As the deadline for opting out of My Health Record approaches, separated parents are being urged to consider how they will manage their children’s health information online.
My Health Record is the Commonwealth government’s digital health record system which is designed to centralise an individuals health information. Among the information contained on My Health Record are the details of any healthcare providers visited, treatments provided and prescribed medication.
Originally conceived to be an opt-in system, the government later announced that My Health Record would be provided on an opt-out basis. As a result, every Australian will have a My Health Record created for them unless they actively opt-out by the deadline of 31 January 2019.
While My Health Record is designed to streamline personal health information and enable healthcare providers to offer better care, there are concerns about the accessibility of information, particularly in cases of family violence.
Under the scheme, a child will automatically have a My Health Record created for them unless a parent opts out. That information can then be accessed by anyone with parental responsibility for the child (known under the system as an authorised representative). The system uses Medicare records to establish who should be an authorised representative. A parent may also be able to create a My Health Record on behalf of their child, potentially without the knowledge or consent of the other parent.
Following concerns raised by domestic violence advocates and family law experts when the system was first rolled out, amendments were made to the My Health Records Act 2012 to outline the situations where a parent would be prevented from accessing a child’s record. This includes cases where the parent is only allowed supervised access with the child, following a court order or similar legal intervention; or where the life, health or safety of the child or another person would be put at risk if an individual were able to access the records.
However, at this stage, it appears that it is up to the affected parent to notify the Australian Digital Health Agency (ADHA) and Medicare if they consider their safety or the safety of their child to be at risk. And it’s not clear what evidence may be required to prevent an individual with parental responsibility from accessing these records.
Under the Family Law Act 1975, each parent has parental responsibility for a child, unless a court order says otherwise. And unless a primary caregiver has a court order granting them sole parental responsibility in regard to medical treatment, which is rare, then a refusal of access may not be able to withstand a legal challenge.
This means that families affected by domestic violence could be put at significant risk if the other parent is still able to access information under a child’s My Health Record. And this access might still be possible even when there is an apprehended domestic violence order (ADVO) in place.
My Health Record has put in place a number of steps designed to address these concerns. This includes setting privacy and security controls, being notified when a record has been accessed, choosing what information is included in a record, and using My Health Record with a pseudonym. There is also the option to opt-out at any time, in which case the record will be deleted.
Anyone who is affected by family and domestic violence, or in the midst of family law proceedings, should consider the implications of the creation of a My Health Record.
If you have any concerns about the implications of My Health Record for your or your child’s safety, you can contact DDCS Lawyers on (02) 6212 7600 to arrange an appointment.