Immigration department breaches the privacy rights of asylum seekers

Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children
Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children

An article in The Guardian today claims that the Department of Immigration has sought access to confidential medical records of asylum seekers for ‘political purposes.’

The article reports on a briefing document written by a senior clinician at International Health and Medical Services (which delivers health services at mainland and offshore detention centres), which appears to show that the IHMS has disclosed asylum seekers’ health records to the immigration department for reasons not related to the health and welfare of individuals in detention.

As the article points out, this practice potentially breaches the Commonwealth Privacy Act, which prohibits the disclosure of health information to third parties (without the consent of the individual concerned), unless the disclosure is directly related to treatment of the individual (or in certain permitted circumstances, such as preventing a threat to public health or safety).

Further, the disclosure breaches clinicians’ duty of confidence towards their patients, and may also violate professional guidelines and codes of practice, such as the Medical Board of Australia’s Good Medical Practice code of conduct for doctors. Under the code, good medical practice includes protecting patients’ privacy and confidentiality, and ‘appropriately sharing information about patients for their health care.’

Disclosure of asylum seekers’ health records may seem like a relatively minor issue considering the many documented abuses perpetrated against individuals in detention.   But, privacy is an important underpinning to personal autonomy, and the right to control information about one’s self is key to self-determination. The unauthorised disclosure of asylum seekers’ medical records represents a significant infringement of asylum seekers’ rights, and forms part of a broader trend towards dehumanising people in detention centres.

In part, the Privacy Act was enacted to give effect to Australia’s obligations under article 17 of the International Covenant on Civil and Political Rights, which states that ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation’ [sic]. The unauthorised disclosure of asylum seeker’s health records puts Australia at odds with its international human rights commitments, as well as breaching domestic privacy laws.

The disclosure of medical records for ‘political purposes’ (whatever that may mean) illustrates the Catch-22 situation faced by clinicians working in detention centres. Health professionals working in these centres must deal with the tension between their ethical and legal duties to patients, and pressure from government and private employers to act in ways that compromise the health and wellbeing of asylum seekers. This issue also raises serious questions about the immigration department’s approach to privacy and its management of highly personal, and potentially very sensitive, health information.