Health Records Act 2001

i Health Records Act 2001 Act No. 2/2001 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 3. Definitions 2 4. Interpretative provisions 12 5. When does an organisation hold health information? 12 6. Objects of Act 13 7. Relationship of this Act to other laws 13 8. Nature of rights created by this Act 14 9. Act binds the Crown 14 PART 2—APPLICATION OF THIS ACT 15 Division 1—Public Sector Organisations 15 10. Application to public sector 15 Division 2—Private Sector Organisations 16 11. Application to private sector 16 12. Effect of outsourcing 17 Division 3—Exemptions 17 13. Personal, family or household affairs 17 14. Courts, tribunals, etc. 17 15. Publicly available health information 18 16. Freedom of Information Act 1982 19 17. News media 20 PART 3—PRIVACY OF HEALTH INFORMATION 21 18. What is an interference with privacy? 21 19. Health Privacy Principles 21 20. Application of HPPs 21 21. Organisation to comply with HPPs 22 -- 1 of 156 -- Section Page ii PART 4—GUIDELINES 25 22. Health Services Commissioner may issue, approve or vary guidelines 25 23. Revocation of issue or approval 26 24. Disallowance by Governor in Council 27 PART 5—ACCESS TO HEALTH INFORMATION 28 Division 1—Right of Access 28 25. Right of access 28 26. No access to health information where threat to life or health of individual or another person 29 27. No access to health information where information given in confidence 29 28. How right of access may be exercised 30 29. Providing access 31 30. Individual may authorise another person to be given access 32 31. Organisation may require evidence of identity or authority 33 32. Fees 33 Division 2—Request for Access 34 33. Request for access 34 34. Response to request 35 35. Refusal of access 36 Division 3—Refusal of Access on Ground of Threat to Life or Health of the Individual Requesting Access 37 36. Application 37 37. Offer to discuss health information 37 38. Individual may nominate health service provider to assess ground for refusal etc. 37 39. Organisation may object to nomination 38 40. Lapsing of nomination 39 41. Organisation must give health information to nominee 40 42. Functions of nominated health service provider 40 Division 4—Miscellaneous 42 43. Alternative arrangements may be made 42 44. Provision of health services and keeping of health information— terms and conditions 42 PART 6—COMPLAINTS 44 -- 2 of 156 -- Section Page iii Division 1—Making a Complaint 44 45. Complaints 44 46. Complaint referred to Health Services Commissioner 45 47. Complaints by children and people with an impairment 45 Division 2—Procedure after a Complaint is Made 46 48. Health Services Commissioner must notify respondent 46 49. Preliminary assessment of complaint 46 50. Splitting complaints 47 51. Circumstances in which Health Services Commissioner may decline to entertain complaint 48 52. Referral to registration board 50 53. Health Services Commissioner may dismiss stale complaint 51 54. Minister may refer a complaint direct to Tribunal 51 55. Complaint about registered health service provider 52 56. What happens if a complaint is accepted? 52 57. What happens if conciliation or ruling is inappropriate? 54 58. Duty to stop proceedings 54 Division 3—Conciliation of Complaints 56 59. Conciliation process 56 60. Power to obtain information and documents 56 61. Conciliation agreements 57 62. Conciliation statements, acts and documents inadmissible 58 63. What happens if conciliation fails? 59 Division 4—Investigation, Rulings and Compliance Notices 60 64. Investigation and ruling 60 65. Referral to Tribunal 62 66. Compliance notice 63 67. Power to obtain information and documents 65 68. Conduct of investigation etc. 66 69. Power to examine witnesses 66 70. Protection against self-incrimination 66 71. Offence not to comply with compliance notice 66 72. Application for review—compliance notice 67 Division 5—Interim Orders 68 73. Tribunal may make interim orders before hearing 68 Division 6—Jurisdiction of the Tribunal 69 74. When may the Tribunal hear a complaint? 69 75. Who are the parties to a proceeding? 70 76. Time limits for certain complaints 70 77. Inspection of exempt documents by Tribunal 70 -- 3 of 156 -- Section Page iv 78. What may the Tribunal decide? 