Privacy Act 1988 - Part VI - Determination No. 2006-1A giving general effect to Temporary Public Interest Determination No. 2006-1

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Determination No. 2006-1A giving general effect to Temporary Public Interest Determination No. 2006-1
Privacy Act 1988 Part VI
 
 
I, Karen Curtis, Privacy Commissioner, pursuant to section 80B(3) of the Privacy Act 1988, hereby make the following determination.
 
No organisation is taken to contravene section 16A of the Privacy Act 1988 if, during the period from 10 February 2006 to 22 December 2006 (inclusive), the organisation does an act, or engages in a practice, that is the subject of Temporary Public Interest Determination No. 2006-1.
 
Temporary Public Interest Determination No. 2006-1 is Attachment “A” to this determination.
 
Dated this 6th day of February 2006
 
 
 
[signed by Karen Curtis]
Karen Curtis
Privacy Commissioner
 
Attachment:
A.        Temporary Public Interest Determination No. 2006-1
 
Temporary Public Interest Determination No. 2006-1
Section 80A of the Privacy Act 1988 (Cth)
 
I,  Karen Curtis,  Privacy Commissioner, pursuant to section 80A of the Privacy Act 1988 (the Act) make the following determination.
 
I am satisfied, in accordance with section 80A(1) of the Act, of the following:
 
1. The applicant is an organisation.
 
2. The applicant has applied under section 73(1) of the Act for a Public Interest Determination under section 72(2) of the Act about the acts and practices of the applicant specified in paragraphs (3) and (4).
 
3. The applicant may have reason to collect sensitive information from Medicare Australia via that agency’s Prescription Shopping Project Information Service in order to assist in clinical decision-making with respect to the appropriate diagnosis, assessment and treatment of an individual.
 
4. Where the applicant has reason to collect this sensitive information, the collection could occur in the following circumstances:
·        without obtaining the consent of the individual and
·        without satisfying any other exception provided in National Privacy Principle 10 which would enable the collection of sensitive information.
 
5. The acts and practices set out in (3) and (4) may breach National Privacy Principle 10.
 
6. The public interest in the applicant doing these acts, or engaging in the practices, set out in (3) and (4) outweighs to a substantial degree the public interest in adhering to National Privacy Principle 10.
 
7. National Privacy Principle 1 does not impede the applicant from being able to collect information from the Information Service.
 
8. The application made by the applicant raises issues that require an urgent decision.
 
Accordingly, by virtue of section 80B(2) the applicant is taken to not contravene section 16A of the Privacy Act 1988 if, during the period from 10 February 2006 to 22 December 2006 (inclusive), the applicant engages in the acts and practices set out in (3) and (4).  My reasons for making this determination are below.
 
 
Dated this 6th day of February 2006
 
 
 
