Victorian Consolidated Legislation

Mental Health Act 1986 - SECT 120A

Confidentiality

120A. Confidentiality



(1) In this section-

public sector mental health service means-

   (a)  a relevant psychiatric service that is-

   (i)  a public hospital, denominational hospital or privately-operated
        hospital (within the meaning of the Health Services Act 1988); and

   (ii) funded by the Secretary; or

   (b)  a relevant psychiatric service that is declared, or to the extent that
        it is declared, by an Order under subsection (1A) to be a public
        sector mental health service;

relevant person means the following-

   (a)  a relevant psychiatric service;

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

   (c)  a person who is or has been a proprietor of a relevant psychiatric
        service;

   (d)  a person who is or has been engaged or employed by or on behalf of a
        relevant psychiatric service;

relevant psychiatric service means a person or body to the extent that he, she
or it provides or operates one or more of the following-

   (a)  an approved mental health service;

   (b)  a child and adolescent psychiatry service;

   (c)  an agency providing community support services;

* * * * *

   (e)  any premises licensed under section 75;

   (f)  a hospital admitting or caring for people with a mental disorder;

   (g)  any mental health service of a registered community health centre;

   (h)  a psychiatric out-patient clinic;

   (i)  a community mental health service.

(1A) The Governor in Council may, by Order published in the Government
Gazette, declare a relevant psychiatric service to be, either wholly or to the
extent specified in the Order, a public sector mental health service.

(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 psychiatric service; or







   (c)  to give any information he or she is expressly authorised or permitted
        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 of, or has received psychiatric services from, a relevant
psychiatric 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 psychiatric
service who gives information in accordance with HPP2 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
psychiatric 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 of, or is receiving psychiatric services from, a relevant
        psychiatric service if the information-

   (i)  is communicated in general terms; or

* * * * *



   (ca) to the giving of information relating to a person who is, or has been,
        receiving services from a relevant psychiatric service by a member of
        the medical staff, or a member of a prescribed class of staff, of that
        psychiatric service to a guardian, family member or primary carer of
        the person to whom the information relates if-

   (i)  the information is reasonably required for the on-going care of the
        person to whom it relates; and

   (ii) the guardian, family member or primary carer will be involved in
        providing that care; 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 person with a
        mental disorder; or

   (ii) subject to the regulations (if any), by a person engaged or employed
        by or on behalf of a public sector mental health service by means of
        an electronic records system established and maintained by the
        Secretary for the purpose of enabling the sharing of information
        between public sector mental health services for the treatment of
        persons with a mental disorder at any time; or

   (ea) 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



   (eb) 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
        psychiatric service or a person who is a relevant person in relation
        to the relevant psychiatric service arising from the provision of
        services by or on behalf of the relevant psychiatric 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 psychiatric 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 of the relevant
        psychiatric service; 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) the giving of information to or by a person, or a person in a class of
        persons, designated under section 141(5) of the
        Health Services Act 1988 in the course of carrying out support
        functions designated under that provision; or

   (h)  to the giving of any information required in connection with any
        proceedings before the Board or the Tribunal; or



   (ha) to the giving of any information required in connection with
        proceedings before the Panel; or

        (i)    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; or

   (j)  to the giving of information to the Secretary; or



   (k)  to the giving of information to the Minister; or





   (l)  to the giving of information of a class specified by the Minister by a
        person who is a member of a class of persons specified by the Minister
        in circumstances specified by the Minister.

(3A) The Minister may authorise the giving of information under subsection
(3)(l) only if he or she considers it necessary to do so in the public
interest.

(3B) 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-

   (i)  by a person engaged or employed by or on behalf of a public sector
        mental health service; and

   (ii) to enable the treatment of that second-mentioned person by that public
        sector mental health service; and

   (iii) in accordance with the regulations (if any); or

   (ab) the use is by a person referred to in paragraph (a)(i) of information
        collected in accordance with paragraph (a), being a use that is-

   (i)  necessary for the performance of the person's duties or functions with
        the public sector mental health service; and

   (ii) in accordance with HPP2 of the Health Privacy Principles in the
        Health Records Act 2001; or

   (ac) the use is by the Secretary of information collected in accordance
        with subsection (3)(e)(ii), being a use that is-

   (i)  necessary for the performance of the duties, powers or functions of
        the Secretary under this Act; and

   (ii) in accordance with HPP2 of the Health Privacy Principles in the
        Health Records Act 2001; or

   (b)  in the case of the Chief Psychiatrist, the Board or the Panel, the use
        or 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;
        and

   (ii) 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 is in accordance with HPP 2.2(g) of the
        Health Privacy Principles in the Health Records Act 2001.

Penalty: 50 penalty units.