Whether by phone or by website, Australians were for a period on Thursday unable to opt-out of My Health Record thanks to Medicare falling over.
"Due to the Medicare system being unavailable you are currently not able to opt out of My Health Record," the Australian Digital Health Agency (ADHA) said in a blog post.
"This is because your Medicare number is required to identify you."
ADHA said users that have connected My Health Record to their myGov account can continue to access their data, and the opt-out window extends until October 15.
Speaking to journalists yesterday, Health Minister Greg Hunt dodged questions about why explicitly stating health data cannot be sold or handed over to the tax office has not been added to the My Health Record legislation.
"Well, there is actually very clear legislation in this space, it was laid down by the ALP in 2012. So, you'd need to ask them about their original legislation," Hunt said.
The health minister has continued to maintain his argument that the policy of ADHA to require a court order to release medical data will trump the legislation that allows data to be handed over to enforcement agencies.
Those types of clauses in other legislation has previously allowed the likes of Bankstown City Council, Victorian Taxi Services, the RSPCA of Victoria, and Australia Post to get their hands on telecommunications data in the past.
An article by the Parliamentary Library that determined that a lower threshold exists with My Health Record than the one ADHA and Hunt is pushing now looks to have been removed.
"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."
Guardian Australia reported on Thursday afternoon that the Parliamentary Library "temporarily" removed the article following a complaint from the Department of Health.
"The Department of Health contacted the library raising concerns about potential omissions in the flagpost on the My Health Record," a Department of Parliamentary Services spokesperson confirmed to ZDNet.
"The library takes seriously its obligation to provide high quality information and analysis and decided to take the post down while it is reviewed and also updated to reflect recent developments. We anticipate it will be back online later today."
On Wednesday, the president of the Australian Medical Association Dr Tony Bartone said he will do whatever it takes to clarify the discrepancy between ADHA policy and what is currently law.
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".
Update at 1:53pm AEST, July 26: Opt-out service has been resumed.
Update at 3:04pm AEST, July 26: Added in details of Health complaint and changed headline to reflect this.
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