National Privacy Principle 10.

I am aware that Public Interest Determination 10 is due to expire on 10 December 2011 and that, while the Australian Information Commissioner favours the Australian Government pursuing permanent legislative amendment to address this issue, this is unlikely to be achieved prior to the expiration of Public Interest Determination 10. As such, I am seeking application of a new Public Interest Determination, consistent with Public Interest Determination 10, to exempt me from complying with National Privacy Principal 10 in my capacity as a health service provider. I understand that the Privacy Act permits you to make a further determination giving general effect to a Public Interest Determination.

The current Public Interest Determination 10 (and the associated Public Interest Determination 10A, which gives Public Interest Determination 10 general effect) permits
health service providers to collect health information from a health consumer about a third party without the consent of the third party when certain circumstances are met, where it is necessary to provide a health service directly to the consumer; and the third party's information is relevant to the family, social or medical history of that consumer. I consider the effect of the Public Interest Determination continues to be of critical importance for health service providers in providing best practice assessment, diagnosis and care to patients.

In accordance with the procedure guidelines issued by your office, as a practising general
practitioner, I can say that, in conducting my clinical assessment and treatment of patients, I am required to engage in the act or practice of collecting health information about a third party (family members) to inform an accurate diagnosis and treatment plan.

I currently serve as the President of the Australian Medical Association, which is supporting my application for a new Public Interest Determination.

I refer to a previous application made by ACHA Health for previous Public Interest Determinations 9 and 9A, and say that the issues raised to support the application of the Public Interest Determination are still of critical importance in the context of the collection of social, family or medical histories from health consumers across all clinical setting and by all clinicians.

There is a large body of evidence supporting the collection of third party health information, such as family history, as a fundamental part of the diagnosis and treatment regime for health service providers. It is common practice for medical practitioners, when considering a diagnosis, to ask the patient if there is any family history of the disease.

I consider there remains a clear public interest in issuing a new Public Interest Determination to permit health service providers to continue collecting health information about another individual as part of a clinician’s consultation with a patient. The content of the ACHA submission addressing the matters of public interest for the current Public Interest Determination remains highly relevant in this regard. Specifically, the pubic interest is served by the efficient and accurate diagnosis of patients by health service providers. In the absence of a Public Interest Determination on this issue, National Privacy Principal 10 would require health service providers to obtain the consent of third parties to collect personal and health information on these persons, and notify third parties of the collection of their information.This is clearly impractical and could compromise the health care of patients.  In addition, if a patient’s social, family or medical history is not sought, this could require increased investigation procedures and possibly result in litigation in relation to medical negligence claims.  Therefore, and as stated by ACHA Health in its original submission, I consider the absence of a Public Interest Determination to exempt health care providers from NPP 10, would result in significant inefficiencies and impracticalities, which would have a detrimental effect on the provision of quality health care.

I also consider it important to highlight the comments made in submissions during the previous consultation process, which noted that standards for the accreditation of general practitioners include the collection of current and accurate health summaries, including pertinent medical or social history information for patient care. Indeed, this practice is considered best-practice clinical care.  A patient’s social, family or medical history information is collected in an environment of maximum consumer privacy (governed by professional codes of privacy and confidentiality) and clinicians are bound to treat personal information collected in the course of providing a health service as confidential, regardless of the person to whom the particular facts or opinions relate.

The collection of a patient’s full medical history, including social and family history, is considered best-practice and my experience is that the majority of patients have an expectation that questions of this nature will be asked. There is also a level of understanding among the general public of the importance of this history in informing their diagnosis and treatment.

I look forward to your consideration of this submission and issue of a new PID to continue to exempt health service providers from National Privacy Principle 10.1, in accordance with the current principles and requirements set out in Public Interest Determination 10 and Public Interest Determination 10A.

Yours sincerely

Dr Steve Hambleton
General Practitioner