[signed by Karen Curtis]
Karen Curtis
Privacy Commissioner
Statement of Reasons for Temporary Public Interest Determination 2006-1[1]
1.     Introduction
On 2 February 2005, the applicant applied under section 73 of the Privacy Act for a Public Interest Determination under section 72 of the Privacy Act.
After satisfying myself of the necessary matters, I issued Temporary Public Interest Determination No. 2005-1 on 10 February 2005 and Determination No. 2005-1A giving general effect to Temporary Public Interest Determination No. 2005-1 in regard to the collection of information from the Prescription Shopping Information Service (‘the Information Service’) without consent.  These Determinations have effect until the end of 9 February 2006.
Once Temporary Public Interest Determination No. 2005-1 ceases to have effect, the applicant, if they continue to engage in the acts and practices that are subject of Temporary Public Interest Determination No. 2005-1, will or may be in breach of National Privacy Principle 10.  The applicant has advised that they wish to continue to engage in the acts and practices.
I have the option of proceeding to consider the applicant’s application for a Public Interest Determination in this matter or making a further Temporary Public Interest Determination.
The temporary public interest determinations provisions allow me to modify the privacy protection of one or more of the National Privacy Principles where I have an application for a public interest determination and where an urgent decision is required.  Although the Privacy Act does not prevent me from issuing a second temporary public interest determination for up to 12 months, I would not ordinarily consider doing this. 
I have decided that, given the circumstances set out below, I will issue a second temporary public interest determination in respect of the application. 
2.     The Application
I have decided to withhold the name of the applicant.  This decision recognises that the applicant is a general practitioner in private medical practice and disclosure of the applicant’s name may constitute an unnecessary interference with the applicant’s privacy.  I also considered the particularly sensitive nature of the application and recognised that disclosure of the applicant’s name could result in inaccurate and damaging inferences being made about patients of the applicant.
3.     Background to Prescription Shopping Project Information Service
When considering issuing Temporary Public Interest Determination No. 2005-1 in January 2005, Medicare Australia (then the Health Insurance Commission) advised me of the following matters.
A purpose of the Prescription Shopping Project is to reduce the number of individuals who obtain Pharmaceutical Benefits Scheme (PBS) medicines in excess of their therapeutic need. 
As part of the Prescription Shopping Project, an Information Service was developed whereby Medicare Australia is authorised to disclose certain health information about an individual to a prescribed organisation (e.g. a general practitioner).  This would be information relating to whether an individual has been identified under the Prescription Shopping Project as a ‘prescription shopper’ and, if necessary, information about the individual’s PBS history.
Medicare Australia’s authority to disclose this information, as well as to perform certain other functions necessary to implement the Information Service, was initially provided by the Health Insurance Commission (Additional Functions – Prescription Shopping Project) Determination 2003 made by the Minister for Health and Ageing.  This was replaced on 30 September 2005 by the Medicare Australia (Functions of the Chief Executive Officer) Direction 2005 (‘Medicare Australia Direction’) made by the Minister for Human Services.  The relevant extract from the Medicare Australia Direction is attached at A.
Prescription shoppers are ‘identified’ under the Prescription Shopping Project if they have met one or more of a number of prescribed criteria.  I have been advised by Medicare Australia that at any time there may be around 20,000 individuals ‘identified’ by the Prescription Shopping Project.  This represents less than 1% of the PBS patient population.  The Information Service will only disclose information to organisations covered by the Medicare Australia Direction and only in regard to ‘identified’ individuals.  A prescribed organisation can only seek information from the Information Service about a current patient.
Further information on the Prescription Shopping Project Information Service is available from the Medicare Australia website.[2]
The Medicare Australia Direction defines a prescription shopper as an individual who, in any 3 month period:[3]
(a) has had supplied to him or her pharmaceutical benefits prescribed by 6 or more different prescribers or
(b) has had supplied to him or her a total of 25 or more target pharmaceutical benefits or
(c) has had supplied to him or her a total of 50 or more pharmaceutical benefits.
Medicare Australia advised that there are three levels of information about an individual that can be disclosed by Medicare Australia to a prescribed organisation. The three levels are:
1.      the release of information by telephone, asserting that an individual is or is not identified in accordance with the Prescription Shopping Project criteria
2.      the release of information by telephone, confirming the total number of PBS medicines, and the total number of doctors involved in prescribing these PBS medicines, in relation to the individual during the most recent three month period and
3.      the release of hard copy information containing the full PBS medicines record for the individual for this three month period. 
Prescribers select the level of information they require.  Use of the service is voluntary and prescribers are not required to access the Information Service. 
My Office was advised on 12 January 2006 by Medicare Australia that there have been no changes to the scope, criteria or operational procedures of the Prescription Shopping Project or the Information Service since Temporary Public Interest Determination No. 2005-1 came into effect. 
The agency also advised me that from the implementation of the Information Service on 31 January 2005 until 8 January 2006, a total of 11,100 doctors had registered with Medicare Australia to use the system.  I am advised that a significant number of enquiries made to the Information Service have resulted in a positive response (indicating that the individual in question has been identified under the Prescription Shopping project).
4.     Issues raised by the applicant
In the application for a public interest determination in February 2005, the applicant raised a number of issues regarding the Information Service, including its value as a clinical tool and the possible consequences that may flow were the applicant prevented from accessing the service due to privacy obligations.
In order to provide appropriate diagnosis, assessment and treatment of an individual, the applicant has submitted that there may be occasion when the applicant needs to collect information through the Information Service.  The application relates to the practice of collecting this health information without obtaining the consent of the individual (i.e. the patient).
The form of collection envisaged by the applicant would occur in the context of providing a health service to an individual who the applicant suspects may be seeking prescriptions for PBS medicines in excess of therapeutic need.  Such circumstances may include where an individual has a drug dependency.  The applicant submits that such an individual may be unwilling, if asked, to provide their consent to the collection of health information from the Information Service, as this collection may disclose their status as an identified person in the Prescription Shopping Project.
 
