2009 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Minister for Health) Health Legislation Amendment Bill 2009 (No 2) A Bill for An Act to amend the Health Records (Privacy and Access) Act 1997 The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-795 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 1 Name of Act 2 This Act is the Health Legislation Amendment Act 2009 (No 2). 3 2 Commencement 4 This Act commences on a day fixed by the Minister by written 5 notice. 6 Note 1 The naming and commencement provisions automatically commence on 7 the notification day (see Legislation Act, s 75 (1)). 8 Note 2 A single day or time may be fixed, or different days or times may be 9 fixed, for the commencement of different provisions (see Legislation 10 Act, s 77 (1)). 11 Note 3 If a provision has not commenced within 6 months beginning on the 12 notification day, it automatically commences on the first day after that 13 period (see Legislation Act, s 79). 14 3 Legislation amended 15 This Act amends the Health Records (Privacy and Access) 16 Act 1997. 17 4 The privacy principles 18 Schedule 1, principles 11 and 12 19 substitute 20 Principle 11: Relocation and closure of health service practice 21 1 This principle applies if a health service practice is or is proposed to 22 be-- 23 (a) relocated; or 24 (b) permanently closed. page 2 Health Legislation Amendment Bill 2009 (No 2) Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 2 Not later than 30 days before the proposed relocation or closure, the 2 provider must-- 3 (a) publish a notice (a transfer notice) of the relocation or closure 4 in a daily newspaper; and 5 (b) take other practicable steps to inform each consumer who has 6 attended the health service practice of the matters mentioned in 7 the transfer notice. 8 Note Daily newspaper means a daily newspaper circulating generally in the 9 ACT (see Legislation Act, dict, pt 1). 10 3 The transfer notice must state-- 11 (a) that the consumer may request (a transfer request) that a copy 12 or written summary of the consumer's health record be given 13 to the consumer or a health service provider nominated by the 14 consumer; and 15 (b) that the transfer request must be made not later than 16 14 days after the day the transfer notice (the transfer request 17 period) is published; and 18 (c) if a fee has been determined under section 34 for this 19 principle--that there is a fee that the consumer must pay before 20 the provider will give a copy or written summary of the record 21 to the consumer or health service provider nominated by the 22 consumer; and 23 (d) that if the consumer does not make a transfer request within the 24 transfer request period, a copy of the consumer's health record 25 will be given to a stated health service provider or record 26 keeper; and 27 (e) the stated health service provider's or record keeper's address 28 and contact details. Health Legislation Amendment Bill 2009 (No 2) page 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 4 As soon as practicable after publishing the transfer notice, the 2 provider must give a copy of the transfer notice, or written notice of 3 the information in the transfer notice, to the chief executive. 4 Note 1 If a form is approved under s 35 for this provision, the form must be 5 used. 6 Note 2 Chief executive means the chief executive of the administrative unit 7 responsible for this Act (see Legislation Act, s 163). Administrative 8 units are established under the administrative arrangements (see Public 9 Sector Management Act 1994, s 13). 10 Note 3 Notice may be given electronically in certain circumstances 11 (see Electronic Transactions Act 2001, s 8). 12 5 If a consumer has made a transfer request, the provider must give 13 the consumer or the consumer's nominated health service provider 14 the requested copy or written summary of the consumer's health 15 record as soon as practicable but not later than the later of-- 16 (a) if a fee is payable for this principle--7 days after the day the 17 fee is paid; and 18 (b) 30 days after the day the provider receives the transfer request. 19 6 If, however, the consumer is receiving or needs urgent health 20 services, the provider must give the consumer or the consumer's 21 nominated health service provider the requested copy or written 22 summary of the consumer's health record as soon as practicable but 23 not later than 7 days after the day the provider receives the transfer 24 request. 25 Note Urgent health services--see cl 11 and cl 12. page 4 Health Legislation Amendment Bill 2009 (No 2) Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 7 If a consumer does not make a transfer request within the transfer 2 request period, the provider must, within 30 days after the end of the 3 transfer request period, give a copy of the consumer's health records 4 to the health service provider or record keeper stated in the transfer 5 notice. 