The Australian Medical Association has for a long time been calling for an overhaul of Australia's privacy laws and the establishment of a unified national system governing the privacy of information in the health sector.

At the moment, health privacy is governed by a slew of different laws and policies at state and federal level. Information is subject to different laws depending on whether it is held in the private sector or the public sector.

Some states have special legislation dealing with health information, some have legislation that treats all personal information the same way, and others have no health privacy legislation at all.

Every day, the AMA receives queries from doctors and patients asking for information about the rules concerning their particular records. There is a great deal of uncertainty and inconsistency in the area, and the AMA welcomes this review of the Federal Privacy Act in the hope that it will bring some much needed uniformity.

The AMA believes that effective privacy laws should enhance and not hinder best clinical practice and optimal patient care. A separate privacy regime is required for health information that recognises the unique properties of that information and the particular concerns of doctors and patients to balance the need for confidentiality and the need for flexibility in best managing a patient's health.

Mental health, for example, is an area where the existing legislation is clearly inadequate. While the AMA recognises and supports the general principle that a person should be allowed access to their medical information, there are obvious exceptions to this, such as where a psychiatric patient does not have insight into their own condition.

The Act does allow for information to be withheld in some circumstances, but only where it would be a ''serious and imminent'' threat to a person's life or health.

In our experience this is interpreted quite strictly, with the result that even if the information would set back the patient's recovery, or damage the relationship between the patient and the doctor -- or the patient and their family -- that is not a sufficient ground for withholding it.

On the other side of the coin, very little protection is provided to children or other persons lacking legal capacity. Their guardians are able to access their information without having to demonstrate a reason, and may even be able to have it altered. The law also doesn't adequately address the situation where there may be some third-party information on the record, such as information provided by or about the patient's partner.

The current law also fails to recognise the reality of the doctor-patient relationship, and puts quite onerous requirements on doctors in collecting general information from patients about their medical histories and sharing that information with other members of the patient's health care team.

We believe that most people go to see their doctor because they want to look after their health generally. We also think that treatment is best approached holistically, by looking at a patient's total health.

While the Privacy Commissioner has indicated that sometimes a patient's consent may be implied, the AMA would like to see more clarity and certainty around this for both doctors and patients.

The AMA would also like to see privacy legislation that adequately addresses the use, storage, transfer and so forth of electronic health records. The law has not kept pace with technology in this area, and there are particular characteristics of electronic information that need to be addressed.

Various jurisdictions are conducting trials involving centralised databases of health information, where we believe the patient's privacy is not adequately protected.

Sometimes these trials are conducted on an ''opt-out'' basis, where the patient is considered to have consented to the use of their health record unless they specifically notify the authority that they object.

In other cases, the AMA has said to government that we consider the use of patient information for certain programs would be in breach of the Privacy Act, and bureaucrats have told us that they will simply slip a provision into their portfolio legislation to allow the use of the information.

The National Health Act, for example, contains a provision that says the secretary can release personal information where she considers it to be ''in the public interest'', and that provision overrides the Privacy Act.

So the AMA would also like to see health privacy laws that cannot be displaced by administrative provisions in other legislations. The only way the Privacy Act should be able to be over-ridden should be by an amendment to the Act itself.

It has been some time now since a draft National Health Privacy Code was developed for consideration by state and federal health ministers. The AMA considers such a code essential, but only if it addresses all of the issues discussed in this article, and only if it has legislative backing.

Otherwise, the code itself will be subservient to the raft of varying state and federal laws that currently exist, and will resolve nothing.

Dr Mukesh Haikerwal is president of the Australian Medical Association.