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PARLIAMENT OF VICTORIA
Health Records Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 2
1. Purpose 2
2. Commencement 2
3. Definitions 2
4. Interpretative provisions 13
5. When does an organisation hold health information? 13
6. Objects of Act 13
7. Relationship of this Act to other laws 14
8. Nature of rights created by this Act 14
9. Act binds the Crown 14
PART 2--APPLICATION OF THIS ACT 16
Division 1--Public Sector Organisations 16
10. Application to public sector 16
Division 2--Private Sector Organisations 17
11. Application to private sector 17
12. Effect of outsourcing 18
Division 3--Exemptions 18
13. Personal, family or household affairs 18
14. Courts, tribunals, etc. 18
15. Publicly available health information 19
16. Freedom of Information Act 1982 20
17. News media 21
PART 3--PRIVACY OF HEALTH INFORMATION 22
18. What is an interference with privacy? 22
19. Health Privacy Principles 22
20. Application of HPPs 22
21. Organisation to comply with HPPs 23
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Clause Page
PART 4--GUIDELINES 26
22. Health Services Commissioner may issue, approve or vary
guidelines 26
23. Revocation of issue or approval 27
24. Disallowance by Governor in Council 28
PART 5--ACCESS TO HEALTH INFORMATION 29
Division 1--Right of Access 29
25. Right of access 29
26. No access to health information where threat to life or health of
individual or another person 30
27. No access to health information where information given in
confidence 30
28. How right of access may be exercised 31
29. Providing access 32
30. Individual may authorise another person to be given access 33
31. Organisation may require evidence of identity or authority 34
32. Fees 34
Division 2--Request for Access 35
33. Request for access 35
34. Response to request 36
35. Refusal of access 37
Division 3--Refusal of Access on Ground of Threat to Life or Health
of the Individual Requesting Access 38
36. Application 38
37. Offer to discuss health information 38
38. Individual may nominate health service provider to assess ground
for refusal etc. 38
39. Organisation may object to nomination 39
40. Lapsing of nomination 40
41. Organisation must give health information to nominee 41
42. Functions of nominated health service provider 41
Division 4--Miscellaneous 43
43. Alternative arrangements may be made 43
44. Provision of health services and keeping of health information--
terms and conditions 43
PART 6--COMPLAINTS 45
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Division 1--Making a Complaint 45
45. Complaints 45
46. Complaint referred to Health Services Commissioner 46
47. Complaints by children and people with an impairment 46
Division 2--Procedure after a Complaint is Made 47
48. Health Services Commissioner must notify respondent 47
49. Preliminary assessment of complaint 47
50. Splitting complaints 48
51. Circumstances in which Health Services Commissioner may
decline to entertain complaint 49
52. Referral to registration board 51
53. Health Services Commissioner may dismiss stale complaint 52
54. Minister may refer a complaint direct to Tribunal 52
55. Complaint about registered health service provider 53
56. What happens if a complaint is accepted? 53
57. What happens if conciliation or ruling is inappropriate? 55
58. Duty to stop proceedings 55
Division 3--Conciliation of Complaints 57
59. Conciliation process 57
60. Power to obtain information and documents 57
61. Conciliation agreements 58
62. Conciliation statements, acts and documents inadmissible 59
63. What happens if conciliation fails? 60
Division 4--Investigation, Rulings and Compliance Notices 61
64. Investigation and ruling 61
65. Referral to Tribunal 63
66. Compliance notice 64
67. Power to obtain information and documents 66
68. Conduct of investigation etc. 67
69. Power to examine witnesses 67
70. Protection against self-incrimination 67
71. Offence not to comply with compliance notice 67
72. Application for review--compliance notice 68
Division 5--Interim Orders 69
73. Tribunal may make interim orders before hearing 69
Division 6--Jurisdiction of the Tribunal 70
74. When may the Tribunal hear a complaint? 70
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Clause Page
75. Who are the parties to a proceeding? 71
76. Time limits for certain complaints 71
77. Inspection of exempt documents by Tribunal 71
78. What may the Tribunal decide? 72
PART 7--OFFENCES 76
79. Definition 76
80. Unlawfully requiring consent etc. 76
81. Unlawful destruction etc. or removal of health information 76
82. Unlawfully requesting or obtaining access to health information 77
83. Persons not to be persuaded not to exercise rights under Act 77
84. Failure to attend etc. before Health Services Commissioner 78
PART 8--GENERAL 79
85. Capacity to consent or make a request or exercise right of access 79
86. Protection from liability 81
87. Functions of Health Services Commissioner 83
88. Powers 85
89. Health Services Commissioner to have regard to certain matters 86
90. Secrecy 86
91. Delegation 88
92. Employees and agents 88
93. Offences by organisations or bodies 89
94. Prosecutions 89
95. Deceased individuals 89
96. Legal professional privilege not affected by this Act 90
97. Defect or invalidity--protection if person acts in good faith etc. 90
98. Unqualified organisation may obtain and act on expert advice 91
99. Supreme Court--limitation of jurisdiction 91
100. Regulations 91
PART 9--AMENDMENT OF CERTAIN OTHER ACTS 93
Division 1--Amendment of Acts other than Health Practitioner Acts 93
101. Amendment of Freedom of Information Act 1982 93
102. New section 51A inserted in Freedom of Information Act 1982 96
51A. Conciliation by Health Services Commissioner 96
103. Amendment of Health Services Act 1988 97
104. Transitional provisions--Health Services Act 1988 100
178A. Transitional provisions--Health Records Act 2000 100
105. Amendment of Health Services (Conciliation and Review) Act
1987 100
106. Amendment of Infertility Treatment Act 1995 103
107. Amendment of Information Privacy Act 2000 103
108. New section 34A inserted in Information Privacy Act 2000 104
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Clause Page
34A. Referral of complaint to Health Services Commissioner 104
109. Amendment of Intellectually Disabled Persons' Services Act
1986 104
110. Amendment of Magistrates' Court Act 1989 105
43. Non-compliance with enforcement notice--health
information 105
111. Amendment of Mental Health Act 1986 105
112. Transitional provisions--Mental Health 1986 107
146. Transitional provisions--Health Records Act 2000 108
113. New section 15B inserted in Ombudsman Act 1973 108
15B. Referral of complaint (health records) 108
114. New section 20C inserted in Ombudsman Act 1973 109
20C. Communication of information to the Health Services
Commissioner 109
115. Amendment of Parliamentary Committees Act 1968 109
116. Amendment of Subordinate Legislation Act 1994 109
117. Amendment of Victorian Civil and Administrative Tribunal
Act 1998 110
Division 2--Amendment of Health Practitioner Acts 111
118. Amendment of Chinese Medicine Registration Act 2000 111
119. New section 23A inserted into Chinese Medicine Registration
Act 2000 111
23A. Board may deal with health records complaint 111
120. Amendment of Chiropractors Registration Act 1996 112
121. New section 21A inserted into Chiropractors Registration Act
1996 113
21A. Board may deal with health records complaint 113
122. Amendment of Dental Practice Act 1999 114
123. New section 22A inserted into Dental Practice Act 1999 114
22A. Board may deal with health records complaint 114
124. Amendment of Medical Practice Act 1994 115
125. New section 23A inserted into Medical Practice Act 1994 116
23A. Board may deal with health records complaint 116
126. Amendment of Nurses Act 1993 117
127. New section 21A inserted into Nurses Act 1993 117
21A. Board may deal with health records complaint 117
128. Amendment of Optometrists Registration Act 1996 118
129. New section 23A inserted into Optometrists Registration Act
1996 118
23A. Board may deal with health records complaint 119
130. Amendment of Osteopaths Registration Act 1996 119
131. New section 21A inserted into Osteopaths Registration Act
1996 120
21A. Board may deal with health records complaint 120
132. Amendment of Physiotherapists Registration Act 1998 121
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133. New section 20A inserted into Physiotherapists Registration
Act 1998 121
20A. Board may deal with health records complaint 122
134. Amendment of Podiatrists Registration Act 1997 122
135. New section 21A inserted into Podiatrists Registration Act
1997 123
21A. Board may deal with health records complaint 123
136. Amendment of Psychologists Registration Act 2000 124
137. New section 23A inserted into Psychologists Registration Act
2000 124
23A. Board may deal with health records complaint 125
__________________
SCHEDULE 1--The Health Privacy Principles 126
ENDNOTES 144
INDEX 147
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PARLIAMENT OF VICTORIA
Initiated in Assembly 22 November 2000
A BILL
to establish a regime for the protection of health information held by
health service providers and other organisations, to create an
enforceable right of access to health information, to establish privacy
standards for health information, to amend the Parliamentary
Committees Act 1968, the Ombudsman Act 1973, the Freedom of
Information Act 1982, the Health Services (Conciliation and
Review) Act 1987, the Subordinate Legislation Act 1994 and certain
other Acts and for other purposes.
Health Records Act 2000
The Parliament of Victoria enacts as follows:
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s. 1
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PART 1--PRELIMINARY
1. Purpose1
The purpose of this Act is to promote fair and
5 responsible handling of health information by--
(a) protecting the privacy of an individual's
health information that is held in the public
and private sectors; and
(b) providing individuals with a right of access
10 to their health information; and
(c) providing an accessible framework for the
resolution of complaints regarding the
handling of health information.
2. Commencement
15 (1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision referred to in sub-section (1) does
not come into operation before 1 July 2002, it
comes into operation on that day.
20 3. Definitions
(1) In this Act--
"child" means a person under the age of 18 years;
"consent" means express consent or implied
consent;
25 "correct", in relation to health information,
means to alter that information by way of
amendment, deletion or addition;
"Council" has the same meaning as in the Local
Government Act 1989;
30 "disability" has the same meaning as in the
Disability Services Act 1991;
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Health Records Act 2000
s. 3
Act No.
"enactment" means an Act or a Commonwealth
Act or an instrument of a legislative
character made under an Act or a
Commonwealth Act;
5 "Federal Privacy Commissioner" means
Privacy Commissioner appointed under the
Privacy Act 1988 of the Commonwealth;
"generally available publication" means a
publication (whether in paper or electronic
10 form) that is generally available to members
of the public and includes information held
on a public register;
"health information" means--
(a) information or an opinion about--
15 (i) the physical, mental or
psychological health (at any time)
of an individual; or
(ii) a disability (at any time) of an
individual; or
20 (iii) an individual's expressed wishes
about the future provision of
health services to him or her; or
(iv) a health service provided, or to be
provided, to an individual--
25 that is also personal information; or
(b) other personal information collected to
provide, or in providing, a health
service; or
(c) other personal information about an
30 individual collected in connection with
the donation, or intended donation, by
the individual of his or her body parts,
organs or body substances; or
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Health Records Act 2000
s. 3
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(d) other personal information that is
genetic information about an individual
in a form which is or could be
predictive of the health (at any time) of
5 the individual or of any of his or her
descendants--
but does not include health information, or a
class of health information or health
information contained in a class of
10 documents, that is prescribed as exempt
health information for the purposes of this
Act generally or for the purposes of specified
provisions of this Act;
"Health Privacy Principle" means any of the
15 Health Privacy Principles set out in
Schedule 1;
"HPP" means Health Privacy Principle;
"health service" means--
(a) an activity performed in relation to an
20 individual that is intended or claimed
(expressly or otherwise) by the
individual or the organisation
performing it--
(i) to assess, maintain or improve the
25 individual's health; or
(ii) to diagnose the individual's
illness, injury or disability; or
(iii) to treat the individual's illness,
injury or disability or suspected
30 illness, injury or disability; or
(b) a disability service, palliative care
service or aged care service; or
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s. 3
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(c) the dispensing on prescription of a drug
or medicinal preparation by a
pharmacist; or
(d) a service, or a class of service, provided
5 in conjunction with an activity or
service referred to in paragraph (a), (b)
or (c) that is prescribed as a health
service--
but does not include a health service, or a
10 class of health service, that is prescribed as
an exempt health service for the purposes of
this Act generally or for the purposes of
specified provisions of this Act or to the
extent that it is prescribed as an exempt
15 health service;
"health service provider" means an organisation
that provides a health service in Victoria to
the extent that it provides such a service but
does not include a health service provider, or
20 a class of health service provider, that is
prescribed as an exempt health service
provider for the purposes of this Act
generally or for the purposes of specified
provisions of this Act or to the extent that it
25 is prescribed as an exempt health service
provider;
"Health Services Commissioner" means Health
Services Commissioner appointed under the
Health Services (Conciliation and Review)
30 Act 1987 and includes the Acting Health
Services Commissioner under that Act;
"Health Services Review Council" means the
Health Services Review Council established
under the Health Services (Conciliation
35 and Review) Act 1987;
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s. 3
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"identifier" means an identifier (which is
usually, but need not be, a number and does
not include an identifier that consists only of
the individual's name) that is--
5 (a) assigned to an individual in conjunction
with or in relation to the individual's
health information by an organisation
for the purpose of uniquely identifying
that individual, whether or not it is
10 subsequently used otherwise than in
conjunction with or in relation to health
information; or
(b) adopted, used or disclosed in
conjunction with or in relation to the
15 individual's health information by an
organisation for the purpose of
uniquely identifying that individual;
"illness" means a physical, mental or
psychological illness, and includes a
20 suspected illness;
"immediate family member" of an individual
means a person who is--
(a) a parent, child or sibling of the
individual; or
25 (b) a spouse or de facto spouse of the
individual; or
(c) a member of the individual's household
who is a relative of the individual; or
(d) a person nominated to a health service
30 provider by the individual as a person
to whom health information relating to
the individual may be disclosed;
"individual" means a natural person;
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s. 3
Act No.
"law enforcement agency" means--
(a) the police force of Victoria or of any
other State or of the Northern
Territory; or
5 (b) the Australian Federal Police; or
(c) the National Crime Authority; or
(d) the Commissioner appointed under
section 8A of the Corrections Act
1986; or
10 (e) a commission established by a law of
Victoria or the Commonwealth or of
any other State or a Territory with the
function of investigating matters
relating to criminal activity generally or
15 of a specified class or classes; or
(f) an agency responsible for the
performance of functions or activities
directed to the prevention, detection,
investigation, prosecution or
20 punishment of criminal offences or
breaches of a law imposing a penalty or
sanction for a breach; or
(g) an agency responsible for the
performance of functions or activities
25 under an Act directed to the prevention,
detection, investigation or remedying
of, or the imposing of sanctions in
relation to, seriously improper conduct;
or
30 (h) an agency responsible for the holding
of a person in custody or for the
execution, enforcement or
implementation of an order or decision
made by a court or tribunal, including
35 an agency that--
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Health Records Act 2000
s. 3
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(i) executes warrants; or
(ii) provides correctional services,
including a contractor within the
meaning of the Corrections Act
5 1986 or a sub-contractor of that
contractor, but only in relation to
a function or duty or the exercise
of a power conferred on it by or
under that Act; or
10 (iii) makes decisions relating to the
release of persons from custody;
or
(i) an agency responsible for the protection
of the public revenue under a law
15 administered by it; or
(j) the Australian Security Intelligence
Organization; or
(k) the Australian Secret Intelligence
Service; or
20 (l) a prescribed body;
"law enforcement function" means one or more
of the following--
(a) the prevention, detection, investigation,
prosecution or punishment of criminal
25 offences or breaches of a law imposing
a penalty or sanction;
(b) a function or activity under an Act
directed to the prevention, detection,
investigation or remedying of, or the
30 imposing of sanctions in relation to,
seriously improper conduct;
(c) the prevention, detection or
investigation of conduct that could
found a complaint for an intervention
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Health Records Act 2000
s. 3
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order under the Crimes (Family
Violence) Act 1987;
(d) the preparation for, or conduct of,
proceedings before any court or
5 tribunal, or execution, enforcement or
implementation of the orders or
decisions made by a court or tribunal;
(e) the holding of a person in custody or
the provision of correctional services,
10 including by a contractor within the
meaning of the Corrections Act 1986
or a sub-contractor of that contractor,
but only in relation to a function or
duty or the exercise of a power
15 conferred on it by or under that Act;
(f) in the case of the Australian Security
Intelligence Organization or the
Australian Secret Intelligence Service,
the performance of a function directed
20 to the protection of the national
security;
"legal representative", in relation to a deceased
individual, means a person--
(a) holding office as executor of the will of
25 the deceased individual where probate
of the will has been granted or resealed
in Victoria or any other State or
Territory; or
(b) holding office in Victoria or any other
30 State or Territory as administrator of
the estate of the deceased individual;
"news activity" means--
(a) the gathering of news for the purposes
of dissemination to the public or any
35 section of the public; or
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s. 3
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(b) the preparation or compiling of articles
or programs of or concerning news,
observations on news or current affairs
for the purposes of dissemination to the
5 public or any section of the public; or
(c) the dissemination to the public or any
section of the public of any article or
program of or concerning news,
observations on news or current affairs;
10 "news medium" means any organisation whose
business, or whose principal business,
consists of a news activity;
"organisation" means a person or body that is an
organisation to which this Act applies by
15 force of Division 1 or 2 of Part 2;
"parent", in relation to a child, includes--
(a) a step-parent;
(b) an adoptive parent;
(c) a foster parent;
20 (d) a guardian;
(e) a person who has custody or daily care
and control--
of the child;
"personal information" means information or an
25 opinion (including information or an opinion
forming part of a database), whether true or
not, and whether recorded in a material form
or not, about an individual whose identity is
apparent, or can reasonably be ascertained,
30 from the information or opinion, but does not
include information about an individual who
has been dead for more than 30 years;
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s. 3
Act No.
"Privacy Commissioner" means Privacy
Commissioner appointed under Part 7 of the
Information Privacy Act 2000;
"private sector organisation" means a person or
5 body that is referred to in Division 2 of
Part 2;
"public register" means a document held by a
public sector agency or a Council and open
to inspection by members of the public
10 (whether or not on payment of a fee) by
force of a provision made by or under an Act
other than the Freedom of Information Act
1982 or the Public Records Act 1973
containing information that--
15 (a) a person or body was required or
permitted to give to that public sector
agency or Council by force of a
provision made by or under an Act; and
(b) would be health information if the
20 document were not a generally
available publication;
"public sector agency" means an Agency or
public authority within the meaning of the
Public Sector Management and
25 Employment Act 1998;
"public sector organisation" means a person or
body that is referred to in Division 1 of
Part 2;
"registered health service provider" has the
30 same meaning as "registered provider" has in
the Health Services (Conciliation and
Review) Act 1987;
"registered medical practitioner" means a
registered medical practitioner within the
35 meaning of the Medical Practice Act 1994;
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s. 3
Act No.
"registration board" means a body that is--
(a) listed in the Schedule to the Health
Services (Conciliation and Review)
Act 1987; or
5 (b) prescribed as a registration board for
the purposes of that Act;
"relative" of an individual means a grandparent,
grandchild, uncle, aunt, nephew or niece of
the individual;
10 "sibling" of an individual includes a half-brother,
half-sister, adoptive brother, adoptive sister,
step-brother or step-sister of the individual;
"State contract" means a contract between--
(a) a public sector organisation; and
15 (b) another person or body that is not a
public sector organisation--
under which services are to be provided to
one (the outsourcing organisation) by the
other (the outsourced service provider) in
20 connection with the performance of
functions of the outsourcing organisation,
including services that the outsourcing
organisation is to provide to other persons or
bodies;
25 "the Tribunal" means the Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
Tribunal Act 1998.
Note: "Document" is defined by section 38 of the Interpretation
30 of Legislation Act 1984.
(2) A reference in this Act to an outsourced service
provider is a reference to a person or body in the
capacity of outsourced service provider and
includes a reference to a subcontractor of the
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s. 4
Act No.
outsourced service provider (or of another such
subcontractor) for the purposes (whether direct or
indirect) of the outsourcing contract.
4. Interpretative provisions
5 (1) Without limiting section 37(a) of the
Interpretation of Legislation Act 1984, a
reference in this Act to an organisation using a
neuter pronoun includes a reference to an
organisation that is a natural person, unless the
10 contrary intention appears.
(2) If a provision of this Act refers to a HPP by a
number, the reference is a reference to the HPP
designated by that number.
5. When does an organisation hold health information?
15 For the purposes of this Act, an organisation holds
health information if the information is contained
in a document that is in the possession or under
the control of the organisation, whether alone or
jointly with other persons or bodies, irrespective
20 of where the document is situated, whether in or
outside Victoria.
