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Rev Sub 37

Rev Sub 37

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Australian Physiotherapy Association Page 1 of 4
Presented toReview of the private sector privacy provisionsPrepared by the
Australian Physiotherapy AssociationDecember 2004
Authorised by
APA President, Katie Mickel
Australian Physiotherapy Association3/201 Fitzroy StreetSt Kilda Vic 3182Tel: (03) 9534 9400Fax: (03) 9534 9199Email:national.office@physiotherapy.asn.au 
Australian Physiotherapy Association Page 2 of 4
The Australian Physiotherapy Association (APA) welcomes the opportunity tocomment on the impact of the private sector privacy provisions onphysiotherapists and their patients. The APA has over 10,000 members, morethan half of whom work in the private sector. Comments in this submission areconfined to issues surrounding access to patient records. This submissionaddresses members concerns in complying with privacy legislation in the faceof pressure from health funds, solicitors and third party insurers. It alsoaddresses the concerns the APA has in keeping our membership properlyinformed about their obligations under the privacy act.
Privacy principles in the health sector
All physiotherapy businesses no matter how small are obliged to comply withprivate sector privacy legislation. The APA agrees that ensuring health privacyis important. Health information is sensitive personal information, and the APAsupports patients’ right to control access to that information. The APA iscommitted to supporting its members to apply the principles outlined in thelegislation and to consistently protect their patients’ privacy.
Inconsistency in privacy legislation
Physiotherapy Business Australia (PBA), a subgroup of the APA for privatepractitioners, is conscientious in informing its members of their obligationsunder privacy legislation. Consequently, most full time physiotherapy privatepractitioners are well informed about privacy legislation. However, otherphysiotherapists who work part-time or move between the public and privatesectors are less likely to be aware of their obligations under privacylegislation.Due to the federated structure of the Australian government, private sectorprivacy provisions vary from state to state and between the state andcommonwealth. The enquiry specifically asks whether this is a problem; in thecase of physiotherapists the answer is yes. Inconsistency in the legislationacross federal and state jurisdictions creates confusion for members who arecaught in the middle of conflicting information. The wide variety of legislationalso creates difficulties for the APA and PBA in keeping abreast of changingand sometimes conflicting legislation. Differences in the legislation across jurisdictions also make it impossible for the APA and PBA to put out aconsistent message to members about their privacy obligations.
Sharing of health information between treatingclinicians
Health professionals often treat patients as part of a multidisciplinary team.Protocols for sharing of patient information between treating clinicians need toconform to privacy regulations. As electronic methods of information transferbecome more widely used, there is a need for greater levels of awareness ofhow to protect information transferred in this way. The APA urges the Privacy
Australian Physiotherapy Association Page 3 of 4
Commission to ensure that the legislation keeps pace with changes and thathealth practitioners receive adequate and ongoing information on privacy inthis rapidly advancing area.
Inappropriate requests for patient records
Requests for legal purposes 
Patient access to records under the privacy legislation allows patients to knowwhat personal information is held about them. The APA supports the right ofpatients to obtain a copy of their records however; the APA has concernsabout the way that some solicitors use the privacy legislation to avoid seekinga properly constructed medical report. Medical records are technicallyspecialised documents written for the express purpose of providing treatmentand as such, they do not provide information in a format intended for legalpurposes. The medical record without explanatory notes may bemisunderstood by a lay person or in some circumstances misrepresented inlegal proceedings. The APA calls on regulators to place a restriction on theuse of un-interpreted medical records.The APA speculates that some lawyers request records in order to avoidpaying reasonable costs for a medico-legal report. Whilst federal legislationallows the practice to charge reasonable costs to cover the expense ofproviding records, some state based legislation caps the amount a practicecan charge. The APA contends that some legal firms in Victoria and the ACTare abusing this loop-hole and requesting records under privacy legislation soas to shift expenses to the physiotherapist. For some practices, there is aburden on staff to produce documents for legal proceedings regularly. If thecharge for these documents is below the cost of producing them, it isunsustainable for the business. Complying with these requests imposes anunfair cost on physiotherapy businesses. The APA calls on regulators toensure that sustainable fees for access can be charged, particularly whererequests are regularly made for the purpose of legal action.
Health insurers and bundled consent
Some health insurance providers insist that members sign a release formallowing the health insurance company to access any of the patients' recordsat any time for any reason. The privacy issues paper refers to this practice asbundled consent, and the APA believes that this kind of consent isinappropriate for sensitive health information. While some insurancecompanies claim they need access to patient records to combat fraud on thepart of patients or practitioners, the APA believes that individual instances offraud can be investigated without resorting to such measures as bundledconsent.Blanket release forms can be abused by insurance companies and others.One physiotherapist reported that the employer of a patient had requestedaccess to patient records to check on whether the patient in fact wasattending exercise classes at the physiotherapist’s gym. The employerbelieved they had this right as the patient signed insurance forms giving

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