Using the My Health Record AND staying out of Court


Longtime readers of my Blog would know that I have written & shared others’ writings about the Australian Government’s My Heath Record on many occasions.

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2013 – I wrote about the complexity of the issues and why we had configured our system to use it but were not promoting it to our patients. Patients and doctors were also warned about the serious privacy concerns and other pitfalls & risks. The concerns about data mining was raised including the fact that the data collection activities were not led by the profession

In 2014 this was followed up by musing on how to get doctors to use e-health , methods being used to force people to use the system and some pondering on the success, or not, of the scheme. And ongoing reluctance of GP leaders to use the system

2015 came around and I highlighted how poor the communication between GPs and the other service providers via the PCEHR remained. I also showed I was finding it useful to follow-up on test requests – something that will cease as of today (see down below). The extraordinary costs of the system was discussed as was the ongoing challenges that e-health posed including changing the system to an opt-out process. Even the semantics of the name-change was touched upon as well as some significant legislative changes to accommodate the system. And we again highlighted the elephant in the room – datamining.

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In 2016 the proverbial hit the fan. The Government took the carrots away and brought out the sticks. Not taking part in the MyHR system had significant financial penalties for non-participating GP Clinics. It became a matter of financial survival for our Clinic and we begrudgingly started participating in the scheme. Slowly but surely the number of patients who had a red sign flashing on our desk were being overtaken by the ones with a green sign indicating that they had a MyHR and that we had access to it. And this was and remains one of my biggest concerns. The elderly and the luddites were being ambushed by people with clipboards to sign up yet had no idea that they were providing access to their MyHR to any healhtcare organisation in Australia that has signed up. And those healtcare organisations thought that the green sign was carte blanche access to those records – which turns out to be very incorrect (see below). In practical terms most Health Professionals however chose to simply ignore the system as it had no obvious clinical use in the form it was nor was there any financial benefits in using it  (other than for Practice Owners). The complexity of the Medical IT system was not helping either.

Finally we get to this year – 2017. Things were looking up with the patient version of MyHR being streamlined and reasonably functional access being offered via smartphone Apps.

In the last few weeks two things changed that made me a bit nervous:

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  1. When pathology and other tests are being requested a copy of the results would be automatically uploaded to MyHR
  2. Summaries of all past Medicare and Pharmaceutical Benefit Scheme activities can now be viewed in the MHR section of most GP software. This includes names of doctors, dates and medicare codes.

These changes made me have a long hard think about the medicolegal situation that this poses and I ended up seeking legal advice on the following questions:

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a.

If we open a patient’s file and see that they have a MyHR can we still ignore it           and just use our own records or are we required to now open the MyHR and look     at it?

b.

If we are required to do look at all MyHRs should we obtain permission from the     patient to do so or is the mere fact that the MyHR is available to us sufficient?           This is especially relevant when opening files for administrative purposes when       the patient is not in attendance – something we all have to do every day.

c.

Do we now include MyHR in subpoenaes and other similar requests ? – a concern     given that we have no control over the release of potentially confidential                     attendances/issues elsewhere that the patient has chosen not to reveal to us

d.

What is our duty of care in regards to potential conflicts, errors and mistakes          that in in the MyHR ?- both in terms of looking for these and also in terms of              acting on them.

As expected the answers were not easy and the practical applications will be very difficult.

In summary the advice was:

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  • If there is a green icon flashing stating that the patient has an active MyHR we can no longer choose to ignore this. It is now considered to be PART & PARCEL of our records BUT
  • We are not allowed to look at a MyHR unless the patient has given us explicit permission to do so while IN the room with us. If that is not in place and documented we are NOT allowed to look at their MyHR. This has to be asked and the response recorded.
  • If a patient has consented to let us look at their MyHR and we done so we MUST look at it every time they attend and familiarise ourselves with it in the same way as we would with the other records we have on file
  • The very nature of our work means that we often have to access files while the patient is not with us. This may include following up on recalls & reminders that were added to files years ago. UNLESS we have a documented consent on file we are NOT allowed to, for example, check if the patient has gone for that overdue colonoscopy elsewhere.
  • If we discover any errors in medication etc. in the MyHR it is our duty to DOCUMENT it and FIX it on our records after discussing it with the other care provider and INFORM the patient as such.
  • I was categorically advised that we have no duty to “dig around” in the MyHR yet should be familiar with it as a part of the patient record
  • If we have to provide the records to a Court or other third party we should annotate that the MyHR is NOT included unless there is explicit CONSENT by the patient for this to be included

This is the legal advice. My honest opinion is that this is pie in the sky stuff and I cannot imagine any clinic being truly compliant with this stuff. The only winners, like so often is the case, will be the lawyers. Doctors and and Patients will surely be the losers.

And the Government will have their data

29/06/2017: Addendum.

I received the following e-mail today:

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And this was my response:

2017-06-29

All I can say is “stay tuned”

This entry was posted in Medical Admin, Medical ethics, Medical IT, MHR, PCEHR and tagged , , . Bookmark the permalink.

One Response to Using the My Health Record AND staying out of Court

  1. Pingback: So how safe is my data ? | Dr Thinus' musings

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