Victorian Consolidated Legislation

Health Services Act 1988 - SECT 141

Confidentiality

141. Confidentiality



(1) In this section-

relevant person means-

   (a)  a relevant health service; or

   (b)  the board of a relevant health service; or

   (c)  a person who is or has been a member of the board of a relevant health
        service; or

   (ca) a person who is or has been a delegate to a board of a public hospital
        appointed under section 40C; or

   (cb) a person who is or has been a delegate to a board of a public health
        service appointed under section 65ZAA; or

   (d)  a person who is or has been the proprietor of a relevant health
        service; or

   (e)  a person who is or has been engaged or employed in or by a relevant
        health service, or performs work for a relevant health service;

relevant health service means-

   (a)  a public hospital or denominational hospital; or

   (b)  a private hospital; or

   (c)  a multi purpose service; or

   (d)  a day procedure centre; or

   (e)  a registered community health centre.

(2) A relevant person must not, except to the extent necessary-

   (a)  to carry out functions under this or any other Act; or

   (b)  to exercise powers under this or any other Act in relation to a
        relevant health service; or

   (c)  to give any information he or she is expressly authorised, permitted
        or required to give under this or any other Act-

give to any other person, whether directly or indirectly, any information
acquired by reason of being a relevant person if a person who is or has been a
patient in, or has received health services from, a relevant health service
could be identified from that information. Penalty: 50 penalty units.

(2A) For the purposes of subsection (2)(c), "any other Act" does not include
the Health Privacy Principles in the Health Records Act 2001 or Part 3 or Part
5 of that Act.

(2B) Subsection (2) does not apply to a person (other than an independent
contractor) who is a relevant person in relation to a relevant health service
who gives information in accordance with HPP 2 of the Health Privacy
Principles in the Health Records Act 2001 to another person (other than an
independent contractor) who is a relevant person in relation to that relevant
health service.





(3) Subsection (2) does not apply-

   (a)  to the giving of information with the prior consent (which may be
        express or implied) of the person to whom it relates or, if that
        person has died, with the consent (which may be express or implied) of
        the senior available next of kin of that person; or

   (b)  to the giving of information to a court in the course of criminal
        proceedings; or

   (c)  to the giving of information concerning the condition of a person who
        is a patient in, or is receiving health services from, a relevant
        health service if the information-

   (i)  is communicated in general terms; or

   (ii) is communicated by a member of the medical staff of a relevant health
        service to the next of kin or a near relative of the patient in
        accordance with the recognised customs of medical practice; or

   (d)  to the giving of information to the Australian Red Cross Society for
        the purpose of tracing blood, or blood products derived from blood,
        infected with any disease or the donor or recipient of any such blood;
        or

   (e)  to the giving of information-

   (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 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 hospitals and
        denominational hospitals for the treatment of patients at any time; or

   (ea) to the giving of information in accordance with an agreement under
        section 53(1) or 69B(1); or

   (eb) to the giving of information as described in HPP 2.2(a), 2.2(f),
        2.2(h), 2.2(k), 2.2(l) or 2.5 of the Health Privacy Principles in the
        Health Records Act 2001; or



   (ec) to the giving of information relating to a notification, claim or
        potential claim to a person or body providing insurance or indemnity
        (including discretionary indemnity) for any liability of the relevant
        health service or a person who is a relevant person in relation to the
        relevant health service arising from the provision of services by, on
        behalf of or at the relevant health service; or

   (f)  to the giving of information to the Australian Statistician; or

   (g)  to the giving of information acquired by an agency concerning a
        person's medical condition or treatment for the purposes of medical or
        social research if-

   (i)  the use to which the information will be put and the research
        methodology have been approved by an ethics committee established
        under the by-laws of the agency; and

   (ii) the giving of information does not conflict with any prescribed
        requirements; and

   (iii) the giving of information is in accordance with HPP 2.2(g) of the
        Health Privacy Principles in the Health Records Act 2001; or

   (ga) to the giving of information to a case mix auditor under Division 1A
        of Part 3 of this Act;





   (gaa) to the giving of information to an auditor under Division 8A of Part
        3 of this Act;



   (gb) to the giving of information to or by a person, or a person in a class
        of persons, designated under subsection (5) in the course of carrying
        out support functions designated under subsection (5); or

   (h)  to the giving of information to a person to whom in the opinion of the
        Minister it is in the public interest that the information be given.

(3A) A person must not use or collect, or attempt to use or collect,
information about a person from an electronic records system referred to in
subsection (3)(e)(ii) if that second-mentioned person could be identified from
that information unless-

   (a)  the use or collection is by a person 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 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

   (c)  the use or collection is in accordance with the regulations (if any).

Penalty: 50 penalty units.

(4) A person who receives information by reason of the giving of information
under subsection (3)(g) must not give to any other person, whether directly or
indirectly, any information so received unless the giving of the information-

   (a)  has been approved by the ethics committee referred to in subsection
        (3); and

   (b)  does not conflict with any prescribed requirements; and



   (c)  the giving of information in accordance with HPP 2.2(g) of the Health
        Privacy Principles in the Health Records Act 2001.

Penalty: 50 penalty units.

(5) For the purposes of subsection (3)(gb), the Governor in Council, may by
Order published in the Government Gazette designate-

   (a)  a person, or a class or classes of persons, engaged by-

   (i)  a public hospital or denominational hospital; or

   (ii) a multi-purpose service; or

   (iii) a registered community health centre; and

   (b)  support functions carried out or to be carried out by those persons.