HEALTH RECORDS ACT 2001

Victorian Consolidated Legislation

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HEALTH RECORDS ACT 2001 - NOTES

No. 2 of 2001
Version incorporating amendments as at 2 April 2009

ENDNOTES

1. General Information
Minister's second reading speech-
Legislative Assembly: 23 November 2000
Legislative Council: 22 March 2001
The long title for the Bill for this Act was "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."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 23 November 2000
Legislative Council: 22 March 2001
Absolute majorities:
Legislative Assembly: 20 March 2001
Legislative Council: 3 April 2001
The Health Records Act 2001 was assented to on 10 April 2001 and came into operation as follows:
Ss 1-6, 22-24, 84, 87(a)(b)(k)(m)-(o)(q)(r), 88-91, 94, 100,
105(c)-(e)(i)(f)-(k)(n), 107(b)(c), 111(2)(a)(3)(5) on 16 November 2001: Government Gazette 15 November 2001 page 2839; ss 7, 8, 13-17, 19, 85, 86(2)-(5), 93, 95-99, 103(1)(2)(b), 109, 111(1), Schedule 1 on 1 March 2002: Government Gazette 28 February 2002 page 318; rest of Act on 1 July 2002: section 2(2).
2. Table of Amendments
This Version incorporates amendments made to the Health Records Act 2001 by Acts and subordinate instruments.
-------------------------------------------------------------
Statute Law Amendment (Relationships) Act 2001, No. 27/2001
Assent Date:
12.6.01
Commencement Date:
S. 6(Sch. 4 item 4) on 28.6.01: Government Gazette 28.6.01 p. 1428
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Health Practitioner Acts (Further Amendments) Act 2002, No. 14/2002
Assent Date:
7.5.02
Commencement Date:
Ss 48, 49 on 8.5.02: s. 2(1)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Australian Crime Commission (State Provisions) Act 2003, No. 52/2003
Assent Date:
16.6.03
Commencement Date:
S. 52(Sch. 1 item 5) on 17.6.03: s. 2(1)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Health Legislation (Further Amendment) Act 2003, No. 98/2003
Assent Date:
2.12.03
Commencement Date:
S. 12 on 3.12.03: s. 2(1)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Parliamentary Committees Act 2003, No. 110/2003
Assent Date:
9.12.03
Commencement Date:
S. 57 on 10.12.03: s. 2
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Public Administration Act 2004, No. 108/2004
Assent Date:
21.12.04
Commencement Date:
S. 117(1)(Sch. 3 item 95) on 5.4.05: Government Gazette 31.3.05 p. 602
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Legal Profession (Consequential Amendments) Act 2005, No. 18/2005
Assent Date:
24.5.05
Commencement Date:
S. 18(Sch. 1 item 48) on 12.12.05: Government Gazette 1.12.05 p. 2781
Current State:
This information relates only to the provision/s amending the Health Records Act 2001

Health Professions Registration Act 2005, No. 97/2005
Assent Date:
7.12.05
Commencement Date:
S. 182(Sch. 4 item 26) on 1.7.07: s. 2(3)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Disability Act 2006, No. 23/2006
Assent Date:
16.5.06
Commencement Date:
S. 241 on 1.7.07: s. 2(3)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Statute Law Revision Act 2007, No. 28/2007
Assent Date:
26.6.07
Commencement Date:
S. 3(Sch. item 30) on 27.6.07: s. 2(1)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Relationships Act 2008, No. 12/2008
Assent Date:
15.4.08
Commencement Date:
S. 73(1)(Sch. 1 item 29) on 1.12.08: s. 2(2)
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Family Violence Protection Act 2008, No. 52/2008
Assent Date:
23.9.08
Commencement Date:
S. 250 on 8.12.08: Special Gazette (No. 339) 4.12.08 p. 1
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
Stalking Intervention Orders Act 2008, No. 68/2008
Assent Date:
18.11.08
Commencement Date:
S. 77 on 8.12.08: Special Gazette (No. 339) 4.12.08 p. 1
Current State:
This information relates only to the provision/s amending the Health Records Act 2001
-------------------------------------------------------------
3. Explanatory Details