71 PART 7—OFFENCES 75 79. Definition 75 80. Unlawfully requiring consent etc. 75 81. Unlawful destruction etc. or removal of health information 75 82. Unlawfully requesting or obtaining access to health information 76 83. Persons not to be persuaded not to exercise rights under Act 76 84. Failure to attend etc. before Health Services Commissioner 77 PART 8—GENERAL 78 85. Capacity to consent or make a request or exercise right of access 78 86. Protection from liability 80 87. Functions of Health Services Commissioner 82 88. Powers 84 89. Health Services Commissioner to have regard to certain matters 85 90. Secrecy 85 91. Delegation 87 92. Employees and agents 87 93. Offences by organisations or bodies 88 94. Prosecutions 88 95. Deceased individuals 88 96. Legal professional privilege not affected by this Act 89 97. Defect or invalidity—protection if person acts in good faith etc. 89 98. Unqualified organisation may obtain and act on expert advice 90 99. Supreme Court—limitation of jurisdiction 90 100. Regulations 90 PART 9—AMENDMENT OF CERTAIN OTHER ACTS 92 Division 1—Amendment of Acts other than Health Practitioner Acts 92 101. Amendment of Freedom of Information Act 1982 92 102. New section 51A inserted in Freedom of Information Act 1982 95 51A. Conciliation by Health Services Commissioner 95 103. Amendment of Health Services Act 1988 96 104. Transitional provisions—Health Services Act 1988 99 178A. Transitional provisions—Health Records Act 2001 99 105. Amendment of Health Services (Conciliation and Review) Act 1987 99 106. Amendment of Infertility Treatment Act 1995 102 107. Amendment of Information Privacy Act 2000 102 108. New section 34A inserted in Information Privacy Act 2000 103 34A. Referral of complaint to Health Services Commissioner 103 -- 4 of 156 -- Section Page v 109. Amendment of Intellectually Disabled Persons' Services Act 1986 103 110. Amendment of Magistrates' Court Act 1989 104 43. Non-compliance with enforcement notice—health information 104 111. Amendment of Mental Health Act 1986 104 112. Transitional provisions—Mental Health 1986 106 146. Transitional provisions—Health Records Act 2001 107 113. New section 15B inserted in Ombudsman Act 1973 107 15B. Referral of complaint (health records) 107 114. New section 20C inserted in Ombudsman Act 1973 108 20C. Communication of information to the Health Services Commissioner 108 115. Amendment of Parliamentary Committees Act 1968 108 116. Amendment of Subordinate Legislation Act 1994 108 117. Amendment of Victorian Civil and Administrative Tribunal Act 1998 109 PART 5B—HEALTH RECORDS ACT 2001 109 Division 2—Amendment of Health Practitioner Acts 110 118. Amendment of Chinese Medicine Registration Act 2000 110 119. New section 23A inserted into Chinese Medicine Registration Act 2000 110 23A. Board may deal with health records complaint 110 120. Amendment of Chiropractors Registration Act 1996 111 121. New section 21A inserted into Chiropractors Registration Act 1996 112 21A. Board may deal with health records complaint 112 122. Amendment of Dental Practice Act 1999 113 123. New section 22A inserted into Dental Practice Act 1999 113 22A. Board may deal with health records complaint 113 124. Amendment of Medical Practice Act 1994 114 125. New section 23A inserted into Medical Practice Act 1994 115 23A. Board may deal with health records complaint 115 126. Amendment of Nurses Act 1993 116 127. New section 21A inserted into Nurses Act 1993 116 21A. Board may deal with health records complaint 116 128. Amendment of Optometrists Registration Act 1996 117 129. New section 23A inserted into Optometrists Registration Act 1996 117 23A. Board may deal with health records complaint 118 130. Amendment of Osteopaths Registration Act 1996 118 131. New section 21A inserted into Osteopaths Registration Act 1996 119 -- 5 of 156 -- Section Page vi 21A. Board may deal with health records complaint 119 132. Amendment of Physiotherapists Registration Act 1998 120 133. New section 20A inserted into Physiotherapists Registration Act 1998 120 20A. Board may deal with health records complaint 121 134. Amendment of Podiatrists Registration Act 1997 121 135. New section 21A inserted into Podiatrists Registration Act 1997 122 21A. Board may deal with health records complaint 122 136. Amendment of Psychologists Registration Act 2000 123 137. New section 23A inserted into Psychologists Registration Act 2000 123 23A. Board may deal with health records complaint 124 __________________ SCHEDULE 1—The Health Privacy Principle 125 ═══════════════ ENDNOTES 143 INDEX 146 -- 6 of 156 -- 1 Health Records Act 2001† [Assented to 10 April 2001] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to promote fair and responsible handling of health information by— (a) protecting the privacy of an individual's health information that is held in the public and private sectors; and (b) providing individuals with a right of access to their health information; and Victoria No. 2 of 2001 -- 7 of 156 -- Act No. 2/2001 Health Records Act 2001 2 (c) providing an accessible framework for the resolution of complaints regarding the handling of health information. