Bills Digest No. 42, 2024-25

Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 [Preliminary Digest]

Health and Aged Care

Author

Melanie Conn

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Key points

  • The Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 establishes a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions.
  • Certain healthcare providers within the pathology and diagnostic imaging sectors will be the first healthcare providers required to share test results to the My Health Record system.
  • The Strengthening Medicare Taskforce and others have called for sharing by default arrangements to increase the amount of health information in My Health Record and allow it to deliver greater benefits to users and the health system.
  • Currently it is voluntary for health providers to upload health information. While there have been various efforts to encourage greater uploading of documents (which have seen an increasing volume of clinical documents uploaded), some large private providers have indicated that they would not move to make share by default part of their standard practice until a legal requirement to do so is established.
  • The Bill proposes that Medicare benefits for specific health services will be conditional upon upload of information about those health services. Rebates would continue to be paid to patients in the usual way, however if the providers do not upload results within the required timeframe the Medicare payment received would need to be repaid by the provider.
  • At the time of writing, the Bill had not been referred to or reported on by any parliamentary committees.

Introductory InfoDate of introduction: 21 November 2024

House introduced in: House of Representatives

Portfolio: Health and Aged Care

Commencement:  Most components commence the day after Royal Assent. Schedule 1, Part 2, Division 3 commences on the later of the day after Royal Assent and immediately after the commencement of Schedule 1 to the Health Insurance Legislation Amendment (Assignment of Medicare Benefits) Act 2024. Schedule 1, Part 2, Division 4 commences on the later of the day after Royal Assent and commencement of Schedule 2 to the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 (if enacted). Provisions in Schedule 1, Part 2, Division 2 commence on the day after Royal Assent, but do not commence at all if Schedule 1 to the Health Insurance Legislation Amendment (Assignment of Medicare Benefit) Act 2024 commences on or before that day.

Purpose of the Bill

The Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 (the Bill) proposes to amend the My Health Records Act 2012 (the MHR Act) and the Health Insurance Act 1973 (the HI Act) to establish a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions.

As explained in the Minister’s second reading speech:

We're starting with pathology and diagnostic imaging. However, this framework will position the My Health Record system to deliver access to key information, and become a routine, central part of our health system.

An outline of the key elements of the legislative framework can be found at pages 3–4 of the Explanatory Memorandum. The Department of Health and Aged Care has also published a Frequently Asked Questions document on the Bill.

There are also related amendments to the A New Tax System (Goods and Services Tax) Act 1999, Fringe Benefits Tax Assessment Act 1986, National Health Act 1953, National Health Reform Act 2011 and Private Health Insurance Act 2007.

Structure of the Bill

The Bill comprises 2 Schedules:

  • Schedule 1 contains the main amendments.
    • Part 1 amends the MHR Act to require prescribed constitutional corporations to become registered under the MHR Act and to upload prescribed information to the My Health Record system.
    • Part 2 amends the HI Act to provide that Medicare benefits will no longer be payable for prescribed healthcare services, unless required information is shared to the My Health Record system. It also provides for exceptions in certain circumstances.
  • Schedule 2 contains other amendments to:
    • enable limited data matching between Medicare and My Health Record information to support compliance and enforcement with the new share by default requirements
    • enable the Australian Commission on Safety and Quality in Health Care to disclose information about healthcare providers to the Secretary or MHR System Operator for compliance purposes
    • make consequential amendments to the HI Act and other Acts to ensure that even if Medicare benefits are not payable because information hasn’t been uploaded, that this doesn’t affect how those services are treated by other Acts and programs.

Background

My Health Record

My Health Record is a secure digital place to store health information and records. It commenced in July 2012 on a voluntary opt-in basis, then known as the Personally Controlled Electronic Health Record system (PCEHR). In March 2017, Australian governments agreed to move the My Health Record system to an opt-out model, with the Australian Government providing funding for implementation in the 2017–18 Budget (p. 116).

Every Australian now has a My Health Record unless they ‘opted out’ before the end of January 2019. People who cancelled their My Health Record do not have one. A person can delete their My Health Record at any time.

The My Health Record system operates under the My Health Records Act 2012. The Act establishes:

  • the role and functions of the System Operator (currently the Australian Digital Health Agency)
  • a registration framework for individuals and healthcare provider organisations to participate in the My Health Record system
  • a privacy framework specifying which entities can collect, use and disclose certain information in the system and penalties on improper collection, use and disclosure.

