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Taking a patient’s family medical history and privacy breaches

For doctors, taking a patient’s family history of things like heart disease is a fundamental part of good clinical management.

However, in the absence of legal protection, it would could be a problem from a privacy perspective. It entails taking certain details from your patient about another person’s health (usually a relative), and not informing the person. It is technically a breach of privacy in relation to the person whose details are recorded.

In response to these concerns, the AMA has for some years held a ‘Public Interest Determination’ (PID) from the Privacy Commissioner to protect medical practitioners taking a patient’s family history from being in breach of the Privacy Act 1988 (Cth) (‘the Act’). This covered all medical practitioners providing a health service covered by the Act.

The last of such PIDs was PID 12, which expired in December 2016.

The AMA’s advocacy in this area led to a sensible amendment of the Act that makes the former PID redundant. It expanded the notion of a “permitted health situation”, to allow medical practitioners to take a patient’s family history without breaching the Act.

Section 16B (1A) of the Act now provides that a ‘permitted health situation’ includes collection by a doctor of health information about a third party that is part of the family, social or medical history of the patient, if it is necessary to provide a health service to the patient. If the patient is physically or legally incapable of giving you the information, a responsible person for the patient may do so.

Members can rest assured that they can collect a patient’s family history without breaching the Act.

Of course, this should be limited to relevant, necessary information. That is, information that is necessary for the doctor to provide the health service to the patient. It does not remove other privacy obligations from doctors and it only applies to situations covered by the Commonwealth Privacy Act – generally private medical practices. For doctors working in State or Territory hospitals, different privacy legislation applies and you should check with your health authority or your local AMA as to the situation in your jurisdiction.

We anticipate that the Office of the Australian Information Commissioner’s website will be updated in coming months to provide more detail about collecting patients’ medical histories.

AMA Senior Industrial and Legal Advisor