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision referred to in sub-section (1) does not come into operation before 1 July 2002, it comes into operation on that day. 3. Definitions (1) In this Act— "child" means a person under the age of 18 years; "consent" means express consent or implied consent; "correct", in relation to health information, means to alter that information by way of amendment, deletion or addition; "Council" has the same meaning as in the Local Government Act 1989; "disability" has the same meaning as in the Disability Services Act 1991; "enactment" means an Act or a Commonwealth Act or an instrument of a legislative character made under an Act or a Commonwealth Act; "Federal Privacy Commissioner" means Privacy Commissioner appointed under the Privacy Act 1988 of the Commonwealth; "generally available publication" means a publication (whether in paper or electronic form) that is generally available to members of the public and includes information held on a public register; s. 2 -- 8 of 156 -- Act No. 2/2001 Health Records Act 2001 3 "health information" means— (a) information or an opinion about— (i) the physical, mental or psychological health (at any time) of an individual; or (ii) a disability (at any time) of an individual; or (iii) an individual's expressed wishes about the future provision of health services to him or her; or (iv) a health service provided, or to be provided, to an individual— that is also personal information; or (b) other personal information collected to provide, or in providing, a health service; or (c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or (d) other personal information that is genetic information about an individual in a form which is or could be predictive of the health (at any time) of the individual or of any of his or her descendants— but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act; s. 3 -- 9 of 156 -- Act No. 2/2001 Health Records Act 2001 4 "Health Privacy Principle" means any of the Health Privacy Principles set out in Schedule 1; "HPP" means Health Privacy Principle; "health service" means— (a) an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the organisation performing it— (i) to assess, maintain or improve the individual's health; or (ii) to diagnose the individual's illness, injury or disability; or (iii) to treat the individual's illness, injury or disability or suspected illness, injury or disability; or (b) a disability service, palliative care service or aged care service; or (c) the dispensing on prescription of a drug or medicinal preparation by a pharmacist; or (d) a service, or a class of service, provided in conjunction with an activity or service referred to in paragraph (a), (b) or (c) that is prescribed as a health service— but does not include a health service, or a class of health service, that is prescribed as an exempt health service for the purposes of this Act generally or for the purposes of specified provisions of this Act or to the extent that it is prescribed as an exempt health service; s. 3 -- 10 of 156 -- Act No. 2/2001 Health Records Act 2001 5 "health service provider" means an organisation that provides a health service in Victoria to the extent that it provides such a service but does not include a health service provider, or a class of health service provider, that is prescribed as an exempt health service provider for the purposes of this Act generally or for the purposes of specified provisions of this Act or to the extent that it is prescribed as an exempt health service provider; "Health Services Commissioner" means Health Services Commissioner appointed under the Health Services (Conciliation and Review) Act 1987 and includes the Acting Health Services Commissioner under that Act; "Health Services Review Council" means the Health Services Review Council established under the Health Services (Conciliation and Review) Act 1987; "identifier" means an identifier (which is usually, but need not be, a number and does not include an identifier that consists only of the individual's name) that is— (a) assigned to an individual in conjunction with or in relation to the individual's health information by an organisation for the purpose of uniquely identifying that individual, whether or not it is subsequently used otherwise than in conjunction with or in relation to health information; or (b) adopted, used or disclosed in conjunction with or in relation to the individual's health information by an s. 3 -- 11 of 156 -- Act No. 2/2001 Health Records Act 2001 6 organisation for the purpose of uniquely identifying that individual; "illness" means a physical, mental or psychological illness, and includes a suspected illness; "immediate family member" of an individual means a person who is— (a) a parent, child or sibling of the individual; or (b) a spouse or de facto spouse of the individual; or (c) a member of the individual's household who is a relative of the individual; or (d) a person nominated to a health service provider by the individual as a person to whom health information relating to the individual may be disclosed; "individual" means a natural person; "law enforcement agency" means— (a) the police force of Victoria or of any other State or of the Northern Territory; or (b) the Australian Federal Police; or (c) the National Crime Authority; or (d) the Commissioner appointed under section 8A of the Corrections Act 1986; or (e) a commission established by a law of Victoria or the Commonwealth or of any other State or a Territory with the function of investigating matters relating to criminal activity generally or of a specified class or classes; or s. 3 -- 12 of 156 -- Act No. 2/2001 Health Records Act 2001 7 (f) an agency responsible for the performance of functions or activities directed to the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction for a breach; or (g) an agency responsible for the performance of functions or activities under an Act directed to the prevention, detection, investigation or remedying of, or the imposing of sanctions in relation to, seriously improper conduct; or (h) an agency responsible for the holding of a person in custody or for the execution, enforcement or implementation of an order or decision made by a court or tribunal, including an agency that— (i) executes warrants; or (ii) provides correctional services, including a contractor within the meaning of the Corrections Act 1986 or a sub-contractor of that contractor, but only in relation to a function or duty or the exercise of a power conferred on it by or under that Act; or (iii) makes decisions relating to the release of persons from custody; or (i) an agency responsible for the protection of the public revenue under a law administered by it; or s. 3 -- 13 of 156 -- Act No. 2/2001 Health Records Act 2001 8 (j) the Australian Security Intelligence Organization; or (k) the Australian Secret Intelligence Service; or (l) a prescribed body; "law enforcement function" means one or more of the following— (a) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction; (b) a function or activity under an Act directed to the prevention, detection, investigation or remedying of, or the imposing of sanctions in relation to, seriously improper conduct; (c) the prevention, detection or investigation of conduct that could found a complaint for an intervention order under the Crimes (Family Violence) Act 1987; (d) the preparation for, or conduct of, proceedings before any court or tribunal, or execution, enforcement or implementation of the orders or decisions made by a court or tribunal; (e) the holding of a person in custody or the provision of correctional services, including by a contractor within the meaning of the Corrections Act 1986 or a sub-contractor of that contractor, but only in relation to a function or duty or the exercise of a power conferred on it by or under that Act; s. 3 -- 14 of 156 -- Act No. 2/2001 Health Records Act 2001 9 (f) in the case of the Australian Security Intelligence Organization or the Australian Secret Intelligence Service, the performance of a function directed to the protection of the national security; "legal representative", in relation to a deceased individual, means a person— (a) holding office as executor of the will of the deceased individual where probate of the will has been granted or resealed in Victoria or any other State or Territory; or (b) holding office in Victoria or any other State or Territory as administrator of the estate of the deceased individual; "news activity" means— (a) the gathering of news for the purposes of dissemination to the public or any section of the public; or (b) the preparation or compiling of articles or programs of or concerning news, observations on news or current affairs for the purposes of dissemination to the public or any section of the public; or (c) the dissemination to the public or any section of the public of any article or program of or concerning news, observations on news or current affairs; "news medium" means any organisation whose business, or whose principal business, consists of a news activity; "organisation" means a person or body that is an organisation to which this Act applies by force of Division 1 or 2 of Part 2; s. 3 -- 15 of 156 -- Act No. 2/2001 Health Records Act 2001 10 "parent", in relation to a child, includes— (a) a step-parent; (b) an adoptive parent; (c) a foster parent; (d) a guardian; (e) a person who has custody or daily care and control— of the child; "personal information" means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information about an individual who has been dead for more than 30 years; "Privacy Commissioner" means Privacy Commissioner appointed under Part 7 of the Information Privacy Act 2000; "private sector organisation" means a person or body that is referred to in Division 2 of Part 2; "public register" means a document held by a public sector agency or a Council and open to inspection by members of the public (whether or not on payment of a fee) by force of a provision made by or under an Act other than the Freedom of Information Act 1982 or the Public Records Act 1973 containing information that— (a) a person or body was required or permitted to give to that public sector