My Health Record emergency access function

Tags: my health record

This privacy guidance is intended to assist healthcare providers to understand their privacy obligations when using the My Health Record emergency access function.

The emergency access function may be used in certain emergency situations to override a patient’s My Health Record access controls to obtain key health information. It will allow you to view your patient’s My Health Record, including any restricted information or documents, except for deleted information, hidden documents and personal health notes.

Most patients do not have access controls in place, and you will be able to view their record in the normal course of using the My Health Record system. It is possible that you will not obtain any additional information by using the emergency access function.

If you proceed, your organisation will be granted emergency access for 5 days. Once this period ends, all access to the patient’s My Health Record reverts to their access control settings.

You may wish to print a copy of the flow chart to help healthcare providers in your organisation to decide whether to use the emergency access function.

Key points

  • You can only override a patient’s access controls to collect, use or disclose health information contained in a patient’s My Health Record where you reasonably believe that:
    • it is necessary to lessen or prevent a serious threat to an individual’s life, health or safety, and it is unreasonable or impracticable to obtain the healthcare recipient’s consent, or

    • it is necessary to lessen or prevent a serious threat to public health or safety.[1]

  • Unless these requirements are met, you can generally only access an individual’s My Health Record in accordance with any access controls they have in place for the purpose of providing healthcare.[2]
  • After using the emergency access function, you will need to maintain accurate records of the circumstances that triggered your use of the emergency access function, including the circumstances of access and the reasons why it was not reasonable or practicable to obtain the patient’s consent.
  • Any unauthorised use of emergency access is considered a contravention of the My Health Records Act 2012 and may constitute an interference with privacy under the Privacy Act 1988.
  • If you become aware that a contravention of the My Health Records Act has or may have occurred, you have reporting obligations under section 75 of the My Health Records Act to notify the System Operator (Australian Digital Health Agency) and the Information Commissioner as soon as practicable. This includes using the emergency access function by mistake.

When to use emergency access

There may be emergency situations where you need to override your patient’s My Health Record access controls to obtain key health information. You are able to do so, but only in accordance with section 64 of the My Health Records Act.

However, it is expected that the need to use the emergency access function will be rare. You can only override a patient’s access controls to collect, use or disclose health information contained in a patient’s My Health Record where you reasonably believe that:

  • the collection, use or disclosure of My Health Record information is necessary to lessen or prevent a serious threat to an individual’s life, health or safety, and it is unreasonable or impracticable to obtain the patient’s consent to access their My Health Record, or
  • the collection, use or disclosure of My Health Record information is necessary to lessen or prevent a serious threat to public health or safety.

Unless these requirements are met, you can generally[3] only access an individual’s My Health Record in accordance with any access controls they have in place for the purpose of providing healthcare.

It is not appropriate to use the emergency access function solely to check whether any restricted documents exist in an individual’s My Health Record. However, most patients have not restricted any information.

The unlawful collection, use or disclosure of My Health Record information, including via the use of the emergency access function, is subject to civil and/or criminal penalties under the My Health Records Act.

How to use the emergency access function

When you click on the emergency access function in your clinical information system, you will receive an automated message requesting your confirmation that the requirements for emergency access have been satisfied. Where possible, it is recommended that you consult a peer or colleague regarding your intention to use the emergency access function.

As outlined above, emergency access is granted for 5 days. If the emergency situation continues beyond the initial 5-day period, your organisation will need to request emergency access again.

TIP: The My Health Record system contains an online summary of a patient’s health information, it’s not their complete medical history. It may include information such as pre-existing conditions, allergies, and the medicines they need.

Emergency access is recorded in the patient’s My Health Record access history. The patient may opt to receive an email or text message notification when their record is accessed in an emergency.

Emergency department staff

If you work in an emergency department, this does not automatically authorise you to use the emergency access function. Regardless of which healthcare setting you work in, you must ensure that the requirements for using the emergency access function have been met.

Serious threat to an individual’s life, health or safety

One of the circumstances where you may be authorised to use the emergency access function is where there is a serious threat to an individual’s life, health or safety.

Before using the emergency access function, you must form the reasonable belief that access to your patient’s My Health Record is necessary to lessen or prevent a serious threat to the life, health or safety of an individual, and it is unreasonable or impracticable to obtain your patient’s consent.

Obtaining consent in relation to emergency access means obtaining the Record Access Code (where the entire record has been restricted) or the Limited Document Access Code (where specific documents have been restricted) from the patient or their Authorised Representative.[4] Emergency access may only be used where it is unreasonable or impracticable for the patient to provide the relevant access code (except in the case of a threat to public health or safety).

You must have a reasonable basis for your belief that access to My Health Record is necessary. The test is what a reasonable person, who is properly informed, would believe in the circumstances.

A ‘serious’ threat is one that poses a significant danger to an individual. This can include a threat to a patient’s physical or mental health and safety. It can also include a potentially life-threatening situation or one that might reasonably result in other serious injury or illness.

The threat may be to the life, health or safety of any individual and is not limited to the person seeking treatment and care.

Example: Non-serious threat

A patient presents to the emergency department with a broken leg. The patient is otherwise fit and healthy and does not take any regular medications. The patient is happy for the healthcare provider to access their My Health Record but cannot remember the access code they have set.

Although the patient has presented to the emergency department, the clinician determined that, in this instance, the broken leg is not a serious threat to the patient’s life, health or safety.

TIP: If your patient has forgotten their Record Access Code or Limited Document Access Code, you could advise the patient to log in to their My Health Record to reset their code(s) or contact the System Operator for assistance via the My Health Record Help line: 1800 723 471.

As there is no evidence of a serious threat to the individual and the patient is able to answer all questions on the clinical medical history checklist, the requirements under section 64 of the My Health Records Act have not been met. The emergency access function should not be used under the circumstances.