6. Objects of Act
The objects of this Act are--
(a) to require responsible handling of health
25 information in the public and private sectors;
(b) to balance the public interest in protecting
the privacy of health information with the
public interest in the legitimate use of that
information;
30 (c) to enhance the ability of individuals to be
informed about their health care or disability
services;
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s. 7
9
Act No.
(d) to promote the provision of quality health
services, disability services and aged care
services.
7. Relationship of this Act to other laws
5 (1) If a provision made by or under this Act is
inconsistent with a provision made by or under
any other Act, that other provision prevails and
the provision made by or under this Act is (to the
extent of the inconsistency) of no force or effect.
10 (2) Without limiting sub-section (1), nothing in this
Act affects the operation of the Freedom of
Information Act 1982 (except as otherwise
provided by that Act) or any right, privilege,
obligation or liability conferred or imposed under
15 that Act or any exemption arising under that Act.
8. Nature of rights created by this Act
(1) Nothing in this Act--
(a) gives rise to any civil cause of action; or
(b) without limiting paragraph (a), operates to
20 create in any person any legal right
enforceable in a court or tribunal--
otherwise than in accordance with the procedures
set out in this Act.
(2) A contravention of this Act does not create any
25 criminal liability except to the extent expressly
provided by this Act.
9. Act binds the Crown
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Act No.
(1) This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
(2) Nothing in this Act makes the Crown in any of its
5 capacities liable to be prosecuted for an offence.
_______________
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s. 10
Act No.
PART 2--APPLICATION OF THIS ACT
Division 1--Public Sector Organisations
10. Application to public sector
(1) This Act applies to--
5 (a) a Minister;
(b) a Parliamentary Secretary, including the
Parliamentary Secretary of the Cabinet;
(c) a member of the Parliament of Victoria;
(d) a public sector agency;
10 (e) a Council;
(f) a body established or appointed for a public
purpose by or under an Act;
(g) a body established or appointed for a public
purpose by the Governor in Council, or by a
15 Minister, otherwise than under an Act;
(h) a person holding an office or position
established by or under an Act or to which
he or she was appointed by the Governor in
Council, or by a Minister, otherwise than
20 under an Act;
(i) a court or tribunal;
(j) the police force of Victoria;
(k) a denominational hospital within the
meaning of the Health Services Act 1988;
25 (l) a privately operated hospital within the
meaning of the Health Services Act 1988;
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(m) any other body that is declared, or to the
extent that it is declared, by an Order under
sub-section (2) to be an organisation for the
purposes of this sub-section--
5 that is a health service provider or collects, holds
or uses health information.
(2) The Governor in Council may, by Order published
in the Government Gazette, declare a body to be,
either wholly or to the extent specified in the
10 Order, an organisation for the purposes of sub-
section (1).
(3) A person or body to which this Act applies by
force of sub-section (1) is an organisation for the
purposes of this Act, either wholly or to the
15 relevant extent.
(4) This section is subject to Division 3.
Division 2--Private Sector Organisations
11. Application to private sector
(1) This Act applies to--
20 (a) a natural person;
(b) a body corporate;
(c) a partnership;
(d) a trust;
(e) any other unincorporated association or
25 body--
that is a health service provider or collects, holds
or uses health information and is not, or to the
extent that it is not, a person or body to which this
Act applies by force of section 10(1).
30 (2) A person or body to which this Act applies by
force of sub-section (1) is an organisation for the
purposes of this Act.
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(3) This section is subject to Division 3.
12. Effect of outsourcing
(1) An act or practice done or engaged in by an
outsourced service provider under a State contract
5 that is an interference with the privacy of an
individual must, for the purposes of this Act, be
taken to have been done or engaged in by the
outsourcing organisation as well as the outsourced
service provider if the provision of this Act or the
10 HPP to which the act or practice is contrary, or
with which it is inconsistent, is not capable of
being enforced against the outsourced service
provider in accordance with the procedures set out
in this Act.
15 (2) Section 92(1) does not apply to an act done or
practice engaged in by an outsourced service
provider acting within the scope of a State
contract.
Division 3--Exemptions
20 13. Personal, family or household affairs
Nothing in this Act or in any HPP applies in
respect of the collection, holding, management,
use, disclosure or transfer of health information by
an individual, or health information held by an
25 individual, only for the purposes of, or in
connection with, his or her personal, family or
household affairs.
14. Courts, tribunals, etc.
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Nothing in this Act or in any HPP applies in
respect of the collection, holding, management,
use, disclosure or transfer of health information--
(a) in relation to its or his or her judicial or
5 quasi-judicial functions, by--
(i) a court or tribunal; or
(ii) the holder of a judicial or quasi-judicial
office or other office pertaining to a
court or tribunal in his or her capacity
10 as the holder of that office; or
(b) in relation to those matters which relate to
the judicial or quasi-judicial functions of the
court or tribunal, by--
(i) a registry or other office of a court or
15 tribunal; or
(ii) the staff of such a registry or other
office in their capacity as members of
that staff.
15. Publicly available health information
20 (1) Nothing in this Act or in any HPP applies to a
document containing health information, or to the
health information contained in a document, that
is--
(a) a generally available publication unless the
25 health information has been obtained by
contravention of this Act and the
organisation which seeks to rely on this
exemption knows of the contravention; or
(b) kept in a library, art gallery or museum for
30 the purposes of reference, study or
exhibition; or
(c) a public record under the control of the
Keeper of Public Records that is available
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for public inspection in accordance with the
Public Records Act 1973; or
(d) archives within the meaning of the Copyright
Act 1968 of the Commonwealth.
5 (2) Nothing in this Act or in any HPP applies to
health information that is generally available to
members of the public unless the health
information has been obtained by contravention of
this Act and the organisation which seeks to rely
10 on this exemption knows of the contravention.
16. Freedom of Information Act 1982
Except as otherwise provided by the Freedom
of Information Act 1982, nothing in Part 5, HPP
5.2 or HPP 6 applies--
15 (a) to a document containing health information,
or to the health information contained in a
document, that is--
(i) a document of an agency within the
meaning of the Freedom of
20 Information Act 1982; or
(ii) an official document of a Minister
within the meaning of that Act--
and access can only be required to be granted
to that document or information, and that
25 information can only be corrected, in
accordance with the procedures set out in,
and in the form required or permitted by, that
Act; or
(b) to a document containing health information,
30 or to the health information contained in a
document, to which access would not be
granted under the Freedom of Information
Act 1982 because of section 5(3) or 6 of that
Act.
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17. News media
(1) Nothing in HPP 1 or HPP 2 applies to the
collection, use or disclosure of health information
by a news medium in connection with its news
5 activities.
(2) Nothing in Part 5, HPP 5.2 or HPP 6 applies to
health information held by a news medium in
connection with its news activities unless and
until the information is actually disseminated to
10 the public or any section of the public.
_______________
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PART 3--PRIVACY OF HEALTH INFORMATION
18. What is an interference with privacy?
For the purposes of this Act, an act or practice of
an organisation is an interference with the privacy
5 of an individual if, and only if--
(a) the act or practice breaches Part 5 or a
Health Privacy Principle in relation to health
information that relates to the individual; or
(b) the act or practice breaches HPP 7 in relation
10 to an identifier; or
(c) the act or practice is or results in a failure to
provide access to health information that
relates to the individual in accordance with
Part 5 or HPP 6.
15 19. Health Privacy Principles
(1) The Health Privacy Principles are set out in
Schedule 1.
(2) Nothing in any Health Privacy Principle affects
the operation or extent of any exemption arising
20 under Division 3 of Part 2 and those Principles
must be construed accordingly.
20. Application of HPPs
(1) HPP 1 applies only in relation to health
information collected after the commencement of
25 this section.
(2) HPP 3, to the extent that it applies to the
collection of health information, applies only in
relation to health information collected after the
commencement of this section.
30 (3) HPP 6 applies to health information as specified
in section 25.
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(4) The remaining Health Privacy Principles
(including HPP 3 to the extent that it applies to the
use, holding or disclosure of health information)
apply in relation to all health information, whether
5 collected by the organisation before or after the
commencement of this section.
(5) HPP 8 applies only in relation to transactions
entered into after the commencement of this
section.
10 21. Organisation to comply with HPPs
(1) Subject to this section and section 20, an
organisation must not do an act, or engage in a
practice, that is an interference with the privacy of
an individual.
15 (2) Sub-section (1) does not apply if the organisation
proves that, in the circumstances, compliance with
this Act or the Health Privacy Principle would
have contravened another Act, regulations made
under another Act or an order of a tribunal or of a
20 court of competent jurisdiction.
(3) Sub-section (1) does not apply to the doing of an
act, or the engaging in of a practice, by an
organisation that, but for this sub-section, would
constitute a breach of HPP 1 or HPP 2, if--
25 (a) the doing of the act or the engaging in of the
practice is necessary for the performance of
a contract to which the organisation is a
party entered into by the organisation before
23 November 2000; and
30 (b) the act is done or the practice is engaged in
before the second anniversary of the
commencement of section 20 or the end of
any extension of that period granted in
relation to that contract under sub-section
35 (4).
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(4) On the application of an organisation before the
second anniversary of the commencement of
section 20 or before the expiry of any extension of
that period granted under this sub-section, the
5 Health Services Commissioner may grant an
extension of that period in relation to a specified
contract if he or she is of the opinion that the
organisation is doing its best--
(a) to comply with HPP 1 or HPP 2 consistent
10 with its obligations under the contract; and
(b) to seek to have the contract re-negotiated to
enable the organisation to comply fully with
HPP 1 or HPP 2.
(5) Sub-section (1) does not apply to the doing of an
15 act, or the engaging in of a practice, by an
organisation that, but for this sub-section, would
constitute a breach of HPP 2, in relation to health
information collected by the organisation before
the commencement of section 20, if--
20 (a) the Health Services Commissioner, on the
application of the organisation, grants the
organisation an exemption from that
Principle in relation to specified information
or information of a specified class for a
25 specified period; and
(b) the act is done or the practice is engaged in,
in relation to information to which the
exemption applies--
(i) before the second anniversary of the
30 commencement of section 20; and
(ii) during the period specified in the
exemption.
(6) The Health Services Commissioner may grant an
exemption under sub-section (5) if he or she is of
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the opinion that, in the particular circumstances, it
is in the public interest for the use or disclosure to
continue otherwise than in compliance with
HPP 2.
5 (7) Sub-section (1) does not apply to the doing of an
act, or the engaging in of a practice, by an
organisation that, but for this sub-section, would
constitute a breach of HPP 2, in relation to health
information collected by the organisation before
10 the commencement of section 20, if the act is
done, or the practice is engaged in, in the
prescribed circumstances.
_______________
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PART 4--GUIDELINES
22. Health Services Commissioner may issue, approve or
vary guidelines
(1) For the purposes of HPP 1.1(e)(iii), HPP 1.1(f),
5 HPP 2.2(e), HPP 2.2(f)(vi), HPP 2.2(g)(iii), HPP
2.2(h), HPP 2.5(g), HPP 6.1(a), HPP 6.1(b) and
HPP 10.2, the Health Services Commissioner
may, by notice published in the Government
Gazette--
10 (a) issue guidelines; or
(b) approve, in whole or in part and with or
without modification, guidelines that are
prepared or issued by a public sector agency
or any other person or body; or
15 (c) vary any guidelines as issued or approved by
the Health Services Commissioner.
(2) Before exercising a power conferred by sub-
section (1), the Health Services Commissioner
must cause a notice of intention to issue, approve
20 or vary guidelines to be published--
(a) in the Government Gazette; and
(b) in a newspaper circulating generally in
Victoria.
(3) A notice under sub-section (2) must--
25 (a) state where copies of the guidelines (as
proposed to be issued, approved or varied)
can be obtained; and
(b) specify a period of not less than 28 days after
the date of the notice for making
30 submissions to the Health Services
Commissioner on them.
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(4) After considering any submissions received, the
Health Services Commissioner may proceed under
sub-section (1), as proposed or with any
amendments that the Health Services
5 Commissioner considers appropriate.
(5) For the purposes of sub-section (1), the Health
Services Commissioner may only issue, approve
or vary guidelines that would have the effect of
lessening the level of privacy protection afforded
10 by the relevant Health Privacy Principle if he or
she is satisfied that the public interest to be
protected by the guidelines, or the guidelines as
varied, substantially outweighs the public interest
in maintaining that level of privacy protection.
15 (6) The guidelines may apply, adopt or incorporate
any matter contained in any document, whether--
(a) wholly or partially or as amended by the
guidelines; or
(b) as in force at the time the guidelines are
20 made or at any time before then; or
(c) as in force from time to time.
(7) The guidelines--
(a) may be of general or limited application;
(b) may differ according to differences in time,
25 place or circumstances.
23. Revocation of issue or approval
The Health Services Commissioner may, by
notice published in the Government Gazette,
revoke an issue or approval of guidelines under
30 section 22 if he or she is no longer satisfied of the
matter that he or she had to be satisfied of to issue
or approve the guidelines.
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24. Disallowance by Governor in Council
The Governor in Council may at any time, by
notice published in the Government Gazette,
disallow a decision of the Health Services
5 Commissioner to issue, approve or vary guidelines
or to revoke an issue or approval of guidelines.
_______________
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PART 5--ACCESS TO HEALTH INFORMATION
Division 1--Right of Access
25. Right of access
(1) Subject to sub-sections (2) and (3), an individual
5 has a right of access, in accordance with this Part
and HPP 6, to health information relating to the
individual held2 by a health service provider or
any other organisation.
(2) Sub-section (1) applies to all health information
10 collected on or after the commencement of this
section.
(3) Sub-section (1) also applies to the following
health information collected before the
commencement of this section--
15 (a) a history of the health, an illness or a
disability of the individual; or
(b) any findings on an examination of the
individual in relation to the health, an illness
or a disability of the individual; or
20 (c) the results of an investigation into the health,
an illness or a disability of the individual; or
(d) a diagnosis, or preliminary diagnosis, of an
illness or disability of the individual; or
(e) a plan of management, or proposed plan of
25 management, of the treatment or care of an
illness or disability of the individual; or
(f) action taken or services provided (whether or
not in accordance with a plan of
management) by or under the direction or
30 referral of a health service provider in
relation to the individual; or
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(g) personal information about the individual
collected in connection with the donation, or
intended donation, by the individual of his or
her body parts, organs or body substances; or
5 (h) genetic information about an individual in a
form which is or could be predictive of the
health, at any time, of the individual or of
any of his or her descendants.
26. No access to health information where threat to life or
health of individual or another person3
10
An organisation must not give an individual
access under this Act to his or her health
information, or part of his or her health
information, if the organisation believes on
15 reasonable grounds, having regard to the
guidelines, if any, issued or approved by the
Health Services Commissioner under section 22
for the purposes of HPP 6.1(a), that the provision
of the health information, or that part of the health
20 information, would pose a serious threat to the life
or health of the individual or any other person.
27. No access to health information where information
given in confidence4
(1) Subject to sub-section (3), an organisation must
25 not give an individual access under this Act to his
or her health information if the health information
is subject to confidentiality within the meaning of
this section.
(2) Health information relating to an individual is
30 subject to confidentiality to the extent that it is
given in confidence to the person who recorded
the health information by a person other than--
(a) the individual; or
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(b) a health service provider in the course of, or
otherwise in relation to, the provision of
health services to the individual--
with a request that the information not be
5 communicated to the individual to whom it
relates.
(3) A person who gives health information in
confidence may consent to the information being
communicated to the individual to whom it
10 relates.
28. How right of access may be exercised
(1) A right of access may be exercised in any one or
more of the following ways--
(a) by inspecting the health information or, if the
15 health information is stored in electronic
form, a print-out of the health information,
and having the opportunity to take notes of
its contents;
(b) by receiving a copy of the health
20 information;
(c) by viewing the health information and, if it is
held by a health service provider, having its
content explained.
(2) If the organisation holding the health information
25 is not a health service provider, the organisation
may agree to provide an explanation of its content
to an individual exercising a right to view the
information.
(3) An explanation under sub-section (1)(c) or (2) is
30 to be provided--
(a) by the organisation holding the information
if the organisation is a suitably qualified
health service provider and is willing to do
so; or
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(b) if paragraph (a) does not apply, by a suitably
qualified health service provider who
practises in Victoria and--
(i) is nominated by the organisation and
5 has consented to being so nominated
and is approved by the individual to
whom the health information relates; or
(ii) if the individual does not approve the
health service provider nominated
10 under sub-paragraph (i), is nominated
by the individual and has consented to
being so nominated.
(4) Despite anything to the contrary in this section, a
right of access to health information referred to in
15 section 25(3) may only be exercised--
(a) in a way provided by this section, with the
agreement of the organisation holding the
health information; or
(b) in the absence of such an agreement, by
20 receiving an accurate summary of the health
information.
29. Providing access
(1) An organisation must provide access to an
individual's health information--
25 (a) in the case of a request to inspect the health
information, or a print-out of the health
information, by making the health
information or print-out available to the
individual immediately or at a date, time and
30 place in Victoria specified in a written notice
given to the individual;
(b) in the case of a request to receive a copy of
the health information, by giving to the
individual--
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(i) a copy of the health information; or
(ii) if the individual agrees, an accurate
summary of the health information;
(c) in the case of a request to view the health
5 information, by making the health
information available to the individual;
(d) if a request to view the health information is
accompanied by a request to have its content
explained and the organisation is required, or
10 has agreed, to provide that explanation, by
explaining its content immediately or giving
to the individual a written notice stating--
(i) if the organisation is a suitably
qualified health service provider and is
15 willing to do so, that the organisation
will be available to explain the health
information at a date, time and place in
Victoria specified in the notice; or
(ii) in any other case, the name and address
20 of a suitable health service provider
who will be available in Victoria by
arrangement with the individual, to
explain the health information.
(2) Despite anything to the contrary in this section, an
25 organisation is not required to provide access in
accordance with this section to an individual's
health information of a kind referred to in section
25(3) but may agree to do so and, in the absence
of such an agreement, must give to the individual
30 an accurate summary of the health information.
30. Individual may authorise another person to be given
access
If an individual--
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(a) has a right of access; and
(b) has signed a written authority for access to
be provided to a person named in the
authority--
5 the person so named must be given access to the
health information.
31. Organisation may require evidence of identity or
authority
Before giving a person access to health
10 information, the organisation must take reasonable
steps to be satisfied about that person's right to it
and, for this purpose, may require evidence of--
(a) the person's identity; and
(b) if an individual has authorised the
15 organisation to provide access to that person,
the authority of the individual; and
(c) if the person seeking access is an authorised
representative of the individual within the
meaning of section 85(6) or the legal
20 representative of a deceased individual, the
authority of that person.
32. Fees
(1) An organisation is not required to charge a fee for
providing access to health information under this
25 Act.
(2) A fee may not be charged under this Act for
providing a manner of access to health
information (except under section 29(1)(d)) unless
a maximum fee has been prescribed for that
30 manner of access.
(3) An organisation must not charge a fee exceeding
the prescribed maximum fee.
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(4) A person who gives an explanation of health
information to an individual under section
29(1)(d) may charge a fee for the service that does
not exceed the amount of the person's usual fee for
5 a consultation of a comparable duration.
(5) An organisation must not charge for the lodgment
of a request for access.
Division 2--Request for Access
33. Request for access
10 (1) An individual who has a right of access under
section 25 to health information may request the
organisation holding the information to provide
access to it.
(2) An organisation may assist an individual in
15 making a request by advising him or her about the
different ways in which a right of access may be
exercised.
(3) A request must--
(a) state the name and, unless it is already
20 known to the organisation, the address of the
individual; and
(b) sufficiently identify the health information to
which access is sought; and
(c) specify the way in which the individual
25 wishes to have access, being a way referred
to in section 28; and
(d) be in writing if it is--
(i) a request by an authorised
representative within the meaning of
30 section 85(6); or
(ii) a request by a legal representative of a
deceased individual.
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(4) If the request is made orally, the organisation
possessing the health information--
(a) may, as soon as reasonably practicable, ask
the individual to make the request in writing;
5 and
(b) if the organisation does so, need not take any
further action in respect of the oral request.
34. Response to request
(1) This section applies to a request made under
10 section 33, other than an oral request which the
organisation has asked the individual to make in
writing.
