Leslie Massey
In 1996, the US passed the Health Insurance Portability and Accountability Act (HIPAA) to ensure patient privacy and confidentiality. Since then, many countries have modelled their own healthcare privacy laws on HIPAA, including Australia. In Australia, the main law regulating data privacy is the Privacy Act 1988, which is similar to HIPAA in purpose but covers a broader spectrum of personal data. The Privacy Act 1988 dictates how Australian healthcare organisations handle Protected Health Information (PHI) while collecting, storing, using, or distributing data.
| Characteristics | Values |
|---|---|
| Country | Australia |
| Main law regulating data privacy | The Privacy Act 1988 |
| Purpose | To safeguard people's healthcare data from misuse |
| Scope of personal information | Broader than HIPAA |
| Entities that need to follow the regulations | Australian and Norfolk Island government agencies and most private sector organizations |
| Penalties for data breaches | Up to AU$2.1 million (US$1.6 million) or AU$1.2 million |
| Similarities with HIPAA | Both aim to ensure patient data security and privacy rules |
| Differences with HIPAA | The Privacy Act covers a broader spectrum of personal data than HIPAA |
| Other differences | The Privacy Act applies to paper-based and electronic records, while HIPAA only covers electronic records |
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What You'll Learn
Privacy Act 1988: Australia's equivalent to HIPAA
In Australia, the main law regulating data privacy is the Privacy Act 1988. This act is often referred to as "HIPAA Australia" and is the closest equivalent to the US legislation. The Privacy Act 1988 was introduced to promote and protect the privacy of individuals and regulate how Australian government agencies and organisations handle personal information. This includes patient medical documents, which must remain confidential except when legitimate access to these records is required.
The Privacy Act 1988 is notably different from HIPAA in several aspects. Most significantly, the scope of personal information protected under the Australian legislation is much broader. Under the Privacy Act, personal information includes a wide range of information or opinions that could identify an individual. This includes PHI (protected health information) or ePHI (electronic protected health information) as defined by HIPAA. However, the Australian legislation also covers a broader range of entities, including government agencies, private sector organisations, and individuals.
The Privacy Act 1988 is enforced through significant penalties for data breaches, which can be up to AU$2.1 million (US$1.6 million). This legislation is of paramount importance for any healthcare organisation operating in Australia, as non-compliance can result in hefty fines. Additionally, the act regulates the privacy component of the consumer credit reporting system, tax file numbers, and health and medical research.
In contrast to the US system, Australia's My Health Record system is a centralised "cloud" database that does not promote the conversion of historical paper-based data to electronic format. The Australian system is now opt-out, while the US system is generally opt-in, giving patients more control over their health records.
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Protected Health Information (PHI)
In the US, Protected Health Information (PHI) is defined as any information about health status, provision of health care, or payment for health care that is created or collected by a Covered Entity (or a Business Associate of a Covered Entity), and can be linked to a specific individual. This includes any part of a patient's medical record or payment history.
In Australia, the main law regulating data privacy is the Privacy Act 1988. This act is notably different from HIPAA in several aspects, including the scope of personal information that is protected. Under the Privacy Act 1988, personal information includes a wide range of information, or an opinion, that could identify an individual. What constitutes personal information will vary, depending on whether a person can be identified or is reasonably identifiable in the circumstances.
PHI can be stored in many different forms, including physical storage and electronic health records (EHR). In Australia, over 90% of healthcare institutions have implemented EHRs, in an attempt to improve efficiency. The Australian My Health Record system is a centralised "cloud" database, in contrast to the US system, which does not use a central database.
HIPAA-compliant service providers, such as PostGrid, ensure security features to protect PHI. In Australia, health plans include government programs for medical expenses, such as Medicare, and healthcare insurance providers, which often deal with sensitive PHI.
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Patient consent and data sharing
In Australia, the main law regulating data privacy is the Privacy Act 1988, which is broader in scope than HIPAA and regulates more entities. Under this Act, Australian and Norfolk Island government agencies and most private sector organisations (collectively referred to as APP entities) must follow the 13 Australian Privacy Principles (APPs) when handling personal information. Some of these principles deal specifically with PHI.
The Privacy Act 1988 was introduced to promote and protect the privacy of individuals and regulate how Australian government agencies and organisations handle personal information. Under the Act, personal information includes a wide range of information or opinions that could identify an individual. Patient medical documents must remain confidential, except when there is a need for legitimate access to these records. Patient data may be released to relevant individuals under certain circumstances, such as when the patient is at serious risk or poses a risk of harm to another person.
Informed consent is integral to the right to information in the Australian Charter of Healthcare Rights and is recognised in Professional Codes of Conduct. The National Safety and Quality Health Service Standards require all hospitals and day procedure services to have informed consent processes that comply with legislation, lawful requirements, and best practices. Australian courts have held that a doctor's duty to disclose is subject to a "therapeutic privilege," which may justify withholding information that would harm the patient's health. However, it does not justify withholding information that might prevent a patient from consenting to a non-essential procedure. Courts in Australia have begun applying a tougher standard to the information that doctors should provide to their patients, moving away from what a reasonable body of doctors might think and towards what a reasonable patient might expect.
