Victorian Consolidated Legislation

Health Records Act 2001 - SECT 85

PART 8 GENERAL

Capacity to consent or make a request or exercise right of access

85. Capacity to consent or make a request or exercise right of access



(1) If this Act requires the consent of an individual to 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 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.

(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-

   (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-

   (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 performance of functions or duties or exercise of powers in
        respect of the individual by the authorised representative.

(3) For the purposes of subsections (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, 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
        requires); or

   (b)  communicating the consent or refusal of consent, making the request or
        personally exercising the right of access (as the case requires)-

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 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 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 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.





(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 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 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 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 with an order made by a court or tribunal.