The effect of claim farming on consent and ethics22 October 2018
The soon-to-be implemented My Health Record system has brought about increased discussion on health records and the maintenance of patient privacy. These topics have been further thrust into the spotlight following a recent Australian Broadcasting Corporation (ABC) investigation into the sharing of information between Australian company, HealthEngine, and certain plaintiff law firms. The investigation has prompted rebuke from lawyers and doctors alike, with claims that the methods implemented invade patient privacy and breach legal ethical standards.
West Australian start-up company, HealthEngine allows users to book appointments with doctors, dentists, specialists and other healthcare professionals online or through its app. It requires users to enter personal information, as well as details of their symptoms and medical conditions, when booking an appointment with a healthcare provider. This includes whether they have been involved in a traffic accident or have been injured in the workplace.
In June 2018, an ABC investigation uncovered that HealthEngine has been providing patient details to law firms to facilitate a practice commonly referred to as “claim farming” or “ambulance chasing”. The scandal has been linked to Sydney-based law firm Bannister Law, which was receiving patient details from HealthEngine and allegedly providing the information to Slater and Gordon.
The investigation revealed that between March and August in 2017, Slater and Gordon received more than 200 referrals from Bannister Legal, resulting in 40 new clients and an estimated $500,000 in legal fees. In an Australian Financial Review article, a spokesperson for Slater and Gordon denied any involvement in “claim farming” and that they were confident that they met the “highest ethical standards”.
How is the data collected?
HealthEngine claims that information is only shared with the consent of the user. However, when the patient makes a booking through the platform, they are not provided with an opportunity to opt-out of the collection notice.
A statement from HealthEngine’s CEO, Dr Marcus Tan, acknowledges that HealthEngine has “referral arrangements” with a range of bodies. He said: “We do have referral arrangements in place with a range of industry partners including government, not for profit, medical research, private health insurance and other health service providers on a strictly opt-in basis. These referrals do not occur without the express consent of the user.”
Failing to give users an opportunity to opt-out is a prevalent and contentious issue and one that has reportedly left users feeling violated.
Broader impact on the integrity of the legal profession
The ethical values of HealthEngine and the relevant plaintiff law firms have been called into question as patients may be persuaded into pursuing claims that lack merit. This seemingly contravenes s 18 of the Civil Procedure Act 2010, which outlines an overarching obligation not to make a claim without proper basis. This method of cold-calling invites unrealistic expectations for prospective plaintiffs and encourages drawn-out litigation.
Above all, the practice is an intrusion of patient privacy. Justin Warren, a board member of Electric Frontiers Australia (a non-profit national organisation that promotes and protects digital rights [civil liberties] in Australia), has been critical of the organisations involved, stating that “people have made it clear time and time again that information about their health is extremely personal and private and they expect it to be kept secure, not shared with all and sundry...I cannot understand how any doctor would allow their patients’ trust to be abused in this way”.
The ABC’s investigation has already garnered significant attention in the legal and medical fields, further adding robust public discourse regarding the privacy of health information. In response, Health Minister Greg Hunt has commenced an investigation into HealthEngine, while the company has announced it will be implementing substantial changes to its business model to regain public trust. The story has also shone a light on the controversial marketing practices employed by plaintiff law firms and may prove to be a catalyst for reform in this regard.