Health Legislation Amendment (eHealth-Governance Restructure Day) Proclamation 2016

Overview

The Health Legislation Amendment (eHealth-Governance Restructure Day) Proclamation 2016 was issued under the authority of the Minister for Health and is a legislative instrument for the purposes of the Legislation Act 2003. It fixes 1 July 2016 as the governance restructure day, the date on which amendments to the My Health Records Act 2012, the Healthcare Identifiers Act 2010 and several other Acts will take effect. These amendments were enacted by the Health Legislation Amendment (eHealth) Act 2015, which itself was a response to the Review of the Personally Controlled Electronic Health Record, December 2013 and the recommendations of the Healthcare Identifiers Act and Service Review, Final Report 2013. The primary purpose of these amendments is to restructure the governance of the My Health Record system, previously known as the personally controlled electronic health record system, to ensure it better meets the needs of industry, users, and beneficiaries. The changes include abolishing the Independent Advisory Council and Jurisdictional Advisory Committee and requiring the Minister to consult the Australian Health Ministers’ Advisory Council and the System Operator before making any My Health Records Rules. The establishment of the Australian Digital Health Agency as the single accountable organisation for digital health in Australia also begins on this date.

Scope and Application

The Health Legislation Amendment (eHealth-Governance Restructure Day) Proclamation 2016 applies to the governance of the My Health Record system, which is an electronic summary of an individual's health records that allows individuals and their healthcare providers to access their key health information online. The Act applies to the Minister for Health, the Australian Digital Health Agency, and the System Operator, and its provisions are designed to implement significant changes to the governance of the My Health Record system as recommended by the Review of the Personally Controlled Electronic Health Record system in 2013. The Act has a national reach, as it affects the governance of the My Health Record system across Australia. There are no stated exclusions or exemptions, and the Act extends its application through subordinate instruments such as My Health Records Rules made by the Minister. The Act is compatible with human rights as it does not engage any of the applicable rights or freedoms. The Proclamation specifies that 1 July 2016 is the governance restructure day for the purposes of the Health Legislation Amendment (eHealth) Act 2015. On this date, the Independent Advisory Council and Jurisdictional Advisory Committee will be abolished, and the Minister will be required to consult the Australian Health Ministers’ Advisory Council and the System Operator before making any My Health Records Rules. The new governance arrangements will see the establishment of the Australian Digital Health Agency as the single accountable organisation for digital health in Australia. The Act is a legislative instrument for the purposes of the Legislation Act 2003, and it is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The Health Legislation Amendment (eHealth-Governance Restructure Day) Proclamation 2016, fixes 1 July 2016 as the governance restructure day for the purposes of item 112 of Part 2 of Schedule 1 to the Health Legislation Amendment (eHealth) Act 2015 (the Amending Act). This date was set following consultations with the Department of Human Services and the Office of the Australian Information Commissioner (section 1). The purpose of this Proclamation is to implement the Government's response to the Review of the Personally Controlled Electronic Health Record, December 2013 and the recommendations of the Healthcare Identifiers Act and Service Review, Final Report 2013. This response includes amendments to the Personally Controlled Electronic Health Records Act 2012 (now the My Health Records Act 2012), the Healthcare Identifiers Act 2010, and several other Acts (section 3). The amendments affect the governance of the My Health Record system by abolishing the Independent Advisory Council and Jurisdictional Advisory Committee, and requiring the Minister to consult the Australian Health Ministers’ Advisory Council and the System Operator before making any My Health Records Rules (Item 120). The Minister must also consult with the System Operator before making any rules that relate to the operation of the My Health Record system (Item 135). Parties or entities governed by this Act are subject to obligations such as ensuring the secure and private access to health records, and following the rules and regulations set forth by the Act. These obligations extend to the Australian Digital Health Agency, which becomes the single accountable organisation for digital health in Australia as of the governance restructure day. The Minister, in their capacity, must consult with the Australian Health Ministers’ Advisory Council and the System Operator before making any rules that relate to the operation of the My Health Record system. Any breach of this Act could lead to civil or criminal consequences, although specific offences, penalties, or consequences are not detailed in the Proclamation. The Amending Act, however, does provide for various offences and penalties related to the misuse or unauthorised access to health records. For example, section 135 of the Amending Act makes it an offence to intentionally access a health record without authority, with a maximum penalty of 12 months imprisonment or a fine of up to $132,000 or both. Similarly, section 136 of the Amending Act makes it an offence to disclose health information without authority, with a maximum penalty of 12 months imprisonment or a fine of up to $132,000 or both. These provisions underscore the importance of adhering to the rules and regulations set forth in the Act.