(2) Within 45 days after receiving a request, the
organisation must--
15 (a) give to the individual a written reason for
refusal of access to the health information,
being a reason for refusal provided by this
Part or HPP 6; or
(b) if the organisation is charging a fee in
20 accordance with section 32 for giving
access--
(i) give to the individual a written notice
stating that the organisation will give
access to the health information on
25 payment of the fee specified in the
notice; and
(ii) give access to the health information in
accordance with section 29 or HPP 6.2
within 7 days after payment of the fee
30 or 45 days after receiving the request,
whichever is the later; or
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(c) in every other case, give access to the health
information in accordance with section 29 or
HPP 6.2 as soon as practicable but not later
than 45 days after receiving the request.
5 (3) If the organisation gives a notice under sub-
section (2)(a) that relates only to a part of the
health information held by the organisation, the
organisation must comply with sub-section (2) in
respect of the remainder of the health information.
10 35. Refusal of access
An organisation is taken to have refused access to
the health information if--
(a) the organisation fails to comply with a
requirement of section 29 or 34; or
15 (b) in the case of a notice given by the
organisation under section 29(1)(a) or
29(1)(d)(i)--
(i) the notice does not specify a date, time
or place that, in all the circumstances, is
20 reasonable; or
(ii) the organisation unreasonably fails to
allow inspection of the health
information, or to give a reasonable
explanation, in accordance with the
25 notice; or
(c) in the case of a notice given by the
organisation under section 29(1)(d)(ii), the
health service provider specified in the
notice unreasonably fails--
30 (i) to make an arrangement with the
individual to explain the health
information; or
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(ii) to comply with an arrangement so
made.
Division 3--Refusal of Access on Ground of Threat to Life
or Health of the Individual Requesting Access
5 36. Application
This Division applies if an organisation that holds
health information about an individual refuses
under section 26 to provide the individual with
access to the health information on the ground that
10 providing access would pose a serious threat to
the life or health of the individual.
37. Offer to discuss health information
(1) If the organisation considers that it would be
desirable for a suitably qualified health service
15 provider to discuss the health information with the
individual, the organisation may include in, or
attach to, the notice of refusal an offer--
(a) to discuss the health information with the
individual, if the organisation is a suitably
20 qualified health service provider; or
(b) to arrange for a specified health service
provider who practises in Victoria, is
suitably qualified and has consented to being
nominated, to discuss the health information
25 with the individual.
(2) The organisation must advise the individual in the
notice of refusal that he or she may nominate a
health service provider in the circumstances
referred to in section 38, whether or not the
30 organisation makes an offer under sub-section (1).
38. Individual may nominate health service provider to
assess ground for refusal etc.
(1) If--
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(a) the organisation does not make an offer
referred to in section 37; or
(b) the individual does not accept an offer made
under that section; or
5 (c) the individual is not satisfied with the
outcome of the discussion--
the individual may, within the period specified in
sub-section (2), give a written notice to the
organisation nominating a health service provider
10 for the purposes of this Division.
(2) The period for giving a written notice under sub-
section (1) is--
(a) the period of 21 days after receiving the
notice of refusal, if the organisation does not
15 make an offer referred to in section 37 or the
individual does not accept such an offer; or
(b) the period of 21 days after a discussion with
the organisation or a health service provider
held under such an offer.
20 (3) An individual may only nominate a health service
provider who has consented to being nominated
for the purposes of this Division.
39. Organisation may object to nomination
(1) Subject to sub-section (2), if--
25 (a) an organisation receives a notice under
section 38(1) nominating a health service
provider; and
(b) the organisation believes on reasonable
grounds that the nominated health service
30 provider is not suitable to act as the
nominated health service provider--
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the organisation may, within 14 days after
receiving the notice, give a written notice to the
individual--
(c) stating that the organisation objects to the
5 nominated health service provider and
specifying the ground of the objection; and
(d) if the organisation considers it appropriate to
do so, suggesting the class of health service
providers from which a health service
10 provider should be nominated.
(2) Sub-section (1) does not apply in any of the
following cases--
(a) if the health service provider who recorded
the health information and the nominated
15 health service provider are registered with
the same registration board;
(b) if the nominated health service provider is a
registered medical practitioner and has the
ability to understand and interpret the health
20 information;
(c) if the nominated health service provider
provides the same kind of service as the
health service provider who recorded the
health information and the nominated health
25 service provider has the ability to understand
and interpret the health information.
40. Lapsing of nomination
(1) The nomination of a health service provider lapses
if--
30 (a) the organisation gives a notice in accordance
with section 39(1); or
(b) the nominated health service provider--
(i) dies; or
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(ii) ceases to be a health service provider;
or
(iii) refuses or fails to act within a
reasonable time.
5 (2) If a nomination lapses, the individual may make
one more nomination under section 38(1).
41. Organisation must give health information to
nominee
If--
10 (a) an organisation has made an offer referred to
in section 37(1)(b) and it is advised by the
individual of the acceptance of that offer; or
(b) an organisation receives from the individual
a notice under section 38(1) nominating a
15 health service provider--
the organisation must give the health information,
or a copy of it, to the nominated health service
provider within 14 days after receiving the advice
or notice unless within that period--
20 (c) in a case referred to in paragraph (a), the
individual withdraws consent to discuss the
health information; or
(d) in a case referred to in paragraph (b), the
organisation gives a notice under section
25 39(1) in respect of the notice given to it
under section 38(1); or
(e) in any case, the nomination of the health
service provider lapses.
42. Functions of nominated health service provider
30 (1) Subject to sub-section (2), the functions of a
nominated health service provider are--
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(a) to notify the individual that the provider will
discuss with the organisation the basis for
the refusal of access by the organisation; and
(b) to contact the organisation that refused
5 access in order to discuss the nature of its
concerns; and
(c) to form an opinion on the validity or
otherwise of the refusal to provide the
individual with access on the ground that
10 providing access would pose a serious threat
to the life or health of the individual; and
(d) if the nominated health service provider
thinks it appropriate to do so, to explain the
grounds of the claim to the individual; and
15 (e) if the nominated health service provider
thinks it appropriate to do so, to discuss the
content of the health information with the
individual; and
(f) if the provider is satisfied that to do so would
20 not constitute a serious threat to the life or
health of the individual, to allow the
individual to inspect the health information
or, if the individual so wishes and the
organisation agrees, to have a copy of it; and
25 (g) if the provider is not so satisfied, to decline
to allow the individual to have access to the
health information.
(2) A nominated health service provider must not
disclose to the individual any health information
30 to which access has been refused under this Part
or HPP 6 on any ground other than the ground
referred to in section 36.
(3) The nominated health service provider may
charge the individual a fee (not exceeding the
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prescribed maximum fee) for performing the
functions set out in sub-section (1).
(4) For the avoidance of doubt it is declared that the
act of forming an opinion in the exercise by a
5 nominated health service provider of a function
under sub-section (1)(c) is not an interference
with the privacy of the individual to whom the
information relates.
Division 4--Miscellaneous
10 43. Alternative arrangements may be made
Nothing in this Part (except sections 26 and 27) is
intended to prevent or discourage an organisation
from providing an individual, with his or her
consent, with access to his or her health
15 information otherwise than as required by this
Part.
44. Provision of health services and keeping of health
information--terms and conditions
(1) It is a term of a contract, whether oral or in
20 writing, for the provision of a health service to an
individual that the health service provider will
allow the individual to have access, in accordance
with this Act, to health information relating to the
individual that relates to, or is made in
25 consequence of the provision of, the service.
(2) Sub-section (1) applies to a contract, whether or
not the individual is a party to the contract, made
after the commencement of this section and--
(a) the contract is made in Victoria; or
30 (b) the contract has been, or is to be, performed
wholly or partly in Victoria; or
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(c) the individual is present or resides in
Victoria when the contract is made.
(3) For the purposes of this section, it is immaterial
whether--
5 (a) the health service was provided in Victoria;
or
(b) the health information is kept or located in
Victoria.
(4) If a contract or other agreement purports to
10 exclude, or is inconsistent with, a provision of this
section, the contract or agreement is, to that
extent, void.
_______________
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PART 6--COMPLAINTS
Division 1--Making a Complaint
45. Complaints
(1) An individual may complain to the Health
5 Services Commissioner about an act or practice
that may be an interference with the privacy of the
individual5.
(2) In the case of an act or practice that may be an
interference with the privacy of a deceased
10 individual, it is immaterial whether the act or
practice occurred, or is alleged to have occurred,
during the lifetime or after the death of the
individual.
(3) In the case of an act or practice that may be an
15 interference with the privacy of 2 or more
individuals, any one of those individuals may
make a complaint under sub-section (1) on behalf
of all of the individuals with their consent.
(4) A complaint must be in writing and be lodged
20 with the Health Services Commissioner by hand,
facsimile or other electronic transmission or post.
(5) A complainant may request that his or her
complaint be expedited and give grounds for the
request.
25 (6) It is the duty of the Health Services Commissioner
to provide appropriate assistance to an individual
who wishes to make a complaint and requires
assistance to formulate the complaint.
(7) The complaint must specify the respondent to the
30 complaint.
(8) If the organisation represents the Crown, the State
shall be the respondent.
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(9) If the organisation does not represent the Crown
and--
(a) is a legal person, the organisation shall be
the respondent; or
5 (b) is an unincorporated body, the members of
the committee of management of the
organisation shall be the respondents.
(10) A failure to comply with sub-section (7) does not
render the complaint, or any step taken in relation
10 to it, a nullity.
46. Complaint referred to Health Services Commissioner
The Health Services Commissioner may treat a
complaint referred to him or her by--
(a) the Ombudsman under section 15B of the
15 Ombudsman Act 1973; or
(b) the Privacy Commissioner under section
34A of the Information Privacy Act
2000--
as if it were a complaint made under section
20 45(1).
47. Complaints by children and people with an
impairment
(1) A complaint may be made--
(a) by a child; or
25 (b) on behalf of a child by--
(i) a parent of the child; or
(ii) any other person chosen by the child or
by a parent of the child; or
(iii) any other person who, in the opinion of
30 the Health Services Commissioner, has
a sufficient interest in the subject-
matter of the complaint.
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(2) A child who is capable of understanding the
general nature and effect of choosing a person to
make a complaint on his or her behalf may do so
even if he or she is otherwise incapable of
5 exercising powers.
(3) If an individual is unable to complain by reason of
injury, disease, senility, illness, disability,
physical impairment or mental disorder, a
complaint may be made on behalf of that
10 individual by--
(a) another person authorised by the individual
to complain on his or her behalf; or
(b) if the individual is unable to authorise
another person, any other person on his or
15 her behalf who, in the opinion of the Health
Services Commissioner, has a sufficient
interest in the subject-matter of the
complaint.
(4) An individual who is capable of understanding the
20 general nature and effect of authorising another
person to complain on his or her behalf may do so
even if he or she is otherwise incapable of
exercising powers.
Division 2--Procedure after a Complaint is Made
25 48. Health Services Commissioner must notify respondent
The Health Services Commissioner must notify
the respondent in writing of the complaint as soon
as practicable after receiving it.
49. Preliminary assessment of complaint
30 (1) Within a reasonable period after receiving a
complaint but not later than 90 days after the day
on which a complaint is lodged, the Health
Services Commissioner must decide whether, and
to what extent, to entertain the complaint.
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(2) To enable the Health Services Commissioner to
make a decision under sub-section (1), he or she
may, by written notice, invite any person--
(a) to attend before the Health Services
5 Commissioner for the purpose of discussing
the subject-matter of the complaint; or
(b) to produce any documents specified in the
notice.
(3) If the Health Services Commissioner considers it
10 appropriate, he or she may attempt to resolve the
complaint informally.
50. Splitting complaints
(1) If a complaint--
(a) deals with more than one subject-matter; or
15 (b) deals with more than one set of
circumstances; or
(c) makes allegations against more than one
organisation; or
(d) makes more than one allegation against an
20 organisation; or
(e) for any other reason is suitable to be dealt
with in separate parts--
the Health Services Commissioner--
(f) may if it is administratively convenient to do
25 so; or
(g) must if it is in the interest of the complainant
to do so--
determine that any subject-matter, set of
circumstances, allegation or part, as the case
30 requires, be treated as a separate complaint.
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(2) The Health Services Commissioner must not
make a determination under sub-section (1) unless
he or she is satisfied that any attempt at
conciliation is unlikely to be prejudiced by the
5 making of the determination.
51. Circumstances in which Health Services
Commissioner may decline to entertain complaint
(1) The Health Services Commissioner may decline
to entertain a complaint made under section 45(1)
10 by notifying the complainant and the respondent
in writing to that effect within 90 days after the
day on which the complaint was lodged if the
Health Services Commissioner considers that--
(a) the act or practice about which the complaint
15 has been made is not an interference with the
privacy of an individual; or
(b) the complaint is made on behalf of a
complainant by a person who is not
authorised by section 47 to do so; or
20 (c) although a complaint has been made to the
Health Services Commissioner about the act
or practice, the complainant has not
complained to the respondent; or
(d) the complaint to the Health Services
25 Commissioner was made more than
12 months after the complainant became
aware of the act or practice; or
(e) the complaint is frivolous, vexatious,
misconceived or lacking in substance; or
30 (f) the act or practice is the subject of--
(i) an application under another
enactment; or
(ii) a proceeding in a court or tribunal--
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and the subject-matter of the complaint has
been, or is being, dealt with adequately by
that means; or
(g) the act or practice could be made the subject
5 of an application under another enactment
for a more appropriate remedy; or
(h) the complainant has complained to the
respondent about the act or practice and
either--
10 (i) the respondent has dealt, or is dealing,
adequately with the complaint; or
(ii) the respondent has not yet had an
adequate opportunity to deal with the
complaint.
15 (2) A notice under sub-section (1) must state that the
complainant, by notice in writing given to the
Health Services Commissioner, may require the
Health Services Commissioner to refer the
complaint to the Tribunal for hearing under
20 Division 6.
(3) If the act or practice could be made the subject of
an application under--
(a) the Information Privacy Act 2000; or
(b) the Privacy Act 1988 of the Commonwealth;
25 or
(c) the Ombudsman Act 1973--
the Health Services Commissioner may refer the
complaint to the Privacy Commissioner, the
Federal Privacy Commissioner or the
30 Ombudsman, as the case may be, and notify the
complainant and the respondent in writing of the
referral.
(4) If the document to which the individual seeks
access is a document referred to in section 16, the
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Health Services Commissioner may advise the
complainant to make a request for access to the
document under the Freedom of Information
Act 1982.
5 (5) Within 60 days after receiving the Health Services
Commissioner's notice declining to entertain a
complaint, the complainant, by notice in writing
given to the Health Services Commissioner, may
require him or her to refer the complaint to the
10 Tribunal for hearing under Division 6.
(6) The Health Services Commissioner must comply
with a notice under sub-section (5).
(7) If the complainant does not notify the Health
Services Commissioner under sub-section (5), the
15 Health Services Commissioner may dismiss the
complaint.
(8) As soon as possible after a dismissal under sub-
section (7), the Health Services Commissioner
must, by written notice, notify the complainant
20 and the respondent of the dismissal.
(9) A complainant may take no further action under
this Act in relation to the subject-matter of a
complaint dismissed under this section.
52. Referral to registration board
25 (1) If a complaint, or part of a complaint, relates to a
registered health service provider, the Health
Services Commissioner may refer the complaint,
or that part of the complaint, to the appropriate
registration board if--
30 (a) the registration board has power to resolve or
deal with the matter; and
(b) the Health Services Commissioner considers
that it is appropriate to refer the complaint or
that part of the complaint to the registration
35 board; and
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(c) the registration board is willing to accept the
complaint or that part of the complaint.
(2) Within 14 days after referring a complaint, or part
of a complaint, about a registered health service
5 provider to a registration board, the Health
Services Commissioner must notify the
complainant and the registered health service
provider in writing of the referral.
(3) If a complaint, or part of a complaint, has been
10 referred to a registration board, the registration
board must advise the Health Services
Commissioner of the progress of the matter, when
required by the Health Services Commissioner to
do so, and, when the matter is completed, of the
15 outcome of the matter.
(4) Advice under sub-section (3) must include any
information that the Health Services
Commissioner specifies by written notice to the
registration board.
20 53. Health Services Commissioner may dismiss stale
complaint
(1) The Health Services Commissioner may dismiss a
complaint if he or she has had no substantive
response from the complainant in the period of
25 90 days following a request by the Health
Services Commissioner for a response in relation
to the complaint.
(2) As soon as possible after a dismissal under sub-
section (1), the Health Services Commissioner
30 must, by written notice, notify the complainant
and the respondent of the dismissal.
(3) A complainant may take no further action under
this Act in relation to the subject-matter of a
complaint dismissed under this section.
35 54. Minister may refer a complaint direct to Tribunal
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(1) If the Minister considers that the subject-matter of
a complaint raises an issue of important public
policy, the Minister may refer the complaint
directly to the Tribunal for hearing under
5 Division 6, whether or not the Health Services
Commissioner has considered it or the complaint
is in the process of being conciliated.
(2) The Minister is not a party to a proceeding on a
complaint referred to the Tribunal under sub-
10 section (1) unless joined by the Tribunal.
55. Complaint about registered health service provider
(1) If the Health Services Commissioner--
(a) accepts a complaint, in whole or in part,
about an act or practice of a registered health
15 service provider; or
(b) refers such a complaint to an authority other
than the appropriate registration board--
the Health Services Commissioner must give a
copy of the complaint to the appropriate
20 registration board.
(2) The giving of a copy of a complaint under sub-
section (1) must not be taken to be a complaint to,
or a referral of the complaint to, the registration
board for the purposes of this or any other Act and
25 the information provided must not be used by the
registration board as the basis for any
investigation, inquiry into, or other action relating
to, the complaint unless the complaint is referred
to the board under section 52.
30 56. What happens if a complaint is accepted?
(1) If the Health Services Commissioner decides to
accept a complaint in whole or in part, he or she
may adopt one of the following options--
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(a) if the Health Services Commissioner
considers that it is reasonably possible that
the complaint may be conciliated
successfully under Division 3, he or she may
5 decide to conciliate the complaint; or
(b) if the Health Services Commissioner--
(i) does not consider that it is reasonably
possible that the complaint may be
conciliated successfully under
10 Division 3; or
(ii) considers that the complaint is more
likely to be resolved by the making of a
ruling under Division 4--
he or she may decide to proceed under
15 Division 4; or
(c) if the Health Services Commissioner
considers that, in the circumstances of the
complaint, conciliation or the making of a
ruling is inappropriate, he or she may decide
20 to decline to further entertain the complaint.
(2) Sub-section (1) does not apply to a complaint--
(a) that the Health Services Commissioner has
declined to entertain under section 51 or
dismissed under section 53; or
25 (b) that the Minister has referred to the Tribunal
under section 54.
(3) In making a decision under sub-section (1), the
Health Services Commissioner may take into
account the wishes, if expressed, of the
30 complainant and the respondent.
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(4) The Health Services Commissioner must notify
the complainant and the respondent in writing of
his or her decision under sub-section (1).
(5) A notice under sub-section (4) must state that the
5 complainant, by notice in writing given to the
Health Services Commissioner, may require the
Health Services Commissioner to refer the
complaint to the Tribunal for hearing under
Division 6.
10 57. What happens if conciliation or ruling is
inappropriate?
(1) Within 60 days after receiving the Health Services
Commissioner's notice under section 56(4), the
complainant, by written notice, may require the
15 Health Services Commissioner to refer the
complaint to the Tribunal for hearing under
Division 6.
(2) The Health Services Commissioner must comply
with a notice under sub-section (1).
20 (3) If the complainant does not notify the Health
Services Commissioner under sub-section (1), the
Health Services Commissioner may dismiss the
complaint.
(4) As soon as possible after a dismissal under sub-
25 section (3), the Health Services Commissioner
must, by written notice, notify the complainant
and the respondent of the dismissal.
(5) A complainant may take no further action under
this Act in relation to the subject-matter of a
30 complaint dismissed under this section.
58. Duty to stop proceedings
(1) The Health Services Commissioner must cease
dealing with an issue raised in a complaint if he or
she--
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(a) becomes aware that the complainant or
respondent has begun legal proceedings
which relate to that issue; or
(b) becomes aware that proceedings relating to
5 that specific issue have been initiated before
a court or tribunal; or
(c) considers that the issue should properly be
dealt with by a court or tribunal.
