25 June 2018

Transparency in Health Insurance

The Australian Competition and Consumer Commission's latest report on competition and consumer issues in the private health insurance industry (covering 1 July 2016 to 30 June 2017) highlights the need to improve transparency in that sector.

The report was released amid controversy over HealthEngine's provision to law firms of referrals, ie alerting what one colleague dourly characterises as 'ambulance chasers' of potential litigation opportunities on the basis of patients seeking medical consultations, and controversy about the marketing practice of leading firms.

The ACCC states
This report analyses key competition and consumer developments and trends in the private health insurance industry during the reporting period that have affected consumers’ health cover and out-of-pocket expenses.
A major focus in recent reports has been on whether health insurers and other participants’ practices may be affecting the ability of consumers to make informed decisions when purchasing and comparing private health insurance, or accessing particular products or services under their existing policies.
Consumers remain concerned about the affordability of private health insurance
The affordability of private health insurance continues to be an area of significant consumer concern. A consumer survey conducted in 2016–17 found that the affordability of private health insurance is the second biggest cost of living concern for Australian households, after electricity prices.
Premium increases have been greater than inflation and wage growth in recent years. In response to higher prices, consumers are switching to more affordable policies with greater exclusions and restrictions. In response to higher prices, some consumers appear to be exiting the private health insurance market. There was a small reduction in the proportion of Australians holding private health insurance during 2016–17.
Consumer complaints continue to rise
In 2016–17, complaints about private health insurance to the Private Health Insurance Ombudsman (PHIO) increased by 30 per cent, continuing a trend of increasing complaints which have risen for the fourth consecutive year.
The PHIO reported that 88 per cent of complaints in 2016–17 were about health insurers. The benefits paid by insurers to consumers continued to receive the highest level of complaints— over 30 per cent of total complaints—the main issue of concern being hospital policies with unexpected exclusions and restrictions.
The ACCC continues to pursue enforcement activity in the health sector
Private health insurers and other health industry participants have been the subject of a number of recent ACCC enforcement matters. These include ACCC actions and investigations in relation to NIB, Australian Unity, and Ramsay Health Care Australia. The ACCC has also granted authorisation to health insurer HCF and participating dentists to agree on a maximum price for some dental services, and is awaiting the outcome of an appeal against Medibank. ...
The observations in this report are made in the context of ongoing government consideration of a series of reforms to the sector, with the aim of making private health insurance simpler and more affordable. Many of the consumer issues identified by the ACCC, including in previous private health insurance reports, are under active consideration. The ACCC welcomes the reforms announced by the Australian Government in October 2017 to the private health insurance industry and recommends that competition and consumer law principles be considered as part of the implementation of these reforms.
The ACCC has previously identified that there are continuing challenges in how information is provided to consumers of private health insurance. The ACCC has found that the existing standard information statement—a broad summary of key policy features all health insurers are required to provide to consumers—does not provide sufficient information for consumers to understand the key benefits and limitations of their policies.
The Australian Government has announced that the standard information statement will be replaced with a new minimum data set. The ACCC recognises this significant reform and considers it to be important that the new minimum data set is effective in informing consumers about their private health insurance policies and of changes to the benefits available under those policies. The ACCC considers that the new minimum data set should:
  • provide consumers with more reliable and transparent information in relation to the extent of each policy’s coverage 
  • provide consumers with sufficient information to make informed choices when comparing and selecting policies 
  • enable consumers to understand the extent of their financial exposure to additional health costs 
  • include clear and prominent disclosures with respect to applicable out-of-pocket costs in hospital for all items listed.
The ACCC also considers that private health insurers are capable of providing consumers with significantly more detail on their gap arrangements. The new minimum data set should include a clear description of the gap arrangements for each insurer. The proper disclosure of an insurer’s gap arrangements is fundamental to providing consumers with an informed choice when selecting a policy, as gap arrangements may be a key differentiating factor when comparing hospital insurance policies.
The ACCC will closely monitor developments relating to these and other policy processes and consider the competition and consumer aspects of any reforms.
One thought is that HealthEngine must improve the transparency of its information provision to ensure meaningful consent. Inadequate self-regulation justifies state intervention. Further, health practitioners should strongly dissociate themselves from inadequate disclosure of such sharing.

