HEALTH SERVICES ACT 1988 - SECT 141 Confidentiality
HEALTH SERVICES ACT 1988 - SECT 141
Confidentiality(1) In this section—
S. 141(1)
def. of
person to whom this section applies amended by No. 112/1993 s. 10(1),
substituted as relevant person by No. 67/2003 s. 4(1)(a),
amended by No. 52/2004 s. 48(1).
"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;
S. 141(1)
def. of relevant health service amended by Nos 88/1994 s. 19, 99/1995
s. 9, 79/2008 s. 11(1).
"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.
S. 141(2) amended by No. 67/2003 s. 4(1)(b)
(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
S. 141(2)(c) amended by No. 53/1990 s. 22.
(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.
S. 141(2A) inserted by No. 2/2001 s. 103(1).
(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.
S. 141(2B) inserted by No. 67/2003 s. 4(2).
(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—
S. 141(3)(a) amended by No. 67/2003 s. 4(3)(a).
(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
S. 141(3)(e) substituted by No. 2/2001 s. 103(2)(a).
(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
S. 141(3)(ea) inserted by No. 68/1996 s. 33.
(ea) to the giving of information in accordance with an agreement under section 53(1) or 69B(1); or
S. 141(3)(eb) inserted by No. 2/2001 s. 103(2)(b), amended by No. 67/2003 s. 4(3)(b).
(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
S. 141(3)(ec) inserted by No. 67/2003 s. 4(3)(c).
(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
S. 141(3)(g)(ii) amended by No. 2/2001 s. 103(2)(c)(i).
(ii) the giving of information does not conflict with any prescribed requirements; and
S. 141(3)(g)(iii) inserted by No. 2/2001 s. 103(2)(c)(ii).
(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
S. 141(3)(ga) inserted by No. 112/1993 s. 10(2), amended by No. 52/2004 s. 48(2)(a).
(ga) to the giving of information to a case mix auditor under Division 1A of Part 3 of this Act;
S. 141(3)(gaa) inserted by No. 52/2004 s. 48(2)(b).
(gaa) to the giving of information to an auditor under Division 8A of Part 3 of this Act;
S. 141(3)(gb) inserted by No. 39/2000 s. 9(1), amended by No. 52/2004 s. 48(2)(a).
(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
S. 141(3)(gc) inserted by No. 23/2017 s. 39.
(gc) to the giving of information to or by an information sharing entity in accordance with Part 5A of the Family Violence Protection Act 2008 ; or
S. 141(3)(gd) inserted by No. 11/2018 s. 32.
(gd) to the giving of information to or by an information sharing entity or a restricted information sharing entity in accordance with Part 6A of the Child Wellbeing and Safety Act 2005 ; or
S. 141(3)(ge) inserted by No. 11/2018 s. 32.
(ge) to the giving of information to or by a Child Link user or the Secretary to the Department of Education and Training in accordance with Part 7A of the Child Wellbeing and Safety Act 2005 ; 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.
S. 141(3A) inserted by No. 2/2001 s. 103(3).
(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
S. 141(4)(b) amended by No. 2/2001 s. 103(4)(a).
(b) does not conflict with any prescribed requirements; and
S. 141(4)(c) inserted by No. 2/2001 s. 103(4)(b).
(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.
S. 141(5) inserted by No. 39/2000 s. 9(2).
(5) For the purposes of subsection (3)(gb), the Governor in Council, may by Order published in the Government Gazette designate—
S. 141(5)(a) amended by No. 67/2003 s. 4(3)(d).
(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
S. 141(5)(a)(iii) amended by No. 79/2008 s. 11(2).
(iii) a registered community health centre; and
(b) support functions carried out or to be carried out by those persons.