(2) Within 14 days after ceasing to deal with a
10 complaint under sub-section (1), the Health
Services Commissioner must give written notice
of the fact to the complainant and the respondent.
(3) Despite sub-section (1), the Health Services
Commissioner--
15 (a) may, with the consent of the complainant
and the respondent, continue dealing with
the matter, but only by referring it to
conciliation; and
(b) must cease dealing with the matter when the
20 Health Services Commissioner becomes
aware that a court or tribunal has
commenced to hear a proceeding relating to
the complaint.
(4) If the Health Services Commissioner has ceased
25 dealing with an issue raised in a complaint and
later becomes aware that the complainant or the
respondent has withdrawn proceedings relating to
the complaint, the Health Services Commissioner
may, with the consent of the complainant, re-open
30 proceedings under this Act.
(5) The Health Services Commissioner may continue
to deal with a complaint about a health service
provider which the Commissioner has referred to
the appropriate registration board under section 52
35 unless the board asks the Health Services
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Commissioner to suspend dealing with the
complaint until the board has completed the
matter and advised the Health Services
Commissioner of the outcome under section
5 52(3).
Division 3--Conciliation of Complaints
59. Conciliation process
(1) If the Health Services Commissioner decides
under section 56(1) to conciliate a complaint, he
10 or she must make all reasonable endeavours to
conciliate the complaint.
(2) The Health Services Commissioner may require a
party to attend a conciliation either personally or
by a representative who has authority to settle the
15 matter on behalf of the party.
60. Power to obtain information and documents
(1) If the Health Services Commissioner has reason to
believe that a person has information or a
document relevant to a conciliation under this
20 Division, the Health Services Commissioner may
give to the person a written notice requiring the
person--
(a) to give the information to the Health
Services Commissioner in writing signed by
25 the person or, in the case of a body
corporate, by an officer of the body
corporate; or
(b) to produce the document to the Health
Services Commissioner.
30 (2) If the Health Services Commissioner has reason to
believe that a person has information relevant to a
conciliation under this Division, the Health
Services Commissioner may give to the person a
written notice requiring the person to attend
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before the Health Services Commissioner at a
time and place specified in the notice to answer
questions relevant to the complaint.
(3) The Health Services Commissioner is not entitled
5 to require an agency within the meaning of the
Freedom of Information Act 1982 or a Minister
to give any information if the Secretary to the
Department of Premier and Cabinet furnishes to
the Health Services Commissioner a certificate
10 certifying that the giving of that information
(including in answer to a question) would involve
the disclosure of information which, if included in
a document of the agency or an official document
of the Minister, would cause the document to be
15 an exempt document of a kind referred to in
section 28(1) of the Freedom of Information Act
1982.
(4) The Health Services Commissioner may not
conduct an investigation in respect of a certificate
20 under sub-section (3) or question whether the
information is of a kind referred to in section
28(1) of the Freedom of Information Act 1982
or a decision to sign such a certificate.
61. Conciliation agreements
25 (1) If, following conciliation, the parties to the
complaint reach agreement with respect to the
subject-matter of the complaint--
(a) at the request of any party made within
30 days after agreement is reached, a written
30 record of the conciliation agreement is to be
prepared by the parties or the Health
Services Commissioner; and
(b) the record must be signed by or on behalf of
each party and certified by the Health
35 Services Commissioner; and
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(c) the Health Services Commissioner must give
each party a copy of the signed and certified
record.
(2) Any party, after notifying in writing the other
5 party, may lodge a copy of the signed and
certified record with the Tribunal for registration.
(3) Subject to sub-section (4), the Tribunal must
register the record and give a certified copy of the
registered record to each party.
10 (4) If the Tribunal, constituted by a presidential
member, considers that it may not be practicable
to enforce, or to supervise compliance with, a
conciliation agreement, the Tribunal may refuse to
register the record of the agreement.
15 (5) On registration, the record must be taken to be an
order of the Tribunal in accordance with its terms
and may be enforced accordingly.
(6) The refusal of the Tribunal to register the record
of a conciliation agreement does not affect the
20 validity of the agreement.
62. Conciliation statements, acts and documents
inadmissible
(1) Subject to sub-section (2), evidence of anything
said or done in the course of a conciliation is not
25 admissible in proceedings before the Tribunal or
any other legal proceedings or proceedings before
a registration board relating to the subject-matter
of the health information or the complaint, unless
all parties to the conciliation otherwise agree.
30 (2) A document prepared by a party for the purpose
of, or in connection with, a conciliation (or a copy
of such a document), whether or not produced or
used in the course of the conciliation, is not
admissible in proceedings before the Tribunal or
35 any other legal proceedings or proceedings before
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a registration board relating to the subject-matter
of the health information or the complaint, unless
all parties to the conciliation otherwise agree.
63. What happens if conciliation fails?
5 (1) If the Health Services Commissioner has
attempted unsuccessfully to conciliate a
complaint, he or she--
(a) must decide whether to investigate the
complaint under Division 4 or to take no
10 further action in respect of the complaint;
and
(b) must notify the complainant and the
respondent in writing.
(2) A notice under sub-section (1) must state that the
15 complainant, by notice in writing given to the
Health Services Commissioner--
(a) may require the Health Services
Commissioner to refer the complaint to the
Tribunal for hearing under Division 6; and
20 (b) if the Health Services Commissioner
proposes to investigate the complaint, may
object or agree to the investigation.
(3) If the Health Services Commissioner proposes to
take no further action in respect of a complaint,
25 the complainant, by written notice to the Health
Services Commissioner within 60 days after
receiving the notice under sub-section (1), may
require the Health Services Commissioner to refer
the complaint to the Tribunal for hearing under
30 Division 6.
(4) If the Health Services Commissioner proposes to
investigate a complaint under Division 4, the
complainant, by written notice to the Health
Services Commissioner within 60 days after
35 receiving the notice under sub-section (1)--
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(a) may object to the investigation and may
require the Health Services Commissioner to
refer the complaint to the Tribunal for
hearing under Division 6; or
5 (b) may agree to the investigation.
(5) The Health Services Commissioner must comply
with a notice under sub-section (3) or (4)(a).
(6) If the complainant does not notify the Health
Services Commissioner under sub-section (3) or
10 (4), the Health Services Commissioner must
dismiss the complaint.
(7) If the complainant objects to the investigation but
does not require the Health Services
Commissioner to refer the complaint to the
15 Tribunal for hearing under Division 6, the Health
Services Commissioner must dismiss the
complaint.
(8) As soon as possible after a dismissal under sub-
section (6) or (7), the Health Services
20 Commissioner must, by written notice, notify the
complainant and the respondent of the dismissal.
(9) A complainant may take no further action under
this Act in relation to the subject-matter of a
complaint dismissed under this section.
25 (10) If a complainant agrees to an investigation of the
complaint, the Health Services Commissioner--
(a) must notify the respondent in writing that an
investigation will be conducted; and
(b) must investigate the complaint as soon as
30 practicable after receipt of the notice under
sub-section (4)(b).
Division 4--Investigation, Rulings and Compliance Notices
64. Investigation and ruling
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(1) The Health Services Commissioner may
investigate--
(a) a complaint in respect of which he or she has
made a decision under section 56(1)(b); and
5 (b) a complaint referred to in section 63(1)
which he or she has decided to investigate
and the complainant has agreed to the
investigation--
and make a ruling as to whether the act or practice
10 of the respondent that is the subject of the
complaint is an interference with the privacy of
the complainant6.
(2) Within 14 days after ruling as to whether there has
been an interference with the privacy of the
15 complainant, the Health Services Commissioner
must serve written notice of the ruling on the
complainant and the respondent.
(3) A ruling must include--
(a) the reasons for the ruling; and
20 (b) the action, if any, that the Health Services
Commissioner specifies to remedy the
complaint; and
(c) a specified period, not exceeding one month,
within which the action must be taken.
25 (4) If the Health Services Commissioner is satisfied,
on the application of an organisation on which a
ruling is served, that it is not reasonably possible
to take the action specified in the ruling within the
period specified in the ruling, the Health Services
30 Commissioner may extend the period specified in
the ruling on the giving to him or her by the
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organisation of an undertaking to take the
specified action within the extended period.
(5) The Health Services Commissioner may only
extend a period under sub-section (4) if an
5 application for the extension is made before the
period specified in the ruling expires.
(6) If the Health Services Commissioner thinks it
appropriate, he or she may give a copy of a ruling
to the registration board by which the respondent
10 is registered and must give written notice of
having done so to the respondent.
(7) A respondent who receives notice of a ruling
under sub-section (2) which requires the
respondent to take specified action must report in
15 writing to the Health Services Commissioner,
within 7 days after the expiry of the period, or
extended period, within which the action must be
taken, on the action taken by the respondent with
respect to the ruling.
20 Penalty: 10 penalty units.
(8) The Health Services Commissioner must give
written notice to the complainant of the contents
of a report referred to in sub-section (7) within
7 days after receipt of the report or, if the report
25 has not been provided, must give written notice to
the complainant of that fact within 7 days after the
expiry of the period, or extended period, referred
to in sub-section (7).
65. Referral to Tribunal
30 (1) The complainant or the respondent, by written
notice within 60 days after receiving notice of a
ruling under section 64(2), may require the Health
Services Commissioner to refer the complaint to
the Tribunal for hearing under Division 6.
35 (2) If the respondent fails--
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(a) to comply with a ruling; or
(b) to report to the Health Services
Commissioner as required by section
64(7)--
5 the complainant, by written notice within 30 days
after receipt of a notice under section 64(8), may
require the Health Services Commissioner to refer
the complaint to the Tribunal for hearing under
Division 6.
10 (3) The Health Services Commissioner--
(a) must comply with a notice under sub-section
(1) or (2); and
(b) must provide to the Tribunal a copy of all
documents that were considered by the
15 Health Services Commissioner in the
investigation of the complaint.
66. Compliance notice
(1) The Health Services Commissioner may serve a
compliance notice on the organisation, if it
20 appears to him or her that--
(a) the organisation has done an act or engaged
in a practice in contravention of this Act; and
(b) the act or practice--
(i) constitutes a serious or flagrant
25 contravention; or
(ii) is of a kind that has been done or
engaged in by the organisation on at
least 5 separate occasions within the
previous 2 years.
30 (2) A compliance notice requires the organisation to
take specified action within a specified period for
the purpose of ensuring compliance with this Act
and to report the taking of that action to the Health
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Services Commissioner in a specified manner
within a specified period after taking that action.
(3) If the Health Services Commissioner is satisfied,
on the application of an organisation on which a
5 compliance notice is served, that it is not
reasonably possible to take the action specified in
the notice within the period specified in the
notice, the Health Services Commissioner may
extend the period specified in the notice on the
10 giving to him or her by the organisation of an
undertaking to take the specified action within the
extended period.
(4) The Health Services Commissioner may only
extend a period under sub-section (3) if an
15 application for the extension is made before the
period specified in the notice expires.
(5) The Health Services Commissioner may act under
sub-section (1)--
(a) on his or her own initiative at any stage and
20 irrespective of whether a complaint has been
made or a complainant has objected to an
investigation; or
(b) on an application by an individual who was a
complainant under this Part and the
25 complaint was the subject of a conciliation
agreement or was determined by the
Tribunal.
(6) In deciding whether or not to serve a compliance
notice, the Health Services Commissioner may
30 have regard to the extent to which the organisation
has complied with a decision of the Tribunal
under Division 6.
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67. Power to obtain information and documents
(1) If the Health Services Commissioner has reason to
believe that a person has information or a
document relevant to a decision under section
5 64(1) or 66, the Health Services Commissioner
may give to the person a written notice requiring
the person--
(a) to give the information to the Health
Services Commissioner in writing signed by
10 the person or, in the case of a body
corporate, by an officer of the body
corporate; or
(b) to produce the document to the Health
Services Commissioner.
15 (2) If the Health Services Commissioner has reason to
believe that a person has information relevant to a
decision under section 64(1) or 66, the Health
Services Commissioner may give to the person a
written notice requiring the person to attend
20 before the Health Services Commissioner at a
time and place specified in the notice to answer
questions relevant to the decision.
(3) The Health Services Commissioner is not entitled
to require an agency within the meaning of the
25 Freedom of Information Act 1982 or a Minister
to give any information if the Secretary to the
Department of Premier and Cabinet furnishes to
the Health Services Commissioner a certificate
certifying that the giving of that information
30 (including in answer to a question) would involve
the disclosure of information which, if included in
a document of the agency or an official document
of the Minister, would cause the document to be
an exempt document of a kind referred to in
35 section 28(1) of the Freedom of Information Act
1982.
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(4) The Health Services Commissioner may not
conduct an investigation in respect of a certificate
under sub-section (3) or question whether the
information is of a kind referred to in section
5 28(1) of the Freedom of Information Act 1982
or a decision to sign such a certificate.
68. Conduct of investigation etc.
In exercising a power under section 64, 66 or 67,
the Health Services Commissioner--
10 (a) must proceed with as much expedition as the
requirements of this Act and proper
investigation of the matter permit; and
(b) is not bound by the rules of evidence.
69. Power to examine witnesses
15 (1) The Health Services Commissioner may
administer an oath or affirmation to a person
required under section 67(2) to attend before the
Health Services Commissioner and may examine
the person on oath or affirmation.
20 (2) The oath or affirmation to be taken or made by a
person for the purposes of this section is an oath
or affirmation that the answers the person will
give will be true.
70. Protection against self-incrimination
25 (1) It is a reasonable excuse for a natural person to
refuse or fail to give information or answer a
question or to produce a document when required
to do so under this Part if giving the information
or answering the question or producing the
30 document might tend to incriminate the person.
(2) This section does not limit section 67(3).
71. Offence not to comply with compliance notice
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(1) An organisation must comply with a compliance
notice served on it under section 66(1) that is in
effect.
Penalty: In the case of a body corporate,
5 3000 penalty units;
In any other case, 600 penalty units.
(2) A compliance notice served under section 66(1)
does not take effect--
(a) until the expiry of the period specified in the
10 notice; or
(b) until the expiry of any extended period fixed
under section 66(3); or
(c) until the expiry of the period within which an
application for review of the decision to
15 serve the notice may be made to the Tribunal
under section 72(1); or
(d) if an application is made under section 72(1)
for review of the decision to serve the notice,
unless and until the decision is affirmed on
20 the review--
whichever is the later.
(3) An offence against sub-section (1) is an indictable
offence.
72. Application for review--compliance notice
25 (1) An individual or organisation whose interests are
affected by a decision of the Health Services
Commissioner under section 66(1) to serve a
compliance notice may apply to the Tribunal for
review of the decision.
30 (2) An application for review must be made within
28 days after the later of--
(a) the day on which the decision is made; or
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(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
person requests a statement of reasons for
the decision, the day on which the statement
5 of reasons is given to the person or the
person is informed under section 61(5) of
that Act that a statement of reasons will not
be given.
(3) The Health Services Commissioner is a party to a
10 proceeding on a review under this section.
Division 5--Interim Orders
73. Tribunal may make interim orders before hearing
(1) A complainant or a respondent or the Health
Services Commissioner may apply to the Tribunal
15 for an interim order to prevent any party to the
complaint from acting in a manner prejudicial to
negotiations or conciliation or to any decision or
order the Tribunal might subsequently make.
(2) An application may be made under sub-section (1)
20 at any time before the complaint is referred to the
Tribunal.
(3) In making an interim order, the Tribunal must
have regard to--
(a) whether or not the complainant has
25 established a prima facie case with respect to
the complaint; and
(b) any possible detriment or advantage to the
public interest in making the order; and
(c) any possible detriment to the complainant's
30 or the respondent's case if the order is not
made.
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(4) An interim order applies for the period, not
exceeding 28 days, specified in it and may be
extended from time to time by the Tribunal.
(5) The party against whom the interim order is
5 sought is a party to the proceeding on an
application under sub-section (1).
(6) In making an interim order, the Tribunal--
(a) may require any undertaking as to costs or
damages that it considers appropriate; and
10 (b) may make provision for the lifting of the
order if specified conditions are met.
(7) The Tribunal may assess any costs or damages
referred to in sub-section (6)(a).
(8) Nothing in this section affects or takes away from
15 the Tribunal's power under section 123 of the
Victorian Civil and Administrative Tribunal
Act 1998 to make orders of an interim nature in a
proceeding in the Tribunal in respect of a
complaint.
20 Division 6--Jurisdiction of the Tribunal
74. When may the Tribunal hear a complaint?
(1) The Tribunal may hear a complaint--
(a) referred to it by the Health Services
Commissioner under section 51, 57, 63 or
25 65;
(b) referred to it by the Minister under
section 54.
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(2) The Tribunal also has the jurisdiction conferred
by section 73.
75. Who are the parties to a proceeding?
(1) The complainant and the respondent are parties to
5 a proceeding in respect of a complaint referred to
in section 74(1).
(2) The Health Services Commissioner is not a party
to a proceeding in respect of a complaint referred
to in section 74(1)(a) unless joined by the
10 Tribunal.
76. Time limits for certain complaints
(1) The Tribunal must commence hearing a complaint
within 30 days after its referral to the Tribunal if
the complaint was referred to it by the Minister
15 under section 54.
(2) The Tribunal, constituted by a presidential
member, may extend the period of 30 days under
sub-section (1) by one further period of not more
than 30 days.
20 77. Inspection of exempt documents by Tribunal
(1) Subject to sub-section (2) and to any order made
by the Tribunal under section 51(2) of the
Victorian Civil and Administrative Tribunal
Act 1998, the Tribunal must do all things
25 necessary to ensure that--
(a) any document produced to the Tribunal in
proceedings under this Act that is claimed to
be an exempt document of a kind referred to
in section 28(1) of the Freedom of
30 Information Act 1982, or the contents of
that document, is not disclosed to any person
other than--
(i) a member of the Tribunal as constituted
for the proceedings; or
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(ii) a member of the staff of the Tribunal in
the course of the performance of his or
her duties as a member of that staff; and
(b) the document is returned to the respondent at
5 the conclusion of the proceedings.
(2) The Tribunal may make such orders as it thinks
necessary having regard to the nature of the
proceedings.
(3) If the applicant is represented by a qualified legal
10 practitioner, orders under sub-section (2) may
include an order that the contents of a document
produced to the Tribunal that is claimed to be an
exempt document be disclosed to that legal
practitioner.
15 (4) In making an order under sub-section (2), the
Tribunal must be guided by the principle that the
contents of a document that is claimed to be an
exempt document should not normally be
disclosed except in accordance with an order of
20 the Tribunal under section 51(2) of the Victorian
Civil and Administrative Tribunal Act 1998.
(5) If a complaint referred to in section 74(1) relates
to a document or part of a document in relation to
which disclosure has been refused on the grounds
25 specified in section 28 of the Freedom of
Information Act 1982, the Tribunal may, if it
regards it as appropriate to do so, announce its
findings in terms which neither confirm nor deny
the existence of the document in question.
30 78. What may the Tribunal decide?
(1) After hearing the evidence and representations
that the parties to a complaint desire to adduce or
make, the Tribunal may--
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(a) find the complaint or any part of it proven
and make any one or more of the following
orders--
(i) an order that the respondent provide the
5 complainant with access to health
information that relates to the
complainant;
(ii) an order restraining the respondent, or
the organisation of which the
10 respondent is the committee of
management, from repeating or
continuing any act or practice the
subject of the complaint which the
Tribunal has found to constitute an
15 interference with the privacy of an
individual;
(iii) an order that the respondent perform or
carry out any reasonable act or course
of conduct to redress any loss or
20 damage suffered by the complainant,
including injury to the complainant's
feelings or humiliation suffered by the
complainant, by reason of the act or
practice the subject of the complaint;
25 (iv) an order that the complainant is entitled
to a specified amount, not exceeding
$100 000, by way of compensation for
any loss or damage suffered by the
complainant, including injury to the
30 complainant's feelings or humiliation
suffered by the complainant, by reason
of the act or practice the subject of the
complaint; or
(b) find the complaint or any part of it proven
35 but decline to take any further action in the
matter; or
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(c) find the complaint or any part of it not
proven and make an order that the complaint
or part be dismissed; or
(d) in any case, make an order that the
5 complainant is entitled to a specified amount
to reimburse the complainant for expenses
reasonably incurred by the complainant in
connection with the making of the complaint
and the proceedings held in respect of it
10 under this Act.