The applicant submits that it is impracticable to gain the consent of many drug dependent individuals for the following reasons:
·        it is the applicant’s experience that, in similar circumstances where it is necessary to obtain PBS medication or other health history, this group of patients is unwilling to provide accurate information or to consent to the applicant sourcing the information reliably from elsewhere and
·        these individuals choose to leave the surgery rather than have their health treatment histories revealed.  This results in the applicant being denied the opportunity to counsel the individual or to arrange better care and treatment for these individuals.
The applicant has expressed a concern that the collection of health information from the Information Service may be in breach of National Privacy Principle 10, as the individual’s consent may not be sought for the collection of the health information and no other exceptions seem to apply.
The applicant has submitted that the use of the Information Service may be critical in informing clinical judgements in relation to the applicant’s patients.
I note that the applicant has submitted that, in many cases, seeking consent from the individual for the collection of information from the Information Service will be entirely viable and appropriate.  While I would encourage health service providers to seek consent of the individual to collect health information from the Information Service, I note that the applicant’s concerns are about those individuals who may be unlikely to grant such consent.
The applicant advised my Office on 16 January 2006 that these concerns remain.
5.     Relevant provisions of the Privacy Act
Section 6 of the Privacy Act defines “health information” as:
(a) information or an opinion about:
(i) the health or a disability (at any time) of an individual; or
(ii) an individual’s expressed wishes about the future provision of health services to him or her; or
(iii) a health service provided, or to be provided, to an individual;
that is also personal information; or
(b) other personal information collected to provide, or in providing, a health service; or
(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances.
 