s. 3 -- 16 of 156 -- Act No. 2/2001 Health Records Act 2001 11 agency or Council by force of a provision made by or under an Act; and (b) would be health information if the document were not a generally available publication; "public sector agency" means an Agency or public authority within the meaning of the Public Sector Management and Employment Act 1998; "public sector organisation" means a person or body that is referred to in Division 1 of Part 2; "registered health service provider" has the same meaning as "registered provider" has in the Health Services (Conciliation and Review) Act 1987; "registered medical practitioner" means a registered medical practitioner within the meaning of the Medical Practice Act 1994; "registration board" means a body that is— (a) listed in the Schedule to the Health Services (Conciliation and Review) Act 1987; or (b) prescribed as a registration board for the purposes of that Act; "relative" of an individual means a grandparent, grandchild, uncle, aunt, nephew or niece of the individual; "sibling" of an individual includes a half-brother, half-sister, adoptive brother, adoptive sister, step-brother or step-sister of the individual; "State contract" means a contract between— (a) a public sector organisation; and s. 3 -- 17 of 156 -- Act No. 2/2001 Health Records Act 2001 12 (b) another person or body that is not a public sector organisation— under which services are to be provided to one (the outsourcing organisation) by the other (the outsourced service provider) in connection with the performance of functions of the outsourcing organisation, including services that the outsourcing organisation is to provide to other persons or bodies; "the Tribunal" means the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998. Note: "Document" is defined by section 38 of the Interpretation of Legislation Act 1984. (2) A reference in this Act to an outsourced service provider is a reference to a person or body in the capacity of outsourced service provider and includes a reference to a subcontractor of the outsourced service provider (or of another such subcontractor) for the purposes (whether direct or indirect) of the outsourcing contract. 4. Interpretative provisions (1) Without limiting section 37(a) of the Interpretation of Legislation Act 1984, a reference in this Act to an organisation using a neuter pronoun includes a reference to an organisation that is a natural person, unless the contrary intention appears. (2) If a provision of this Act refers to a HPP by a number, the reference is a reference to the HPP designated by that number. 5. When does an organisation hold health information? s. 4 s. 5 -- 18 of 156 -- Act No. 2/2001 Health Records Act 2001 13 For the purposes of this Act, an organisation holds health information if the information is contained in a document that is in the possession or under the control of the organisation, whether alone or jointly with other persons or bodies, irrespective of where the document is situated, whether in or outside Victoria. 6. Objects of Act The objects of this Act are— (a) to require responsible handling of health information in the public and private sectors; (b) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information; (c) to enhance the ability of individuals to be informed about their health care or disability services; (d) to promote the provision of quality health services, disability services and aged care services. 7. Relationship of this Act to other laws (1) If a provision made by or under this Act is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect. (2) Without limiting sub-section (1), nothing in this Act affects the operation of the Freedom of Information Act 1982 (except as otherwise provided by that Act) or any right, privilege, -- 19 of 156 -- Act No. 2/2001 Health Records Act 2001 14 obligation or liability conferred or imposed under that Act or any exemption arising under that Act. 8. Nature of rights created by this Act (1) Nothing in this Act— (a) gives rise to any civil cause of action; or (b) without limiting paragraph (a), operates to create in any person any legal right enforceable in a court or tribunal— otherwise than in accordance with the procedures set out in this Act. (2) A contravention of this Act does not create any criminal liability except to the extent expressly provided by this Act. 9. Act binds the Crown (1) This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence. _______________ s. 8 -- 20 of 156 -- Act No. 2/2001 Health Records Act 2001 15 PART 2—APPLICATION OF THIS ACT Division 1—Public Sector Organisations 10. Application to public sector (1) This Act applies to— (a) a Minister; (b) a Parliamentary Secretary, including the Parliamentary Secretary of the Cabinet; (c) a member of the Parliament of Victoria; (d) a public sector agency; (e) a Council; (f) a body established or appointed for a public purpose by or