(2) In an order under sub-paragraph (ii) or (iii) of sub-
section (1)(a) arising out of a breach of HPP 6.5,
6.6 or 6.7, the Tribunal may include an order
that--
15 (a) an organisation or respondent make an
appropriate correction to the health
information; or
(b) an organisation or respondent attach to the
health information a statement provided by
20 the complainant of a correction sought by the
complainant; or
(c) an organisation or respondent place the
incorrect information on a record which is
not generally available to anyone involved in
25 providing health services to the complainant
and to which access is restricted.
(3) If an order of the Tribunal relates to a public
register, the Health Services Commissioner must,
as soon as practicable after its making, report the
30 order to the Minister responsible for the public
sector agency or Council that administers that
public register.
(4) The Health Services Commissioner may include
in a report under sub-section (3) recommendations
35 in relation to any matter that concerns the need
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for, or the desirability of, legislative or
administrative action in the interests of privacy of
individuals.
_______________
5
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PART 7--OFFENCES
79. Definition
In this Part, "false representation" means a
representation that is--
5 (a) false in a material particular; and
(b) made knowing that it is false in that
particular or without believing that it is true
in that particular.
80. Unlawfully requiring consent etc.
10 A person or body must not, by threat, intimidation
or false representation, require another person or
body--
(a) to give a consent under this Act; or
(b) to do, without consent, an act for which a
15 consent under this Act is required.
Penalty: In the case of a body corporate,
300 penalty units;
In any other case, 60 penalty units.
81. Unlawful destruction etc. or removal of health
20 information
(1) A person or body must not destroy, deface or
damage health information held by an
organisation or any other document with intent to
evade or frustrate the operation of this Act.
25 Penalty: In the case of a body corporate,
300 penalty units;
In any other case, 60 penalty units.
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(2) A person or body must not remove from Victoria
health information held by an organisation with
intent to evade or frustrate the operation of this
Act.
5 Penalty: In the case of a body corporate,
300 penalty units;
In any other case, 60 penalty units.
82. Unlawfully requesting or obtaining access to health
information
10 A person or body must not, by threat, intimidation
or false representation, request or obtain access to
health information relating to himself, herself or
any other person.
Penalty: In the case of a body corporate,
15 300 penalty units;
In any other case, 60 penalty units.
83. Persons not to be persuaded not to exercise rights
under Act
A person or body must not, by threat, intimidation
20 or false representation, persuade or attempt to
persuade another person--
(a) to refrain from making or pursuing--
(i) a request for access to health
information under Part 5; or
25 (ii) a complaint to the Health Services
Commissioner under Part 6; or
(b) to withdraw a request or complaint referred
to in paragraph (a).
Penalty: In the case of a body corporate,
30 300 penalty units;
In any other case, 60 penalty units.
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84. Failure to attend etc. before Health Services
Commissioner
A person or body must not--
(a) without reasonable excuse, refuse or fail--
5 (i) to attend before the Health Services
Commissioner; or
(ii) to be sworn or to make an affirmation;
or
(iii) to give information; or
10 (iv) to answer a question or produce a
document--
when so required by the Health Services
Commissioner under this Act; or
(b) wilfully obstruct, hinder or resist the Health
15 Services Commissioner or an employee in
the office of the Health Services
Commissioner or a delegate of the Health
Services Commissioner in--
(i) performing, or attempting to perform, a
20 function or duty under this Act; or
(ii) exercising, or attempting to exercise, a
power under this Act; or
(c) furnish information or make a statement to
the Health Services Commissioner knowing
25 that it is false or misleading in a material
particular.
Penalty: In the case of a body corporate,
300 penalty units;
In any other case, 60 penalty units.
30 _______________
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PART 8--GENERAL
85. Capacity to consent or make a request or exercise
right of access
(1) If this Act requires the consent of an individual to
5 the collection, use or disclosure of health
information or to the transfer of health
information to someone who is outside Victoria,
the power to give that consent may be exercised
on behalf of an individual who is incapable of
10 giving consent by an authorised representative of
that individual, if the consent is reasonably
necessary for the lawful performance of functions
or duties or exercise of powers in respect of the
individual by the authorised representative.
15 (2) If this Act empowers an individual to request
access to, or the correction of, health information
or confers on an individual a right of access to
health information, the power to make that
request, or the right of access, may be exercised--
20 (a) by the individual personally, except if the
individual is a child who is incapable of
making the request; and
(b) by an authorised representative of the
individual if--
25 (i) the individual is incapable of making
the request or exercising the right of
access; and
(ii) the health information to be accessed is
reasonably necessary for the lawful
30 performance of functions or duties or
exercise of powers in respect of the
individual by the authorised
representative.
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(3) For the purposes of sub-sections (1) and (2), an
individual is incapable of giving consent, making
the request or exercising the right of access if he
or she is incapable by reason of age, injury,
5 disease, senility, illness, disability, physical
impairment or mental disorder of--
(a) understanding the general nature and effect
of giving the consent, making the request or
exercising the right of access (as the case
10 requires); or
(b) communicating the consent or refusal of
consent, making the request or personally
exercising the right of access (as the case
requires)--
15 despite the provision of reasonable assistance by
another person.
(4) Subject to the Guardianship and
Administration Act 1986, an authorised
representative of an individual must not give
20 consent or request access to, or the correction of,
health information if the authorised representative
knows or believes that the consent or request does
not accord with the wishes expressed, and not
changed or withdrawn, by the individual before he
25 or she became incapable of giving consent or
requesting access and any purported consent given
or request made in those circumstances is void.
(5) An organisation may refuse a request by an
authorised representative of an individual for
30 access to the health information of the individual
if the organisation reasonably believes that access
by the authorised representative may prejudice the
health or safety of the individual.
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(6) In this section, "authorised representative", in
relation to an individual, means a person who is--
(a) a guardian of the individual; or
(b) an attorney for the individual under an
5 enduring power of attorney; or
(c) an agent for the individual within the
meaning of the Medical Treatment Act
1988; or
(d) an administrator or a person responsible
10 within the meaning of the Guardianship
and Administration Act 1986; or
(e) a parent of an individual, if the individual is
a child; or
(f) otherwise empowered under law to perform
15 any functions or duties or exercise powers as
an agent of or in the best interests of the
individual--
except to the extent that acting as an authorised
representative of the individual is inconsistent
20 with an order made by a court or tribunal.
86. Protection from liability
(1) A person who lodges a complaint under section
45(1) is not personally liable for any loss, damage
or injury suffered by another person by reason
25 only of the lodging of the complaint.
(2) A person who produces a document, or gives any
information or evidence, to the Health Services
Commissioner under this Act is not personally
liable for any loss, damage or injury suffered by
30 another person by reason only of that production
or giving.
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(3) Sub-section (4) applies where--
(a) a person has been provided by an
organisation with access to health
information under this Act; and
5 (b) the access was required by Part 5 or HPP 6
or the organisation, or an employee or agent
of the organisation acting within the scope of
his or her actual or apparent authority,
believed in good faith that the access was
10 required by Part 5 or HPP 6.
(4) The provision of access to health information in
the circumstances referred to in sub-section (3)--
(a) is not to be regarded as making the
organisation, or any employee or agent of the
15 organisation, liable for defamation or breach
of confidence or guilty of a criminal offence
by reason only of the provision of access; or
(b) is not to be regarded as making any person
who provided the health information to the
20 organisation liable for defamation or breach
of confidence in respect of any publication
involved in, or resulting from, the provision
of access by reason only of the provision of
access; or
25 (c) must not be taken for the purpose of the law
relating to defamation or breach of
confidence to constitute an authorisation or
approval of the publication of the
information by the person who is provided
30 with access to it.
(5) An organisation is not in breach of this Act by
reason only of--
(a) collecting, using, disclosing or transferring
health information; or
35 (b) providing access to health information; or
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(c) correcting health information--
of an individual in response to a consent or
request by an authorised representative whose
consent or request is void by virtue of
5 section 85(4).
87. Functions of Health Services Commissioner
The functions of the Health Services
Commissioner under this Act are--
(a) to promote an understanding and acceptance
10 of the Health Privacy Principles and of the
objects of those Principles;
(b) in accordance with Part 4, to issue, approve
or vary guidelines for the purposes of the
Health Privacy Principles;
15 (c) to publish model terms capable of being
adopted by an organisation in a contract or
arrangement with a recipient of health
information being transferred by the
organisation outside Victoria;
20 (d) subject to this Act, to receive complaints
about an act or practice of an organisation--
(i) that may contravene a Health Privacy
Principle; or
(ii) that may interfere with the privacy of
25 an individual or may otherwise have an
adverse effect on the privacy of an
individual--
and, if the Health Services Commissioner
considers it appropriate to do so, to
30 endeavour, by conciliation, to effect a
settlement of the matters that gave rise to the
complaint;
(e) to investigate, conciliate and make rulings on
complaints under this Act;
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(f) to serve compliance notices on
organisations;
(g) subject to approval from the Minister, to
initiate inquiries into--
5 (i) matters referred by the Health Services
Review Council; and
(ii) broader issues of health care arising out
of complaints received under this Act;
(h) to conduct or commission audits of records
10 of health information held by an organisation
for the purpose of ascertaining whether the
records are handled according to the Health
Privacy Principles;
(i) to monitor and report on the adequacy of
15 equipment and user safeguards;
(j) to undertake research into, and to monitor
developments in, data processing and
computer technology (including data
matching and data linkage) to ensure that
20 any adverse effects of such developments on
personal privacy are minimised, and to
report to the Minister the results of the
research and monitoring;
(k) for the purpose of promoting the protection
25 of personal privacy, to undertake educational
programs on the Health Services
Commissioner's own behalf or in co-
operation with other persons or bodies whose
functions concern the protection of personal
30 privacy;
(l) from time to time, in the public interest, to
publish reports and recommendations
relating generally to the Health Services
Commissioner's functions under this Act or
35 to any matter investigated by the Health
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Services Commissioner under this Act,
whether or not the matters to be dealt with in
any such report have been the subject of a
report to the Minister;
5 (m) to consult and co-operate with other persons
and bodies concerned with personal privacy;
(n) to provide advice to the Health Services
Review Council;
(o) to provide advice (with or without a request)
10 to any individual or organisation on any
matter relevant to the operation of this Act;
(p) to examine and assess (with or without a
request) the impact on personal privacy of
any act or practice, or proposed act or
15 practice, of an organisation;
(q) to make suggestions to any individual or
organisation in relation to any matter that
concerns the need for, or the desirability of,
action by that individual or organisation to
20 protect the privacy of health information;
(r) to gather information that, in the opinion of
the Health Services Commissioner, will
assist the Health Services Commissioner in
carrying out his or her functions under this
25 Act;
(s) to perform any other function conferred on
the Health Services Commissioner by this
Act.
88. Powers
30 The Health Services Commissioner has power to
do all things that are necessary or convenient to be
done for or in connection with the performance of
his or her functions under this Act.
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89. Health Services Commissioner to have regard to
certain matters
The Health Services Commissioner must have
regard to the objects of this Act in the
5 performance of his or her functions and the
exercise of his or her powers under this Act.
90. Secrecy
(1) A person who is, or has been, the Health Services
Commissioner, an acting Health Services
10 Commissioner, a delegate of the Health Services
Commissioner or an employee in the office of the
Health Services Commissioner must not, directly
or indirectly, make a record of, disclose or
communicate to any person any information
15 relating to the affairs of any individual or
organisation acquired in the performance of
functions or duties or the exercise of powers under
this Act, unless--
(a) it is necessary to do so for the purposes of, or
20 in connection with, the performance of a
function or duty or the exercise of a power
under, or in relation to, this, or any other,
Act; or
(b) the individual or organisation to whom the
25 information relates gives written consent to
the making of the record, disclosure or
communication.
Penalty: 60 penalty units.
(2) A person who is, or has been, the Health Services
30 Commissioner, an acting Health Services
Commissioner, a delegate of the Health Services
Commissioner or an employee in the office of the
Health Services Commissioner must not disclose
or communicate to any person any information
35 given to the Health Services Commissioner
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pursuant to a requirement made under Division 3
of Part 6 (including information contained in a
document required to be produced to the Health
Services Commissioner) unless all parties to the
5 conciliation consent to the making of the
disclosure or communication.
Penalty: 60 penalty units.
(3) Sub-section (2) does not prevent--
(a) the disclosure to the Health Services
10 Commissioner, an acting Health Services
Commissioner, a delegate of the Health
Services Commissioner or an employee in
the office of the Health Services
Commissioner of whether the conciliation
15 under Division 3 of Part 6 was successful
and the terms of any agreement reached; or
(b) the making of a recommendation that the
Health Services Commissioner should
investigate a complaint under Division 4 of
20 Part 6.
(4) A person who is, or has been, the Health Services
Commissioner, an acting Health Services
Commissioner, a delegate of the Health Services
Commissioner or an employee in the office of the
25 Health Services Commissioner must not disclose
or communicate to any person, other than a person
employed in the office of the Health Services
Commissioner, any information given to the
Health Services Commissioner pursuant to a
30 requirement made under Division 4 of Part 6
(including information contained in a document
required to be produced to the Health Services
Commissioner) unless--
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(a) he or she has notified the person from whom
the information was obtained of the proposal
to disclose or communicate that information;
and
5 (b) he or she has given that person a reasonable
opportunity to object to the disclosure or
communication; and
(c) that person has not objected to the disclosure
or communication.
10 Penalty: 60 penalty units.
91. Delegation
(1) The Health Services Commissioner may, by
instrument, delegate to a person employed for the
purposes of this Act, or a person belonging to a
15 class of those persons, any of his or her powers
under this Act other than this power of delegation.
(2) The Health Services Commissioner may, by
instrument, delegate to any person any of his or
her powers under Division 3 of Part 6.
20 92. Employees and agents
(1) Any act done or practice engaged in on behalf of
an organisation by an employee or agent of the
organisation acting within the scope of his or her
actual or apparent authority is to be taken, for the
25 purposes of this Act including a prosecution for an
offence against this Act, to have been done or
engaged in by the organisation and not by the
employee or agent unless the organisation
establishes that it took reasonable precautions and
30 exercised due diligence to avoid the act being
done or the practice being engaged in by its
employee or agent.
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(2) If, for the purpose of investigating a complaint or
a proceeding for an offence against this Act, it is
necessary to establish the state of mind of an
organisation in relation to a particular act or
5 practice, it is sufficient to show--
(a) that the act was done or practice engaged in
by an employee or agent of the organisation
acting within the scope of his or her actual or
apparent authority; and
10 (b) that the employee or agent had that state of
mind.
93. Offences by organisations or bodies
If this Act provides that an organisation or body is
guilty of an offence, that reference to an
15 organisation or body must, if the organisation or
body is unincorporated, be read as a reference to
each member of the committee of management of
the organisation or body.
94. Prosecutions
20 (1) A proceeding for an offence against this Act may
only be brought by--
(a) a member of the police force; or
(b) the Health Services Commissioner; or
(c) a person authorised to do so, either generally
25 or in a particular case, by the Health Services
Commissioner.
(2) In a proceeding for an offence against this Act it
must be presumed, in the absence of evidence to
the contrary, that the person bringing the
30 proceeding was authorised to bring it.
95. Deceased individuals
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(1) This Act applies in relation to a deceased
individual who has been dead for 30 years or less,
so far as it is reasonably capable of doing so, in
the same way as it applies in relation to an
5 individual who is not deceased.
(2) Subject to sub-section (3), if an individual has
died, a right or power conferred on individuals by
a provision of this Act is exercisable in relation to
the deceased individual, so far as the
10 circumstances reasonably permit, by a legal
representative of the deceased individual.
(3) A purported consent by a legal representative of a
deceased individual is void if, when giving it, the
legal representative knows or believes that the
15 consent does not accord with the wishes
expressed, and not changed or withdrawn, by the
individual in his or her lifetime.
96. Legal professional privilege not affected by this Act7
Despite any other section, this Act does not--
20 (a) apply in relation to a document that is the
subject of legal professional privilege; or
(b) affect the law or practice relating to legal
professional privilege.
97. Defect or invalidity--protection if person acts in good
25 faith etc.
If a person takes any action in respect of, or in
consequence of having received--
(a) a notice or request, made or apparently made
under this Act; or
30 (b) a consent or authorisation, given or
apparently given under this Act--
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that is void or defective, the person is not liable in
respect of the action by reason only that the
notice, request, consent or authorisation was void
or defective, if the person proves that they--
5 (c) took the action in good faith; and
(d) did not know, and had no reason to be aware,
when taking the action, that the notice,
request, consent or authorisation was void or
defective (as the case may be).
10 98. Unqualified organisation may obtain and act on
expert advice
An organisation may, for the purpose of
performing a function under this Act, obtain and
act on the advice of a person possessing skill and
15 training necessary for the performance of that
function.
99. Supreme Court--limitation of jurisdiction
It is the intention of section 8 to alter or vary
section 85 of the Constitution Act 1975.
20 100. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) prescribing maximum fees for providing
access to health information under this Act;
25 and
(b) prescribing maximum fees for performing
functions under section 42; and
(c) prescribing maximum fees for transfers of
health information under HPP 11; and
30 (d) prescribing retention periods, whether
greater or less than the periods specified in
HPP 4.2, for the preservation of health
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information or classes of health information
for the purposes of HPP 4.2; and
(e) generally prescribing any other matter or
thing required or permitted by this Act to be
5 prescribed or necessary to be prescribed to
give effect to this Act.
(2) The regulations--
(a) may be of general or limited application; and
(b) may differ according to differences in time,
10 place or circumstance; and
(c) may apply, adopt or incorporate any matter
contained in any document, whether--
(i) wholly or partially or as amended by
the regulations; or
15 (ii) as in force at the time the regulations
are made or at any time before then; or
(iii) as in force from time to time; and
(d) may confer a discretionary authority or
impose a duty on a specified person or body
20 or a specified class of person or body.
(3) A power conferred by this Act to make
regulations prescribing maximum fees for
providing access to health information by way of
a summary may be exercised by reference to the
25 time taken to prepare the summary based on the
usual fee of the health service provider for a
consultation of a comparable duration.
_______________
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PART 9--AMENDMENT OF CERTAIN OTHER ACTS
Division 1--Amendment of Acts other than Health
Practitioner Acts
101. Amendment of Freedom of Information Act 1982
See:
5 (1) The Freedom of Information Act 1982 is Act No.
amended as follows-- 9859
Reprint No. 5
(a) in section 5(1) insert the following as at
1 January
definitions-- 2000.
LawToday:
' "health information" has the same www.dms.
10 meaning as in the Health Records Act dpc.vic.
gov.au
2000;
"Health Services Commissioner" means
Health Services Commissioner
appointed under the Health Services
15 (Conciliation and Review) Act 1987
and includes the Acting Health Services
Commissioner under that Act;';
(b) in section 22, after sub-section (1) insert--
"(1A) Without limiting any other power to
20 make regulations conferred by this Act,
a power conferred by this Act to make
regulations for or in relation to the
making of charges for access to
documents may, in the case of a
25 document referred to in section
23(1)(e)--
(a) prescribe different amounts
according to the form in which
access is given;
30 (b) prescribe amounts by reference to
the usual fee of a person for a
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consultation of a comparable
duration.";
(c) in section 23(1)(d), for "in the document."
substitute--
5 "in the document; or
(e) in the case of a document containing
health information relating to the
person, by a way referred to in section
28(1), (2) or (3) of the Health Records
10 Act 2000 in the manner provided in
section 29(1) of that Act.";
(d) in section 27(1)--
(i) at the end of paragraph (d) omit "and";
(ii) after paragraph (d) insert--
15 "(da) where the decision relates to a
refusal to grant access to a
document containing health
information on the ground
referred to in section 36 of the
20 Health Records Act 2000, inform
the applicant of the time within
which--
(i) a written notice may be
given under section 38(1) of
25 the Health Records Act
2000 nominating a health
service provider for the
purposes of Division 3 of
Part 5 of that Act;
30 (ii) an application for a review of
the decision may be made
under section 51(1) of this
Act;
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(iii) an application for
conciliation may be made
under section 51A(1) of this
Act;
5 (db) where the decision relates to a
refusal to grant access to a
document containing health
information on a ground other
than the ground referred to in
10 section 36 of the Health Records
Act 2000, inform the applicant of
the time within which--
(i) an application for a review of
the decision may be made
15 under section 51(1) of this
Act;
(ii) if applicable, an application
for conciliation may be made
under section 51A(1) of this
20 Act;";
(e) in section 50(2), for "section 51" substitute
"sections 51 and 51A";
(f) in section 51(1), after "days" insert "(or, in
the case of a decision refusing to grant
25 access to a document containing health
information on the ground referred to in
section 36 of the Health Records Act 2000,
within 70 days)";
(g) in section 51(2), for "A person" substitute
30 "Subject to section 51A, a person";
(h) in section 52, after "51" insert "or notice
under section 51A(4)".