Section 6 of the Privacy Act defines “sensitive information” so as to include inter alia: health information about an individual.
National Privacy Principle 1.3 states:
1.3 At or before the time (or, if that is not practicable, as soon as practicable after) an organisation collects personal information about an individual from the individual, the organisation must take reasonable steps to ensure that the individual is aware of:
(a) the identity of the organisation and how to contact it; and
(b) the fact that he or she is able to gain access to the information; and
(c) the purposes for which the information is collected; and
(d) the organisations (or the types of organisations) to which the organisation usually discloses information of that kind; and
(e) any law that requires the particular information to be collected; and
(f) the main consequences (if any) for the individual if all or part of the information is not provided.
National Privacy Principle 1.5 states that:
1.5 If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters listed in subclause 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.
National Privacy Principle 10 concerns the collection of “sensitive information”.  Relevantly, NPP 10.1 and 10.2 state:
10.1 An organisation must not collect sensitive information about an individual unless:
(a) the individual has consented; or
(b) the collection is required by law; or
(c) the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual, where the individual whom the information concerns:
(i) is physically or legally incapable of giving consent to the collection; or
(ii) physically cannot communicate consent to the collection; or
(d) if the information is collected in the course of the activities of a non-profit organisation—the following conditions are satisfied:
(i) the information relates solely to the members of the organisation or to individuals who have regular contact with it in connection with its activities;
(ii) at or before the time of collecting the information, the organisation undertakes to the individual whom the information concerns that the organisation will not disclose the information without the individual’s consent; or
(e) the collection is necessary for the establishment, exercise or defence of a legal or equitable claim.
10.2 Despite subclause 10.1, an organisation may collect health information about an individual if:
(a) the information is necessary to provide a health service to the individual; and
(b) the information is collected:
(i) as required by law (other than this Act); or
(ii) in accordance with rules established by competent health or medical bodies that deal with obligations of professional confidentiality which bind the organisation.
Section 29 of the Privacy Act requires that inter alia:
In the performance of his or her functions, and the exercise of his or her powers, under this Act, the Commissioner shall:
(a) have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information (through the media and otherwise) and the recognition of the right of government and business to achieve their objectives in an efficient way;
6.     Reasons for the Decision
6.1    Public interest considerations
There are two National Privacy Principles raised in the application (10 & 1).  Although it was not raised in the application, I also considered the relevance of National Privacy Principle 2.  In this section, I will deal with these in turn.
The application was made for a public interest determination under s 72 of the Privacy Act.  However, I have decided to deal with the application under s 80A of the Privacy Act because it raises matters requiring an urgent decision (see section 6.2(c)).  Under s 80A, I am empowered to make a Temporary Public Interest Determination where I am satisfied that each of the following apply:
i)  an act or practice of an organisation that is the subject of the application for a public interest determination breaches, or may breach, a National Privacy Principle (s 80A(1)(a)(ii))
ii)  the public interest in the organisation doing the act or engaging in the practice outweighs to a substantial degree the public interest in adhering to that National Privacy Principle (s 80A(1)(b)) and
iii)  where the application raises issues that require an urgent decision (s 80A(1)(c)).
Under section 80B(2) of the Privacy Act, the effect of such a determination is that the organisation is taken not to breach the specified National Privacy Principle when doing an act, or engaging in a practice, which is described in the determination.
6.2    Consideration given to National Privacy Principle 10
6.2(a) Does or may the act or practice breach National Privacy Principle 10?
The act or practice raised in the application concerns the applicant collecting health information from the Information Service without the consent of the individual in question.  The applicant has submitted that, in the circumstances detailed in the application, consent cannot be relied on when collecting health information about an individual.  It is clear that collecting health information without an individual’s consent will constitute a breach of National Privacy Principle 10 unless another exception prescribed in that Principle applies.  It does not appear that the circumstances detailed in the application would allow the applicant to rely on any other exception.
