Computers, Health and the Law

Computers, Health and the Law

Lawyer Graeme Crombie, Senior Associate, Minter Ellison Rudd Watts, was the opening speaker. In his presentation "Computers, Health and the Law", he provided a broad overview of the legal issues that arise when doing business online in the health care industry.

He covered four broad topics:

• the commercial and legal issues in outsourcing and other technology agreements, eg, licensing, support agreements
• the implications of the Electronic Transactions Bill for the health care industry
• the Health Privacy Code, from an electronic information perspective
• the process of going online - what to watch out for.

With respect to the commercial issues that arise when outsourcing, Crombie stressed that the most important consideration is whether the business strategy is aligned with outsourcing. He noted that outsourcing can be successful provided there is clarity in relation to business expectations, the relationship between organisations, service delivery and costs.

The reasons for deciding to outsource are mixed. Outsourcing can reduce costs and can allow a health care organisation’s focus to remain on customers or patients.

However, it must be remembered that there is an also associated loss of control with the delegation of core and non-core activities to third parties.

Once the decision to outsource is taken, the next considerations are risk allocation, type of relationship and negotiation strategy.

With respect to the legal issues related to outsourcing and other technology agreements, Crombie highlighted in particular the need for clarity regarding intellectual property management, termination rights and the consequences of delay.

He noted that the Electronic Transactions Bill, introduced in October 2000 and currently awaiting whole house debate in Parliament before becoming law, is facilitative; it does not impose any requirement on anyone. It applies "paper-based" rules, derived from principles built up over time in the courts, to an electronic setting, outlining the principles for using electronic communications to meet legal requirements, eg, permitting the use of electronic signatures and providing for the electronic retention of documents. However, it would remain possible to require paper-based records.

A lot of legislation, including health legislation, has been specifically excluded from the Bill. For example, suspending registrations of medical personnel, ordering medical examinations and issuing prescriptions must still take place in writing.

The principles of the Health Information Privacy Code 1994, which follow the general principles of the Privacy Act 1993, apply whether business is completed electronically or otherwise. Crombie highlighted the importance of ensuring that all privacy principles are upheld when operating in an electronic environment.

He went on to discuss commercial issues related to going online, with respect to both providing a web site or using other parties’ web sites. Important points related to dealing with patients online include the need for patient consent, suitable protection of the privacy of patient information and adequate back up.

He concluded that information technology (IT) has transformed, and will continue to transform, the health industry. In his view, the Electronic Transactions Bill will facilitate electronic commerce and may make some activities in medical practice easier. He highlighted the need to apply the same reasoning to electronic-based business as would be applied to work completed in a paper-based environment.
[View Graeme Crombie’s presentation Computers, Health and the Law]