Having power to examine doctors’ phone records without a warrant would pose an excessive use of regulatory powers, consumer advocacy group says

The Consumers Health Forum says it is concerned that Australia’s medical watchdog is on a list of agencies that have applied to the attorney general to be classified as “criminal law-enforcement agencies”.

On Wednesday it was revealed the Australian Health Practitioner Regulation Agency may gain warrantless access to the telecommunications data of health practitioners being investigated for professional misconduct, such as having sex with their patients.

Ahpra had such powers until October, when the government passed its mandatory data retention laws. Agencies were required to reapply for access to the data and the agency was one of 61 organisations to do so. According to its annual report, it used the powers 22 times last year and 23 times in 2014.

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But the chief executive of the Consumers Health Forum, Leanne Wells, said allowing Ahpra the power to access the metadata of health practitioners under investigation would jeopardise patient privacy because all patients seen by that doctor would be encompassed by the metadata.

“Ahpra [having] power to examine phone records of doctors thought to have had sex with their patients without a warrant would pose an excessive use of regulatory powers which would be of concern to many patients,” Wells said.

“This would make possible the routine use of unchallenged powers to trawl doctor’s phone records with the potential also for patient privacy to be invaded.”

Wells questioned why Ahpra would not apply to the relevant court for authorisation to access a doctor’s metadata, and why warrantless powers were necessary.



“We would like to see Ahpra use its current regulatory powers more effectively, for instance in dealing with the promotion of spurious therapeutic claims by some chiropractors,” Wells said.

But a medical lawyer with Slater and Gordon, Bill Madden, said applying for a warrant could add time to investigations as well as cost money. He agreed that requiring Ahpra to seek a court warrant to access metadata could be a sensible intermediary step.

“On balance, allowing Ahpra warrantless access to doctor metadata would certainly strengthen the powers of Ahpra to investigate, and it is consistent with the increasing importance of electronic data in investigations,” Madden said.

“But this is certainly something that would require some careful thought and consideration as to the circumstances under which the data should be obtained, who should be able to see that data, and how long it should be kept for.”

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Prof David Isaacs, a clinical professor in paediatric infectious diseases at the University of Sydney, said allowing Ahpra such powers would place the privacy of all patients seen by the doctor under investigation at risk. Doing so was an unacceptable, he said.

“Doctors would have to say that every patient who came to see them can no longer trust that their information would be kept private,” Isaacs said.

“The person who risks being harmed is the patient, and I very much doubt Ahpra would go to every single patient of a doctor under investigation and ask for permission to see that doctor’s metadata.”

A spokesman for the peak medical body for doctors, the Australian Medical Association, said the association had previously raised concerns about the potential use of metadata and what this may reveal about a person’s health, as well as the impact access to metadata might have on the confidentiality of the doctor/patient relationship.

“Ahpra has been able to request access to telecommunications data in the past and, if its current request for authorisation is granted, it is critical for Ahpra to exercise this right in a way that does not undermine public confidence in the confidentiality of the relationship patients have with their doctor,” the spokesman said.