In particular, when I made Temporary Public Interest Determination No. 2005-1, I considered whether the applicant may rely on National Privacy Principle 10.2(b)(ii), the terms of which were cited in the HIC Determination.  I note that the Medicare Australia Direction, which has superseded the HIC Determination, does not include an equivalent clause.  The scope of this exception is unclear and untested in court.  In the circumstances set out in the application, I remain satisfied that there may be a breach should the applicant claim to rely on this exception to collect health information without consent.
In making Temporary Public Interest Determination No. 2005-1, I was satisfied that the act or practice described in the application would or may constitute a breach of National Privacy Principle 10, as required by s80A(1)(a).
I remain satisfied of these matters.
6.2(b) Does the public interest in allowing the applicant to breach National Privacy Principle 10 outweigh to a substantial degree the public interest in adherence to the principle?
Generally, an individual’s right to be informed of how their personal information is handled, and especially their health information, and to have some measure of control over how their information is collected, is regulated by National Privacy Principles 1 and 10.  There is potential for harm to an individual if their health information is handled without their consent or knowledge. 
In addressing a potential interference with privacy, it is necessary to take into consideration other matters that may compete with privacy.  The other interests raised by the application include the possibility of an immediate and direct threat posed to an individual’s health. 
In making Temporary Public Interest Determination 2005-1, I was satisfied that, in certain cases, there may be an unwillingness on the part of an individual to provide consent to the collection of information from the Information Service, including where this would assist in determining the individual’s therapeutic needs.  Denying the applicant access to the Information Service may limit the applicant’s knowledge of the individual’s prescription history and hinder the applicant from, where appropriate, offering counselling or other treatment alternatives.  For the applicant not to be able to collect this information may lead to serious and potentially life-threatening consequences in respect of the individual’s clinical management and welfare.
Accurate and reliable information regarding an individual’s health history, including their medication history, underpins the clinical management of the individual.  I accepted that some individuals may put their health and lives at risk in attempting to obtain PBS medication that is in excess of their therapeutic need.  It is likely that the Information Service may assist the applicant in the appropriate diagnosis, assessment and treatment of such individuals.
I also noted that while the collection of health information in the circumstances raised by the application may constitute an interference with an individual’s privacy, the information, once collected, will continue to be afforded protections offered by the Privacy Act.  For example, the applicant will be prohibited by National Privacy Principle 2 from using or disclosing the health information for any other purpose unless permitted by the Privacy Act.
In the making of the Temporary Interest Determination 2005-1, I was satisfied that:
(a) where the applicant believes that consent cannot be sought for the collection of information from the Information Service, then the lack of access to the Information Service is likely to have a serious and negative impact on the clinical management of some individuals; and
(b) the central public interest objective being served by this determination is the provision of quality health care to the individual, and ultimately good public health outcomes for the community and
(c) that the collection of information from the Information Service may contribute significantly to good health care on both respects outlined in (b).
In the making of the Temporary Public Interest Determination No. 2005-1, as required by s 80A(1)(b), I was satisfied that the public interest in the applicant collecting health information from the Information Service outweighs to a substantial degree the public interest in the applicant adhering to National Privacy Principle 10 in these circumstances, as the collection may immediately and directly affect the health care of an individual.
I remain satisfied of all those matters.  I am satisfied in making this determination that the public interest in the applicant continuing to do the act or engage in the practices described in this determination for a further period until 22 December 2006 outweighs to a substantial degree the public interest in the applicant adhering to the National Privacy Principle.
6.2(c) Does the application raise issues that require an urgent decision?
The applicant has submitted that the health of some individuals is at risk and that this risk could be lessened by information available through the Information Service.  Without seeking the individual’s consent, it is likely that the applicant would breach National Privacy Principle 10 by collecting this information.
As stated above in section 6.2(b), the Information Service may provide important information to assist the applicant in assessing the individual’s clinical needs.  In the absence of a determination, the applicant’s access to the Information Service may be restricted or prevented.  There is a chance that the applicant would or may breach the Privacy Act if there was a need to use the Information Service and there was no Temporary Public Interest Determination or other legislative protection in effect.  This lends weight to the view that the matter requires urgent consideration.