FTAs and EU Data Protection

Trade and privacy: complicated bedfellows? How to achieve data protection-proof free trade agreements (Institute for Information Law, 2018) by Kristina Irion, Svetlana Yakovleva, and Marija Bartl for BEUC, CDD, TACD and EDRi assesses
how EU standards on privacy and data protection are safeguarded from liberalisation by existing free trade agreements (the General Agreement of Trade in Services (GATS) and the Comprehensive Economic and Trade Agreement (CETA)) and those that are currently under negotiation (the Trans-atlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA)).
The report
was jointly commissioned by the European Consumer Organisation (BEUC), the Center for Digital Democracy (CDD), the Transatlantic Consumer Dialogue (TACD) and European Digital Rights (EDRi), and executed by the Institute for Information Law (IViR) at the University of Amsterdam. Based on the premise that the EU does not negotiate its privacy and data protection standards, the study clarifies safeguards and risks in respectively the EU legal order and international trade law. 
In the context of the highly-charged discourse surrounding the new generation free trade agreements under negotiation, this study applies legal methods in order to derive nuanced conclusions about the preservation of the EU’s right to regulate privacy and the protection of personal data. The EU legal order itself carries robust safeguards that protect EU privacy and data protection standards from (involuntary) liberalisation via the international trade agreements to which the EU is party. Not only are the fundamental rights to privacy and the protection of personal data well entrenched in EU primary law, but the principle of “autonomy of the EU legal order” and the lack of “direct effect” in conjunction with international trade law moreover preclude EU law from being automatically changed. International trade agreements to which the EU is or will become a party should be consistent with all aspects of EU legislation on data protection, which vests, by international standards, the highest level of protection. Even when it cannot overturn EU legislation, international trade law should not become a venue for challenging the EU approach to the protection of personal data. The EU’s global policy model and its legitimacy vis-à-vis its trade partners must not be undermined. The contemporary ubiquity of the processing of personal data in cross-border trade in services renders data protection measures especially susceptible to being probed for their compliance with the EU’s commitments in international trade agreements. The potential for trade disputes is not just an issue of the EU entering into further commitments on data flows, but a current risk with existing commitments in core disciplines in international trade agreements. The EU’s right to regulate, as recognised in international trade agreements, is subject to certain trade-conforming limitations and conditions. Under the GATS, for example, a party may adopt measures that are not inconsistent with the obligations and commitments assumed under this agreement. In the case that measures are found to be GATS-inconsistent, the general exceptions are the central bulwark for defending a party’s right to regulate, and the only context within which regulatory objectives and concerns can be deliberated. As a concrete example, the EU rules on transfers of personal data to third countries (Chapter IV of the Data Protection Directive), which aim to protect the remainder of EU data protection law from circumvention, have been exposed to a finding of GATS inconsistency. This means that the requirements of the general exceptions must be met in order to defend this EU measure. Entering into additional commitments on free data flows without a prudential carve-out for a party’s privacy and data protection laws would only raise the bar for justification, and compound pressure on the general exceptions. 
The GATS carries an explicit exception on privacy that is subject to a series of tests, leaving a certain margin for interpretation that cannot be fully anticipated from a solely EU-centric perspective. There is an entire spectrum of opinions as to whether or not some measures of EU data protection law would meet the general exceptions. In addition, EU policy and practice could fall short of the required level of consistency, for example in how the Commission administers adequacy decisions. Not only is there a need to update trade rules for the digital economy and cross-border data flows but, from an EU perspective, it is also necessary to upgrade the exception for privacy and data protection. Entrusting the EU’s right to regulate in new generation free trade agreements to the general exceptions, which are modelled after the GATS, would perpetuate a residual legal risk. Note in this respect that EU negotiators injected an additional safeguard for EU rules on the transfer of personal data to third countries in CETA’s Financial Services Chapter. 
