This article is more than 2 years old

This article is more than 2 years old

A complaint from the federal health department has prompted the parliamentary library to pull its advice that patients’ My Health Record could be accessed by police without a court order.



A spokesman for the library told Guardian Australia the parliamentary librarian, Dianne Heriot, “decided to temporarily take down the post” while it is reviewed after concerns were raised by the health department.

On Thursday evening a highly edited version of the advice was restored to the website, removing elements that contradicted health minister Greg Hunt including that the My Health Record significantly reduces the threshold for release of information and the conclusion that law enforcement agencies will not require a warrant.

The dispute over the issue of police warrants comes as the Turnbull government seeks to contain growing backlash against My Health Record.

On Thursday Malcolm Turnbull promised that concerns raised by the Australian Medical Association and the Royal Australia College of General Practitioners will be addressed by Hunt.

“If there are refinements or reassurances that need to be given, they will be given,” he told reporters in Tasmania.

The advice by the library’s director of foreign affairs defence and security, Nigel Brew, had stated that unless the Australian Digital Health Agency deems a request for access unreasonable “it cannot routinely require a law enforcement body to get a warrant”.

My Health Record: AMA says it will do 'whatever it takes' to ensure privacy Read more

A health department spokesperson told Guardian Australia it raised “concerns about potential inaccuracies and omissions” in the advice and is now “engaging with the library to ensure the statement is clarified and does not cause confusion”.

“The library has chosen to withdraw the statement while those matters are reviewed.”

The original advice was backed by the Queensland Police Union, which has told its members that no warrant will be required and contributed to a mounting backlash against the My Health Record, with the Australian Medical Association vowing to do “whatever it takes” to fix ambiguities around privacy.

Hunt and the ADHA have repeatedly said that “no documents will be released without a court order”.

Under section 70 of the My Health Records Act 2012, the ADHA can disclose health information when it “reasonably believes” it is necessary to investigate or prosecute a crime, to counter “seriously improper conduct” or to “protect the public revenue”.

On Thursday the RACGP president-elect Harry Nespolon wrote to members acknowledging their privacy concerns, particularly with that section.

“Following discussions earlier this week with the federal minister for health Greg Hunt, and in response to my initiative, the minister has agreed to work to satisfactorily strengthen the privacy provisions governing My Health Record in regards to the legislation in line with government policy and practice,” he said.

The new Parliamentary Library advice still notes the My Health Record legislation “does not mandate” a warrant and it “does not appear” that the ADHA’s operating policy to a refuse a request without a warrant is supported by any rule or regulation.

But the statement that “legislation would normally take precedence over an agency’s operating policy” was removed, as was the conclusion that “unless the ADHA has deemed a request unreasonable, it cannot routinely require a law enforcement body to get a warrant, and its operating policy can be ignored or changed at any time”.

Brew’s advice had said that Hunt’s claims that records could only be accessed with a court order “seem at odds with the legislation, which only requires a reasonable belief that disclosure of a person’s data is reasonably necessary” to investigate or prosecute a crime.

At a doorstop on Wednesday, Hunt contradicted the original parliamentary library advice by reiterating that the “official position” of the ADHA is “there can’t be access without a court order”.

Hunt claimed the legislation and the “application of that legislation” in ADHA policy were “two different issues”.

“They’ve been operating for six years, not one record has been released to the police in that time and they cannot and will not release without a court order,” he said.

“That’s clear, categorical and unequivocal … It’s established as policy.”

On Thursday the Queensland Police Union also contradicted Hunt, citing its legal advice that “there is nothing in the legislation that requires any enforcement body to obtain a warrant to access My Health Record”.

Play Video 1:44 What is My Health Record? – video explainer

The union told its members that investigators of police disciplinary matters and disciplinary bodies “will be able to access your My Health Record as a matter of course without warrant, without your knowledge or without even your permission or consent”.

The backlash against the My Health Record has led Labor to call for a suspension of the rollout pending a review, while the Greens, Centre Alliance and the Australian Human Rights Commission have called for safeguards around warrants in legislation.

On Thursday Bill Shorten told reporters in Tasmania there are “too many questions, too much unanswered detail [and] too much doubt” around the My Health Record scheme. Shorten questioned whether My Health Records will be available in family court cases or by health insurers.

He suggested he is now considering opting-out of the scheme, joining Liberal MP Tim Wilson and Labor’s Ed Husic in doing so.

Guardian Australia has contacted Hunt’s office for comment.