As required by s 80A(1)(c), I am satisfied that the matter is urgent as, in the absence of a temporary public interest determination to come into effect upon expiry of Temporary Public Interest Determination No. 2005-1, or any other legislative protection, the applicant would or may be in breach of NPP 10 when collecting health information from the Information Service.
I am satisfied that there is urgency to issue a new temporary public interest determination as an interim measure while the Attorney-General’s Department and the Department of Health and Ageing pursue legislative measures that would permanently address the matters raised by the applicant.
6.3    Consideration given to National Privacy Principle 1
6.3 (a) Does or may the act or practice breach National Privacy Principle 1?
The application also raises the applicant’s obligations in respect of National Privacy Principle 1.  A collection by the applicant, from the Information Service, of information about one of their patients is likely to be necessary for one of the applicant’s functions (as required by National Privacy Principle 1.1) and, subject to the making of this determination, be lawful and fairly collected (National Privacy Principle 1.2).  Accordingly, there would be no breach of those elements of National Privacy Principle 1.
I have also considered whether the obligations under National Privacy Principles 1.3 and 1.5 (that is, to provide an individual with notice of certain things when collecting information about them) would impede the applicant’s collection of information from the Information Service.
I note that the obligations imposed by National Privacy Principle 1.5 may be met at or before the time of collection, or if that is not possible, as soon as practicable after the collection.
In addition, it should be noted that National Privacy Principle 1.5 requires that the applicant take “reasonable steps” to ensure that the individual is aware of certain matters; what is reasonable will depend on the circumstances at hand.  The principle also expressly provides that, in certain limited circumstances, the applicant does not have to inform the individual of the various matters listed in National Privacy Principle 1.3, including if giving notice would pose a serious threat to the life or health of any individual.
Accordingly, I am satisfied that National Privacy Principle 1 does not impose obligations which do, or are likely to, prevent the applicant from collecting information from the Information Service.  It follows therefore that the applicant could collect information from the Information Service without breaching National Privacy Principle 1.
As the act or practice would not constitute a breach of National Privacy Principle 1 for the purposes of section 80A(1)(a), it is not necessary for me to consider the further matters listed in section 80A(1).
6.4    Consideration given to National Privacy Principle 2
Medicare Australia has advised me that if the applicant contacts the Information Service, the applicant must disclose personal information concerning the individual to determine the individual’s identity (specifically, name, Medicare number and date of birth). This appears to be a disclosure of personal information under National Privacy Principle 2.
National Privacy Principle 2 imposes the general obligation that an organisation must only use or disclose personal information for the primary purpose of collection. Use and disclosure for a secondary purpose is not allowed except where such use or disclosure falls within the exceptions listed in National Privacy Principle 2.
As the applicant is unlikely to have initially collected the individual’s identifying details for the primary purpose of disclosure to Medicare Australia, I have considered the application of National Privacy Principle 2.1(a) to the application.  This exception permits a disclosure of sensitive information where it is directly related to the primary purpose of collection and it falls within the individual’s reasonable expectations.
The applicant would contact the Information Service to assist in clinical decision making relating to the individual’s presentation at the health service.  I believe that this purpose is directly related to the primary purpose for which the relevant information was initially collected (to provide diagnosis, assessment, and treatment).
The applicant must also be confident that the individual would reasonably expect the disclosure to occur.  Health service providers will be in a better position to assume that such activities are within the reasonable expectations of an individual, if there has been appropriate education for the community about it.  This may include, for example, providers fully utilising the information material prepared and distributed by Medicare Australia. 
In making Temporary Public Interest Determination 2005-1, I noted that Medicare Australia had committed to undertake communication strategies with providers (such as the applicant) and patients to explain the purpose and functions of the Information Service.  This is consistent with Medicare Australia’s functions under the Medicare Australia Direction to promote awareness of the Prescription Shopping Project.[4] 
While responsibility for compliance with NPP 2 rests, in this case, with the applicant and other health service providers, it is my view that informational
 