This study underscores the formula of the European Parliament that new free trade agreements should contain “a comprehensive, unambiguous, horizontal, self-standing and legally binding provision based on GATS Article XIV which fully exempts the existing and future EU legal framework for the protection of personal data from the scope of this agreement, without any conditions that it must be consistent with other parts of the [agreement].” As long as this is not granted, the EU should not enter into additional commitments concerning free data flows in new and enhanced disciplines that lack any reference to the party’s privacy and data protection laws. In relation to new provisions that each party shall adopt or maintain a privacy and data protection legal framework, they should not be linked to any qualitative conditions (e.g. “adequate”, “non-discriminary”), nor to principles and guidelines of international bodies if these would introduce a ceiling for the acceptable level of protection. The table below [not copied in this blogpost] lists all of the safeguards and risks identified in the study. The recommendations that follow are addressed to EU decision makers and trade negotiators respectively, and list practical steps for how to strengthen and modify existing safeguards on privacy and data protection in order to make them fit for purpose in next generation free trade agreements.
The report offers the following recommendations for EU decision makers and trade negotiators as 'practical steps for how to strengthen and modify existing safeguards on privacy and data protection in order to make them fit for purpose in next generation free trade agreements'.
1. Underscoring the formula of the European Parliament that new free trade agreements better entrust their right to regulate in the field of privacy and data protection to ... a comprehensive, unambiguous, horizontal, self-standing and legally binding provision based on GATS Article XIV which fully exempts the existing and future EU legal framework for the protection of personal data from the scope of this agreement, without any conditions that it must be consistent with other parts of the [agreement]. 
2. Underscoring the European Parliament’s position that additional commitments concerning free data flows in new and enhanced disciplines should not be disconnected from any reference to the party’s privacy and data protection laws. CETA’s Chapter on Financial Services, for example, introduces an exception for regulating the cross-border transfer of personal data.
3. In relation to new positive obligations that each party shall adopt or maintain a privacy and data protection legal framework, these should not be linked to any qualitative conditions (e.g. “necessary”), nor to the principles and guidelines of international bodies if these would introduce a ceiling for the acceptable level of protection. 
4. Pursuant to the EU’s current practice, insert “no direct effect” clauses in free trade agreements and Council decisions approving these free trade agreements. In order to forego any finding of “direct effect”, avoid reference in EU legal acts to specific provisions in free trade agreements.
5. With a view to protecting EU privacy and data protection standards, it should be incumbent on the European Data Protection Supervisor (EDPS) to issue opinions on the texts of free trade agreements that the EU plans to adopt. 
6. When there is reason to believe that a new free trade agreement to which the EU will become a party negatively affects EU privacy and data protection standards, a Member State, the European Parliament, the Council or the Commission should initiate an advisory opinion procedure at the Court of Justice as provided for in Article 218(11) of the TFEU. 
7. Adequacy assessments and decisions by the Commission must not grant differential treatment to some third countries and not to others. The Commission should adopt procedural rules for the administration of the assessment of adequate levels of protection for third countries, thereby facilitating “consistency of enforcement”.
8. The Commission should publish impact assessments on preserving the EU’s right to regulate in areas of public interest and legal reasoning based on which it concludes, with sufficient certainty, that EU data protection law in all aspects satisfies the requirements of the general exceptions modelled after GATS Article XIV(c)(ii).
9. EU institutions should commission a study into enterprise customers’ preferences in the outsourcing and provisioning of computer services involving the personal data processing in order to build an evidence base supporting the fact that EU data protection law is a differentiating factor in the competitive relationship between services and service suppliers.

