Friday, September 09, 2011

An Interesting Legal View on Aspects of the PCEHR. Well Worth A Read.

An interesting article on the Medico-Legal and Privacy aspect of the PCEHR from a Partner at HollmanWeb Lawyers has come to hand.
The article is entitled:

Update on Personally Controlled Electronic Health Records

It is found on Page 6 of their August 2011 Health Law Bulletin.
Key for the blog are medico-legal and privacy issues raised by Alison Choy Flannigan who is a Partner with the firm.
Under the heading of Medico-Legal we read about the sorts of issues that need to be considered by practitioners:
  • “If a medical practitioner consults with a patient and is negligent in entering information onto the PCEHR, there are more clinicians relying upon it, so the potential for liability from a negligent assessment of a patient or negligently prepared medical record increases.
  • Health professionals must be mindful that the PCEHR is not a complete medical record and must  continue to be vigilant in continuing to obtain independent information from patients. Information may be excluded from the PCEHR at the request of a patient and missing information is unlikely to be flagged.
  • If a medical practitioner has relied upon information on the PCEHR which is incorrect, then the medical practitioner will need to track the author of the original information to join as a cross-defendant.
  • If a patient instructs a medical practitioner not to include information on the PCEHR then the medical practitioner will be under an obligation to inform the patient the risks and consequences of this.
  • Direct access to a medical record may be denied if providing access would pose a serious threat to the life or health of any individual. In those cases, the patient is usually provided access through another medical practitioner. If consumer access requests are dealt with centrally, measures should be implemented to ensure that a clinical assessment is made in relation to whether or not a patient's request for access or information could pose a serious threat to the life or health of any individual. Arguably such information should not be included in the PCEHR.
  • Often a request for access can be an indicator of a potential claim which can be resolved quickly by the clinician by early discussions with the patients. There should be a mechanism so that relevant clinicians are informed if there is a potential claim early.”
Under the heading of Privacy Issues we read:
“There are also a number of privacy issues, including:
  • Obtaining adequate privacy consent from patients;
  • Ensuring that the systems can accurately implement the consent options of patients, such as limiting access or prohibiting access to the PCEHR to health professionals nominated by patients.
  • Ensuring that only information which is required to provide treatment for the patient is collected.
  • Privacy issues if the system involves a number of system vendors and subcontractors or cloud computing.
  • Uniformity of the usage of medical terms and abbreviations and clear handwriting is preferred to protect data quality.
  • Clear understanding of the information flows and potential for leakage of personal health information to unapproved persons or overseas.
  • Data security issues.
  • Patient and participating health professional identification and verification issues.
  • Education and training of participating health professionals.”
You can access the full bulletin from this link
The full article provides lots of context on the PCEHR and the full bulletin is well worth a read.
The complexity of this issues raised only suggest to me we have more than  a little way to go in education consumers and clinicians on their responsibilities and obligations - and indeed I am not at all sure some of the points can actually be satisfactorily addressed.
I have to say it is good to find some insightful coverage on these areas of the PCEHR. Readers who need advice in the PCEHR domain could clearly do worse than consult this team! That might include more than a few worried clinicians to judge from the issues raised!

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