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The European Union General Data Protection Regulation (EU 2016/679) and the Australian My Health Record scheme - a comparative study of consent to data processing provisions

journal contribution
posted on 01.10.2018, 00:00 authored by Danuta MendelsonDanuta Mendelson
As a general rule, lawfulness of data processing under the European Union General Data Protection Regulation (EU 2016/679) (GDPR) is based on affirmative, unambiguous, voluntary, informed, and specific or "granular" consent to processing of their data, including health data, by individuals referred to as data subjects. The GDPR grants data subjects the legal right to specifically agree to (or refuse) having their data processed in any of the ways statutorily defined as "processing". Individuals also have the legal right to be fully informed about each and every intended use of their data by data processors and controllers, and the right to refuse such use. In Australia, once registered on the My Health Record (MHR) system, "healthcare recipients" as patients-cum-data subjects are called under the MHR scheme, have the right to remove documents from their MHR files and block some health care providers from accessing their data. However, this study demonstrates that the notion of "standing" consent that the MHR scheme appears to have created does not conform to any of the principles and rules governing data subjects' consent rights under GDPR.
Keywords - electronic health records - EU General Data Protection Regulation - consent - My Health Record scheme - patients - data subjects
If it is correctly used, consent is a tool giving the data subject control over the processing of his data. If incorrectly used, the data subject's control becomes illusory and consent constitutes an inappropriate basis for processing

History

Journal

Journal of Law and Medicine

Volume

26

Issue

Part 1

Pagination

23 - 38

Publisher

Thomson Reuters (Professional) Australia

Location

Pyrmont, N.S.W.

ISSN

1320-159X

Language

English

Publication classification

C Journal article; C1 Refereed article in a scholarly journal

Copyright notice

2018, Thomson Reuters (Professional) Asutralia