As many of you may know, on and after 31 January 2019 a ‘My Health Record’ will be created unless you choose to opt out. For those of you who haven’t heard about it, a ‘My Health Record’ is an online summary of your key health information, so basically an electronic health care record that will be created for you and your children unless you choose to opt out. These details will inevitably include sensitive information including confidential health information and address and contact details.
So how does this effect family law clients?
There is an unfortunate and increasing number of parties and children who are at risk of family violence. In some of these cases, it will be necessary to supress address and contact details from the alleged perpetrator of family violence, so as to try and put in place safeguards to keep those at risk safe. It appears as though a ‘My Health Record’ could put those safeguards at risk.
Presently, any person with parental responsibility will be able to become an authorised representative for a child’s electronic health record and access information within that record, including location details. The Family Law Act provides that there is a presumption that each parent has parental responsibility unless an exemption or rebuttal applies. This means in practice that the presumption that each parent should have parental responsibility is only displaced if there is an Order of the Court that grants sole parental responsibility to one parent (thereby effectively removing parental responsibility from the other).
To get an Order for sole parental responsibility usually involves lengthy Court proceedings at a significant emotional and monetary cost. It is important to note that parental responsibility is entirely separate from the issue of who children live with and spend time with. So currently, without such an Order, there is a risk that one parent who may be having no time or supervised time with a child due to significant risk issues, or even a parent the subject of an Apprehended Domestic Violence Order prohibiting them from coming within 100 metres of a child, still has parental responsibility for the purposes of accessing a ‘My Health Record’.
These risks were raised late last year with the Australian Digital Health Agency (ADHA) who will govern the ‘My Health Record’ and it was agreed that a parent can be excluded from being an authorised representative if it can be shown that by being an authorised representative it would put the healthcare recipient’s life, health or safety at risk. However, it is entirely unclear in practice what would actually satisfy the ADHA so when we put our lawyers’ hat on, it remains a risk. This also places a burden on parties already going through a horrible and stressful time to prove that they are at risk, which is probably something those parties really do not want to be worried about.
Until such time as the concerns about the ‘My Health Record’ are cleared up and the lawyers have all stopped fighting about it, if you believe that your safety or the safety of your child or children may be at risk then you should immediately opt out of the ‘My Health Record’. You can opt out at any time, however from 31 January 2019 a record will have already been created. So opting out before this date means no online record.
If you have concerns about the ‘My Health Record’ and what it means for you, please do not hesitate to contact one of our team here at Southern Waters Legal on (02) 9523 5535.