6 Note 1 If the original or copy of a consumer's health record is given to another 7 health service provider (the new provider) or other record keeper (the 8 new record keeper)-- 9 · the consumer may ask the new provider or new record keeper for 10 access to the consumer's health record 11 (see s 10 and s 12); and 12 · the new provider or new record keeper must give the consumer 13 access to the consumer's health records in accordance with the Act 14 (for example, see s 13 to s 13D). 15 Note 2 A fee may be payable by the consumer for certain types of access 16 (see s 10 (5) and s 13 (2) (c) (ii)). 17 8 If a record keeper holds health records following the relocation or 18 closure of a health service practice, the record keeper must promptly 19 notify the chief executive of any change to-- 20 (a) the record keeper's contact details; or 21 (b) the location of the stored health records. 22 9 The chief executive must promptly give a copy of a notice under 23 clause 4 or clause 8 to the health services commissioner. 24 10 If this principle applies because a sole provider in a health service 25 practice dies or becomes legally incompetent, a legal representative 26 or guardian of the provider must comply with the requirements of 27 this principle as soon as practicable. 28 11 It is sufficient to establish that a consumer is receiving or needs 29 urgent health services for prioritising the giving of records by a 30 provider (the record holder) if another health service provider 31 advises the record holder that the consumer is receiving or needs 32 urgent health services. Health Legislation Amendment Bill 2009 (No 2) page 5 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 12 However-- 2 (a) an advice under clause 11 need not be in writing; and 3 (b) the record keeper may be satisfied that a consumer is receiving 4 or needs urgent health services without an advice mentioned in 5 clause 11. 6 13 The requirement under clause 5, clause 6 or clause 7 to give a copy 7 of the consumer's health record is taken to be satisfied if the original 8 of the record is given. 9 14 To avoid doubt, clause 13 does not require a provider to give the 10 original of the consumer's health record. 11 15 In this principle: 12 health record means a health record held by, or on behalf of, the 13 provider. 14 health service practice means the business or premises where a 15 health service provider provides health services. 16 provider means-- 17 (a) the provider of a health service practice; or 18 (b) if the provider is legally incompetent--the guardian of the 19 provider; or 20 (c) if the provider is dead--the legal representative of the 21 provider. 22 relocate, a practice, includes-- 23 (a) relocate to another premises or location; or 24 (b) stop, temporarily or otherwise, the provision of health services 25 at a particular location. 26 transfer notice--see clause 2 (a). 27 transfer request--see clause 3 (a). page 6 Health Legislation Amendment Bill 2009 (No 2) Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 transfer request period--see clause 3 (b). 2 Principle 12.1: Consumer moves to another health service provider 3 1 If a consumer moves from 1 health service provider (the first 4 provider) to another health service provider (the second provider), 5 the consumer may ask the first provider to give the second provider 6 a copy or written summary of the consumer's health record. 7 2 If the first provider receives a request under clause 1 (a transfer 8 request), the first provider must-- 9 (a) if a fee has been determined under section 34 for this 10 principle--not later than 7 days after the day the first provider 11 receives the transfer request, give the consumer notice that the 12 consumer must pay a stated fee before the first provider will 13 give the second provider the requested copy or written 14 summary of the consumer's health record; or 15 (b) not later than 30 days after the day the first provider receives 16 the transfer request, give the second provider the requested 17 copy or written summary of the consumer's health record. 18 3 If the consumer pays the fee stated in a notice under clause 2 (a), the 19 first provider must give the second provider the requested copy or 20 written summary of the consumer's health record not later than the 21 later of-- 22 (a) 7 days after the day the fee is paid; and 23 (b) 30 days after the day the first provider receives the transfer 24 request. 25 4 If the consumer is receiving or needs urgent health services, the first 26 provider must give the second provider the requested copy or 27 written summary of the consumer's health record as soon as 28 practicable but not later than 7 days after the day the first provider 29 receives the transfer request. Health Legislation Amendment Bill 2009 (No 2) page 7 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 5 It is sufficient to establish that a consumer is receiving or needs 2 urgent health services for prioritising the giving of records by the 3 first provider (the record holder) if another health service provider 4 advises the record holder that the consumer is receiving or needs 5 urgent health services. 