Commonwealth Numbered Acts

HEALTH INSURANCE (QUALITY ASSURANCE CONFIDENTIALITY) AMENDMENT ACT 1992 No. 201 of 1992 - SECT 3

3. After Part VB of the Principal Act the following Part is inserted.
           "PART VC-QUALITY ASSURANCE CONFIDENTIALITY
Object of this Part

"106J.(1) The object of this Part is to encourage efficient quality assurance
activities in connection with the provision of certain health services.

"(2) For the purpose of achieving that object, this Part contains provisions:

   (a)  prohibiting:

        (i)    the disclosure of information that became known solely as a
               result of those activities; or

        (ii)   the production to a court of a document that was brought into
               existence solely for the purposes of those activities; and

   (b)  protecting certain persons engaging in those activities in good faith
        from civil liability in respect of the activities. Interpretation

"106K.(1) In this Part, unless the contrary intention appears:
'authority', in relation to the disclosure of information, means an authority
given by the Minister under section 106N that is in force when the disclosure
takes place;
'court' includes a tribunal, authority or person having power to require the
production of documents or the answering of questions;
'declared quality assurance activity' means a quality assurance activity in
respect of which a declaration by the Minister under section 106L is in force
when the activity is engaged in;
'disclose', in relation to information, means give, reveal, or communicate in
any way;
'health service' includes any administrative or other service related to a
health service;
'person', except in the reference to another person in section 106Q, includes
a committee or other body of persons, whether incorporated or unincorporated,
and includes a member of such a committee or other body;
'produce' includes permit access to;
'quality', in relation to health services provided by a person, includes the
practices of the person in providing the services or the competence of the
person to provide the services;
'quality assurance activity' means:

   (a)  an assessment or evaluation of the quality, or a study of the
        incidence or causes of conditions or circumstances that may affect the
        quality, of health services provided by a person, whether before or
        after the commencement of this Part, being:

        (i)    services in respect of which payments were made, or that are or
               would be eligible for payments, under Part II, III or IV; or

        (ii)   services relating to the prescribing of pharmaceutical products
               in respect of which payments were made, or that are or would be
               eligible for payments, under Division 3 of Part VII of the
               National Health Act  1953 ; or

   (b)  the making of a recommendation about the provision of those services
        as a result of such an assessment, evaluation or study; or

   (c)  the monitoring of the implementation of such a recommendation;
'serious offence' means an offence punishable by imprisonment for a period of
more than one year.

"(2) For the purposes of this Part:

   (a)  information about a matter is not taken to have become known merely
        because of the existence or dissemination of suspicions, allegations
        or rumours about that matter; and

   (b)  information may be taken to have become known solely as a result of a
        declared quality assurance activity even though it was previously
        known to a person whose actions have been or are being investigated by
        the persons engaging in the quality assurance activity. Minister may
        declare quality assurance activity to be an activity to which this
        Part applies

"106L.(1) The Minister may, by signed writing, declare a quality assurance
activity described in the declaration to be a quality assurance activity to
which this Part applies.

"(2) A declaration may describe a quality assurance activity in any way,
including any one or more of the following ways:

   (a)  by reference to the nature of the activity;

   (b)  by reference to a person who is engaging or proposes to engage in the
        activity;

   (c)  by reference to circumstances in which the activity is being, or is
        proposed to be, engaged in.

"(3) The Minister must not make a declaration in respect of a quality
assurance activity unless the Minister is satisfied that:

   (a)  any person who is engaging, or proposes to engage, in the activity is
        authorised to do so:

        (i)    under a law of the Commonwealth, of a State or of a Territory;
               or

        (ii)   by, or by an authority of, the Commonwealth, a State or a
               Territory; or

        (iii)  by a body that provides health care; or

        (iv)   by an educational institution; or

        (v)    by a body established wholly or partly for the purposes of
               research; or

        (vi)   by an association of health professionals; or

        (vii)  by any other prescribed body; and

   (b)  it is in the public interest, having regard to such criteria as are
        prescribed by the regulations, that this Part should apply to the
        activity.

