After a long-running legal tussle, a remote Aboriginal health clinic has lost its battle against the Australian Crime Commission (ACC) to safeguard the privacy of its patient records. Subject to another appeal, the clinic will have to hand over the records of eight Indigenous children to the ACC.
Whether those records contain information which is of sufficient importance to justify the protracted efforts of the country’s most powerful crime-fighting organisation to seize them is one of many unanswered questions about this case. But I doubt the ACC bosses will have been celebrating its legal victory with much enthusiasm.
Firstly the court case itself has lifted the lid on activities it was desperate to keep secret. It used a series of gagging orders to stop anyone approached for medical records revealing to either patients or the wider public what was happening. The penalties were fines and jail sentences.
Secondly when you read the Federal Court ruling, you get a picture of an organisation that seemed to pay little regard to the implications of its actions — for the clinic, the Indigenous community or the patients treated at the clinic.
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The Federal Court found the ACC had a legal obligation to consider “the interests of the children” when forcing the clinics to hand over the records. It seems the commission managed to do this — just. The Federal Court ruled that by acknowledging the clinic’s concerns that the children and others may not seek medical attention if they discovered their files were being secretly handed over to crime investigators, the ACC had met its obligation.
But it is important to stress the court did not consider whether the commission had, for instance, carefully weighed the pros and cons and come to a well-informed, reasoned decision to issue its legal orders. The court never looked at that issue (it was not part of the appeal) even though it described ACC’s attempts to document in the paperwork its reasons for seizing the records as “laconic,
formulaic and often unhelpful”, suggesting it may have been a “tick-box” exercise.
The ACC won the case because it had — purely as a matter of fact — considered the interests of the children. To critics, however, it seemed that it then more or less ignored them.
You can argue that the ACC’s consideration of the children’s interests could not have been anything but cursory and superficial and arguably something that could never meet the common definition of “reasonable” as apparently required by laws which underpin some of the ACC’s powers to seize information. After all the ACC did not know anything about the children themselves.
Its original demand last year on the NT clinic was for any medical records of indigenous children who may be s-xually active. It did not know the actual identities, it didn’t know who these children were, their home circumstances, their medical problems, it didn’t know where they lived, who they lived with. How could the ACC make a “reasonable” judgment about their interests when its only knowledge would be that they may be or once were s-xually active?
Go through the health statistics of children living in these communities and you can see why continued contact with medical/health services are essential. In October last year nearly 9000 child health checks had been carried out under the NT intervention. Doctors and nurses doing these checks found 38% of children aged under 16 years had a reported history of recurrent chest infections, 30% were reported to have ear disease, 8% had scabies and 15% were found to have anaemia.
If children and adults stopped seeking medical care or no longer bothered with routine appointments, as the clinic feared after the ACC approach, then a likely outcome for many of these people is serious sickness and hospitalisation. Again, you can ask how the interests of the children have been served.
It’s also worth pointing out that the records were wanted by the commission not as part of a specific investigation into crimes involving the children themselves where privacy would be a secondary consideration. As the commission told the Australian newspaper last year:
The reason we want access to the data not just on Implanon but more widely on STIs, violence and s-xual abuse is to build a better understanding of the nature and extent of issues surrounding s-xual abuse and underage s-xual activity, assault, violence and related injuries.
The legal subtleties are interesting but there is the broader picture to consider. It is has been claimed that the ACC approached about 20 Aboriginal medical clinics for the records of children including the records of underage girls with STIs, pregnancies or who had been prescribed contraception.
The medical records of adults — patients whose treatment may have been linked to family violence, s-xual or physical abuse — have also been targeted by the ACC but they appeared to have been handed over with very little legal fuss. The threats of jail have kept people from talking on the record. If all this is true, one reason why the ACC must have been so keen to win was that it otherwise risked sitting on a considerable amount of illegally acquired information.
Given the crisis in NT Indigenous communities, the debate about whether it is necessary to railroad patient privacy will continue. It’s a hard discussion that divides many people – including some doctors who believe that under-reporting of abuse by health workers is widespread. The Productivity Commission report released this month suggested Indigenous children are six times as likely to be abused as non-indigenous children.
But the fact that a government agency was attempting to do this in secret, with a series of gagging orders on doctors and health workers, thereby denying these Indigenous communities any knowledge of what was being done, still seems to me alarming.
The Federal Court’s judgment on a second NT clinic and ACC is expected soon.
*This is an extended version of an article that appears in the 24 July issue of Australian Doctor