Example: Serious threat

A patient arrives via ambulance at an Emergency Department in a critical condition, following a motor vehicle accident. The patient’s identity has been determined from a check of their licence and Medicare card. The hospital has no prior records for this patient who is unconscious. The Emergency Department staff decide to use Emergency Access to access health information that may assist with treating the serious threat to the patient.

 It would be appropriate for the healthcare provider to use the emergency access function because:

  • the healthcare provider reasonably believes that access to the patient’s My Health Record is necessary to prevent serious threat to the patient’s life, health or safety, and
  • it is impracticable to obtain the healthcare recipient’s consent because they are unconscious.

Unreasonable or impracticable to obtain consent

Once you have established that access to your patient’s My Health Record is necessary to lessen or prevent a serious threat to an individual’s life, health or safety, you must also form the reasonable belief that it is unreasonable or impracticable to obtain your patient’s consent before using the emergency access function.

You cannot avoid obtaining consent just because it would be inconvenient or time-consuming, although they may be relevant in some circumstances. Whether these factors make it impracticable to obtain consent will depend on whether the burden is excessive in all the circumstances. Other relevant considerations may include:

  • the nature of, and potential consequences associated with, the serious threat
  • the source of the threat
  • the capacity of the individual to give consent.

Example: Impracticable to obtain consent

A patient attends a new GP clinic for the first time. During his appointment, he collapses and becomes unconscious.[5]

The new GP is not aware of the patient’s medical history or whether the patient is taking any regular medications. Accessing the patient’s My Health Record may confirm whether the patient has any pre-existing illnesses and enable to the healthcare provider to administer the appropriate care.

The GP determines that, in this instance, access to the patient’s My Health Record is necessary to prevent serious threat to the patient’s life, health or safety. Further, given the patient’s unconscious condition, it is not possible to obtain his consent.

The GP can use the emergency access function because the requirements are met in this instance.

Example: Unreasonable to obtain consent

A patient attends a pharmacy to collect his prescription medication. He becomes agitated and behaves in a threatening manner towards the staff and other customers. His speech is incoherent.

The patient’s My Health Record may contain useful health information. The pharmacist determines that access to the patient’s My Health Record is necessary to prevent or lessen the serious threat to their own safety or the safety of staff and other customers.

Further, it is unreasonable or impracticable to obtain the patient’s consent where the patient is unable to communicate clearly and be understood by others.

The pharmacist can use the emergency access function because the requirements are met in this instance.

Serious threat to public health or safety

The second circumstance where you may be authorised to use the emergency access function is where there is a ‘serious threat to public health or safety’ relating to broader concerns affecting a number of people. An example might be the potential spread of a communicable disease.

Example: Serious threat to public health

A dangerous infection has been detected within a hospital and it is necessary to identify the source of the infection to prevent its spread.[6]

If the hospital staff reasonably believe that accessing information in My Health Records of recent arrivals to the hospital may assist with lessening or preventing the serious threat, they may choose to use the emergency access function. For example, this may assist in identifying the source of the infection. There is no requirement to obtain the patients’ consent in circumstances where there is a serious threat to public health or safety. If the hospital staff believe that access to the patients’ My Health Records is necessary to prevent serious threat to public health or safety, and it is not appropriate or practical to ask those individuals to provide access to their records, they can use the emergency access function in this instance.

What to do after using emergency access

Keep records

The use of the emergency access function sends an automatic notification to the System Operator, the Australian Digital Health Agency (ADHA), who monitors emergency access use. You may be asked by the System Operator to explain the circumstances surrounding emergency access use in each instance.

You will need to maintain accurate records of the circumstances that triggered your use of the emergency access function, and the reasons why it was not reasonable or possible to obtain the patient’s consent. Follow your organisation’s usual record keeping procedures. For example, this information could be added to the patient’s consultation notes in your local record keeping system immediately after the event.

Healthcare providers have other existing obligations under section 74 of the My Health Record Act to maintain records of individual access to the My Health Record system. You must document your processes for recording and securing information about:

  • who has accessed the My Health Record system within your organisation, and
  • information related to use of the Emergency Access function.

More information about these obligations is available in the Australian Privacy Principles (APP) guidelines (APP 1.2 and APP 11) and the OAIC’s Rule 42 guidance.

Report unauthorised use

Any unauthorised use of the emergency access function is considered a contravention of the My Health Records Act and constitutes an interference with privacy under the Privacy Act.

If you become aware that a contravention of the My Health Records Act has or may have occurred, you have reporting obligations under section 75 of the My Health Records Act to notify the System Operator and the Information Commissioner as soon as practicable. This includes using the emergency access function by mistake.

The OAIC has published various resources which will assist you in meeting your regulatory obligations in relation to data breaches in the My Health Record system. This includes a:

The Guide sets out the steps that must be taken once an entity becomes aware of certain My Health Record data breaches.



[1] See sections 64(1) and 64(2) of the My Health Records Act 2012.

[2] Collection, use and disclosure of My Health Record information may be authorised in other circumstances which are prescribed in Part 4, Division 2 of the My Health Records Act 2012, such as where collection, use or disclosure is required or authorised by law.

[3] Collection, use and disclosure of My Health Record information may be authorised in other circumstances which are prescribed in Part 4, Division 2 of the My Health Records Act 2012, such as where collection, use or disclosure is required or authorised by law.

[4] As defined in the My Health Records Act 2012, see Section 6.

[5] This scenario was inspired by the Pharmaceutical Society of Australia’s My Health Record guidance at page 12.

[6] This scenario is taken from the Explanatory Memorandum, Personally Controlled Electronic Health Records Bill 2011 (Cth) at page 41.

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