New South Wales Consolidated Regulations New South Wales Consolidated Regulations(Clause 18)
(1) Despite section 9 of the Act, an ADHC agency may, if the individual to whom personal information relates lacks the capacity to provide the information and the information is being collected for the primary purpose of providing ageing, disability or home care services to the individual:(a) collect the information from any of the following persons:(i) the individual’s guardian (within the meaning of the Guardianship Act 1987 ),(ii) the individual’s attorney (within the meaning of the Powers of Attorney Act 2003 ),(iii) the spouse of the individual, if the relationship between the individual and the spouse is close and continuing,(iv) a person who provides domestic services or support for the individual, or who arranges for domestic services or support to be provided to the individual,(v) a person who has the care of the individual (within the meaning of the Guardianship Act 1987 ),(vi) a close friend or relative of the individual (within the meaning of the Guardianship Act 1987 ), and(b) if the information cannot be collected from a person referred to in paragraph (a), collect the information from another person.
(2) An ADHC agency is not required to comply with section 9 of the Act or subclause (1) if it is unreasonable or impracticable in the circumstances to do so.
If the individual to whom personal information relates lacks the capacity to understand the matters listed in section 10 of the Act, the ADHC agency must instead of complying with that section make a record of those matters in its files and must ensure that the record is readily accessible by:
(a) if the individual regains capacity, the individual, or
(b) any personal information custodian of the individual, or
(c) the agency itself.
Without limiting section 14 of the Act, if an ADHC agency holds personal information that relates to an individual who lacks capacity to understand that personal information or the purpose for which it was collected (or is to be used), the agency must, at the request of a personal information custodian of the individual and without excessive delay or expense, provide that custodian with access to the information.
(1) Without limiting section 15 of the Act, if an ADHC agency holds personal information that relates to an individual who lacks capacity to understand that personal information or the purpose for which it was collected (or is to be used), the agency must, at the request of a personal information custodian of the individual, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:(a) is accurate, and(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
(2) If an ADHC agency is not prepared to amend personal information in accordance with a request by an individual’s personal information custodian, the agency must, if so requested by the custodian, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.
(3) If personal information is amended in accordance with this clause, the individual to whom the information relates and the individual’s personal information custodian is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the agency.
Without limiting section 16 of the Act, for the purposes of that section, reasonable steps to ensure information is relevant, accurate, up to date, complete and not misleading include:
(a) making inquiries of the individual concerned, or
(b) in relation to an individual who lacks capacity to understand the personal information or the purpose for which it was collected (or is to be used), making inquiries of a relevant personal information custodian of the individual.
(1) Despite section 17 of the Act, an ADHC agency that holds personal information that relates to an individual who lacks capacity to understand the personal information or the purpose for which it was collected (or is to be used) may use the information for a purpose other than that for which it was collected if:(a) a personal information custodian of the individual has consented to the use of the information for that other purpose, or(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.
(2) Despite section 17 of the Act and subclause (1) (a), an ADHC agency that holds personal information in relation to an individual who lacks capacity to understand the personal information or the purpose for which it was collected (or is to be used) may use the information for a purpose other than that for which it was collected without the consent of a personal information custodian of the individual, if:(a) no personal information custodian of the individual exists or can be found, and(b) an officer of the Department of Ageing, Disability or Home Care appointed by the Director-General of that Department to act for individuals who have no personal information custodian consents to that use of the information on the grounds that the disclosure is in the best interests of the individual, and(c) the ADHC agency records details of that use of the information in its files and ensures that the record is readily accessible by:(i) if the individual regains capacity, the individual, or(ii) if the individual gains a personal information custodian, the personal information custodian, or(iii) the agency itself.
(1) Despite section 18 of the Act, an ADHC agency that holds personal information that relates to an individual who lacks capacity to understand the personal information or the purpose for which it was collected (or is to be used) may disclose the information to a person other than the individual to whom the information relates, or another body (whether or not such other person or body is a public sector agency), if:(a) the disclosure is directly related to the purpose for which the information was collected, or(b) a personal information custodian of the individual has consented to the disclosure of the information for that other purpose, or(c) the disclosure is made to a personal information custodian of the individual.
(2) Despite subclause (1) (b), an ADHC agency that holds personal information in relation to an individual who lacks capacity to understand the personal information or the purpose for which it was collected (or is to be used) may disclose the information to a person (other than the individual to whom the information relates) or other body without the consent of a personal information custodian of the individual, if:(a) no personal information custodian of the individual exists or can be found, and(b) an officer of the Department of Ageing, Disability or Home Care appointed by the Director-General of that Department to act for individuals who have no personal information custodian consents to the disclosure on the grounds that the disclosure is in the best interests of the individual, and(c) the ADHC agency records details of the disclosure in its files and ensures that the record is readily accessible by:(i) if the individual regains capacity, the individual, or(ii) if the individual gains a personal information custodian, the personal information custodian, or(iii) the agency itself.
(3) If personal information is disclosed in accordance with this clause to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
Despite section 19 of the Act, an ADHC agency may disclose personal information of an individual who lacks capacity to understand the personal information relating to the individual’s ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities if:
(a) a personal information custodian of the individual has consented to the disclosure of the information, or
(b) the agency believes on reasonable grounds the disclosure of the personal information is necessary to give effect to the purpose for which the personal information was collected.Note: If, in collecting personal information about an individual for the purpose of providing ageing, disability or home care services, an ADHC agency collected the information that the individual was a member of a religious group with strict dietary rules, the agency may disclose that information to a person providing such services where it is necessary, ie where a service provider is preparing food for the individual.