1S. 25(1): Section 5 defines what is meant by this expression.
2S. 26: See also Division 3 of Part 5 and HPP 6.3.
3S. 27: HPP 1.7 relates to the collection of information given in confidence.
4S. 45(1): Section 18 defines what is meant by this expression.
5S. 64(1): Section 18 defines what is meant by this expression.
6S. 96: See also HPP 6.1(c).
7Sch. 1 HPP 1.5: See HPP 1.7 and also section 27.
8Sch. 1 HPP 1.7: See also section 27.
9Sch. 1 HPP 2: See also HPP 9 for requirements relating to the transfer of health information to a person who is outside Victoria.
10Sch. 1 HPP 2.2: A use or disclosure may be permitted under more than one paragraph of HPP 2.2.
11 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.
12 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.
13Sch. 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.
14Sch. 1 HPP 6.1(c): See also section 96.
15Sch. 1 HPP 6.5: See HPP 4.2 and HPP 4.3 for deletion or destruction of health information.
16Sch. 1 HPP 6.10: See section 35 regarding refusal of access.

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, 36-42, 85
requests for
33-35
right to
25-32
terms of contracts of health service providers
44
unlawfully requested or obtained
82
Act

application to deceased persons
95
application to private sectopr
11-12
application to public sector
10
commencement
2
Crown bound by
9
exemptions
13-17
interpretative provisions
4-5
nature of rights created by
8
objects
6
purpose
1
relationship to other laws
7
Authorised representatives
85
Children

access to health information
85
child (def.)
3
complaints made by
47
Compensation
78
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, 71-72
conciliation
56, 58, 59-63
dismissal
51, 53, 57, 63, 78
expediting of
45
grounds for
45
Subject

Section

Health Services Commissioner's decisions
56
Health Services Commissioner's rulings
64
information and documents relevant to
67-70
interim orders
73
investigations
63, 64, 67-70
jurisdiction of Tribunal
74-78
lodging of
45
making of
45-47
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

Disability Services Commissioner
51
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
Compliance notices
66, 71-72
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
definition
3
unlawfully required
80
Council (def.)
3
Courts

exemptions from Act
14
Damages
78
Deceased persons

application of Act to
95
complaints about interference with privacy of
45
Definitions
3, 79, 85
Disability Services Commissioner

referral of complaints to
51
Evidence

inadmissibility
62

Subject

Section

Exemptions

courts and tribunals
14
documents under Freedom of Information Act 1982

16
news media
17
personal, family or household affairs
13
publicly available health information
15
False representations
79
Federal Privacy Commissioner

definition
3
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, 36-42, 85
authorised representatives' powers regarding
85
collection, use, disclosure of
Sch. 1
consent to collection, use, disclosure, access to
85, Sch. 1
correct (def.)
3
definition
3
discussions between individuals and organisations
37, 41
explanations of
28, 29, 32
guidelines
22-24, Sch. 1
health privacy principles
18-21, Sch. 1
holding of
5, Sch. 1
inaccuracies in
78, Sch. 1
nominated health service providers' role
38-42
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

Health privacy principles
3, 19-21, Sch. 1
Health service providers

complaints about
52, 55, 58
definition
3
function when access to health information denied
42
health services (def.)
3
nomination process
38-41
registered health service providers (def.)
3
terms and conditions of contracts
44
Health Services Commissioner

definition
3
delegation of powers
91
duty to provide assistance in making of complaints
45
functions
87
powers in general
88

Subject

Section

powers regarding

examination of witnesses
69
exemptions from compliance with HPPs
21
guidelines
22-23
obtaining information and documents
60, 67
prosecutions
94
regard for objects of Act
89
secrecy provisions
90
See also Complaints

Health Services Review Council (def.)
3
Impairment See People with impairment

Interim orders
73
Law enforcement agencies (def.)
3
Legal professional privilege
96
Legal representatives
3, 95
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

definition
3
exemptions from Act
17
news activities (def.)
3
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
22-24
Health Privacy Principles
3, 19-21, Sch. 1
interference with
18, 45
See also Complaints

Privacy Commissioner
3
referral of complaints to
51
Subject

Section

Private sector organisations
3
application of Act
11-12
Prosecutions
94
Public registers
3
Tribunal orders regarding
78
Public sector agencies (def.)
3
Public sector organisations

application of Act
10
Publicly available health information

exemptions from Act
15
Registration boards

copies of complaints referred to other authorities
55
copies of Health Services Commissioner's rulings
64
definition
3
inadmissible evidence in hearings before
62
referral of complaints about providers to
52, 58
Regulations
100
Secrecy
90
Self-incrimination

protection against
70
State contracts (def.)
3
Supreme Court

limitation of jurisdiction
99
Tribunals
3
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
74-78
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

Health Records Act 2001
No. 2 of 2001