As part of the Australian Government’s digital health agenda, the Health Legislation Amendment (eHealth) Act 2015 (the Act) has recently been assented to.  The personally controlled electronic health record (PCEHR) system was launched in July 2012.  eHealth records are an online summary of an individuals’ health information.  The individual controls what is included in the record and who can access it, and the eHealth record allows the individual and his or her doctors, hospitals and other healthcare providers to view and share the individual’s health information.

The Act implements changes to correct early implementation issues, to increase confidence in the system, and to facilitate increased participation and improvements in the usability of the system. The previously-named ‘personally controlled electronic health record’ will also be renamed ‘My Health Record’ for simplicity.

The current system operates on an opt-in basis, meaning that individuals have to actively apply to have their eHealth record created. Currently only 1 in 10 Australians have an eHealth record.  With such a small take-up, doctors have indicated that it is not worth using.

To increase uptake, during the course of 2016 the government will be undertaking trials to identify the best way to maximise participation. Such trials will include opt-out trials, where people will automatically have a My Health Record created unless they opt-out.  An opt-out system will require extensive communication, ensuring that the participants can make an informed decision about whether to opt-out or not.  If these trials are successful, the Minster may apply the opt-out model nationally.

Given the sensitive nature of the information contained in a My Health Record, including Health Information, the Act increases the enforcement and penalty options if someone misuses the information intentionally or deliberately, or commits an act that compromises the security or integrity of the system. There are already existing civil penalties, however, the Act introduces criminal penalties as well.

The Act also amends the Commonwealth Privacy Act 1988 to remove ambiguity as to what is considered to be a health service or health information.  The Act makes it clear that health related disabilities, palliative care and aged-care services are health services, and information about an illness or injury, and medical information about a genetic relative, is health information.

Previously, healthcare organisations participating in the My Health Record system relied on copyright licences to use information in the system without infringing copyright. The Act establishes new copyright exceptions in the Commonwealth Copyright Act 1968, allowing the upload, download and use of works in the My Health Record system without infringing copyright.

Given the changing nature of the digital health environment, the Act provides flexibility to deal with changes as they arise, allowing the government to make regulations under certain circumstances.

The Act commenced in late November 2015.