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For your own good? Privacy law and enthusiastic pharmacists

Earlier this week the ABC reported that a handful of pharmacists in Tasmania had engaged in community policing. They’re tracking the purchase of codeine-based painkillers, sharing information with their…

Any restriction on buying painkillers needs to be consistent with national privacy protection. Nils Geylen

Earlier this week the ABC reported that a handful of pharmacists in Tasmania had engaged in community policing. They’re tracking the purchase of codeine-based painkillers, sharing information with their peers and refusing sales on the basis of that information.

Clearly, the road to privacy hell is paved with good intentions; these pharmacists are attempting to build a freeway that bypasses statutory protection. Their non-government initiative is supposedly justified by the need to protect people from codeine abuse.

The action is a private version of Project STOP, a government program that aims to restrict access to pseudoephedrine, which is a precursor of methamphetamine, aka speed or ice. Project STOP provides a real-time database for recording all requests for products containing pseudoephedrine.

The program provides decision support to pharmacists – “should I or shouldn’t I supply to this person?” – while also supplying real-time data to law enforcement agencies and health regulators. This data is provided regardless of where in the country people are buying pseudoephedrine-based products.

All such activity for the nation can be accessed from the one screen. This means people in every pharmacy across Australia can see when you try to buy pseudoephedrine-based cold tablets and stop the sale.

The tracking being undertaken by the Tasmanian pharmacists in the ABC report involves recording the license details of customers to stop codeine road trips. One of the pharmacists interviewed says,

Project Stop hasn’t been approved for codeine sales, but we’re doing it because we think it’s the lesser evil to perhaps infringe on people’s personal privacy, to infringe on these privacy laws rather than allow a handful of people to do enormous damage to themselves.

The pharmacists' enthusiasm is laudable and it’s good to see them looking at more than the bottom line or sales of blue woolly bears, herbal supplements, jellybeans, cotton buds and other necessities. But it’s disturbing that personal notions of public health are able to override privacy law and consumer autonomy.

Building a bypass around law that individual pharmacists apparently regard as inappropriate is worrying because it erodes the trust we need to have in the gatekeepers of public health, such as pharmacists. They are the people, after all, who have access to information that is deeply private (you can tell a lot about a person on the basis of a prescription) and whose advice we need about the use of medications.

But this trust is eroded if consumers find the local chemist confuses the provision of prescriptions with policing and is actively tracking what consumers buy, with complete disregard for the law.

Elliott Brown

Unwise use of non-prescription drugs that can be quite legally purchased by consumers may well be a public health concern. So is misuse of alcohol. So are excessive fast food and jellybean consumption, given episodic moral panics about obesity.

But we don’t expect bottleshops and pubs to track our purchases. We don’t need to provide ID when we indulge in a hamburger and fries, pick up a pizza or buy an extra block of chocolate. We don’t expect a retailer to track what we are buying and refuse a sale on the basis of an idiosyncratic decision by private sector pizza police or chocolate cops.

Do we want and need extrajudicial codeine police? Or supermarkets tracking sales of Australia’s favourite drug – tobacco – and refusing sale if during the past month you have purchased more than what is considered appropriate?

Project STOP has been justified as inconveniencing outlaw motorcycle gangs and other entities that are engaged in the production and distribution of illegal drugs. Private restrictions on codeine are different. We need to be wary about private enthusiasm that disregards law.

If there’s a need to track and restrict the sale of ordinary painkillers, that need should be addressed in a consistent and transparent way that has a statutory basis. Restrictions certainly shouldn’t break the law. A disregard of the privacy protection that is the right of all Australians shouldn’t be justified on the basis that someone has a pharmacy degree, lives in a particular location and is well meaning.

The law applies equally to Philip Morris, the Pharmacy Guild, Telstra and the Commonwealth Bank. If pharmacists can disregard the law, why can’t police, and teachers and childcare workers and a plethora of other functionaries?

The Pharmacy Guild has indicated that it would support proposals to extend Project STOP to track codeine sales. The Guild acknowledges that such a move would require legislative changes. If we are going to restrict sales of legal painkillers we should do so nationally and we should ensure that restriction is consistent with national privacy protection – and that this protection isn’t disregarded by well-meaning enthusiasts.

Join the conversation

16 Comments sorted by

  1. Michael Macdonald

    Chemist

    "We don’t need to provide ID when we indulge in a hamburger and fries, pick up a pizza or buy an extra block of chocolate. We don’t expect a retailer to track what we are buying and refuse a sale on the basis of an idiosyncratic decision by private sector pizza police or chocolate cops."

    Pharmaceuticals are supposedly not 'ordinary items of commerce', comparing them to these items seems odd.

    What does the law say about duty of care in these situations? Tobacconists, cafes, pizza shops, chocolate chops, bottle shops and other retailers don't have a duty of care to the customer do they?