A consumer’s My Health Record includes information such as vaccinations, prescriptions, test and scan reports, pathology reports, hospital discharge information and emergency contacts. Authorised healthcare providers can upload and view a patient’s health information, however it is currently voluntary for providers to upload information.

Prior efforts to increase the volume of health information available in My Health Record have included: financial incentives, industry offers to subsidise the development and rollout of My Health Record functionality, education and engagement, and progress toward national harmonisation of legislation, regulation and policies across governments (see pages 29–31 of the Impact Analysis for the Bill (included as part of the Explanatory Memorandum) for further information).

The move to sharing by default

A 2020 Review of the My Health Records Legislation recommended that the Australian Government examine options for tying eligibility criteria for specific government health benefit payments to support increased core clinical content in My Health Record and extensive adoption by healthcare providers (p. 6).

The Strengthening Medicare Taskforce (established in 2022 to recommend ways to improve primary health care for all Australians) recommended that the Government:

Modernise My Health Record to significantly increase the health information available to individuals and their health care professionals, including by requiring ‘sharing by default’ for private and public practitioners and services, and make it easier for people and their health care teams to use at the point of care. (p. 9)

The Productivity Commission’s 2023 Advancing Prosperity inquiry report recommended using My Health Record as the foundation for sharing and using health data, including by requiring healthcare providers to share relevant health records to My Health Record where a consumer has not opted out (p. 60).

In the 2023-24 Budget, the Australian Government committed $429 million over 2 years to modernise My Health Record, including investment to improve the sharing of pathology and diagnostic imaging information (p. 149).

On 17 September 2023, the Minister for Health and Aged Care announced that the Government would require pathology and diagnostic imaging reports to be uploaded to My Health Record by default.

According to the Impact Analysis:

…some large private providers have indicated that meeting new share by default requirements for uploading reports to My Health Record would not become their standard practice until a legal requirement to do so is established.

In late 2023, all state and territory health ministers agreed to support the requirements for public pathology and diagnostic imaging providers to upload pathology and diagnostic imaging reports to My Health Record by default. As of September 2024, it is estimated that most states and territories are now uploading more than 75% of all pathology and diagnostic imaging reports. The department is continuing to work with states and territories to overcome any local barriers and technical constraints. For the sharing by default of health information such as pathology and diagnostic imaging reports to become normal practice, an approach that goes beyond voluntary participation is required (p. 13)

The Government’s September 2023 announcement also stated patients would be able to see reports immediately after they are uploaded, unless there is a clear need to delay a report to protect the wellbeing of a patient. This would represent a change to the current ‘7-day delay’ arrangements (see consultation paper for further detail). Medical groups opposed any change to current arrangements. The Bill does not involve any change to the 7-day delay arrangements. The Department of Health and Aged Care recently stated:

The Australian Digital Health Agency has established a Clinical Reference Group that is currently reviewing the existing 7-day consumer access delay policy. Any changes will involve further consultation and be made following the establishment of the ‘share by default’ legislative framework (p. 3).

Consultation

The Impact Analysis provides a detailed overview of consultation undertaken on the proposal, which included targeted consultation, public consultation, state and territory government and partner agency engagement and ongoing engagement with the sector (pp. 75–77). In summary, the Department of Health and Aged Care observed:

Overall, there was general support and recognition of the benefits of introducing a requirement to share by default, noting a range of barriers, challenges, concerns and enablers. Most stakeholders agreed that there should be a requirement to improve health information being made available in My Health Record. They understood and commented on pathology and diagnostic reports being a good place to start (p. 79)

The Department also noted:

The views of some software vendors and pathology and diagnostic imaging providers are that financial incentives are also required in addition to a requirement to upload, in recognition of the additional resources and costs required to uplift their systems to be conformant with My Health Record. (p. 78)

Further detail on areas of disagreement and potential risks identified by stakeholders are at pages 79–82 of the Impact Analysis.

Resources

Government publications, media releases, speeches

Statistics

Stakeholder commentary

Submissions from a range of stakeholders to the 2023 public consultation are available on the Department’s website or stakeholder websites. For example:

Specialist media


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