Blog post by Kathleen Clark (Email: firstname.lastname@example.org )
Subpoenas – My Health Records Act 2012 (Cth) (the Act)
With the increased use in My Health Record, it’s only natural for all the litigators in the room to view it as a potential gold mine of information for various Court proceedings. Thinking of subpoenaing the Australian Digital Health Agency (the Agency)? Before you do, cast your mind to section 69 of the Act, which provides that unless proceedings fall into the class of proceedings as set out in section 69(1) or (2), then the Agency is not required to comply with the subpoena without the consent of the person who’s records you propose to subpoena.
Section 69 provides:
a)a court or tribunal other than a coroner orders or directs the System Operator to disclose health information included in a healthcare recipient's My Health Record to the court or tribunal; and
b)the order or direction is given in the course of proceedings relating to:
ii.unauthorised access to information through the My Health Record system; or
iii.the provision of indemnity cover to a healthcare provider; and
c)apart from this Part, the System Operator would be required to comply with the order or direction;
System Operator must comply with the order or direction.
3)Except as mentioned in subsection (1) or (2), a participant in the My Health Record system, or a healthcare recipient, cannot be required to disclose health information included in a healthcare recipient's My Health Record to a court or tribunal.
4)Except as mentioned in subsection (1) or (2), the System Operator is not authorised to disclose health information included in a healthcare recipient's My Health Record to a court or tribunal unless the healthcare recipient consents.
General Counsel for the Agency has recently advised the President of the Law Council of Australia that the Agency will apply to set subpoenas aside if they fall foul of section 69 – which potentially will have cost implications the client.
For more information on the information held by the My Health Record system, see www.myhealthrecord.gov.au