Thank you for providing the AMA with the opportunity of commenting upon ACHA Health's application for a Public Interest Determination to permit the collection by health service providers of family and social histories without breaching the consent requirements of the privacy legislation. We make two major submissions: 1. The AMA supports ACHA Health's submission and for the TPID to form the basis of an ongoing PID. 2. The AMA sees the need for the wording of the TPID to be broadened to cover the collection of family and social histories by health service providers in the course of their work generally - rather than it being limited to collection during the course of providing a health service. We deal with these matters in turn. 1. The need for an ongoing PID: It is imperative that there is an ongoing PID to overcome the problems caused, to medical practice in Australia, by the application of the National Privacy Principles (the NPPs) set out in Schedule 3 of the Privacy Act 1988 as amended. The NPP consent requirements for the collection of sensitive information interfere with best clinical medical practice. In the absence of a suitably worded PID patient health would be put at risk where doctors failed to take comprehensive medical histories, and doctors would be exposed to litigation where failure to diagnose resulted from inadequate medical, family and social histories. In the current medical indemnity climate no doctor is likely to allow further exposure to being sued. Thus, clinical practice as we know it would cease, or, and more likely, the NPPs would not be complied with by doctors who perceived that compliance could compromise their professionalism and expose them to litigation. The AMA endorses the submissions made to you by Dr Yvonne White, Chair, SPGPPS, in letter dated 12 July 2002, a copy of which was provided to us. The difficulties faced by mental health workers in complying with privacy consent requirements to collection of information from patients about third parties highlight the difficulties other medical practitioners face to one degree or another. 2. The need for a PID to be in broader terms than the TPID: ACHA Health drew your attention to the accepted practice of doctors collecting social and medical histories during the course of providing a health service. We raise the concern that the accepted practice of collecting social and family histories by health professionals in the course of their professional work, other than in the course of providing direct health services, has not been covered in the TPID. In particular we refer to the work of doctors in providing medico-legal and other medical assessment reports not necessarily in the course of providing a diagnostic, treatment or care service. Dr White, on behalf of the SPGPPS, also addressed this important area. Two issues arise: First, whether the terms of the TPID are wide enough to cover the collection of family and social histories for the purpose of providing all medical assessments and reports, whether medico-legal or not, and whether commissioned by the patient or not. Second, if not, whether a PID should do so. I deal with the second issue first. Should any PID cover collection of third party information for assessment reports? The AMA is firmly of the view that any PID covering the taking of family and social histories must extend to ensure that health service providers continue to provide all services they hold themselves out to be professionally competent to do, including the provision of comprehensive medical assessment reports to third parties. Your Press Release of 26 June 2002 reads in part: " ..my Office is working to ensure that taking family medical histories as part of providing health care is permitted under the Privacy Act 1988". This suggests that you did not see the need for a TPID to permit collection of third party sensitive information by way of family and social medical histories other than in the course of providing a health service. We trust that this is a matter of oversight, rather than a policy decision. The AMA is of the view that there is no valid argument against a doctor taking a family and social history without necessarily obtaining the consent of third parties where the collection is for the purpose of providing a medical assessment or a medico-legal report. The privacy legislation is not intended to constrain the type of professional servicethat doctors traditionally have provided. Doctors are often required by their patients (and by commissioning third parties with the patient's consent) to provide medical assessments, and medico-legal reports for a variety of reasons. They are required for insurance purposes, travel, disability and life cover, to satisfy airlines that a passenger is fit to travel, for employment and superannuation purposes, for pilot licences and some driving licences, and so forth. Family and social histories are collected in this context without the doctor necessarily providing a health service of diagnosis, treatment or care, and social and work histories are often required, particularly where anxiety and stress issues are involved. A doctor might need to collect information from a patient about a neighbour's or a work colleague's physical or mental condition ('sensitive information' that would require that third party's consent). The taking down verbatim of the patient's comments or opinions about people they interact with, whether true of untrue, is often important for the doctor's assessment of the patient. While consent of a third person might be easy to obtain, and obtaining it might not be likely to cause serious harm to any person, the obtaining of consent of such third parties could be embarrassing to all parties concerned, imprudent, unreasonable, unnecessarily costly, and possibly destructive to the ongoing relations of the people involved. Patients, knowing that their confidence will not be kept, are likely to reveal less, and the consequences to the patient's health, public safety or the commercial activities of