22 June 2018

Service and Health Practitioner Vetting

The ACAT decision in Medical Board of Australia v Dhaimat (Occupational Discipline) [2018] ACAT 64 reveals vetting failures and procedural questions regarding an ACT health practitioner convicted of sexual assault.

The ACAT report notes
On 5 January 2015 the Medical Board of Australia (Board) applied to the Tribunal for orders cancelling the registration as a medical practitioner of Dr Ammar Dhaimat. 
The Board alleged that on 14 September 2011, during a consultation, Dr Dhaimat engaged in inappropriate comments and inappropriate touching of a female patient, and inappropriately disclosed information about that patient to a third party. The Board further alleged that on 25 April 2013 during a consultation with another female patient, he placed his hands on her bottom, forcefully pulled her towards him and kissed her on the lips. In relation to the 25 April 2013 incident, Dr Dhaimat had been charged, and on 12 March 2014 he was convicted in the ACT Supreme Court on two counts of committing an act of indecency.
The report states
On 19 January 2015 when the matter first came before the Tribunal for directions Ms Tomlins for the Board advised the Tribunal that the Board had been unable to effect service upon Dr Dhaimat at his previous addresses in O’Malley and Isaacs. She proposed to issue subpoenas to ACT Corrective Services and ACT Health to identify a more current address. The matter was adjourned to allow this to occur. 
When the matter came back before the Tribunal on 18 March 2015, Ms Tomlins advised the Tribunal that although documents had been produced, there had been no success in finding a current address for Dr Dhaimat. The Board proposed to file an application to dispense with service. The matter was adjourned for the anticipated application to be filed and heard. 
The Board filed an interim or other orders application on 25 March seeking orders that the application for disciplinary action proceed without service of that application on the respondent. That application was heard on 15 May 2015. The Board sought that either the requirement to serve Dr Dhaimat with the application be dispensed with, or that substituted service orders be made allowing for service to be effected by post to the most recent residential and practice addresses of Dr Dhaimat. 
The Board relied upon affidavits of Ms Tomlins which detailed the extensive efforts undertaken to locate Dr Dhaimat in order to effect service of the application for disciplinary action upon him:
(a) Personal service had been attempted at both the O’Malley and Isaacs addresses, ineffectively. The process server advised that Dr Dhaimat was not known at those addresses. 
(b) Attempts to serve by post at the Isaacs address, resulted in mail being returned to sender. 
(c) An attempt to serve by post to Dr Dhaimat’s last professional address resulted in the practice advising that it had no contact with Dr Dhaimat and could not provide the documents to him. 
(d) Contact was made with Dr Dhaimat’s lawyers for the criminal trial, they had no current instructions and referred to a more recent solicitor. Contact with that solicitor was also unsuccessful, he had no instructions and no current contact with Dr Dhaimat. 
(e) As foreshadowed, ACT Government entities were issued subpoenas, and further addresses in Hughes (from 2014) and Mawson were elicited, but these also proved unsuccessful when service was attempted. The process server advised Dr Dhaimat was not known at the Hughes address, and was no longer at the Mawson address with the current occupant believing he had left Australia in 2014. 
(f) Enquiries with the practice manager of Dr Dhaimat’s previous practice and with the Jordanian embassy were unsuccessful. (g) Searches of Facebook and the Whitepages were unproductive. 
(h) A subpoena to the Australian Customs and Border Protection Service produced records which indicated that Dr Dhaimat had not left Australia under his own name, in the past year. 
(i) An advertisement had been placed in the legal notices section of the Canberra Times on 28 March 2015 in the following terms: “Notice is given to DR AMMAR DHAIMAT, you should contact the ACT Government Solicitor on (02) 6205 2502 or actgso@act.gov.au by COB 8 April 2015, otherwise legal proceedings may be determined in your absence.” No telephone call or email was received in response to that advertisement.
The Board advised that in accordance with section 193 of the National Law Dr Dhaimat had been notified of the referral to the tribunal by letter dated 6 May 2014. That letter had been sent to the Isaacs address. The Board also advised that Dr Dhaimat had failed to comply with the requirement under section 131 of the National Law that he advise the Board of any change in the address to be used to correspond with the practitioner. 
I noted that on the tribunal file, the registry had received marked ‘return to sender’ earlier correspondence notifying Dr Dhaimat of the time and place of the previous directions hearings. That correspondence had been sent to both the Mawson and Hughes addresses. 
From this evidence I was satisfied that Dr Dhaimat was likely to be still in Australia, and that attempts to serve him by post with the application at the addresses suggested by the Board were not likely to bring the application to his attention, but on the contrary were likely to be completely ineffective.
ACAT concludes
After consideration of the material filed by the Board and its submissions, I was satisfied that the alleged behaviour had occurred. The behaviour in relation to each of the female patients was in my view, both individually and taken collectively, so far short of the standard of practice reasonably expected of a practitioner of Dr Dhaimat’s level of training and experience as to amount to professional misconduct . 
The material filed by the Board further indicated that Dr Dhaimat’s misbehaviour was not an isolated occurrence. Dr Dhaimat had trained in Jordan, and was in practice in the United Kingdom when on 29 September 2007 police were notified of an allegation that he had sexually assaulted a female patient. Dr Dhaimat was arrested that day, interviewed by the police and granted bail which he subsequently breached. At the time of the hearing before the Tribunal he was still wanted by UK police. The UK General Medical Council (GMC) in 2008 suspended his registration, and advised the Jordanian authorities of this action. 
It transpired that Dr Dhaimat had moved quickly to obtain a certificate of good standing from the GMC only weeks after his arrest and had relied upon this to obtain registration in Australia. When a further certificate of good standing was required in 2008, it seems that he submitted a fraudulent document to the Australian authorities. 
Police executing a search warrant at Dr Dhaimat’s residential premises in 2013 found evidence of fraudulently created documents, and numerous appointment cards containing the names and telephone numbers of women, including the details of one of the complainants in this matter. 
Against this background, I was satisfied that the continued practice of Dr Dhaimat posed such a risk to the public that the only appropriate orders to make were those cancelling Dr Dhaimat’s registration as a health practitioner.