under an Act; (g) a body established or appointed for a public purpose by the Governor in Council, or by a Minister, otherwise than under an Act; (h) a person holding an office or position established by or under an Act or to which he or she was appointed by the Governor in Council, or by a Minister, otherwise than under an Act; (i) a court or tribunal; (j) the police force of Victoria; (k) a denominational hospital within the meaning of the Health Services Act 1988; (l) a privately operated hospital within the meaning of the Health Services Act 1988; s. 10 -- 21 of 156 -- Act No. 2/2001 Health Records Act 2001 16 (m) any other body that is declared, or to the extent that it is declared, by an Order under sub-section (2) to be an organisation for the purposes of this sub-section— that is a health service provider or collects, holds or uses health information. (2) The Governor in Council may, by Order published in the Government Gazette, declare a body to be, either wholly or to the extent specified in the Order, an organisation for the purposes of sub- section (1). (3) A person or body to which this Act applies by force of sub-section (1) is an organisation for the purposes of this Act, either wholly or to the relevant extent. (4) This section is subject to Division 3. Division 2—Private Sector Organisations 11. Application to private sector (1) This Act applies to— (a) a natural person; (b) a body corporate; (c) a partnership; (d) a trust; (e) any other unincorporated association or body— that is a health service provider or collects, holds or uses health information and is not, or to the extent that it is not, a person or body to which this Act applies by force of section 10(1). (2) A person or body to which this Act applies by force of sub-section (1) is an organisation for the purposes of this Act. s. 11 -- 22 of 156 -- Act No. 2/2001 Health Records Act 2001 17 (3) This section is subject to Division 3. 12. Effect of outsourcing (1) An act or practice done or engaged in by an outsourced service provider under a State contract that is an interference with the privacy of an individual must, for the purposes of this Act, be taken to have been done or engaged in by the outsourcing organisation as well as the outsourced service provider if the provision of this Act or the HPP to which the act or practice is contrary, or with which it is inconsistent, is not capable of being enforced against the outsourced service provider in accordance with the procedures set out in this Act. (2) Section 92(1) does not apply to an act done or practice engaged in by an outsourced service provider acting within the scope of a State contract. Division 3—Exemptions 13. Personal, family or household affairs Nothing in this Act or in any HPP applies in respect of the collection, holding, management, use, disclosure or transfer of health information by an individual, or health information held by an individual, only for the purposes of, or in connection with, his or her personal, family or household affairs. 14. Courts, tribunals, etc. s. 12 s. 14 -- 23 of 156 -- Act No. 2/2001 Health Records Act 2001 18 Nothing in this Act or in any HPP applies in respect of the collection, holding, management, use, disclosure or transfer of health information— (a) in relation to its or his or her judicial or quasi-judicial functions, by— (i) a court or tribunal; or (ii) the holder of a judicial or quasi-judicial office or other office pertaining to a court or tribunal in his or her capacity as the holder of that office; or (b) in relation to those matters which relate to the judicial or quasi-judicial functions of the court or tribunal, by— (i) a registry or other office of a court or tribunal; or (ii) the staff of such a registry or other office in their capacity as members of that staff. 15. Publicly available health information (1) Nothing in this Act or in any HPP applies to a document containing health information, or to the health information contained in a document, that is— (a) a generally available publication unless the health information has been obtained by contravention of this Act and the organisation which seeks to rely on this exemption knows of the contravention; or (b) kept in a library, art gallery or museum for the purposes of reference, study or exhibition; or (c) a public record under the control of the Keeper of Public Records that is available -- 24 of 156 -- Act No. 2/2001 Health Records Act 2001 19 for public inspection in accordance with the Public Records Act 1973; or (d) archives within the meaning of the Copyright Act 1968 of the Commonwealth. (2) Nothing in this Act or in any HPP applies to health information that is generally available to members of the public unless the health information has been obtained by contravention of this Act and the organisation which seeks to rely on this exemption knows of the contravention. 