The ability of a doctor to share potentially life-saving genetic information with a patient's genetic family without the patient's consent currently depends on whether the doctor works in the private sector or in the public sector at a Commonwealth or state and territory level, a situation described as "nonsensical" by an ethics and law expert in the Medical Journal of Australia.
Professor Margaret Otlowski, Dean of the Faculty of Law at the University of Tasmania, wrote that recent amendments to the Commonwealth Privacy Act 1998 have led to a single set of Australian Privacy Principles and now allowed doctors who work for Commonwealth agencies to disclose genetic information to a patient's genetic relatives "if the health practitioner reasonably believed that disclosure was necessary to lessen or prevent a serious threat to the life, health or safety of an individual who is a genetic relative".
However, she wrote, the amendments still did not apply to health practitioners working in state and territory public hospitals.
"It is nonsensical that the capacity for a health practitioner to disclose genetic information to genetic relatives without the patient's consent depends on whether they work in the private or public sector", Professor Otlowski wrote.
"Clearly, a more uniform approach should be the goal, consistent with the thrust of the Australian Law Reform Commission recommendations, but it requires a cooperative approach to be taken on this important issue." A legislative exception to a patient's right to privacy was introduced in 2006 as an amendment to the Privacy Act allowing for disclosure even if the patient did not consent, but only if the doctor felt there was a "serious threat to the life, health or safety" of a genetic relative.
However, under the enabling guidelines, the initial amendments were limited to doctors working in the private sector.
"[T]here was no equivalent provision applying to health practitioners working for Commonwealth government agencies", Professor Otlowski wrote.
"Further, as the Commonwealth does not have the power to regulate state and territory authorities, which include public hospitals, it was always clear that to achieve comprehensive national coverage, parallel state and territory legislation would also be required."
The 2014 amendments to the Privacy Act and the Australian Privacy Principles allowed for disclosure by Commonwealth-employed practitioners, but New South Wales is the only state or territory to have passed legislation specifically covering disclosure of genetic information by public sector health practitioners. "It is now incumbent on other states and territories to follow, by legislatively adopting the Commonwealth legislation and guidelines or enacting their own legislation and guidelines to allow for disclosure in appropriate circumstances", Professor Otlowski concluded.