Algorithms

'Against Algorithmic Decision-Making' by Guido Noto La Diega comments 
This paper deals with the reasons why algorithms cannot and should not replace human decision-makers. Some statutory remedies against algorithmic decisions are presented. 
In August 2013, Eric Loomis was sentenced to a six-year imprisonment for attempting to flee a traffic officer and operating a vehicle without its owner’s consent. This sentence is one that seems disproportionate to the alleged actions. What makes this decision even more illogical is that this sentence was decided on the basis of a COMPAS report. COMPAS is a proprietary algorithmic system which is used in law enforcement. This system claims to augment human intuition and predict an individual’s risk of recidivism and it suggested that Loomis had a high risk of violence, high risk of recidivism and a high pretrial risk. The judge at Loomis’ hearing agreed with the COMPAS report, stating that through the COMPAS assessment, Loomis was identified as an individual who was a high risk to the community and therefore a six-year sentence was ‘just’. Loomis’ lawyers tried to challenge this algorithmic decision but could not as the algorithm was covered by a trade secret and therefore the rationale of the decision was not accessible. In 2016, the Supreme Court of Wisconsin upheld the circuit court’s denial of the defendant’s motion for post-conviction relief requesting a new sentencing hearing. Loomis had unsuccessfully argued that the circuit court’s consideration of a COMPAS risk assessment at sentencing violated his right to due process. The Supreme Court held that, if used properly, a court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s right to due process. 
In Milan, Marica Ricutti, a 39-year-old single mother of two children, was dismissed from her job at Ikea after 17 years of working there. Once again, the consequence of another algorithmic decision. Ms Ricutti had to swap her working shifts around from time to time with her colleagues as she had to take her children to school and to the hospital as one of her children was disabled. Although her colleagues and employers agreed to her swapping shifts, Ikea’s algorithmic workload system did not take note of these changes as they were not ‘authorised’ or ‘programmed’ and had come up with an account of Ms Ricutti working less than seven days per month for a period of eight months. This led to Ms Ricutti getting dismissed. Ikea’s reliance on the algorithmic system had resulted in heavy criticism, among them being a statement from Marco Beretta, a representative from Filcams Cgil (the Italian retail workers’ union), who stated that modern innovations including algorithms have made it harder to accommodate workers’ individual circumstances. 
From these examples, it is evident that the replacement of human decision-makers with algorithms is problematic. An algorithm may be able to come up with more consistent decisions, but not necessarily more appropriate. In order to make appropriate decisions, several factors need to be taken into account – individual circumstances, personal characteristics, context and nature, among many other things. There is no doubt that an algorithm can make decisions based on statistical analysis, but this is not always sufficient. In most situations, there is a need for a holistic understanding of a number of factors including context and human intention – something that algorithms are not capable of. In the next part of this paper, some arguments against algorithmic decisions will be presented.