In the context of genomic data sharing, research suggests that Australian attitudes are influenced by various factors, including different data-sharing settings and participant attributes. Results indicate that respondents were more likely to trust a Human Research Ethics Committee (HREC) to determine whether their data could be used if obtaining their consent was impractical or if they were likely to have consented if asked. Additionally, older participants were less likely than younger participants to agree to having no links retained between their identity and de-identified data. Furthermore, male respondents demonstrated higher levels of trust in individuals and organisations in relation to genomic data sharing.
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Data breaches and penalties
In Australia, the main law regulating data privacy is the Privacy Act 1988, which is also known as "HIPAA Australia". This act is notably different from HIPAA in the US in several aspects. Under the Australian Privacy Act, the scope of personal information that is protected is much broader than under HIPAA. The act also regulates more entities, including Australian and Norfolk Island government agencies and most private sector organisations. These entities must follow the 13 Australian Privacy Principles (APPs) when handling personal information. Some of these principles deal specifically with PHI.
Penalties for data breaches under the Australian Privacy Act can be up to AU$2.1 million (US$1.6 million). In contrast, HIPAA violation fines in the US are issued per violation category, per calendar year, with a maximum fine of $25,000. The minimum fine is $100 per violation.
HIPAA violation fines can be issued by state attorneys general, who have the authority to hold HIPAA-covered entities accountable for the unauthorised use or disclosure of PHI of state residents. These fines are independent of those issued by the OCR, which can range from a minimum of $100 per violation up to $50,000. OCR considers a number of factors when determining penalties, such as the length of time a violation was allowed to persist, the number of people affected, and the nature of the data exposed.
HIPAA breach penalties can stem from either civil or criminal violations and are tiered. A common thread among cases of HIPAA breach penalties is the negligence of the rules required to keep sensitive patient data secure. For example, in September 2020, Premera Blue Cross (PBC) was fined $6.85 million for a breach that affected over 10 million people. The company was the victim of a data phishing attack that went on for nine months and exposed patient names, bank account information, and Social Security numbers.
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Cyber-attacks and data protection
In Australia, the main law regulating data privacy is the Privacy Act 1988, which is sometimes referred to as "HIPAA Australia". However, it is important to note that this is different from HIPAA, the Health Insurance Portability and Accountability Act, which is a US federal law. The Privacy Act 1988 in Australia covers a broader spectrum of personal information and regulates more entities than HIPAA.
Under the Privacy Act 1988, personal information includes a wide range of information or opinions that could identify an individual. This Act regulates how Australian government agencies and organizations handle personal information. The Act also outlines that patient medical documents must remain confidential, except when there is a need for legitimate access to these records. For example, patient data may be released if the patient is at serious risk or poses a risk of harm to another person.
To protect against cyber-attacks and ensure data protection, Australia has organizations such as the Australian Cyber Security Centre (ACSC) and the Australian Signals Directorate (ASD). The ASD provides cyber security advice and services to the government, critical infrastructure, industry, and the Australian public. They also produce the Information Security Manual (ISM), which outlines a cyber security framework that organizations can apply to protect their systems and data from cyber threats. The ASD has also developed the Essential Eight, a set of prioritized mitigation strategies to help organizations protect themselves against various cyber threats.
The Australian government has also committed $15-20 billion until 2033-34 to enhance cyber domain capabilities and improve cyber resilience. This investment will increase visibility into threats to critical infrastructure and enable offensive cyber operations. Critical infrastructure organizations are encouraged to understand and map their networks, implement an event logging system, and maintain an asset registry, as they are regularly targeted by malicious cyber actors due to their possession of sensitive data.
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Frequently asked questions
HIPAA stands for Health Insurance Portability and Accountability Act. It was enacted by the US Congress and signed by President Bill Clinton in 1996. It provides guidelines for third-party companies to ensure that sensitive patient data is securely stored.
The Australian equivalent of HIPAA is the Privacy Act 1988. The Privacy Act 1988 covers a broader spectrum of personal data than HIPAA.
The Privacy Act 1988 was introduced to promote and protect the privacy of individuals. It also serves to regulate how Australian government agencies and organizations handle personal information.
One key difference is that the Privacy Act 1988 covers a much broader scope of personal information than HIPAA. Additionally, the Privacy Act 1988 applies to both paper-based and electronic records, while HIPAA primarily focuses on electronic protected health information (ePHI).
Serious data breaches or repeat offences under the Privacy Act 1988 in Australia can result in fines of up to AU$2.1 million (US$1.6 million) or even up to $1.2 million.