material provided by Medicare Australia to users of the Information Service will significantly assist health service providers in understanding their obligations under NPP 2.
In this regard, Medicare Australia has advised me that it has undertaken an information campaign with health service providers, including by providing material in the form of brochures for distribution to consumers and posters for display in providers’ premises.  This material explains to consumers that their personal information may be disclosed for the purposes of the Information Service.  Medicare Australia has also provided consumer material directly to a smaller number of individuals identified under the Prescription Shopping Information Service.
Medicare Australia has undertaken to continue providing information material to health service providers.  This material will remind providers of their obligations under the NPPs, including the need to ensure that consumers have a reasonable expectation that their personal information may, in certain circumstances, be disclosed to the Information Service.  In addition, my Office will develop information material for the health sector explaining, amongst other things, the importance of taking reasonable steps to promote individuals’ awareness of the Information Service.
I consider the applicant could rely on National Privacy Principle 2.1(a) to disclose an individual’s identifying information to Medicare Australia for the purpose of using the Information Service.  Accordingly, it is not necessary to exclude the applicant from the obligations imposed by this principle.
As the act or practice would not constitute a breach of National Privacy Principle 2 for the purposes of s 80A(1)(a), it is not necessary to consider the further matters listed in s 80A(1).
6.5    Other matters taken into account
In considering this application I have taken into account that the Attorney-General’s Department has confirmed that it is pursuing amendments to the Privacy Act 1988 to permit the collection of health information as authorised by law under NPP 10.2(b)(i).
I have also taken into account that the Department of Health and Ageing have confirmed that it is pursuing the amendment of primary health legislation, such as the National Health Act 1953, to include a provision to the effect that where the disclosure of information is authorised by or under a health law, the collection of that information by the organisation to whom it is disclosed is deemed also to be authorised by or under that law.
Both Departments will, subject to Government process and Parliamentary approval, endeavour to have relevant amendments completed within the 2006 parliamentary year.
 