Health Right

'On the Human Right to Health: Statistical Lives, Contingent Persons, and Other Difficult Questions' by I. Glenn Cohen in Silja Voeneky and Gerald Neuman (eds) Human Rights, Democracy, and Legitimacy in a World of Disorder (Cambridge University Press, 2018) comments
 In ethics and political philosophy, it is not uncommon to distinguish the question of who is a moral agent (one who bears moral responsibility) from the question of who is a moral patient (one to whom moral obligations are owed). The two need not go together: one could be a moral patient but not have moral agency – infant children are a plausible example. 
In this draft chapter, I examine the allied notion of a human rights patient for the human right to health. 
I consider two particular questions. First, to what extent should a human right to health focus on identified lives, those whom we have identified as currently in need and who make claims on us, as opposed to statistical lives – the faceless masses who may also need our help just as much? This question sadly comes up all the time for ministries of health – whether to fund an expensive treatment for a sympathetic child who has come forward and demanded the treatment to save his or her life or to invest in programs that distribute less expensive, more quotidian benefits to hundreds of children in need. xxx In particular, I will dwell on how countries like Colombia that have made a right to health justiciable may have tilted spending towards identified lives in a way that is potentially troubling. This discussion will occupy Section I of this chapter. 
In Section II I will go into even more murky territory and discuss whether a human right to health ought to encompass as its moral patients only those who currently exist, those who certainly will exist but do not yet exist, those whose existence may be contingent on the decisions we make, all of the above, or only some of the above. 
To give some tangible examples: How should a health care allocator, trying to fulfill a human right to health, make trade-offs between expending resources to prevent a very bad disability (say blindness) in an individual who currently exists versus implementing a program that works on asymptomatic adults but prevents them from transmitting the same bad disability to the children they are about to conceive? This is a trade-off between currently existing lives and lives that are certain to exist but do not yet exist. What if the way that “prevention” is accomplished is by having those women delay getting pregnant (think of the Zika virus) or choosing a sperm donor rather than their romantic partner who is a carrier of the disease? This form of prevention does not prevent a disease for those who do not currently exist but will certainly exist, instead it prevents the disease by changing who comes into existence – a different sperm meets the egg and a different child is born. Call this the question of contingent persons. Does the human right to health treat contingent persons as its moral patients?

Religion

The Place of Religion in Human Rights Law: Distinguishing Freedom of Religion from the Right Against Religious Discrimination' by Tarunabh Khaitan and Jane Calderwood Norton argues 
while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. Key doctrinal implications follow for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent assessment of religious establishment. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.

21 June 2018

Fake Cures

The Queensland Government reports that Sun Beef Pty Ltd (trading as SunUltima) has been ordered by the Brisbane Magistrates Court to pay more than $11,000 for failing to substantiate claims regarding a cure for skin cancer.
 Sun Beef Pty Ltd, trading as SunUltima, operated by directors Colin Uebergang and Anthony Roger Asmus, failed to comply with a notice issued by the OFT [Office of Fair Trading] which was seeking to substantiate claims about its product curing skin cancer. 
Sun Beef was fined $10,000, plus professional costs of $1,500, in addition to $92 court costs. A conviction was recorded.
The court heard the OFT  received a complaint in 2017 regarding a SunUltima product in an advertisement. The product, a 5ml SunUltima Skin Cancer Cure, retailed for $560 and was marketed as a ‘natural herbal derived skin cancer cure’. SunUltima’s website also featured testimonials from three people who claimed the product had cured their cancers.   
The OFT commenced an investigation into SunUltima as it was concerned the trader was misleading vulnerable consumers, many of whom may be desperate for a cure, that the SunUltima product was a cure for skin cancer.
As the Queensland marketplace regulator, the OFT requested SunUltima provide information to substantiate the claims, identify the people who had provided testimonials and show the product was appropriately endorsed for the treatment of skin cancer. SunUltima refused to provide documents substantiating the claims made for the product. 
Fair Trading Executive Director Brian Bauer said the result served as a prompt to businesses to treat consumers fairly.
“Businesses must ensure they are aware of their Australian Consumer Law obligations and aren’t misrepresenting their products to consumers,” Mr Bauer said.
“A failure to follow these obligations will result in enforcement action by Fair Trading.
“It is particularly despicable when a business preys on desperate and vulnerable consumers. The OFT will investigate and bring matters like this before the courts.”