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• History leading to Public Interest Determinations 9 and 9A
• The effect of Public Interest Determinations 9 and 9A

History leading to Public Interest Determinations 9 and 9A

In December 2001, the Privacy Commissioner received an application from ACHA Health for a public interest determination under section 73 of the Privacy Act 1988 (the Privacy Act). ACHA Health was concerned that the accepted practice of collecting social and medical histories during the course of providing a health service may breach the National Privacy Principles.

The ACHA application raised issues of an urgent nature. Therefore on 21 December 2001, the Privacy Commissioner made two Temporary Public Interest Determinations (TPIDs) regarding these matters. The TPIDs were given effect for up to 12 months, to permit the Privacy Commissioner to look at these matters further.

During 2002, the Privacy Commissioner further considered ACHA's application in accordance with Part VI of the Privacy Act. Over 60 submissions were received, and a Conference was held on this matter in August 2002, in Canberra.

In October 2002, the Privacy Commissioner made two determinations (PIDs 9 and 9A) to replace the TPIDs. PIDs 9 and 9A were tabled in the Federal Parliament and took effect on 11 December 2002 for a period of up to 5 years. Therefore, from 11 December 2002, PIDs 9 and 9A replaced the TPIDs.

The effect of Public Interest Determinations 9 and 9A

The combined effect of PIDs 9 and 9A is to exempt providers of health services 1 in certain circumstances from complying with NPP 10.1. In summary, under PIDs 9 and 9A, a health service provider may collect health information from a health consumer about a third party without the consent of the third party when both of the following circumstances are met:

• the collection of the third party's information into a consumer's social, family or medical history is necessary for the health service provider to provide a health service directly to the consumer; and
• the third party's information is relevant to the family, social or medical history of that consumer.

PIDs 9 and 9A do not reduce all of the privacy protections contained in the NPPs

PIDs 9 and 9A do not represent an exemption from all of the NPPs. NPPs 1 to 9 and NPPs 10.2 to 10.3 continue to apply to the handling of this type of information by organisations providing a health service. NPP 10.1 also continues to apply in all circumstances outside those covered by the PIDs. In addition, health service providers that collect third party information into social, family or medical histories will need to comply with the protections afforded under NPP 2.1(a), including that health service providers should ensure that a third party would reasonably expect any proposed uses or disclosures of their information.

The Commissioner has issued PIDs 9 and 9A for a period of 5 years, with a review of the Determinations to take place at 5 years from the effect of the Determinations, or sooner, if the Commissioner becomes aware of a matter incidental to or affecting the performance or operation of the Determinations.

For further information, talk to your peak health provider association or consumer association, or contact our Hotline on 1300 363 992, TTY 1800 620 241 (dedicated for people who are hearing impaired) or by email at privacy@privacy.gov.au.

[1]Section 6 of the Privacy Act defines 'health service' as an activity performed in relation to an individual:

• to assess, record, maintain or improve the individual's health; or
• to diagnose the individual's illness or disability; or
• to treat the individual's illness or disability or suspected illness or disability; or
• the dispensing of a prescription drug or medicinal preparation by a pharmacist.

The Privacy Act applies to all private sector organisations that deliver these types of services, including all small health services that hold health information. The types of health services covered include traditional health service providers such as private hospitals and day surgeries, medical practitioners, pharmacists, and allied health professionals such as counsellors, as well as complementary therapists, gyms, weight loss clinics and many others.