HEALTH RECORDS (PRIVACY AND ACCESS) ACT 1997 - NOTES

HEALTH RECORDS (PRIVACY AND ACCESS) ACT 1997 - NOTES

Dictionary

(see s 4)

Note 1     The Legislation Act

contains definitions relevant to this Act. For example: the Legislation Act

, dict, pt 1 defines the following terms:

              •     adult

              •     Commonwealth

              •     contravene

              •     director-general (see s 163)

              •     domestic partner (s 169)

              •     entity

              •     health services commissioner

              •     human rights commission

              •     individual.

"child"—

        (a)     means a person who is under 12 years old; and

        (b)     in relation to a person, includes an adopted child or stepchild of that person.

"collector" means a person who, in the course of their profession, employment or official duty, collects personal health information.

"commission" means the human rights commission.

"consent" includes implied consent.

"consumer" means an individual who uses, or has used, a health service, or in relation to whom a health record has been created, and includes—

        (a)     if the consumer is a child or young person—a person with parental responsibility for the consumer; and

        (b)     if the consumer is a legally incompetent person—a guardian of the consumer; and

        (c)     if the consumer has died and there is a legal representative of the deceased consumer—a legal representative of the deceased consumer; and

        (d)     if the consumer has died and there is no legal representative of the deceased consumer—an immediate family member of the deceased consumer.

Note     Under s 13A an entity is taken to be the consumer for the purpose of accessing certain information if the consumer has consented to disclosure of the information to the entity.

"deceased consumer" means a deceased person who, before their death, was a consumer.

"destroy" a record includes delete the record.

"disability"—see the Human Rights Commission Act 2005

, section 8 (2).

"factual matter", in relation to a consumer, means—

        (a)     a history of the health, an illness or a disability of the consumer; or

        (b)     any findings on an examination of the consumer in relation to the health, an illness or a disability of the consumer; or

        (c)     the results of any investigation into the health, an illness or a disability of the consumer; or

        (d)     a diagnosis, or preliminary diagnosis, of an illness or disability of the consumer; or

        (e)     a plan of management, or proposed plan of management, of the treatment or care of an illness or disability of the consumer; or

        (f)     any action taken (whether or not in accordance with a plan of management) by or under the direction or referral of a health service provider in relation to the consumer.

"guardian", for a legally incompetent person, means—

        (a)     a person who is—

              (i)     a legally appointed guardian of the legally incompetent person; or

              (ii)     an attorney, appointed under an enduring power of attorney that has become operative, of the legally incompetent person; and

        (b)     a person who has power to make decisions about the medical treatment or health care of the legally incompetent person.

"health record" means any record, or any part of a record—

        (a)     held by a health service provider and containing personal information; or

        (b)     containing personal health information.

"health service" means—

        (a)     any activity that is intended or claimed (expressly or by implication), by the person providing it, to assess, record, improve or maintain the physical, mental or emotional health of a consumer or to diagnose or treat an illness or disability of a consumer; or

        (b)     a disability, palliative care or aged care service that involves the making or keeping of personal health information;

but does not include any service declared by regulation to be an exempt service.

"health service provider" means an entity that provides a health service.

"health status report" means a report—

        (a)     that is prepared or substantially prepared—

              (i)     by a health service provider; and

              (ii)     in respect of a consumer who, at the time of the preparation of the report, resides or is present in the ACT; and

        (b)     that relates to the physical, mental or emotional health of a consumer, or a disability or disease of a consumer; and

        (c)     whose purpose, or main purpose, is not a health service for the consumer.

"illness" means a physical, mental or emotional illness, and includes a suspected illness.

"immediate family member", of a consumer, means a person who—

        (a)     is—

              (i)     a parent of the consumer; or

              (ii)     a domestic partner of the consumer; or

              (iii)     an adult child or sibling of the consumer; or

Note     For the meaning of domestic partner, see the Legislation Act

, s 169.

        (b)     is a member of the same household as the consumer and is—

              (i)     another relative of the consumer; or

              (ii)     a close friend of the consumer.

"law of the Territory" does not include this Act or the common law.

"legally incompetent person" means a person who is subject—

        (a)     to an enduring power of attorney that has become operative; or

        (b)     otherwise than as a person under the age of majority to a guardianship order.

"legal representative", in relation to a deceased person, means a person—

        (a)     holding office as executor of the will of the deceased person where probate of the will has been granted or resealed in Australia; or

        (b)     holding office in Australia as administrator of the estate of the deceased person.

"order of a court of competent jurisdiction" includes a subpoena or similar process of such a court.

"parent", in relation to a person, includes a step-parent or adoptive parent of the person.

"personal information", in relation to a consumer, means any information, recorded or otherwise, about the consumer where the identity of the consumer is apparent, whether the information is—

        (a)     fact or opinion; or

        (b)     true or false.

"personal health information", of a consumer, means any personal information, whether or not recorded in a health record—

        (a)     relating to the health, an illness or a disability of the consumer; or

        (b)     collected by a health service provider in relation to the health, an illness or a disability of the consumer.

"person with parental responsibility", for a child or young person, means a parent or someone else with parental responsibility for the child or young person under the Children and Young People Act 2008

, division 1.3.2.

"privacy principles "means the privacy principles under schedule 1.

"record" means a record in documentary or electronic form that consists of or includes personal health information in relation to a consumer (other than research material that does not disclose the identity of the consumer), and includes—

        (a)     a photograph or other pictorial or digital representation of any part of the consumer; and

        (b)     test results, medical imaging materials and reports, and clinical notes, relating to the consumer; and

        (c)     any part of a record; and

        (d)     a copy of a record or any part of a record.

"record keeper" means an entity that has possession or control of a health record.

"sibling", in relation to a person, means a brother, sister, half-brother, half-sister, adoptive brother, adoptive sister, stepbrother or stepsister of the person.

"treating health service provider", in relation to a consumer, means a health service provider who is involved in diagnosis, care or treatment of the consumer for the purpose of improving or maintaining the consumer's health.

"treating team", in relation to a consumer, means health service providers involved in diagnosis, care or treatment for the purpose of improving or maintaining the consumer's health for a particular episode of care, and includes—

        (a)     if the consumer named another health service provider as the consumer's current treating practitioner—that other health service provider; and

        (b)     if another health service provider referred the consumer to the treating team for that episode of care—that other health service provider.

"young person"—see the Children and Young People Act 2008

, section 12.

Endnotes

1     About the endnotes

Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.

Not all editorial amendments made under the Legislation Act 2001

, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel's Office.

Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history.

If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.

The endnotes also include a table of earlier republications.

2     Abbreviation key