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Ambiguity over access to My Health Record needs to end: AMA president

Australian Medical Association president Dr Tony Bartone says he will do 'whatever it takes' to clarify the discrepancy between ADHA policy and what is currently law.

The head of the Australian Medical Association (AMA), Dr Tony Bartone, has said he will be in discussions with Health Minister Greg Hunt in the coming days to make the digital My Health Record meet the current requirements for doctors to disclose a patient's medical record, namely only under a court order or warrant.

"I will do whatever it takes to ensure that the ambiguity and any discrepancy between the legislation and what currently is the standard practice and what we all practice under is removed and put to bed once and for all," Bartone told the National Press Club on Wednesday. "Whatever it takes."

Bartone said the AMA and its members treat patient privacy as a paramount concern, and anything that compromised it would not be "withstood by our members".

In recent weeks, Hunt and the Australian Digital Health Agency (ADHA) have said that records would not be released without a court order, but the legislation allows for ADHA to pass information on to any government agency that can make a case for increasing public revenue.

On Tuesday, the Parliamentary Library determined that a lower threshold exists with My Health Record than under the current regime.

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"It represents a significant reduction in the legal threshold for the release of private medical information to law enforcement," the library wrote.

"As legislation would normally take precedence over an agency's 'operating policy', this means that unless the ADHA has deemed a request unreasonable, it cannot routinely require a law-enforcement body to get a warrant, and its operating policy can be ignored or changed at any time."

On Sydney radio earlier on Wednesday, Hunt questioned the Parliament Library's analysis.

"The clear, unchanging, absolute unconditional policy and practice of the Digital Health Agency is to implement that to the standard of a court order," the minister said.

"That will remain the position, I think, forever. And the other thing is the records are of course much more secure than in a GP clinic, which generally they have very, very high standards in any event, but this has a 24-hour cybersecurity centre.

"It's been tested to military grade. Some of the intelligence agencies have actually done the testing. And there's this 24-hour cybersecurity, which doesn't apply in relation to other records."

Anna Johnston, director of Salinger Privacy, told ZDNet that a lack of law enforcement access to medical data in the six years of My Health Record operation, a claim Hunt has repeated over and over again, may simply reflect a lack of valuable information in existing records prior to hitting critical mass.

"Despite the minister's promises that the full powers in the legislation will never be used, his promise and ADHA's policy can of course be changed at the whim of this or any future administration," Johnston said. "Changing the law to abolish s.70 would offer more reassurance to Australians concerned about this issue, and then at least Parliament would need to debate and approve any reinstatement of those access powers.

"In my view, to restore public trust in the My Health Record, the government should abolish s.70, change back to an opt-in model, and do a better job of persuading health service providers to link their systems up to the My Health Record system, before making the case to the public to opt in."

Also see: The My Health Record story no politician should miss

Bartone told the National Press Club on Wednesday the AMA still backed the utility of the system and said it had clinical merit, and would help live up to patient expectations that doctors, hospitals, and other health providers were already connected.

"To the average patient or punter in the street, they think that we're all connected. They're surprised to hear that we still fax off referrals to the outpatient clinics. Fax, in this day and age," he said.

"Patients often say: 'Can I email you?' And I say: 'No, we don't have a secure messaging environment to facilitate that'. We need to move well into the 21st century.

"The My Health Record isn't the answer to everything. It is part of a wider solution."

Earlier on Wednesday, Labor leader Bill Shorten called for the suspension the My Health Record rollout.

"Why not suspend the rollout? I mean, we've managed to get along for 117 years without it," Shorten said. "Let's do it right once, than implement it really poorly, and have all the people worried about who can access records.

"Wouldn't it be sensible if they just put a brake on it?"

On Monday, Labor called on the government to extend the My Health Record opt-out window, citing a lack of education of the public on the opt-out digital health system.

"The government has failed to effectively communicate with the public about what the My Health Record is and the potential benefits it could bring," Shadow Minister of Health Catherine King said on Monday.

"It has also failed to explain to people how their rights will be respected and their privacy protected.

"This approach has fueled suspicion and scepticism -- which could be why tens of thousands of people rushed to opt out in the first week."

ZDNet has asked Shorten's office whether the suspension is different to the opt-out window extensions, but did not hear back by publication time.

On the first day of the opt-out window, 20,000 people chose not have a digital health record. Prime Minister Malcolm Turnbull said on Friday that a high number of opt-outs would not kill the system.

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