16. Freedom of Information Act 1982 Except as otherwise provided by the Freedom of Information Act 1982, nothing in Part 5, HPP 5.2 or HPP 6 applies— (a) to a document containing health information, or to the health information contained in a document, that is— (i) a document of an agency within the meaning of the Freedom of Information Act 1982; or (ii) an official document of a Minister within the meaning of that Act— and access can only be required to be granted to that document or information, and that information can only be corrected, in accordance with the procedures set out in, and in the form required or permitted by, that Act; or (b) to a document containing health information, or to the health information contained in a document, to which access would not be granted under the Freedom of Information Act 1982 because of section 5(3) or 6 of that Act. s. 16 -- 25 of 156 -- Act No. 2/2001 Health Records Act 2001 20 17. News media (1) Nothing in HPP 1 or HPP 2 applies to the collection, use or disclosure of health information by a news medium in connection with its news activities. (2) Nothing in Part 5, HPP 5.2 or HPP 6 applies to health information held by a news medium in connection with its news activities unless and until the information is actually disseminated to the public or any section of the public. _______________ s. 17 -- 26 of 156 -- Act No. 2/2001 Health Records Act 2001 21 PART 3—PRIVACY OF HEALTH INFORMATION 18. What is an interference with privacy? For the purposes of this Act, an act or practice of an organisation is an interference with the privacy of an individual if, and only if— (a) the act or practice breaches Part 5 or a Health Privacy Principle in relation to health information that relates to the individual; or (b) the act or practice breaches HPP 7 in relation to an identifier; or (c) the act or practice is or results in a failure to provide access to health information that relates to the individual in accordance with Part 5 or HPP 6. 19. Health Privacy Principles (1) The Health Privacy Principles are set out in Schedule 1. (2) Nothing in any Health Privacy Principle affects the operation or extent of any exemption arising under Division 3 of Part 2 and those Principles must be construed accordingly. 20. Application of HPPs (1) HPP 1 applies only in relation to health information collected after the commencement of this section. (2) HPP 3, to the extent that it applies to the collection of health information, applies only in relation to health information collected after the commencement of this section. (3) HPP 6 applies to health information as specified in section 25. s. 18 -- 27 of 156 -- Act No. 2/2001 Health Records Act 2001 22 (4) The remaining Health Privacy Principles (including HPP 3 to the extent that it applies to the use, holding or disclosure of health information) apply in relation to all health information, whether collected by the organisation before or after the commencement of this section. (5) HPP 8 applies only in relation to transactions entered into after the commencement of this section. 21. Organisation to comply with HPPs (1) Subject to this section and section 20, an organisation must not do an act, or engage in a practice, that is an interference with the privacy of an individual. (2) Sub-section (1) does not apply if the organisation proves that, in the circumstances, compliance with this Act or the Health Privacy Principle would have contravened another Act, regulations made under another Act or an order of a tribunal or of a court of competent jurisdiction. (3) Sub-section (1) does not apply to the doing of an act, or the engaging in of a practice, by an organisation that, but for this sub-section, would constitute a breach of HPP 1 or HPP 2, if— (a) the doing of the act or the engaging in of the practice is necessary for the performance of a contract to which the organisation is a party entered into by the organisation before 23 November 2000; and (b) the act is done or the practice is engaged in before the second anniversary of the commencement of section 20 or the end of any extension of that period granted in relation to that contract under sub-section (4). s. 21 -- 28 of 156 -- Act No. 2/2001 Health Records Act 2001 23 (4) On the application of an organisation before the second anniversary of the commencement of section 20 or before the expiry of any extension of that period granted under this sub-section, the Health Services Commissioner may grant an extension of that period in relation to a specified contract if he or she is of the opinion that the organisation is doing its best— (a) to comply with HPP 1 or HPP 2 consistent with its obligations under the contract; and (b) to seek to have the contract re-negotiated to enable the organisation to comply fully with HPP 1 or HPP 2. (5) Sub-section (1) does not apply to the doing of an act, or the engaging in of a practice, by an organisation that, but for this