6 6 However-- 7 (a) an advice under clause 5 need not be in writing; and 8 (b) the record keeper may be satisfied that a consumer is receiving 9 or needs urgent health services without an advice mentioned in 10 clause 5. 11 7 The requirement under clause 2 (b), clause 3 or clause 4 to give a 12 copy of the consumer's health record to the second provider is taken 13 to be satisfied if the original of the record is given. 14 8 To avoid doubt, clause 7 does not require the first provider to give 15 the original of the consumer's health record to the second provider. 16 9 In this principle: 17 first provider-- 18 (a) see clause 1; and 19 (b) includes-- 20 (i) if the first provider becomes legally incompetent--a 21 guardian of the provider; or 22 (ii) if the first provider dies--a legal representative of the 23 provider. 24 health record means a health record held by, or on behalf of, the 25 first provider. 26 second provider--see clause 1. 27 transfer request--see clause 2. page 8 Health Legislation Amendment Bill 2009 (No 2) Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Principle 12.2: Health service provider moves to another health 2 service practice 3 1 If a health service provider (the provider) moves from 1 health 4 service practice (the first practice) to another health service practice 5 and a consumer continues to see the provider, the consumer may ask 6 the first practice to give the provider a copy or written summary of 7 the consumer's health record. 8 2 If the first practice receives a request under clause 1 (a transfer 9 request), the first practice must-- 10 (a) if a fee has been determined under section 34 for this 11 principle--not later than 7 days after the day the first practice 12 receives the transfer request, give the consumer notice that the 13 consumer must pay a stated fee before the first practice will 14 give the provider the requested copy or written summary of the 15 consumer's health record; or 16 (b) not later than 30 days after the day the first practice receives 17 the transfer request, give the provider the requested copy or 18 written summary of the consumer's health record. 19 3 If the consumer pays the fee stated in a notice under clause 2 (a), the 20 first practice must give the provider the requested copy or written 21 summary of the record not later than the later of-- 22 (a) 7 days after the day the fee is paid; and 23 (b) 30 days after the day the first practice receives the transfer 24 request. 25 4 If the consumer is receiving or needs urgent health services, the first 26 practice must give the provider the requested copy or written 27 summary of the consumer's health record as soon as practicable but 28 not later than 7 days after the day the first practice receives the 29 transfer request. Health Legislation Amendment Bill 2009 (No 2) page 9 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 5 It is sufficient to establish that a consumer is receiving or needs 2 urgent health services for prioritising the giving of records by the 3 first practice (the record holder) if another health service provider 4 advises the first practice that the consumer is receiving or needs 5 urgent health services. 6 6 However-- 7 (a) an advice under clause 5 need not be in writing; and 8 (b) the record keeper may be satisfied that a consumer is receiving 9 or needs urgent health services without an advice mentioned in 10 clause 5. 11 7 The requirement under clause 2 (b), clause 3 or clause 4 to give a 12 copy of the consumer's health record to the provider is taken to be 13 satisfied if the original of the record is given. 14 8 To avoid doubt, clause 7 does not require the first practice to give 15 the original of the consumer's health record to the provider. 16 9 In this principle: 17 first practice--see clause 1. 18 health record means a health record held by, or on behalf of, the 19 first provider. 20 health service practice means the business or premises where a 21 health service provider provides health services. 22 provider--see clause 1. 23 transfer request--see clause 2. 24 5 Dictionary, note 2 25 insert 26 · chief executive (see s 163) 27 · health services commissioner page 10 Health Legislation Amendment Bill 2009 (No 2) Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2009. 2 Notification Notified under the Legislation Act on 2009. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2009 Health Legislation Amendment Bill 2009 (No 2) page 11 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au