7.      Statutory conferences and process regarding Public Interest Determination
I regard the circumstances of this case as being exceptional in that there is a strong likelihood that the matters raised in the application will be addressed by legislative amendments. 
If it appears that the matter will not be resolved by legislative amendments, by the expiry date of this temporary public interest determination, then I would need to consider whether to make a public interest determination.
 
8.      Attachments
A:  Section 30 (‘Functions in relation to the Prescription Shopping Project’) of the Medicare Australia (Functions of the Chief Executive Office) Direction 2005
Attachment A 
Medicare Australia (Functions of the Chief Executive Office) Direction 2005

30        Functions in relation to the Prescription Shopping Project
(1)       In this section:
approved supplier has the same meaning as in Part VII of the National Health Act.
health care providers includes:
 (a) medical practitioners; and
 (b) prescribers; and
 (c) pharmacists; and
 (d) approved suppliers; and
 (e) dentists; and
 (f) State and Territory health departments; and
 (g) State and Territory mental health authorities; and
 (h) private and public pain management clinics; and
 (i) private and public alcohol or drug detoxification centres; and
 (j) private and public hospitals.
nominated prescriber, in relation to a prescription shopper, means a prescriber nominated by the prescription shopper from time to time to be that person’s primary prescriber.
PBS information means any information collected by the Chief Executive Officer, whether before, on or after 1 October 2005, in performing functions conferred on the Chief Executive Officer to administer the Pharmaceutical Benefits Scheme established under Part VII of the National Health Act.
pharmacist means a person registered as a pharmacist or pharmaceutical chemist under a law of a State or Territory providing for the registration of pharmacists or pharmaceutical chemists.
prescriber means a person who prescribes a pharmaceutical benefit and is, at the time of prescribing the pharmaceutical benefit, a medical practitioner authorised by Part VII of the National Health Act to do so, or purports to be so authorised.
prescription shopper has the meaning given by subsection (2).
Prescription Shopping Project, or Project, means the project provided for in the 2002–2003 Commonwealth Budget under the measure entitled ‘Sustaining the PBS - Restrictions on Doctor Shopping’.
target pharmaceutical benefits means pharmaceutical benefits in any of the following categories:
 (a) Nordic stem code N02 (Analgesics);
 (b) Nordic stem code N03 (Antiepileptics);
 (c) Nordic stem code N04 (Anti-Parkinson Drugs);
 (d) Nordic stem code N05 (Psycholeptics);
 (e) Nordic stem code N06 (Psychoanaleptics);
 (f) Nordic stem code N07 (Other central nervous system drugs);
 (g) Nordic stem code R03 (Drugs for obstructive airway diseases);
 (h) Nordic stem code C10A (Serum Lipid Reducing Agents);
 (i) Nordic stem code A02B (Drugs for peptic ulcer and gastro‑oesophageal reflux diseases);
 (j) Nordic stem code J01 (Antibacterials for Systemic Use);
 (k) Nordic stem code M01 (Antiinflammatory and Antirheumatic products);
 (l) Nordic stem code A10A (Insulin and analogues);
 (m) Nordic stem code C02 (Antihypertensives).
(2) In this section, prescription shopper means a person who, within any 3 month period (being the 3 month period ending on 31 December 2002, or a later period):
 (a) has had supplied to him or her pharmaceutical benefits prescribed by 6 or more different prescribers; or
 (b) has had supplied to him or her a total of 25 or more target pharmaceutical benefits; or
 (c) has had supplied to him or her a total of 50 or more pharmaceutical benefits.
 (3) For paragraph (2) (a), prescriber does not include a prescriber who is a specialist for the purposes of subsection 3 (1) of the Health Insurance Act and who has prescribed pharmaceutical benefits to a person in that capacity.
 (4) For paragraph 5 (1) (d) of the Act, the Chief Executive Officer is to perform the function of administering the Prescription Shopping Project.
(5) This function includes:
 (a) the education and prevention function, described in subsection (6); and
 (b) the identification and detection function, described in subsection (7); and
 (c) the disclosure function, described in subsection (8); and
 (d) the evaluation and reporting function, described in subsection (10); and
 (e) the doing of anything incidental or conducive to the performance of the above functions, including using PBS information.
 (6) The education and prevention function is to:
 (a) promote awareness of the Project to health care providers, prescription shoppers and members of the Australian public; and
 (b) promote measures to assist health care providers to manage prescription shoppers or people who may be at risk of prescription shopping; and
 (c) educate health care providers and prescription shoppers about the legislative framework and requirements within which the Project operates; and
 (d) encourage prescription shoppers to have a nominated prescriber; and
 (e) encourage prescribers to become nominated prescribers; and
 (f) encourage communication links between prescribers, approved suppliers and pharmacists; and
 (g) discourage inefficient and improper use of pharmaceutical benefits.
 (7) The identification and detection function is to:
 (a) identify prescription shoppers, prescribers prescribing pharmaceutical benefits to prescription shoppers and approved suppliers supplying pharmaceutical benefits to prescription shoppers; and
 (b) establish and maintain databases of some or all prescription shoppers and information about those prescription shoppers; and
 (c) detect and identify prescription shoppers who may be improperly using, stockpiling, swapping, diverting or illegally dealing with pharmaceutical benefits; and
 (d) enable the Chief Executive Officer to identify when disclosure of PBS information is appropriate.
 (8) Subject to subsection (9), the disclosure function is to:
 (a) disclose PBS information about whether a person is or is not a prescription shopper; and
 (b) disclose PBS information about a prescription shopper to:
 (i) the prescription shopper; and
 (ii) a prescriber, to assist the prescriber to make decisions about prescribing to the prescription shopper, if that prescription shopper has visited or is visiting that prescriber or is a patient of that prescriber; and
 (iii) an approved supplier who is proposing to supply, or has supplied, pharmaceutical benefits to the prescription shopper, to assist the approved supplier (or a pharmacist within their employment) to make decisions about supplying pharmaceutical benefits to that prescription shopper.
 (9) The Chief Executive Officer may undertake the disclosure function for the following purposes:
 (a) administering and enforcing functions under the National Health Act conferred upon the Chief Executive Officer; and
 (b) protecting public revenue; and
 (c) discouraging inefficient and improper use of pharmaceutical benefits.
 (10) The evaluation and reporting function is to use PBS information and information collected by the Chief Executive Officer under the National Health Act to:
 (a) evaluate the Project; and
 (b) report (using de-identified PBS information) to the Department of Health and Ageing and other bodies on the administration and outcomes of the Project.


[1] Section 80A(3)(b) of the Privacy Act requires that a statement of reasons accompany the determination.
[2] See, http://www.medicareaustralia.gov.au/yourhealth/our_services/prescription_shopping.htm and http://www.medicareaustralia.gov.au/providers/programs_services/pbs/prescription_shop.htm.
[3] Section 30(2).
[4] Section 30(6).

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