24 March 2023

Union attempts to drag CHS executives and Minister into privacy breach web as affair heads for legal showdown

| Ian Bushnell
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Matthew Daniel standing outside the Legislative Assembly

Australian Nursing and Midwifery Federation ACT branch secretary Matthew Daniel: CHF staff acted lawfully, passing on personal medical information. Photos: Lottie Twyford.

The ACT’s nurses union will vigorously contest Canberra Heath Services’ claims that staff breached privacy laws by passing on patient information and has condemned its rush to judgment.

It has accused CHS of changing the legislative goalposts on the handling of patient information, claiming that in the specific 13 cases referred, staff acted lawfully.

Australian Nursing and Midwifery Federation ACT branch secretary Matthew Daniel said that under these “new” standards, CHS executives and even Mental Health Minister Emma Davidson would be in the same boat.

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He said that the Health Records (Privacy and Access) Act allowed information to be provided to third parties without consent under certain circumstances, including patient safety, which the union will argue is the basis for staff emailing what he called personal medical information to the union.

“Where they would have concerns about patient safety, the legislation authorises them to disclose to third parties to assist them with their concerns around patient safety,” he said.

Mr Daniel said that, generally, exchanging information was part of its legitimate role representing members responsible for patient safety in the ACT’s hospitals.

“As a principle, not referring to specific cases, we would go back to the health service with the concerns of our members,” he said.

The union’s stance sets the stage for a legal tussle over the interpretation of the legislation and the very definition of the information in question, which it denies are clinical records, as alleged by CHS.

CHS CEO Dave Peffer insists that the action to refer the matter to the police, the ACT Integrity Commission and other regulatory authorities would not have been taken if CHS was satisfied it met the threshold under the legislation.

“So within the act, there’s very, very narrow exceptions where a patient’s record can be shared more broadly than the treating team looking after them,” he said.

This usually included a significant risk to life or health, such as when police or paramedics were involved in the treatment of a mental health patient having an episode in the community or in child protection cases, he explained.

Dave Peffer

Canberra Health Services CEO Dave Peffer says the organisation has been open and transparent.

Mr Daniel said CHS executives and directors had shared other patient information with the union and should be held to the same standard and also stood down subject to investigations.

He also claimed Ms Davidson had received patient information herself in meetings with the union and may well have questions to answer.

“Minister Davidson on no occasion has raised concerns that we hold this information or have passed it on to her,” he said.

Mr Daniel would not say whether the union was supporting the staff member who had been sacked and the other two who had been stood down but said the Minister had already stated that they had breached the legislation.

“I am not sure what information Minister Davidson has to draw that conclusion,” he said.

“She doesn’t conduct her own investigations. We’re not sure of any investigations that have been concluded and made adverse findings against nurses.

“We are completely at a loss as to why Dave Peffer and Emma Davidson can make the claim that they have been proven. It defies public administration.”

But Mr Peffer said there was sufficient evidence to take disciplinary action without further investigation in one case.

He said CHS had determined that the situation qualified for mandatory referral to the Integrity Commission and what happened next was now out of the organisation’s control.

“We’re complying with every direction that we’ve been given,” he said.

“A number of our team members have already been spoken to as part of that process.”

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Mr Daniel would not say if the union still held the information in question, but Mr Peffer said CHS had not acted to recover it.

Mr Peffer, who emailed 9000 staff about the alleged breaches, said CHS had striven to be open about the situation.

“It’s not a cover-up mentality that put it right out there,” he said.

“We’ve done something wrong, and it has serious consequences, to trust and to the organisation.

“It’s not something that was discovered months after the fact by the media or the Opposition or anyone else. It’s us being proactive and transparent.

“We’re open with our workforce when we make mistakes, we’re upfront about it, and we take the necessary action to respond.”

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Australian Nursing and Midwifery Federation accusing a minister of being party or being dumb to illegal data sharing. Davidson needs to step aside while its investigated.

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