"(4) A declaration, unless sooner revoked, ceases to be in force at the end of
5 years after the instrument of declaration was signed, but this subsection
does not prevent the Minister from making a further declaration in respect of
the same activity. Information about declared quality assurance activity not
to be disclosed

"106M.(1) Subject to this section, a person who acquires any information that
became known solely as a result of a declared quality assurance activity,
whether the person acquired the information in the course of engaging in that
activity, as a result of a disclosure under section 106N or in any other way,
must not, except for the purposes of that activity or in accordance with an
authority given by the Minister, directly or indirectly make a record of that
information or disclose that information to another person or to a court.
Penalty: Imprisonment for 2 years.

"(2) Subject to this section, a person cannot be required:

   (a)  to produce to a court a document that was brought into existence
        solely for the purposes of a declared quality assurance activity; or

   (b)  to disclose to a court any information that became known solely as a
        result of such an activity; except when it is necessary to produce the
        document or disclose the information for the purposes of this Part.

"(3) Subsections (1) and (2) do not apply to information that does not
identify, either expressly or by implication, a particular individual or
particular individuals.

"(4) Subsection (2) does not apply to a document that does not identify,
either expressly or by implication, a particular individual or particular
individuals.

"(5) This section does not prohibit a disclosure of information if the person,
or each of the persons, who would be directly or indirectly identified by the
disclosure consents to that disclosure of the information.

"(6) This section does not prohibit the disclosure of information to the
Minister for the purpose of enabling the Minister to decide whether to
authorise the disclosure of the information under section 106N.

"(7) If a quality assurance activity ceases to be a declared quality assurance
activity, this section nevertheless continues to apply in respect of
information that became known, or a document that was brought into existence,
at a time when the activity was a declared quality assurance activity.
Minister may authorise disclosure of information about a serious offence

"106N.(1) If it appears to the Minister that information that became known
after the commencement of this Part solely as a result of a declared quality
assurance activity relates to conduct, whether the conduct took place before
or after that commencement, that may have been a serious offence against a law
(whether written or unwritten) in force in any State or Territory, the
Minister may, by signed writing, authorise the information to be disclosed in
a way stated in the instrument of authority for the purposes of law
enforcement, a Royal Commission or any other prescribed purpose.

"(2) Subsection (1) does not permit the Minister to authorise the disclosure
of information of a non-factual nature (such as statements of opinion) unless
the information consists only of matter contained in a report prepared by a
person who engaged in the quality assurance activity. Declarations to be
disallowable instruments

"106P. An instrument of declaration made under section 106L is a disallowable
instrument for the purposes of section 46A of the Acts  Interpretation Act
1901 . Immunity from suit of members of assessment or evaluation committees

"106Q.(1) If:

   (a)  a person ('the relevant person') engages in any conduct in good faith
        in connection with a declared quality assurance activity; and

   (b)  the conduct adversely affects any right or interest of another person,
        being a person who provides health services; and

   (c)  the relevant person engages in the conduct as a member of a committee
        for the purposes of the making of an assessment or evaluation of
        services provided by that other person; and

   (d)  all or a majority of the members of the committee are health
        professionals belonging to the same health profession as that other
        person; no action, suit or other civil proceeding, other than a
        proceeding in respect of a breach of the rules of law relating to
        procedural fairness that is alleged to have occurred in the course of
        that conduct, may be brought by the other person against the relevant
        person in respect of that conduct.

"(2) If, after the conduct ceased to be engaged in, the relevant quality
assurance activity ceases to be a declared quality assurance activity, this
section nevertheless continues to apply in respect of the conduct. This Part
is to complement corresponding State and Territory laws

"106R. If:

   (a)  a committee of persons is authorised by a law of a State or Territory
        to engage in a quality assurance activity; and

   (b)  a law of that State or Territory ('the relevant State or Territory
        law') that has the same general purpose as this Part would, if this
        Part had not been enacted, apply to the persons who are members of
        that committee in respect of that activity; it is the intention of the
        Parliament that this Part is not to exclude or affect the operation of
        the relevant State or Territory law and this Part applies to those
        persons in respect of that activity only to the extent to which the
        relevant State or Territory law would not otherwise apply.".