Unions urge members to opt out of MyHealth Record
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Unions urge members to opt out of MyHealth Record

Uncertainty over the potential for employers to gain access to the private health data of workers from doctors has sparked fresh calls for a boycott of the new MyHealth Record system and warnings that current laws are unclear.

Unions have urged tens of thousands of members to opt out of the controversial system arguing that employer doctors - used for pre-employment health checks or insurance purposes - could get access to and pass on a worker's entire medical history under the new system.

Unions are urging members to opt out of the My Health Record system.

Unions are urging members to opt out of the My Health Record system.Credit:Alamy

The claim sparked a strong denial from the government and the My Health Record System operator, but legal experts said the unions could have a case because the laws governing access were spread across several pieces of legislation and the rules were unclear.

Tom Ballantyne, from Maurice Blackburn Lawyers, said doctors who examine employees would have access to their medical health records unless the worker changed their privacy settings.

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"On the face of what's in the My Health Record Act alone, I think it is very clear that a doctor performing an assessment for an employer or insurer could access My Health Record without there being any further consent process," he said.

Lack of clarity

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The Federal Government and the Australian Digital Health Agency said that under s14(2) of the Healthcare Identifiers Act 2010 healthcare providers were prohibited from collecting, using or disclosing a healthcare identifier number to a person's My Health Record for employment and insurance purposes.

It is a criminal and civil offence for a breach; up to two years in prison and $25,200 for an individual or $126,000 for a corporation.

A spokesman for the Australian Digital Health Agency said all access to the My Health Record is tracked and consumers can see who has accessed their record, and when.

"The only way a health care provider can access an individual’s My Health Record is when they have the required Individual Health Identifier," he said.

Mr Ballantyne said doctors could access the My Health Record using a Medicare number.

"On a strict reading of section 14(2), it would only apply if the healthcare identifier was used as opposed to the Medicare number," he said. "I don't agree that section 14(2) gives an absolute protection against an employer accessing My Health Record for that purpose.

"We don't have clarity and there is ongoing confusion and that in itself is an enormous concern."

Mr Ballantyne said if the government was adamant that access to My Health Record was not to be used for employment-related health checks and insurance purposes, "the simplest thing would be to repeat this kind of exclusion clause in the My Health Record Act and not be pointing to some other legislation that predates this system".

Private information

National unions are advising tens of thousands of members to opt out of the controversial My Health Record because they fear it will give third parties access to private information about employees.

The Australian Council of Trade Unions and affiliate unions have met and discussed shared concerns about the potential for employers to access the medical histories of workers through third parties. Employees in the transport industry and those claiming workers' compensation can be required to undergo medical examinations.

Tram and Bus Union national secretary Bob Nanva.

Tram and Bus Union national secretary Bob Nanva.Credit:Marina Neil

The Rail Tram and Bus Union is advising its 35,000 members to opt out of the online health record because many are required to undergo pre-employment safety checks.

"There is simply no justification for employers to seek access to personal health information that does not directly relate to workplace safety," RTBU National Secretary Bob Nanva said.

Mr Nanva has written to Health Minister Greg Hunt urging him to tighten the legislation to prevent employers getting access to private health details through third parties including company doctors. A spokesman for Mr Hunt said it was illegal for employers to access employee health records and union concerns were ill-founded.

The unions and lawyers argue the legislation allows an employer/insurer nominated doctor to access a person's My Health Record for employment purposes under the default setting.

Health Minister Greg Hunt.

Health Minister Greg Hunt.Credit:AAP

Mr Nanva said the My Health Record was an important initiative that could improve the quality of medical treatment and save lives. But he was concerned unintended consequences could flow from the system.

A spokesman for Minister Hunt said employers could not access an employee's My Health Record. A court order would be needed to access any information.

'Policy is clear and categorical'

"The Digital Health Agency’s policy is clear and categorical - no documents have been released in more than six years and no documents will be released without a court order," the spokesman said.

"Individuals can choose to opt out at any time and permanently delete their record. They can also choose what information is put on their record and how their information is controlled.

"The Digital Health Agency does not consider that an employment check is healthcare and therefore use of the My Health Record would not be permitted.”

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The spokesman said legislation introduced by Labor in 2012 would be amended to allow people to permanently delete their record.

The Electrical Trades Union of Australia has also advised its members to opt out of the My Health Record scheme or update their security settings.

ETU National Secretary Allen Hicks said it could potentially expose members to privacy breaches.

“The ETU has sought intervention from Minister Hunt because the Australian Digital Health Agency confirmed My Health Records can be accessed for employment purposes," he said.

“We’re also concerned about the Turnbull government’s woeful record when it comes to protecting Australians’ information online.

“We issued an urgent information video to our members urging them to either update their security settings or opt out."

Health Services Union National Secretary, Gerard Hayes.

Health Services Union National Secretary, Gerard Hayes.Credit:Natalie Roberts

Health Services Union national secretary Gerard Hayes said his union had "real concerns about who can access those records".

"We don't believe police or insurance companies should have access to people's personal health records," he said.

"At the same time, we think it is important that these records be standardised to identify issues like doctor shopping. The program should not go ahead until these problems of access are addressed."

'Dud Act'

The Australian Nursing and Midwifery Federation said it had privacy concerns about My Health Record but has not asked members to opt out because "nurses and midwives are well-equipped to make their own decisions".

Mr Hunt's spokesman said the Australian Medical Association, Royal Australian College of General Practitioners, Consumers Health Forum and the Pharmacy Guild of Australia supported the My Health Record initiative.

Melbourne barrister Peter A Clarke, who has a specialist interest in privacy, said "the government shouldn.t have too much comfort in section 14(2) in providing real protection.

"It is possible that situations will arise where health information can be provided to third parties.

"There are some many holes in the My Records Act, so much uncertainty in its flaccid drafting and so little regulation that there is a significant likelihood of unintended consequences bringing on disastrous results in the future. It was a dud Act in 2012. It is not getting better with time," he said.

Anna Patty is Workplace Editor for The Sydney Morning Herald. She is a former Education Editor, State Political Reporter and Health Reporter. Her reports on inequity in schools funding led to the Gonski reforms and won her national awards. Her coverage of health exposed unnecessary patient deaths at Campbelltown Hospital and led to judicial and parliamentary inquiries. At The Times of London, she exposed flaws in international medical trials.