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(2) In section 33 of the Freedom of Information Act
1982, for sub-section (4) substitute--
"(4) If--
(a) a request is made to an agency or
5 Minister for access to a document of
the agency, or an official document of
the Minister, that contains health
information concerning the person
making the request; and
10 (b) the principal officer or the Minister, as
the case may be, believes on reasonable
grounds that the provision of the health
information would pose a serious threat
to the life or health of the person--
15 the principal officer or Minister must not
give access to the document so far as it
contains that information and--
(c) the procedure set out in Division 3 of
Part 5 of the Health Records Act 2000
20 applies as if the refusal of access were a
refusal under section 26 of that Act;
and
(d) the document is an exempt document.".
102. New section 51A inserted in Freedom of Information
25 Act 1982
After section 51 of the Freedom of Information
Act 1982 insert--
"51A. Conciliation by Health Services
Commissioner
30 (1) Subject to sub-section (2), if a decision
referred to in section 50(2) has been made in
relation to a document containing health
information relating to the applicant, the
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applicant, instead of making an application
under section 51(1) in relation to the
decision, may apply to the Health Services
Commissioner for conciliation under
5 Division 3 of Part 6 of the Health Records
Act 2000 and that Division (except
section 63) applies to the conciliation as if it
were a conciliation of a complaint made
under that Act.
10 (2) Sub-section (1) does not apply to an exempt
document (other than an exempt document
referred to in section 32, 33 or 38).
(3) An application under sub-section (1) must be
made within--
15 (a) in the case of a decision referred to in
section 27(1)(da), 70 days; or
(b) in any other case, 28 days--
after the day on which notice in writing of
the decision is given to the applicant in
20 accordance with section 27.
(4) If the Health Services Commissioner has
attempted unsuccessfully to conciliate a
request, he or she must give notice in writing
to the applicant and the principal officer of
25 the agency or the Minister to whom the
request was made.".
103. Amendment of Health Services Act 1988
See:
(1) In section 141 of the Health Services Act 1988, Act No.
after sub-section (2) insert-- 49/1988
Reprint No. 6
30 '(2A) For the purposes of sub-section (2)(c), "any as at
1 July 2000.
other Act" does not include the Health LawToday:
Privacy Principles in the Health Records www.dms.
dpc.vic.
Act 2000 or Part 3 or Part 5 of that Act.'. gov.au
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(2) In section 141(3) of the Health Services Act
1988--
(a) for paragraph (e) substitute--
"(e) to the giving of information--
5 (i) required in connection with the
further treatment of a patient; or
(ii) subject to the regulations (if any),
by a person engaged or employed
by or on behalf of a public
10 hospital or a denominational
hospital by means of an electronic
records system established for the
purpose of enabling the sharing of
information in or between public
15 hospitals and denominational
hospitals for the treatment of
patients at any time; or";
(b) after paragraph (ea) insert--
"(eb) to the giving of information as
20 described in HPP 2.2(f), 2.2(h) or 2.5 of
the Health Privacy Principles in the
Health Records Act 2000; or";
(c) in paragraph (g)--
(i) in sub-paragraph (ii) for "or" substitute
25 "and";
(ii) after sub-paragraph (ii) insert--
"(iii) the giving of information is in
accordance with HPP 2.2(g) of the
Health Privacy Principles in the
30 Health Records Act 2000; or".
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(3) In section 141 of the Health Services Act 1988,
after sub-section (3) insert--
"(3A) A person must not use or collect, or attempt
to use or collect, information about a person
5 from an electronic records system referred to
in sub-section (3)(e)(ii) if that second-
mentioned person could be identified from
that information unless--
(a) the use or collection is by a person
10 engaged or employed by or on behalf of
a public hospital or a denominational
hospital; and
(b) the use or collection is--
(i) to enable the treatment of that
15 second-mentioned person at or by
that hospital; or
(ii) to charge or bill that second-
mentioned person for treatment at
or by that hospital; and
20 (c) the use or collection is in accordance
with the regulations (if any).
Penalty: 50 penalty units.".
(4) In section 141(4) of the Health Services Act
1988--
25 (a) in paragraph (b) for "requirements."
substitute "requirements; and"
(b) after paragraph (b) insert--
"(c) the giving of information in accordance
with HPP 2.2(g) of the Health Privacy
30 Principles in the Health Records Act
2000.".
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105
Act No.
(5) In section 158(1) of the Health Services Act
1988, after paragraph (n) insert--
"(na) requirements or conditions relating to the
giving or the use or collection of information
5 for the purposes of section 141(3)(e)(ii) or
section 141(3A) including, but not limited to,
prescribing a class or classes of person who
may give, use or collect that information;".
104. Transitional provisions--Health Services Act 1988
10 After section 178 of the Health Services Act
1988 insert--
"178A. Transitional provisions--Health Records
Act 2000
(1) Section 141(3)(g) as amended by the Health
15 Records Act 2000 does not apply to the
giving of information for the purposes of
medical or social research if the use to which
the information will be put and the research
methodology has been approved by an ethics
20 committee under that section before the
commencement of that amendment even if
the giving of the information occurs after
that commencement.
(2) Section 141(4) as amended by the Health
25 Records Act 2000 does not apply to the
giving of information, the giving of which
has been approved as required by that
section before the commencement of that
amendment, even if the giving of the
30 information occurs after that
commencement.".
105. Amendment of Health Services (Conciliation and
Review) Act 1987
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The Health Services (Conciliation and Review) See:
Act No.
Act 1987 is amended as follows-- 25/1987
Reprint No. 3
(a) in the Preamble, paragraphs (g) and (h) are as at
repealed; 1 July 2000.
LawToday:
5 (b) in section 3(1), in the definition of "guiding www.dms.
dpc.vic.
principles", for "(a) to (h)" substitute "(a) to gov.au
(f)";
(c) in section 5(1), for "For the purposes of this
Act there" substitute "There";
10 (d) in section 9(1) after "functions of the
Commissioner" insert "under this Act";
(e) in section 10--
(i) after "functions" insert "under this
Act";
15 (ii) in paragraph (g), omit "and" at the end
of the paragraph;
(f) in section 12(2), for "nine" substitute "11";
(g) in section 12(3)(c), for "or users."
substitute--
20 "or users; and
(d) one is a person who, in the Minister's
opinion, has experience of matters
affecting the privacy of individuals in
relation to health information or is able
25 to express the interests of individuals in
relation to such matters; and
(e) one is a person who, in the Minister's
opinion, has experience of, or is able to
express the interests of, organisations
30 that handle health information.";
(h) in section 12, after sub-section (7) insert--
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"(8) Despite the increase in the membership
of the Council effected by section 105
of the Health Records Act 2000, the
Council is deemed to be the same body
5 after the commencement of that section
as it was before that commencement.";
(i) in section 13(1), for "five" substitute "6";
(j) in section 14(1)--
(i) in paragraph (a), after "Commissioner"
10 insert "under this Act and the Health
Records Act 2000";
(ii) in paragraph (c), after "complaints"
insert ", or interferences with privacy
within the meaning of the Health
15 Records Act 2000,";
(k) in section 14(2), after "Act" insert "or the
Health Records Act 2000";
(l) in section 16(1)--
(i) paragraphs (d) and (e) are repealed;
20 (ii) in paragraph (f), for "(e)" substitute
"(c)";
(m) in section 16, after sub-section (2) insert--
"(3) A complaint cannot be made under sub-
section (1) if the complaint concerns a
25 matter that could be the subject of a
complaint under the Health Records
Act 2000.";
(n) in section 32(1), in the definition of
"confidential information" after "33" insert
30 "but does not include information to which
section 90 of the Health Records Act 2000
applies gained because of a person's position,
other than a position as a member of the
Health Services Review Council".
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107
Act No.
106. Amendment of Infertility Treatment Act 1995
(1) In section 89(4) of the Infertility Treatment Act
1995, after paragraph (a) insert--
"(ab) the Health Privacy Principles in the Health
5 Records Act 2000 or Part 3 or Part 5 of that
Act unless the information given--
(i) is about the person who has applied for
access or to whom the disclosure would
be made and no other person; or
10 (ii) is about one person only, and the
person who has applied for access or to
whom the disclosure would be made is
the first-mentioned person's guardian;
or".
15 (2) In section 90 of the Infertility Treatment Act
1995, after sub-section (3) insert--
"(4) A reference to any other Act or to a
regulation made under any other Act in sub-
section (1) does not include a reference to
20 the Health Privacy Principles in the Health
Records Act 2000 or Part 3 or Part 5 of that
Act unless the information given--
(a) is about the person who has applied for
access or to whom the disclosure would
25 be made and no other person; or
(b) is about one person only, and the
person who has applied for access or to
whom the disclosure would be made is
the first-mentioned person's guardian.".
30 107. Amendment of Information Privacy Act 2000
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The Information Privacy Act 2000 is amended
as follows--
(a) in section 3, in the definition of "personal
information", for "Schedule 2" substitute
5 "the Health Records Act 2000";
(b) in section 12(b), after "section" insert "5(3)
or";
(c) in Schedule 1, in the definition of "unique
identifier" where appearing before
10 Principle 1, after "name" insert "but does not
include an identifier within the meaning of
the Health Records Act 2000";
(d) Schedule 2 is repealed.
108. New section 34A inserted in Information Privacy Act
15 2000
In the Information Privacy Act 2000, after
section 34 insert--
"34A. Referral of complaint to Health Services
Commissioner
20 If the complaint could be made the subject of
a complaint under the Health Records Act
2000, the Privacy Commissioner may refer
the complaint to the Health Services
Commissioner and notify the complainant
25 and the respondent in writing of the
referral.".
109. Amendment of Intellectually Disabled Persons'
Services Act 1986
In section 16 of the Intellectually Disabled
30 Persons' Services Act 1986, after sub-section (4)
insert--
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'(5) For the purposes of sub-section (4)(a), "any
other Act" does not include the Health
Privacy Principles in the Health Records
Act 2000 or Part 3 or Part 5 of that Act.'.
5 110. Amendment of Magistrates' Court Act 1989
In Schedule 4 to the Magistrates' Court Act
1989, before item 44 insert--
"43. Non-compliance with enforcement notice--
health information
10 Offences under section 71(1) of the Health
Records Act 2000.".
111. Amendment of Mental Health Act 1986
(1) In section 120A of the Mental Health Act 1986,
after sub-section (2) insert--
15 '(2A) For the purposes of sub-section (2)(c), "any
other Act" does not include the Health
Privacy Principles in the Health Records
Act 2000 or Part 3 or Part 5 of that Act.'.
(2) In section 120A(3) of the Mental Health Act
20 1986--
(a) for paragraph (e) substitute--
"(e) to the giving of information--
(i) required in connection with the
further treatment of a person with
25 a mental disorder; or
(ii) subject to the regulations (if any),
by a person engaged or employed
by or on behalf of an approved
mental health service by means of
30 an electronic records system
established for the purpose of
enabling the sharing of
information in or between
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approved mental health services
for the treatment of persons with a
mental disorder at any time; or
(ea) to the giving of information as
5 described in HPP 2.2(f), 2.2(h) or 2.5 of
the Health Privacy Principles in the
Health Records Act 2000; or";
(b) in paragraph (g)--
(i) in sub-paragraph (ii) for "or" substitute
10 "and";
(ii) after sub-paragraph (ii) insert--
"(iii) the giving of information is in
accordance with HPP 2.2(g) of the
Health Privacy Principles in the
15 Health Records Act 2000; or".
(3) In section 120A of the Mental Health Act 1986,
after sub-section (3A) insert--
"(3B) A person must not use or collect, or attempt
to use or collect, information about a person
20 from an electronic records system referred to
in sub-section (3)(e)(ii) if that second-
mentioned person could be identified from
that information unless--
(a) the use or collection is--
25 (i) by a person engaged or employed
by or on behalf of an approved
mental health service; and
(ii) to enable the treatment of that
second-mentioned person at or by
30 that approved mental health
service; and
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(iii) in accordance with the regulations
(if any); or
(b) in the case of the Chief Psychiatrist, the
Board or the Panel, the use or
5 collection is--
(i) necessary for the performance of
the duties, powers or functions of
the Chief Psychiatrist, the Board
or the Panel, as the case requires;
10 and
(ii) in accordance with the regulations
(if any).
Penalty: 50 penalty units.".
(4) In section 120A(4) of the Mental Health Act
15 1986--
(a) in paragraph (b) for "requirements."
substitute "requirements; and";
(b) after paragraph (b) insert--
"(c) the giving of information is in
20 accordance with HPP 2.2(g) of the
Health Privacy Principles in the Health
Records Act 2000.".
(5) In section 142(1) of the Mental Health Act 1986,
after paragraph (j) insert--
25 "(ja) requirements or conditions relating to the
giving or the use or collection of information
for the purposes of section 120A(3)(e)(ii) or
120A(3B) including, but not limited to,
prescribing a class or classes of person who
30 may give, collect or use that information;".
112. Transitional provisions--Mental Health 1986
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After section 145 of the Mental Health Act 1986
insert--
"146. Transitional provisions--Health Records
Act 2000
5 (1) Section 120A(3)(g) as amended by the
Health Records Act 2000 does not apply to
the giving of information for the purposes of
medical or social research if the use to which
the information will be put and the research
10 methodology has been approved by an ethics
committee under that section before the
commencement of that amendment even if
the giving of the information occurs after
that commencement.
15 (2) Section 120A(4) as amended by the Health
Records Act 2000 does not apply to the
giving of information, the giving of which
has been approved as required by that
section before the commencement of that
20 amendment, even if the giving of the
information occurs after that
commencement.".
113. New section 15B inserted in Ombudsman Act 1973
In Part IV of the Ombudsman Act 1973, at the
25 end of Division 1 insert--
"15B. Referral of complaint (health records)
If the complaint could be made the subject of
an application under the Health Records
Act 2000, the Ombudsman may refer the
30 complaint to the Health Services
Commissioner and notify the complainant
and the respondent in writing of the
referral.".
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114. New section 20C inserted in Ombudsman Act 1973
In the Ombudsman Act 1973, before section 21
insert--
"20C. Communication of information to the
5 Health Services Commissioner
The Ombudsman or the Acting Ombudsman
may communicate to the Health Services
Commissioner appointed under the Health
Services (Conciliation and Review) Act
10 1987 any information obtained or received in
the course or as a result of the exercise of the
functions of the Ombudsman under this Act,
being information relating to a complaint
referred to the Health Services
15 Commissioner under section 15B.".
115. Amendment of Parliamentary Committees Act 1968
In section 4D(a) of the Parliamentary
Committees Act 1968, before sub-paragraph (iv)
insert--
20 "(iiib) unduly requires or authorises acts or
practices that may have an adverse effect on
privacy of health information within the
meaning of the Health Records Act 2000;
or".
25 116. Amendment of Subordinate Legislation Act 1994
In section 21(1) of the Subordinate Legislation
Act 1994, before paragraph (h) insert--
"(gb) unduly requires or authorises acts or
practices that may have an adverse effect on
30 privacy of health information within the
meaning of the Health Records Act 2000;".
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117. Amendment of Victorian Civil and Administrative
Tribunal Act 1998
In Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998, before Part 6
5 insert--
"PART 5B--HEALTH RECORDS ACT 2000
11F. Intervention by Health Services Commissioner
The Health Services Commissioner may
intervene at any time in a proceeding under the
10 Health Records Act 2000.
11G. Notification in other proceedings
(1) If an application is made under section 73
(interim order) or a referral under section 54
(Minister's referral) of the Health Records Act
15 2000, the principal registrar must notify the
Health Services Commissioner.
(2) Sub-clause (1) does not apply in the case of an
application by the Health Services Commissioner
under section 73 of the Health Records Act
20 2000.
11H. Health Services Commissioner may apply for interim
injunction
The Health Services Commissioner may apply
for an order granting an interim injunction under
25 section 123 in a proceeding under the Health
Records Act 2000 whether or not he or she is a
party to that proceeding.
11I. Compulsory conference
The presiding member at a compulsory
30 conference in a proceeding under the Health
Records Act 2000 may refer any matter to the
Health Services Commissioner for investigation,
negotiation or conciliation.
11J. Settlement offers
35 Sections 112 to 115 do not apply to a proceeding
under the Health Records Act 2000.".
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Division 2--Amendment of Health Practitioner Acts
118. Amendment of Chinese Medicine Registration Act
2000
(1) In section 23(1) of the Chinese Medicine
5 Registration Act 2000--
(a) after "registered practitioner" insert "or a
person who was a registered practitioner
referred to in section 22(2)";
(b) after "1987" insert "or the Health Records
10 Act 2000".
(2) In section 23(3) of the Chinese Medicine
Registration Act 2000, after "Commissioner"
insert "under that Act".
(3) In section 23 of the Chinese Medicine
15 Registration Act 2000, after sub-section (3)
insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
be dealt with by the Health Services
20 Commissioner under that Act as if the
complaint were made under section 45(1) of
that Act.".
(4) In section 23(4) of the Chinese Medicine
Registration Act 2000, after "1987" insert "or
25 section 52 of the Health Records Act 2000".
119. New section 23A inserted into Chinese Medicine
Registration Act 2000
After section 23 of the Chinese Medicine
Registration Act 2000 insert--
30 "23A. Board may deal with health records
complaint
(1) The Board--
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(a) may accept a complaint, or part of a
complaint, relating to a registered
practitioner that the Health Services
Commissioner proposes to refer to the
5 Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
section 52 of the Health Records Act
10 2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
section 52 of the Health Records Act 2000,
the Board must advise the Health Services
15 Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
20 any information that the Health Services
Commissioner specifies by written notice to
the Board.".
120. Amendment of Chiropractors Registration Act 1996
(1) In section 21(1) of the Chiropractors
25 Registration Act 1996 after "1987" insert "or the
Health Records Act 2000".
(2) In section 21(3) of the Chiropractors
Registration Act 1996, after "Commissioner"
insert "under that Act".
30 (3) In section 21 of the Chiropractors Registration
Act 1996, after sub-section (3) insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
be dealt with by the Health Services
35 Commissioner under that Act as if the
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complaint were made under section 45(1) of
that Act.".
(4) In section 21(4) of the Chiropractors
Registration Act 1996, after "1987" insert "or
5 section 52 of the Health Records Act 2000".
121. New section 21A inserted into Chiropractors
Registration Act 1996
After section 21 of the Chiropractors
Registration Act 1996 insert--
10 "21A. Board may deal with health records
complaint
(1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
15 chiropractor that the Health Services
Commissioner proposes to refer to the
Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
20 complaint, referred to it under
section 52 of the Health Records Act
2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
25 section 52 of the Health Records Act 2000,
the Board must advise the Health Services
Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
30 is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
any information that the Health Services
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Commissioner specifies by written notice to
the Board.".
122. Amendment of Dental Practice Act 1999
(1) In section 22(1) of the Dental Practice Act
5 1999--
(a) after "registered dental care provider" insert
"or a person who was a registered dental care
provider referred to in section 21(2)";
(b) after "1987" insert "or the Health Records
10 Act 2000".
(2) In section 22(3) of the Dental Practice Act 1999,
after "Commissioner" insert "under that Act".
(3) In section 22 of the Dental Practice Act 1999,
after sub-section (3) insert--
15 "(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
be dealt with by the Health Services
Commissioner under that Act as if the
complaint were made under section 45(1) of
20 that Act.".
(4) In section 22(4) of the Dental Practice Act 1999,
after "1987" insert "or section 52 of the Health
Records Act 2000".
123. New section 22A inserted into Dental Practice Act
25 1999
After section 22 of the Dental Practice Act 1999
insert--
"22A. Board may deal with health records
complaint
30 (1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
dental care provider that the Health
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Services Commissioner proposes to
refer to the Board under section 52 of
the Health Records Act 2000; and
(b) must treat a complaint, or part of a
5 complaint, referred to it under
section 52 of the Health Records Act
2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
10 section 52 of the Health Records Act 2000,
the Board must advise the Health Services
Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
15 is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
any information that the Health Services
Commissioner specifies by written notice to
the Board.".
