My Health Record posing ‘significant’ concern for at-risk family law clients

02 September, 2021

As published in Lawyers Weekly 3 January 2019


As the deadline for opting out of the My Health Record looms ever closer, lawyers need to be informed about privacy and safety concerns associated with the new system to advise their family law clients accordingly, writes Michelle Meares.

• Unless a parent has opted out of the My Health Record for their child before 31 January 2019 or cancelled their My Health Record, all children and young people will have an electronic health care record created for them.
• Currently any person with parental responsibility (except in limited circumstances) for that child can become an authorised representative and access that child’s record, which may reveal the location of the child and details of their treating health care providers and confidential health information.
• This is a significant concern for those at risk of family violence if their location was revealed.
• Those clients should be advised to cancel the child’s My Health Record if they have not opted out by 31 January 2019.

The My Health Record (MHR) system is the Commonwealth government’s digital health record system that contains an individual’s health information, including treatments they have received, healthcare providers they have visited and medicines they have consumed that commenced operation in July 2012. Originally the system was designed on an opt-in basis, but in May 2017 the Commonwealth government announced that the MHR system would transition to an opt-out system largely due to the slow uptake of the system by the Australian public. This means that every Australian now has an MHR automatically created for them unless they chose to opt-out by the deadline of 31 January 2019. This includes children and young people.

The MHR of a child or young person can be accessed by the authorised representative of the child or young person. An authorised representative currently includes any individual with parental responsibility for that child except in limited circumstances following recent amendments to the My Health Records Act 2012. When creating an MHR, the Australian Digital Health Agency (ADHA) uses Medicare records to determine who has parental responsibility. If neither parent opts out, an MHR will be established for the child and both parents, if recorded at Medicare, will be deemed to have parental responsibility and will have access to it as an authorised representative.

There were concerns raised about perpetrators of family violence being potentially able to become an authorised representative of a child’s MHR. Amendments were passed to the act on 26 November 2018 providing that a person cannot become an authorised representative of a child’s MHR if under a court order or a law of the Commonwealth or a state or territory, the person must be supervised while spending time with the healthcare recipient; or the life, health or safety of the healthcare recipient or another person would be put at risk if the person were the authorised representative of the healthcare recipient. It is not yet clear what evidence in practice will satisfy the ADHA of that risk and it is up to those who consider that their safety or the safety of their child may be at risk to notify the ADHA and Medicare (Department of Human Services) and provide copies of any relevant orders with a request that the perpetrator be prevented from accessing the child’s records.

The Family Law Act 1975 provides that each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court. While some parents do have court orders providing for sole parental responsibility for a child, these are usually only made after a final hearing and can take up to three years or more to obtain at a significant cost. There are many families where there are significant risk issues where children may be having no contact with a parent (by court order or otherwise) or only supervised contact with a parent in a controlled contact centre environment where both parents still have parental responsibility. There are also many families where one parent may be the subject of an apprehended domestic violence order (ADVO) that prohibits that parent from coming within, for example, 100 metres of a child’s school or place of residence, or approach or contact the other parent or child. Frequently both parents may still retain parental responsibility under the Family Law Act 1975 if neither parent makes an application for parenting orders.

In these circumstances detailed above, the parent who is prohibited from contacting the other parent or child under state-based ADVO or interim or final parenting orders made pursuant to the Family Law Act 1975, would still be permitted to obtain access to the child’s MHR (if the other parent has not opted out the child by 15 November 2018 or otherwise cancelled the child’s record) unless a copy of the orders is provided to the ADHA.

Online access to a child’s MHR will provide information potentially about the location of the child and family and/or their treatment providers and the nature and dates of treatment. Family law practitioners should be aware of this when advising clients of risks when their clients or subject children may be at risk of family violence if the other parent was to gain access to their health record information or location revealed through the MHR system.

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