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 peers and refusing sales on the basis of that information. Clearly, the road to privacy hell is paved…

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

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.

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.

Author: Bruce Arnold – Lecturer in Law at University of Canberra
Article used with permission of Bruce Arnold