20 124. Amendment of Medical Practice Act 1994
(1) In section 23(1) of the Medical Practice Act
1994--
(a) after "registered medical practitioner" insert
"or a person who was a registered medical
25 practitioner referred to in section 22(2)";
(b) after "1987" insert "or the Health Records
Act 2000".
(2) In section 23(3) of the Medical Practice Act
1994, after "Commissioner" insert "under that
30 Act".
(3) In section 23 of the Medical Practice Act 1994,
after sub-section (3) insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
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be dealt with by the Health Services
Commissioner under that Act as if the
complaint were made under section 45(1) of
that Act.".
5 (4) In section 23(4) of the Medical Practice Act
1994, after "1987" insert "or section 52 of the
Health Records Act 2000".
125. New section 23A inserted into Medical Practice Act
1994
10 After section 23 of the Medical Practice Act
1994 insert--
"23A. Board may deal with health records
complaint
(1) The Board--
15 (a) may accept a complaint, or part of a
complaint, relating to a registered
medical practitioner that the Health
Services Commissioner proposes to
refer to the Board under section 52 of
20 the Health Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
section 52 of the Health Records Act
2000 as if it were made under this Act.
25 (2) If a complaint has been referred to the Board
by the Health Services Commissioner under
section 52 of the Health Records Act 2000,
the Board must advise the Health Services
Commissioner of the progress of the matter,
30 when required by the Health Services
Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
any information that the Health Services
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Commissioner specifies by written notice to
the Board.".
126. Amendment of Nurses Act 1993
(1) In section 21(1) of the Nurses Act 1993, after
5 "1987" insert "or the Health Records Act
2000".
(2) In section 21(3) of the Nurses Act 1993, after
"Commissioner" insert "under that Act".
(3) In section 21 of the Nurses Act 1993, after sub-
10 section (3) insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
be dealt with by the Health Services
Commissioner under that Act as if the
15 complaint were made under section 45(1) of
that Act.".
(4) In section 21(4) of the Nurses Act 1993, after
"1987" insert "or section 52 of the Health
Records Act 2000".
20 127. New section 21A inserted into Nurses Act 1993
After section 21 of the Nurses Act 1993 insert--
"21A. Board may deal with health records
complaint
(1) The Board--
25 (a) may accept a complaint, or part of a
complaint, relating to a registered nurse
that the Health Services Commissioner
proposes to refer to the Board under
section 52 of the Health Records Act
30 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
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section 52 of the Health Records Act
2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
5 section 52 of the Health Records Act 2000,
the Board must advise the Health Services
Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
10 is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
any information that the Health Services
Commissioner specifies by written notice to
the Board.".
15 128. Amendment of Optometrists Registration Act 1996
(1) In section 23(1) of the Optometrists Registration
Act 1996 after "1987" insert "or the Health
Records Act 2000".
(2) In section 23(3) of the Optometrists Registration
20 Act 1996, after "Commissioner" insert "under
that Act".
(3) In section 23 of the Optometrists Registration
Act 1996, after sub-section (3) insert--
"(3A) The Health Records Act 2000 applies to a
25 complaint made under this Part which is to
be dealt with by the Health Services
Commissioner under that Act as if the
complaint were made under section 45(1) of
that Act.".
30 (4) In section 23(4) of the Optometrists Registration
Act 1996, after "1987" insert "or section 52 of
the Health Records Act 2000".
129. New section 23A inserted into Optometrists
Registration Act 1996
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After section 23 of the Optometrists
Registration Act 1996 insert--
"23A. Board may deal with health records
complaint
5 (1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
optometrist that the Health Services
Commissioner proposes to refer to the
10 Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
section 52 of the Health Records Act
15 2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
section 52 of the Health Records Act 2000,
the Board must advise the Health Services
20 Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
25 any information that the Health Services
Commissioner specifies by written notice to
the Board.".
130. Amendment of Osteopaths Registration Act 1996
(1) In section 21(1) of the Osteopaths Registration
30 Act 1996 after "1987" insert "or the Health
Records Act 2000".
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(2) In section 21(3) of the Osteopaths Registration
Act 1996, after "Commissioner" insert "under
that Act".
(3) In section 21 of the Osteopaths Registration Act
5 1996, after sub-section (3) insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
be dealt with by the Health Services
Commissioner under that Act as if the
10 complaint were made under section 45(1) of
that Act.".
(4) In section 21(4) of the Osteopaths Registration
Act 1996, after "1987" insert "or section 52 of
the Health Records Act 2000".
15 131. New section 21A inserted into Osteopaths Registration
Act 1996
After section 21 of the Osteopaths Registration
Act 1996 insert--
"21A. Board may deal with health records
20 complaint
(1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
osteopath that the Health Services
25 Commissioner proposes to refer to the
Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
30 section 52 of the Health Records Act
2000 as if it were made under this Act.
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(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
section 52 of the Health Records Act 2000,
the Board must advise the Health Services
5 Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
10 any information that the Health Services
Commissioner specifies by written notice to
the Board.".
132. Amendment of Physiotherapists Registration Act 1998
(1) In section 20(1) of the Physiotherapists
15 Registration Act 1998 after "1987" insert "or
the Health Records Act 2000".
(2) In section 20(3) of the Physiotherapists
Registration Act 1998, after "Commissioner"
insert "under that Act".
20 (3) In section 20 of the Physiotherapists
Registration Act 1998, after sub-section (3)
insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
25 be dealt with by the Health Services
Commissioner under that Act as if the
complaint were made under section 45(1) of
that Act.".
(4) In section 20(4) of the Physiotherapists
30 Registration Act 1998, after "1987" insert "or
section 52 of the Health Records Act 2000".
133. New section 20A inserted into Physiotherapists
Registration Act 1998
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After section 20 of the Physiotherapists
Registration Act 1998 insert--
"20A. Board may deal with health records
complaint
5 (1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
physiotherapist that the Health Services
Commissioner proposes to refer to the
10 Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
section 52 of the Health Records Act
15 2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
section 52 of the Health Records Act 2000,
the Board must advise the Health Services
20 Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
25 any information that the Health Services
Commissioner specifies by written notice to
the Board.".
134. Amendment of Podiatrists Registration Act 1997
(1) In section 21(1) of the Podiatrists Registration
30 Act 1997 after "1987" insert "or the Health
Records Act 2000".
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(2) In section 21(3) of the Podiatrists Registration
Act 1997, after "Commissioner" insert "under
that Act".
(3) In section 21 of the Podiatrists Registration Act
5 1997, after sub-section (3) insert--
"(3A) The Health Records Act 2000 applies to a
complaint made under this Part which is to
be dealt with by the Health Services
Commissioner under that Act as if the
10 complaint were made under section 45(1) of
that Act.".
(4) In section 21(4) of the Podiatrists Registration
Act 1997, after "1987" insert "or section 52 of
the Health Records Act 2000".
15 135. New section 21A inserted into Podiatrists Registration
Act 1997
After section 21 of the Podiatrists Registration
Act 1997 insert--
"21A. Board may deal with health records
20 complaint
(1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
podiatrist that the Health Services
25 Commissioner proposes to refer to the
Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
30 section 52 of the Health Records Act
2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
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section 52 of the Health Records Act 2000,
the Board must advise the Health Services
Commissioner of the progress of the matter,
when required by the Health Services
5 Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
any information that the Health Services
Commissioner specifies by written notice to
10 the Board.".
136. Amendment of Psychologists Registration Act 2000
(1) In section 23(1) of the Psychologists
Registration Act 2000--
(a) after "registered psychologist" insert "or a
15 person who was a registered psychologist
referred to in section 22(2)";
(b) after "1987" insert "or the Health Records
Act 2000".
(2) In section 23(3) of the Psychologists
20 Registration Act 2000, after "Commissioner"
insert "under that Act".
(3) In section 23 of the Psychologists Registration
Act 2000, after sub-section (3) insert--
"(3A) The Health Records Act 2000 applies to a
25 complaint made under this Part which is to
be dealt with by the Health Services
Commissioner under that Act as if the
complaint were made under section 45(1) of
that Act.".
30 (4) In section 23(4) of the Psychologists
Registration Act 2000, after "1987" insert "or
section 52 of the Health Records Act 2000".
137. New section 23A inserted into Psychologists
Registration Act 2000
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After section 23 of the Psychologists
Registration Act 2000 insert--
"23A. Board may deal with health records
complaint
5 (1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
psychologist that the Health Services
Commissioner proposes to refer to the
10 Board under section 52 of the Health
Records Act 2000; and
(b) must treat a complaint, or part of a
complaint, referred to it under
section 52 of the Health Records Act
15 2000 as if it were made under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
section 52 of the Health Records Act 2000,
the Board must advise the Health Services
20 Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
25 any information that the Health Services
Commissioner specifies by written notice to
the Board.".
__________________
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SCHEDULE 1
Section 19
THE HEALTH PRIVACY PRINCIPLES
1. Principle 1--Collection
5 When health information may be collected
1.1 An organisation must not collect health information about
an individual unless the information is necessary for one or
more of its functions or activities and at least one of the
following applies--
10 (a) the individual has consented;
(b) the collection is required, authorised or permitted,
whether expressly or impliedly, by or under law
(other than a prescribed law);
(c) the information is necessary to provide a health
15 service to the individual and the individual is
incapable of giving consent within the meaning of
section 85(3) and--
(i) it is not reasonably practicable to obtain the
consent of an authorised representative of the
20 individual within the meaning of section 85; or
(ii) the individual does not have such an authorised
representative;
(d) the information is disclosed to the organisation in
accordance with HPP 2.2(a), (f), (i) or (l) or HPP 2.5;
25 (e) if the collection is necessary for research, or the
compilation or analysis of statistics, in the public
interest--
(i) that purpose cannot be served by the collection
of information that does not identify the
30 individual or from which the individual's
identity cannot reasonably be ascertained; and
(ii) it is impracticable for the organisation to seek
the individual's consent to the collection; and
(iii) the information is collected in accordance with
35 guidelines issued or approved by the Health
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Services Commissioner under section 22 for the
purposes of this sub-paragraph;
(f) the collection is necessary to prevent or lessen--
(i) a serious and imminent threat to the life, health,
5 safety or welfare of any individual; or
(ii) a serious threat to public health, public safety
or public welfare--
and the information is collected in accordance with
guidelines, if any, issued or approved by the Health
10 Services Commissioner under section 22 for the
purposes of this paragraph;
(g) the collection is by or on behalf of a law enforcement
agency and the organisation reasonably believes that
the collection is necessary for a law enforcement
15 function;
(h) the collection is necessary for the establishment,
exercise or defence of a legal or equitable claim;
(i) the collection is in the prescribed circumstances.
How health information is to be collected
20 1.2 An organisation must collect health information only by
lawful and fair means and not in an unreasonably intrusive
way.
1.3 If it is reasonable and practicable to do so, an organisation
must collect health information about an individual only
25 from that individual.
1.4 At or before the time (or, if that is not practicable, as soon as
practicable thereafter) an organisation collects health
information about an individual from the individual, the
organisation must take steps that are reasonable in the
30 circumstances to ensure that the individual is generally
aware of--
(a) the identity of the organisation and how to contact it;
and
(b) the fact that he or she is able to gain access to the
35 information; and
(c) the purposes for which the information is collected;
and
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(d) to whom (or the types of individuals or organisations
to which) the organisation usually discloses
information of that kind; and
(e) any law that requires the particular information to be
5 collected; and
(f) the main consequences (if any) for the individual if all
or part of the information is not provided.
1.5 If an organisation collects health information about an
individual from someone else, it must take any steps that are
10 reasonable in the circumstances to ensure that the individual
is or has been made aware of the matters listed in HPP 1.4
except to the extent that making the individual aware of the
matters would pose a serious threat to the life or health of
any individual or would involve the disclosure of
15 information given in confidence8.
1.6 An organisation is not required to notify the individual of
the identity of persons, or classes of persons, to whom
health information may be disclosed in accordance with
HPP 2.2(f).
20 Information given in confidence9
1.7 If personal information is given in confidence to a health
service provider about an individual by a person other
than--
(a) the individual; or
25 (b) a health service provider in the course of, or
otherwise in relation to, the provision of health
services to the individual--
with a request that the information not be communicated to
the individual to whom it relates, the provider must--
30 (c) confirm with the person that the information is to
remain confidential; and
(d) if the information remains confidential--
(i) record the information only if it is relevant to
the provision of health services to, or the care
35 of, the individual; and
(ii) take reasonable steps to ensure that the
information is accurate and not misleading; and
(e) take reasonable steps to record that the information is
given in confidence and is to remain confidential.
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2. Principle 2--Use and Disclosure10
2.1 An organisation may use or disclose health information
about an individual for the primary purpose for which the
information was collected in accordance with HPP 1.1.
5 2.2 An organisation must not use or disclose health information
about an individual for a purpose (the "secondary
purpose") other than the primary purpose for which the
information was collected unless at least one of the
following paragraphs applies11--
10 (a) both of the following apply--
(i) the secondary purpose is directly related to the
primary purpose; and
(ii) the individual would reasonably expect the
organisation to use or disclose the information
15 for the secondary purpose; or
(b) the individual has consented to the use or disclosure;
or
(c) the use or disclosure is required, authorised or
permitted, whether expressly or impliedly, by or
20 under law (other than a prescribed law); or
(d) all of the following apply--
(i) the organisation is a health service provider
providing a health service to the individual; and
(ii) the use or disclosure for the secondary purpose
25 is reasonably necessary for the provision of the
health service; and
(iii) the individual is incapable of giving consent
within the meaning of section 85(3) and--
(A) it is not reasonably practicable to obtain
30 the consent of an authorised
representative of the individual within
the meaning of section 85; or
(B) the individual does not have such an
authorised representative; or
35 (e) all of the following apply--
(i) the organisation is a health service provider
providing a health service to the individual; and
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(ii) the use is for the purpose of the provision of
further health services to the individual by the
organisation; and
(iii) the organisation reasonably believes that the
5 use is necessary to ensure that the further health
services are provided safely and effectively;
and
(iv) the information is used in accordance with
guidelines, if any, issued or approved by the
10 Health Services Commissioner under
section 22 for the purposes of this paragraph; or
(f) the use or disclosure is for the purpose of--
(i) funding, management, planning, monitoring,
improvement or evaluation of health services;
15 or
(ii) training provided by a health service provider
to employees or persons working with the
organisation--
and--
20 (iii) that purpose cannot be served by the use or
disclosure of information that does not identify
the individual or from which the individual's
identity cannot reasonably be ascertained and it
is impracticable for the organisation to seek the
25 individual's consent to the use or disclosure; or
(iv) reasonable steps are taken to de-identify the
information--
and--
(v) if the information is in a form that could
30 reasonably be expected to identify individuals,
the information is not published in a generally
available publication; and
(vi) the information is used or disclosed in
accordance with guidelines, if any, issued or
35 approved by the Health Services Commissioner
under section 22 for the purposes of this sub-
paragraph; or
(g) if the use or disclosure is necessary for research, or
the compilation or analysis of statistics, in the public
40 interest--
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(i) it is impracticable for the organisation to seek
the individual's consent before the use or
disclosure; and
(ii) that purpose cannot be served by the use or
5 disclosure of information that does not identify
the individual or from which the individual's
identity cannot reasonably be ascertained; and
(iii) the use or disclosure is in accordance with
guidelines issued or approved by the Health
10 Services Commissioner under section 22 for the
purposes of this sub-paragraph; and
(iv) in the case of disclosure--
(A) the organisation reasonably believes that
the recipient of the health information
15 will not disclose the health information;
and
(B) the disclosure will not be published in a
form that identifies particular individuals
or from which an individual's identity
20 can reasonably be ascertained; or
(h) the organisation reasonably believes that the use or
disclosure is necessary to lessen or prevent--
(i) a serious and imminent threat to an individual's
life, health, safety or welfare; or
25 (ii) a serious threat to public health, public safety
or public welfare--
and the information is used or disclosed in accordance
with guidelines, if any, issued or approved by the
Health Services Commissioner under section 22 for
30 the purposes of this paragraph; or
12
(i) the organisation has reason to suspect that unlawful
activity has been, is being or may be engaged in, and
uses or discloses the health information as a necessary
part of its investigation of the matter or in reporting
35 its concerns to relevant persons or authorities and, if
the organisation is a registered health service
provider, the use or disclosure would not be a breach
of confidence; or
13
(j) the organisation reasonably believes that the use or
40 disclosure is reasonably necessary for a law
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enforcement function by or on behalf of a law
enforcement agency and, if the organisation is a
registered health service provider, the use or
disclosure would not be a breach of confidence; or
5 (k) the use or disclosure is necessary for the
establishment, exercise or defence of a legal or
equitable claim; or
(l) the use or disclosure is in the prescribed
circumstances.
10 Note: Nothing in HPP 2 requires an organisation to disclose health
information about an individual. An organisation is always
entitled not to disclose health information in the absence of
a legal obligation to disclose it.
2.3 If an organisation discloses health information under
15 paragraph (i) or (j) of HPP 2.2, it must make a written note
of the disclosure.
2.4 Despite HPP 2.2, a health service provider may disclose
health information about an individual to an immediate
family member of the individual if--
20 (a) either--
(i) the disclosure is necessary to provide
appropriate health services to or care of the
individual; or
(ii) the disclosure is made for compassionate
25 reasons; and
(b) the disclosure is limited to the extent reasonable
and necessary for the purposes mentioned in
paragraph (a); and
(c) the individual is incapable of giving consent to the
30 disclosure within the meaning of section 85(3); and
(d) the disclosure is not contrary to any wish--
(i) expressed by the individual before the
individual became incapable of giving consent
and not changed or withdrawn by the individual
35 before then; and
(ii) of which the organisation is aware or could be
made aware by taking reasonable steps; and
(e) in the case of an immediate family member who is
under the age of 18 years, considering the
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circumstances of the disclosure, the immediate family
member has sufficient maturity to receive the
information.
2.5 Despite HPP 2.2, an organisation may use or disclose health
5 information about an individual where--
(a) it is known or suspected that the individual is dead; or
(b) it is known or suspected that the individual is missing;
or
(c) the individual has been involved in an accident or
10 other misadventure and is incapable of consenting to
the use or disclosure--
and the use or disclosure is to the extent reasonably
necessary--
(d) to identify the individual; or
15 (e) to ascertain the identity and location of an immediate
family member or other relative of the individual for
the purpose of--
(i) enabling a member of the police force, a
coroner or other prescribed organisation to
20 contact the immediate family member or other
relative for compassionate reasons; or
(ii) to assist in the identification of the individual--
and, in the circumstances referred to in paragraph (b) or
(c)--
25 (f) the use or disclosure is not contrary to any wish--
(i) expressed by the individual before he or she
went missing or became incapable of
consenting and not withdrawn by the
individual; and
30 (ii) of which the organisation is aware or could
have become aware by taking reasonable steps;
and
(g) the information is used or disclosed in accordance
with guidelines, if any, issued or approved by the
35 Health Services Commissioner under section 22 for
the purposes of this paragraph.
3. Principle 3--Data Quality
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3.1 An organisation must take steps that are reasonable in the
circumstances to make sure that, having regard to the
purpose for which the information is to be used, the health
information it collects, uses, holds or discloses is accurate,
5 complete, up to date and relevant to its functions or
activities.
4. Principle 4--Data Security and Data Retention
4.1 An organisation must take reasonable steps to protect the
health information it holds from misuse and loss and from
10 unauthorised access, modification or disclosure.
4.2 A health service provider must not delete health information
relating to an individual, even if it is later found or claimed
to be inaccurate, unless--
(a) the deletion is permitted, authorised or required by the
15 regulations or any other law; or
(b) the deletion is not contrary to the regulations or any
other law and occurs--
(i) in the case of health information collected
while the individual was a child, after the
20 individual attains the age of 25 years; or
(ii) in any case, more than 7 years after the last
occasion on which a health service was
provided to the individual by the provider--
whichever is the later.
25 4.3 A health service provider who deletes health information in
accordance with HPP 4.2 must make a written note of the
name of the individual to whom the health information
related, the period covered by it and the date on which it
was deleted.
