The Australian Digital Health Agency has been given the authority to collect the medical information of Australians in the My Health Record system, including for those who have not signed up and prior to the availability of an opt-out function.
 
The Federal Health Minister has registered the legal instrument required to switch My Health Record to opt-out, allowing for all Australians to be signed up to the national repository for individuals’ medical information unless they choose to be excluded.
 
“Consumers support the concept of an opt-out model for the My Health Record system,” Minister Greg Hunt’s explanatory statement to the My Health Records (National Application) Rules 2017 says.
 
Currently people are required to register – or opt-in – to the system. These new legislative rules, which are collated in four parts, set out the process for the transition to opt-out.
 
According to the Minister, “of particular importance” is the commencement last Sunday of the authority for the Australian Digital Health Agency to collect the health information of those people who are not registered for a My Health Record.
 
“[It] provides authority for the System Operator to collect information about people who are not registered in the My Health Record system as part of preparation for the implementation of opt-out,” Hunt’s explanatory statement says.
 
The rules establish that people will be able to opt-out during a yet-to-be-announced three-month period in 2018 that will “likely” take effect between March and July next year at a time to be specified by the minister. The opt-out period must commence within the next nine months.
 
“This approach provides the flexibility necessary as the exact timing for implementing opt-out is dependent on technological, communication and operational activities that need to be developed, planned and undertaken in parallel.”
 
According to the Minister, due to the low numbers of people choosing to register for a My Health Record, the Act was amended in 2015 to allow for trials of an opt-out model and a national roll-out. In May 2017, following trials in the New South Wales Nepean Blue Mountain area and Northern Queensland, the government announced My Health Record would transition to national opt-out participation arrangements during 2018.
 
The opt-out model applies to all Australians and, the rules state, a person cannot be registered unless they have been given an opportunity to opt out or have applied directly to register.
 
This significant step forward in the national roll-out of the MHR is in line with the government’s human rights obligations despite any implications for individuals’ right to privacy, the minister’s explanatory statement claims.
 
“The Legislative Instrument is compatible with human rights because it advances the right to health. Any limitation of the right to privacy is proportionate, necessary and reasonable to achieving improved healthcare for Australians. 
 
“Increased use of the My Health Record system, which will occur as a result of opt-out arrangements, will result in a number of privacy positives compared to use of paper-based records.”