9 February 2006

The Privacy Commissioner, Karen Curtis, has made two health related temporary public interest determinations.

"The determinations continue arrangements established in February 2005 in response to an application from a doctor in private practice who was concerned that accessing the Information Service provided by Medicare Australia under its Prescription Shopping Project may have been in breach of elements of the National Privacy Principles (NPPs) of the Privacy Act," said Ms Curtis.

The determinations have effect from 10 February 2006 and expire on 22 December 2006 and are made under sections 80A and 80B of the Privacy Act 1988.

"These are temporary determinations and I expect that during 2006, the Attorney-General's Department and the Department of Health and Ageing will pursue legislative measures as a permanent solution to these concerns," said Ms Curtis.

As the Commissioner noted when making the previous determinations; they "allow doctors to collect health information about some patients, if necessary without their consent".

"The information being collected from the service may be critical in informing the clinical judgement during the treatment of some patients. Without these determinations, the collection of this information without consent may have left the doctors in breach of the Privacy Act."

"I expect that in the majority of cases a doctor will seek the consent of their patients before collecting health information from the Prescription Shopping Information Service. In many circumstances, this will be entirely viable and appropriate."

The determinations are available @ http://www.privacy.gov.au/law/act/pid/#3

Background to the determinations

Medicare Australia has implemented a Prescription Shopping Information Service to disclose, on request, certain limited health information about some individuals to prescribed organisations, such as doctors. This information relates to whether an individual has been identified by Medicare Australia under its Prescription Shopping Project as a 'prescription shopper'. If necessary, information is disclosed to the doctor about medications prescribed to the individual under the Pharmaceutical Benefits Scheme (PBS).

The health information collected from Medicare Australia's Prescription Shopping Information Service may be used to assist with clinical decisions about individuals who are suspected of using PBS medicines in excess of their therapeutic need.

The Prescription Shopping Information Service only discloses information about individuals identified under the Prescription Shopping Project (i.e. those suspected of being prescribed PBS medicines in excess of therapeutic need). The criteria for being identified under the Prescription Shopping Project are set by law in section 30 of the Medicare Australia (Functions of the Chief Executive Office) Direction 2005.

Privacy Commissioner satisfied of certain matters

In making these determinations, the Privacy Commissioner is satisfied that:

1. where the applicant believes that consent cannot be sought for the collection of information from the Prescription Shopping Information Service, then the lack of access to that service is likely to have a serious and negative impact on the clinical management of some individuals; and
2. the central public interest objective being served by this determination is the provision of quality health care to the individual, and ultimately good public health outcomes for the community; and
3. that the collection of information from the Prescription Shopping Information Service may contribute significantly to good health care on both respects outlined in (b); and
4. there is urgency to issue a new temporary public interest determination as an interim measure while the Attorney-General's Department and the Department of Health and Ageing pursue legislative measures that would permanently address the matters raised by the applicant.

Privacy obligations and the Prescription Shopping Information Service

The applicant and other relevant organisations will still be required to meet their other obligations under the Privacy Act when collecting and handling personal information from the Prescription Shopping Information Service, including taking reasonable steps to tell individuals that their information will be collected or has been collected.

Relevant organisations, such as prescribing doctors, must take steps to ensure that individuals are reasonably aware that the organisation may contact the Prescription Shopping Information Service. Medicare Australia has undertaken to continue its communication strategy surrounding the Prescription Shopping Information Service, including by distributing to prescribers a range of consumer information material that can be utilised to promote community awareness.

Also, the information collected from the Prescription Shopping Information Service must be treated securely and must not be used or disclosed for other purposes. Individuals have a general right to be able to access personal information collected about them.