How would the concept of a ‘health information fiduciary’ affect protection of individuals’ health data in Australia?

Minna Paltiel1

1Melbourne Law School, University Of Melbourne, , Australia

Privacy protection of health information in Australia is primarily regulated by statute.  Without detracting from the significant protections provided by statute, development in health technologies, big data capabilities, and the changing digital environment highlight the limitations of statutory protection. Legal protections must be flexible and dynamic to keep up with these changes.  Australian privacy legislation adopts a ‘principles based’ approach to allow flexibility and adaptability.  However, a shortcoming of this approach is the lack of certainty and clarity when dealing with complex new scenarios.  The applicability of other legal doctrines to privacy protection, such as a common law tort of privacy or extension of the equitable doctrine of confidence, is still under debate.

The idea of an ‘information fiduciary’ was proposed by Jack Balkin  in addressing obligations of digital companies (such as FaceBook and Google) and other corporations when collecting and using personal information in the course of their business.  There has been limited discussion of ‘information fiduciaries’ in the context of health information, and little consideration of how the model works within Australian fiduciary law.

In this presentation, I will look at the elements establishing a fiduciary relationship in Australian law and examine how these may apply to clinicians, researchers and medical data custodians dealing with people’s health data.  I will then refer to current issues as well as earlier case law to consider when, under fiduciary doctrine, obligations regarding health data might arise and what this would mean for health data protection.


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