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    1. Reema Rattan

      Editor at The Conversation

      In reply to Michael Macdonald

      Good points Michael. But there is the law to consider.

      Where does the duty of care lie in sales of things like weight-loss pills and supplements that are so readily available in the vat majority of pharmacies?

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    2. Michael Macdonald

      Chemist

      In reply to Reema Rattan

      Those sham products are available in many places (not justifying, just pointing it out), and are ordinary items of commerce. Scheduled medicines such as codeine, pseudoephedrine et al are so scheduled most commonly due to safety concerns and misuse/abuse potential.

      I agree with legality side of the article FWIW, I don't agree with the inconsistencies with the comparisons.

      I was also genuinely interested in the duty of care side of things, what happens with injury resulting from patient overuse? Are pharmacists liable if the customer lied to obtain supply?

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    3. Chris Aitchison

      logged in via Twitter

      In reply to Reema Rattan

      I'd be really concerned if this was happening in nearly any other scenario, but in this exact case I think it is ok.

      These drugs are not allowed to be sold without the advice of a pharmacist, by virtue of being a Schedule 2 or 3 drug, and the pharmacist is doing exactly what they should be doing - acting in the best interest of the patients health. Because they actually do have the extra information (regardless of its purpose), wouldn't it be unethical to ignore it and risk the patients health…

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    4. Reema Rattan

      Editor at The Conversation

      In reply to Michael Macdonald

      I don't think pharmacies are liable, Michael.

      Sham products may be available elsewhere but their presence in pharmacies gives them an aura of authenticity.

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    5. Chris Aitchison

      logged in via Twitter

      In reply to Reema Rattan

      I agree Reema, I hate the fact that pharmacies stock homeopathic products for example.

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    6. Sue Ieraci

      Public hospital clinician

      In reply to Michael Macdonald

      Michael - would you draw the line at any "ordinary items of commerce"? Cigarettes, Say?

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    7. Stephen McAuliffe

      Pharmacist

      In reply to Reema Rattan

      From the Pharmacists' Professional Practice standard:

      "6. Obtains consent from the consumer for the
      delivery of specific pharmacy services and to
      share related information with their other health
      care providers"

      The consumer must hand over their driver's licence before Project Stop can be used to breach privacy. Is this implied consent? Like handing over a prescription?

      "7. Documents any situations where, for the
      consumer’s wellbeing, a breach of their right to
      privacy and confidentiality occurs"

      Project Stop certainly facilitates this.

      Using my telephone to call other pharmacists and recording in my dispensing software infringes the same laws but fulfills the same standards. Codeine addiction is one of a number of issues pharmacists face that can be helped by using available real-time reporting technology.

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  2. Sue Ieraci

    Public hospital clinician

    When I worked in Canada more than twenty years ago, narcotic prescriptions were tracked by a government authority, which identified both prescriber and recipient.

    I was happy to be audited, and I was not aware of a public outcry about privacy.

    Pharmacists are health care practitioners, and should have ethics and professional codes of conduct beyond retailers. This means they can legitimately be part of an audit process of prescribers, but should also be audited themselves.

    Is retail pharmacy really so poorly paid as to require the sale of Magic Water?

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  3. Mia Masters

    pensioner

    I am sure many involved in forced adoptions, involuntary ECT treatments, removal of children (stolen generation) - just to name few - were all relying on ideologies similar or identical to 'duty of care' and defending their actions by claiming the 'best interest' of all involved. It is disturbing when well-meaning (and forceful) individuals and organizations have the power to define what is in the best interest of the individual, and this inevitably involves erosion of personal autonomy. It is exactly…

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  4. John Harvey

    Pharmacist

    To quote you Bruce
    "Unwise use of non-prescription drugs that can be quite legally purchased by consumers may well be a public health concern. So is misuse of alcohol. So are excessive fast food and jellybean consumption, given episodic moral panics about obesity." and given the tone of the article you seem to unaware that the items concerned are Scheduled. That is they are BY LAW restricted from sale and moreover any Schedule 3 items can ONLY be sold by a pharmacist once he/she has satisfied themselves that its use is appropriate. Not to do this is illegal, which complicates the argument somewhat.

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  5. Richard Hockey

    logged in via Facebook

    "But we don’t expect bottleshops and pubs to track our purchases."

    They do this in the NT every time you purchase alcohol.
    R

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  6. Jarrod McMaugh

    logged in via LinkedIn

    1) I don't think people realise how addictive codeine is, and why monitoring of it's sale and use can prevent death.

    2) I don't think people realise that codeine can be extracted from pain killers and converted to morphine and heroin, in a similar fashion to pseudoephedrine being converted to amphetamines.

    3) I don't think people realise that there is a specific allowance within the privacy act for health professionals to record or communicate a person's details (with regards to their use of…

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  7. John Harvey

    logged in via LinkedIn

    Thank you Jarrod - I couldn't agree more!

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