30 4.4 A health service provider who transfers health information
to another individual or organisation and does not continue
to hold a record of that information must make a written
note of the name and address of the individual or
organisation to whom it was transferred.
35 4.5 An organisation other than a health service provider must
take reasonable steps to destroy or permanently de-identify
health information if it is no longer needed for the purpose
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for which it was collected or any other purpose authorised
by this Act, the regulations made under this Act or any other
law.
5. Principle 5--Openness
5 5.1 An organisation must set out in a document--
(a) clearly expressed policies on its management of
health information; and
(b) the steps that an individual must take in order to
obtain access to their health information.
10 The organisation must make the document available to
anyone who asks for it.
5.2 On request by an individual, an organisation must take
reasonable steps--
(a) to let the individual know--
15 (i) whether the organisation holds health
information relating to the individual; and
(ii) the steps that the individual should take if the
individual wishes to obtain access to the
information; and
20 (b) if the organisation holds health information relating to
the individual, to let the individual know in general
terms--
(i) the nature of the information; and
(ii) the purposes for which the information is used;
25 and
(iii) how the organisation collects, holds, uses and
discloses the information.
6. Principle 6--Access and Correction
Access14
30 6.1 If an organisation holds health information about an
individual, it must provide the individual with access to the
information on request by the individual in accordance with
Part 5, unless--
(a) providing access would pose a serious threat to the
35 life or health of any person under section 26 and
refusing access is in accordance with guidelines, if
any, issued or approved by the Health Services
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Commissioner under section 22 for the purposes of
this paragraph; or
(b) providing access would have an unreasonable impact
on the privacy of other individuals and refusing
5 access is in accordance with guidelines, if any, issued
or approved by the Health Services Commissioner
under section 22 for the purposes of this paragraph; or
(c) the information relates to existing legal proceedings
between the organisation and the individual and the
10 information would not be accessible by the process of
discovery in those proceedings15or is subject to legal
professional privilege; or
(d) providing access would reveal the intentions of the
organisation in relation to negotiations, other than
15 about the provision of a health service, with the
individual in such a way as to expose the organisation
unreasonably to disadvantage; or
(e) the information is subject to confidentiality under
section 27; or
20 (f) providing access would be unlawful; or
(g) denying access is required or authorised by or under
law; or
(h) providing access would be likely to prejudice an
investigation of possible unlawful activity; or
25 (i) providing access would be likely to prejudice a law
enforcement function by or on behalf of a law
enforcement agency; or
(j) a law enforcement agency performing a lawful
security function asks the organisation not to provide
30 access to the information on the basis that providing
access would be likely to cause damage to the
security of Australia; or
(k) the request for access is of a kind that has been made
unsuccessfully on at least one previous occasion and
35 there are no reasonable grounds for making the
request again; or
(l) the individual has been provided with access to the
health information in accordance with Part 5 and is
making an unreasonable, repeated request for access
40 to the same information in the same way.
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6.2 However, where providing access would reveal evaluative
information generated within the organisation in connection
with a commercially sensitive decision-making process, the
organisation may give the individual an explanation for the
5 commercially sensitive decision rather than access to the
information.
Note: An organisation breaches HPP 6.1 if it relies on HPP 6.2 to
give an individual an explanation for a commercially
sensitive decision in circumstances where HPP 6.2 does not
10 apply.
6.3 If access is refused on the ground that it would pose a
serious threat to the life or health of the individual, the
procedure in Division 3 of Part 5 applies.
6.4 Without limiting sections 26 and 27, nothing in this
15 Principle compels an organisation to refuse to provide an
individual with access to his or her health information.
Correction
16
6.5 If an organisation holds health information about an
individual and the individual is able to establish that the
20 information is inaccurate, incomplete, misleading or not up
to date, the organisation must take reasonable steps to
correct the information so that it is accurate, complete and
up to date but must not delete the information otherwise
than in accordance with HPP 4.2.
25 6.6 If--
(a) the organisation is not willing to correct the health
information in accordance with a request by the
individual; and
(b) no decision or recommendation to the effect that the
30 information should be corrected wholly or partly in
accordance with the request, is pending or has been
made under this Act or any other law; and
(c) the individual gives to the organisation a written
statement concerning the requested correction--
35 the organisation must take reasonable steps to associate the
statement with the information.
6.7 If the organisation accepts the need to correct the health
information but--
(a) the organisation considers it likely that leaving
40 incorrect information, even if corrected, could cause
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harm to the individual or result in inappropriate health
services or care being provided; or
(b) the form in which the health information is held
makes correction impossible; or
5 (c) the corrections required are sufficiently complex or
numerous for a real possibility of confusion or error
to arise in relation to interpreting or reading the
record if it were to be so corrected--
the organisation must place the incorrect information on a
10 record which is not generally available to anyone involved
in providing health services to the individual, and to which
access is restricted, and take reasonable steps to ensure that
only the corrected information is generally available to
anyone who may provide health services to the individual.
15 6.8 If an organisation corrects health information about an
individual, it must--
(a) if practicable, record with the correction the name of
the person who made the correction and the date on
which the correction is made; and
20 (b) take reasonable steps to notify any health service
providers to whom the organisation disclosed the
health information before its correction and who may
reasonably be expected to rely on that information in
the future.
25 6.9 If an individual requests an organisation to correct health
information about the individual, the organisation must take
reasonable steps to notify the individual of a decision on the
request as soon as practicable but in any case not later than
30 days after the request is received by the organisation.
30 Written reasons
6.10 An organisation must provide written reasons for refusal of
access17 or a refusal to correct health information.
7. Principle 7--Identifiers
7.1 An organisation may only assign identifiers to individuals if
35 the assignment of identifiers is reasonably necessary to
enable the organisation to carry out any of its functions
efficiently.
7.2 Subject to HPP 7.4, a private sector organisation may only
adopt as its own identifier of an individual an identifier of
40 an individual that has been assigned by a public sector
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organisation (or by an agent of, or contractor to, a public
sector organisation acting in its capacity as agent or
contractor) if--
(a) the individual has consented to the adoption of the
5 same identifier; or
(b) the use or disclosure of the identifier is required or
authorised by or under law.
7.3 Subject to HPP 7.4, a private sector organisation may only
use or disclose an identifier assigned to an individual by a
10 public sector organisation (or by an agent of, or contractor
to, a public sector organisation acting in its capacity as agent
or contractor) if--
(a) the use or disclosure is required for the purpose for
which it was assigned or for a secondary purpose
15 referred to in one or more of paragraphs (c) to (l) of
HPP 2.2; or
(b) the individual has consented to the use or disclosure;
or
(c) the disclosure is to the public sector organisation
20 which assigned the identifier to enable the public
sector organisation to identify the individual for its
own purposes.
7.4 If the use or disclosure of an identifier assigned to an
individual by a public sector organisation is necessary for a
25 private sector organisation to fulfil its obligations to, or
requirements of, the public sector organisation, a private
sector organisation may either--
(a) adopt as its own identifier of an individual an
identifier of the individual that has been assigned by
30 the public sector organisation; or
(b) use or disclose an identifier of the individual that has
been assigned by the public sector organisation.
8. Principle 8--Anonymity
8.1 Wherever it is lawful and practicable, individuals must have
35 the option of not identifying themselves when entering
transactions with an organisation.
9. Principle 9--Transborder Data Flows
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9.1 An organisation may transfer health information about an
individual to someone (other than the organisation or the
individual) who is outside Victoria only if--
(a) the organisation reasonably believes that the recipient
5 of the information is subject to a law, binding scheme
or contract which effectively upholds principles for
fair handling of the information that are substantially
similar to the Health Privacy Principles; or
(b) the individual consents to the transfer; or
10 (c) the transfer is necessary for the performance of a
contract between the individual and the organisation,
or for the implementation of pre-contractual measures
taken in response to the individual's request; or
(d) the transfer is necessary for the conclusion or
15 performance of a contract concluded in the interest of
the individual between the organisation and a third
party; or
(e) all of the following apply--
(i) the transfer is for the benefit of the individual;
20 (ii) it is impracticable to obtain the consent of the
individual to that transfer;
(iii) if it were practicable to obtain that consent, the
individual would be likely to give it; or
(f) the organisation has taken reasonable steps to ensure
25 that the information which it has transferred will not
be held, used or disclosed by the recipient of the
information inconsistently with the Health Privacy
Principles; or
(g) the transfer is authorised or required by any other law.
30 10. Principle 10--Transfer or closure of the practice of a health
service provider
10.1 This Principle applies if the practice or business of a health
service provider ("the provider") is to be--
(a) sold or otherwise transferred and the provider will not
35 be providing health services in the new practice or
business; or
(b) closed down.
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10.2 The provider or, if the provider is deceased, the legal
representatives of the provider, must--
(a) publish a notice in a newspaper circulating in the
locality of the practice or business stating--
5 (i) that the practice or business has been, or is
about to be, sold, transferred or closed down, as
the case may be; and
(ii) the manner in which the provider proposes to
deal with the health information held by the
10 practice or business about individuals who have
received health services from the provider,
including whether the provider proposes to
retain the information or make it available for
transfer to those individuals or their health
15 service providers; and
(b) take any other steps to notify individuals who have
received a health service from the provider in
accordance with guidelines issued or approved by the
Health Services Commissioner under section 22 for
20 the purposes of this paragraph.
10.3 Not earlier than 21 days after giving notice in accordance
with HPP 10.2, the person giving the notice must, in relation
to health information about an individual held by, or on
behalf of, the practice or business, elect to retain that
25 information or transfer it to--
(a) the health service provider, if any, who takes over the
practice or business; or
(b) the individual or a health service provider nominated
by him or her.
30 10.4 A person who elects to retain health information must
continue to hold it or transfer it to a competent organisation
for safe storage in Victoria, until the time, if any, when the
health information is destroyed in accordance with HPP 4.
10.5 Subject to HPP 10.2, a person must comply with the
35 requirements of this Principle as soon as practicable.
10.6 Despite any other provision of the Health Privacy
Principles, a person who transfers health information in
accordance with this Principle does not, by so doing,
contravene the Health Privacy Principles.
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10.7 If--
(a) an individual, in response to a notice published under
HPP 10.2, requests that health information be
transferred to him or her or to a health service
5 provider nominated by him or her; and
(b) the person who published the notice elects to retain
the health information--
the request must be taken to be--
(c) in the case of a request that the health information be
10 transferred to him or her, a request for access to that
health information in accordance with Part 5 or
HPP 6; and
(d) in the case of a request that the health information be
transferred to a health service provider nominated by
15 him or her, a request for the transfer of that health
information in accordance with HPP 11--
and it must be dealt with in accordance with this Act.
10.8 This Principle operates subject to any other law, including
the Public Records Act 1973.
20 10.9 For the purposes of HPP 10.1(a), a business or practice of a
provider is transferred if--
(a) it is amalgamated with another organisation; and
(b) the successor organisation which is the result of the
amalgamation is a private sector organisation.
25 11. Principle 11--Making information available to another health
service provider
11.1 If an individual--
(a) requests a health service provider to make health
information relating to the individual held by the
30 provider available to another health service provider;
or
(b) authorises another health service provider to request a
health service provider to make health information
relating to the individual held by that provider
35 available to the requesting health service provider--
a health service provider to whom the request is made and
who holds health information about the individual must, on
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payment of a fee not exceeding the prescribed maximum fee
and subject to the regulations, provide a copy or written
summary of that health information to that other health
service provider.
5 11.2 A health service provider must comply with the
requirements of this Principle as soon as practicable.
11.3 Nothing in Part 5 or HPP 6 limits the operation of this
Principle.
11.4 For the purposes of HPP 10.7, this Principle applies to a
10 legal representative of a deceased health service provider in
the same way that it applies to a health service provider.
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Endnotes
Act No.
ENDNOTES
1
The index attached to this Act does not form part of this Act and is
provided for convenience of reference only.
2
S. 25(1): Section 5 defines what is meant by this expression.
3
S. 26: See also Division 3 of Part 5 and HPP 6.3.
4
S. 27: HPP 1.7 relates to the collection of information given in confidence.
5
S. 45(1): Section 18 defines what is meant by this expression.
6
S. 64(1): Section 18 defines what is meant by this expression.
7
S. 96: See also HPP 6.1(c).
8
Sch. 1 HPP 1.5: See HPP 1.7 and also section 27.
9
Sch. 1 HPP 1.7: See also section 27.
10
Sch. 1 HPP 2: See also HPP 9 for requirements relating to the transfer of
health information to a person who is outside Victoria.
11
Sch. 1 HPP 2.2: A use or disclosure may be permitted under more than one
paragraph of HPP 2.2.
12
Sch. 1. HPP 2.2(i): For the purposes of this paragraph, the term "breach of
confidence" relates to the general law of confidence (including but not
limited to the common law or in equity), which requires, amongst other
things, that a duty of confidence exists under that law which is not, in the
particular circumstances, outweighed by any countervailing public
interest under that law.
13
Sch. 1. HPP 2.2(j): For the purposes of this paragraph, the term "breach of
confidence" relates to the general law of confidence (including but not
limited to the common law or in equity), which requires, amongst other
things, that a duty of confidence exists under that law which is not, in the
particular circumstances, outweighed by any countervailing public
interest under that law.
14
Sch. 1 HPP 6: See section 34(3) for access to health information, only part
of which is claimed to fall within HPP 6.1 or 6.2.
15
Sch. 1 HPP 6.1(c): See also section 96.
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16
Sch. 1 HPP 6.5: See HPP 4.2 and HPP 4.3 for deletion or destruction of
health information.
17
Sch. 1 HPP 6.10: See section 35 regarding refusal of access.
By Authority. Government Printer for the State of Victoria.
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INDEX
Subject Section
Access to health information
alternative arrangements for 43
by authorised persons 30, 31
by authorised representatives 31, 85
by legal representatives 31, 95
capacity to consent, request, exercise right to 85
evidence of identity or authority 31
exercise of right to 28
failure to provide 18, 35
fees 32
persuading people not to exercise right to 83
provision of 29, 34
refusal to provide 26, 27, 34, 36ญ42,
85
requests for 33ญ35
right to 25ญ32
terms of contracts of health service providers 44
unlawfully requested or obtained 82
Act
amendments to other Acts 101ญ137
application to deceased persons 95
application to private sector 11ญ12
application to public sector 10
commencement 2
Crown bound by 9
exemptions 13ญ17
interpretative provisions 4ญ5
nature of rights created by 8
objects 6
purpose 1
relationship to other laws 7
85
Authorised representatives
Children
access to health information 85
complaints made by 47
78
Compensation
Complaints
about inaccurate health information 78
about registered health service providers 52, 55, 58
acceptance by Health Services Commissioner 56, 64
assistance in making of 45
by children and people with impairment 47
cessation of proceedings by HS Commissioner 58
compliance notices 66, 71ญ72
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Subject Section
conciliation 56, 58, 59ญ63
dismissal 51, 53, 57, 63, 78
expediting of 45
grounds for 45
Health Services Commissioner's decisions 56
Health Services Commissioner's rulings 64
information and documents relevant to 67ญ70
interim orders 73
investigations 63, 64, 67ญ70
jurisdiction of Tribunal 74ญ78
lodging of 45
making of 45ญ47
notification of respondent of making of 48
persuading people not to exercise right to make 83
preliminary assessment 49
proceedings in courts or tribunals 58
referral by Health Services Commissioner to
Federal Privacy Commissioner 51
Ombudsman 51
Privacy Commissioner 51
registration boards 52, 58
Tribunal 51, 57, 63, 65, 74
referral by Minister directly to Tribunal 54, 74, 76
referral to Health Services Commissioner 46
refusal to entertain by HS Commissioner 51, 56
resolution by informal means 49
respondents to 45
separation of 50
stale complaints 53
66, 71ญ72
Compliance notices
Conciliation
agreements and records 61
as option for dealing with complaint 56, 58
failure 63
inadmissibility of evidence used in 62
information and documents relevant to 60
process 59
Consent
capacity to give 85
unlawfully required 80
Courts
exemptions from Act 14
78
Damages
Deceased persons
application of Act to 95
complaints about interference with privacy of 45
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Subject Section
Definitions
authorised representative 85
child 3
consent 3
correct 3
Council 3
disability 3
enactment 3
false representation 79
Federal Privacy Commissioner 3
generally available publication 3
health information 3
Health Privacy Principle 3
HPP 3
health service 3
health service provider 3
Health Services Commissioner 3
Health Services Review Council 3
identifier 3
illness 3
immediate family member 3
individual 3
law enforcement agency 3
law enforcement function 3
legal representative 3
news activity 3
news medium 3
organisation 3
parent 3
personal information 3
Privacy Commissioner 3
private sector organisation 3
public register 3
public sector agency 3
public sector organisation 3
registered health service provider 3
registered medical practitioner 3
registration board 3
relative 3
sibling 3
State contract 3
the Tribunal 3
Evidence
inadmissibility 62
Exemptions
courts and tribunals 14
documents under Freedom of Information Act
16
1982
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Subject Section
news media 17
personal, family or household affairs 13
publicly available health information 15
79
False representation
Federal Privacy Commissioner
referral of complaints to 51
Freedom of Information Act 1982
access to documents under 16, 51
exempt documents under s. 28(1) 60, 67, 77
Health information
as threat to life or health of individual 26, 36ญ42, 85
authorised representatives' powers regarding 85
collection, use, disclosure of Sch. 1
consent to collection, use, disclosure, access to 85, Sch. 1
definition 3
discussions between individuals and organisations 37, 41
explanations of 28, 29, 32
guidelines 22ญ24, Sch. 1
health privacy principles 18ญ21, Sch. 1
holding of 5, Sch. 1
inaccuracies in 78, Sch. 1
nominated health service providers' role 38ญ42
publicly available information 15
right of access to 25, Sch. 1
subject to confidentiality 27, Sch. 1
unlawful destruction or removal 81
See also Access to health information
19ญ21, Sch. 1
Health privacy principles
Health service providers
complaints about 52, 55, 58
function when access to health information denied 42
nomination process 38ญ41
terms and conditions of contracts 44
Health Services Commissioner
delegation of powers 91
duty to provide assistance in making of complaints 45
functions 87
powers in general 88
powers regarding
examination of witnesses 69
exemptions from compliance with HPPs 21
guidelines 22ญ23
obtaining information and documents 60, 67
prosecutions 94
regard for objects of Act 89
secrecy provisions 90
See also Complaints
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Subject Section
Impairment See People with impairment
73
Interim orders
96
Legal professional privilege
95
Legal representatives
Liability
of organisations for acts of agents, employees 92
protection from 86, 97
Minister
referral of complaints directly to Tribunal by 54, 74, 76
News media
exemptions from Act 17
Offences
by unincorporated bodies or organisations 93
definition of false representation 79
failure to attend before HS Commissioner 84
non-compliance with compliance notices 80
obstruction, hindering of HS Commisioner 84
persuading people not to exercise right of access 83
prosecutions for 94
unlawful access to health information 82
unlawful destruction of health information 81
unlawful disclosure of information 90
unlawfully requiring consent 80
Ombudsman
referral of complaints to 51
Outsourcing
effect of 12
interpretation of references to 3
People with impairment
access to health information 85
complaints by 47
Privacy
guidelines 22ญ24
Health Privacy Principles 19ญ21, Sch. 1
interference with 18, 45
See also Complaints
Privacy Commissioner
referral of complaints to 51
Private sector organisations
application of Act 11ญ12
94
Prosecutions
Public registers
Tribunal orders regarding 78
Public sector organisations
application of Act 10
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Subject Section
Publicly available health information
exemptions from Act 15
Registration boards
copies of complaints referred to other authorities 55
copies of HS Commissioner's rulings 64
inadmissible evidence in hearings before 62
referral of complaints about providers to 52, 58
100
Regulations
90
Secrecy
Self-incrimination
protection against 70
Supreme Court
limitation of jurisdiction 99
Tribunals
exemptions from Act 14
Victorian Civil and Administrative Tribunal
inadmissible evidence in proceedings before 62
inspection of exempt documents 77
interim orders 73
jurisdiction to hear complaints 74ญ78
referral of complaints by Minister to 54, 74, 76
referral of complaints to 51, 57, 63, 65, 74
registration of conciliation agreements 61
review of decisions to serve compliance notices 72
Witnesses
Health Services Commissioner's power to examine 69
protection against self-incrimination 70
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