the party commissioning the assessment can be imagined. Assuming that you accept the need for a PID to cover all medical assessment reports, the question arises, whether the terms of the TPID need to be recast to do so. The Terms of the TPID require broadening for an ongoing PID The AMA's view is that the TPID is not sufficiently broad to permit all medical assessment reports to be prepared in accordance with accepted professional medical practice. Clause 3(a) of the TPID deals with ACHA Health's collection of health information: "from an individual about another individual (a third party) in circumstances where: (a) the collection of the third party's information is necessary for [the organisation] (i) to provide a health service directly to the individual; and (ii) to diagnose, treat or care for the individual; (b) the third party is a member of the individual's family or household, or the third party's information is otherwise relevant to the individual's family medical history or social medical history; …." On the face of this clause, assessments for the provision of reports to third parties do not come within it. NPP 10.1 overcomes part of the problem in permitting the collection of sensitive information about a third party where "the collection is necessary for the establishment, exercise or defence of a legal or equitable claim". This covers collection of information for a medico-legal report requested by a patient for those purposes, or for the purposes of a report to establish the treating doctor's, or another doctor's medical defence. However, NPP 10.1 and the proposed PID together do not permit collection of sensitive information about a third person in the course of preparing a medico-legal or medical assessment report where the collecting is not in the course of providing a direct health service to the patient, and is not for the purpose of establishing or defending a legal or equitable claim. Nothing in the other exemptions contained in NPP 10 assists in this regard. Even if the "management, funding or monitoring of a health service" referred to in NPP 10.3 (a)(iii) could be stretched to apply to a health service provided to an individual, the definition of "health service" does not permit a construction that would incorporate assessments of individuals on behalf of a commissioning third party. Futher, subclause (c) of NPP 10.3 stands in the way of many cases. There are two other matters upon which we would like to comment. First, we see the need for the PID to make clear that 'social' history includes 'employment and work history' and other non-family interpersonal relationships. Mr Hugh Clapin from your office has assured us that this is the case. Taking up his words, we suggest that the PID spell out that "social history" covers information regarding marital status, health of spouse, children and other household members, and that social support is available, and that it may also include interpersonal relationships, such as contact with spouse, siblings, parents, children, friends, neighbours, organisations, and workplace". Second, we see the need for clarification of when "information is necessary" for the health service provider to collect. You will appreciate that patients will often divulge sensitive information about third parties when giving a medical history, which information may not be relevant to the patient's family medical or social history. However, the assessing doctor may need to hear or record the information in order to assess the patient's condition and/or credibility, in order to provide a full medical assessment to a commissioning party. The collection takes place whether or not the material is ultimately included in any assessment disclosed to the commissioning third party. This situation arises most commonly in mental health assessments. Public Interest considerations The AMA submits that you can be satisfied that the public interest in health service providers collecting family and social histories in the course of their professional activities outweighs to a substantial degree the public interest in adhering to the NPPs, allowing you to draft a PID in broader terms than the TPID. We set out the reasons why it is in the public interest for a broadening of the terms of the TPID in developing a draft PID. (a) The potential for the collection of sensitive information about third parties for the purpose of preparing medical assessments is no different from any harm that might arise in collection of material in the course of providing a health service. Medical history taking for assessment reports is central to the accuracy of medical assessments which are prepared to assist third party organisations to make decisions that impact upon the safety of the individual or members of the public. (b) Public safety would be jeopardised by strict compliance with the NPPs in this regard, for example, where assessment reports are provided before a pilot is licenced to carry passengers in an aircraft. (c) The practice of doctors taking family and social histories is reasonably expected by third parties who interrelate with the patient, whether or not the doctor is collecting information for the purpose of diagnosis or treatment, or for the provision of a medical assessment report. (d) The nature of the public interest objectives served by the proposed broadening of the TPID is to allow doctors to continue their professional work at best practice standards. They should not be unrealistically curtailed in their work, nor exposed to legal liability for the consequential lack of accuracy and thoroughness that would result from a restriction on the taking of medical histories. (e) The public interest is best served by the broadening of the TPID to ensure that public confidence is retained in the professionalism of health care providers. Industrial and financial harm to third parties as well as injury to individuals can result if doctors are not able to provide reports to the best of their professional ability. Pamela Burton Legal Counsel 16 July 2002