Draft Concept of Operations Feedback Analysis Report
4.12 Legal and liability
containing this theme
|Breakdown of submissions containing this theme by group|
4.12.1 DescriptionSome of the submissions sought clarification on how the inherent legal and liability issues relating to the use of the PCEHR System will be managed. The key question of the submissions with respect to this theme is whether healthcare professionals may be held responsible for a patient’s safety based on information contained within their PCEHR. The main discussion point was centred on the concern that this information might be inaccurate, not up to date or not visible to the healthcare personnel. Some submissions raised the need for clarification regarding legal guardian situations.
4.12.2 Key points
- Liability of healthcare professionals
- A number of submissions highlighted the critical importance of clearly defining the legal and liability implications of the PCEHR System
- Questions were raised regarding the liability implications of hidden data within a PCEHR
- Some submissions asked if healthcare professionals would be legally obligated to read all patient entered data into their PCEHR
- Concerns were expressed that the healthcare professional would be held liable for any critical information missed in patient entered data
- Consumer entered data
- A number of submissions stated the opinion that patients cannot be trusted to enter reliable data and therefore healthcare professionals should not be held liable for any information contained in patient entered data
- Legal guardian representation
- Several submissions requested clarification about potential issues relating to the PCEHR for patients who are currently considered under the legal representation of another person (e.g. minors, mentally disabled persons etc)
- Questions were raised regarding a legal guardian’s responsibility and legal liability in the management of another person’s PCEHR
4.12.3 PCEHR program positionCoverage of liability issues are out of scope for the Concept of Operations as it is primarily a design document. Current thinking around liability is that the healthcare providers’ existing duty of care to consider the content of patient medical records will remain in effect subsequent to the implementation of the PCEHR System, and will include the content of an individual’s PCEHR. Additional work around liability will be required. Suggested positions include:
- Healthcare provider will not be required to review any clinical documents outside of consultations - It is not expected that healthcare providers will consider or be required to review data included in a PCEHR (e.g. event summaries uploaded) outside of consultation periods.
- Providers will be able to add information (other than a Shared Health Summary) to an individual PCEHR using clinical systems without being required to open or view an individual’s PCEHR – The PCEHR System will permit collection of information from feeder systems, even though a healthcare provider may not have reviewed the individual’s PCEHR. An example, may be a large healthcare facility, where the practicalities of implementation may mean that information can be loaded into the PCEHR System by leveraging their existing infrastructure before the PCEHR System may be deployed on to clinical desktop systems.
- Reviewing a PCEHR is required when uploading a new shared health summary - A nominated provider is required to review an individual’s PCEHR before uploading a Shared Health Summary.
- Depending of the kind of healthcare being provided, a healthcare provider may have a duty of care to consider relevant consumer entered data when they review and individual’s PCEHR - To ensure that the healthcare provider is able to provide informed care and is not overwhelmed with information, the system only permits them to see a subset of key information entered by the consumer and the healthcare provider is not able to view any consumer entered notes or health diary. The following consumer entered information will be viewable by authorised healthcare providers: allergies and adverse reactions; medications; advance care directive custodians; emergency contact details, contact details of others and if the individual needs an interpreter. Duty of care may require a healthcare provider to review this information, depending on the nature of the care being provided.