sub-section, would constitute a breach of HPP 2, in relation to health information collected by the organisation before the commencement of section 20, if— (a) the Health Services Commissioner, on the application of the organisation, grants the organisation an exemption from that Principle in relation to specified information or information of a specified class for a specified period; and (b) the act is done or the practice is engaged in, in relation to information to which the exemption applies— (i) before the second anniversary of the commencement of section 20; and (ii) during the period specified in the exemption. (6) The Health Services Commissioner may grant an exemption under sub-section (5) if he or she is of s. 21 -- 29 of 156 -- Act No. 2/2001 Health Records Act 2001 24 the opinion that, in the particular circumstances, it is in the public interest for the use or disclosure to continue otherwise than in compliance with HPP 2. (7) Sub-section (1) does not apply to the doing of an act, or the engaging in of a practice, by an organisation that, but for this sub-section, would constitute a breach of HPP 2, in relation to health information collected by the organisation before the commencement of section 20, if the act is done, or the practice is engaged in, in the prescribed circumstances. _______________ s. 21 -- 30 of 156 -- Act No. 2/2001 Health Records Act 2001 25 PART 4—GUIDELINES 22. Health Services Commissioner may issue, approve or vary guidelines (1) For the purposes of HPP 1.1(e)(iii), HPP 1.1(f), HPP 2.2(e), HPP 2.2(f)(vi), HPP 2.2(g)(iii), HPP 2.2(h), HPP 2.5(g), HPP 6.1(a), HPP 6.1(b) and HPP 10.2, the Health Services Commissioner may, by notice published in the Government Gazette— (a) issue guidelines; or (b) approve, in whole or in part and with or without modification, guidelines that are prepared or issued by a public sector agency or any other person or body; or (c) vary any guidelines as issued or approved by the Health Services Commissioner. (2) Before exercising a power conferred by sub- section (1), the Health Services Commissioner must cause a notice of intention to issue, approve or vary guidelines to be published— (a) in the Government Gazette; and (b) in a newspaper circulating generally in Victoria. (3) A notice under sub-section (2) must— (a) state where copies of the guidelines (as proposed to be issued, approved or varied) can be obtained; and (b) specify a period of not less than 28 days after the date of the notice for making submissions to the Health Services Commissioner on them. s. 22 -- 31 of 156 -- Act No. 2/2001 Health Records Act 2001 26 (4) After considering any submissions received, the Health Services Commissioner may proceed under sub-section (1), as proposed or with any amendments that the Health Services Commissioner considers appropriate. (5) For the purposes of sub-section (1), the Health Services Commissioner may only issue, approve or vary guidelines that would have the effect of lessening the level of privacy protection afforded by the relevant Health Privacy Principle if he or she is satisfied that the public interest to be protected by the guidelines, or the guidelines as varied, substantially outweighs the public interest in maintaining that level of privacy protection. (6) The guidelines may apply, adopt or incorporate any matter contained in any document, whether— (a) wholly or partially or as amended by the guidelines; or (b) as in force at the time the guidelines are made or at any time before then; or (c) as in force from time to time. (7) The guidelines— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstances. 23. Revocation of issue or approval The Health Services Commissioner may, by notice published in the Government Gazette, revoke an issue or approval of guidelines under section 22 if he or she is no longer satisfied of the matter that he or she had to be satisfied of to issue or approve the guidelines. s. 23 -- 32 of 156 -- Act No. 2/2001 Health Records Act 2001 27 24. Disallowance by Governor in Council The Governor in Council may at any time, by notice published in the Government Gazette, disallow a decision of the Health Services Commissioner to issue, approve or vary guidelines or to revoke an issue or approval of guidelines. _______________ s. 24 -- 33 of 156 -- Act No. 2/2001 Health Records Act 2001 28 PART 5—ACCESS TO HEALTH INFORMATION Division 1—Right of Access 25. Right of access (1) Subject to sub-sections (2) and (3), an individual has a right of access, in accordance with this Part and HPP 6, to health information relating to the individual held1 by a health service provider or any other organisation. (2) Sub-section (1) applies to all health information collected on or after the commencement of this section. (3) Sub-section (1) also applies to the following health information collected before the commencement of this section— (a) a history of the health, an illness or a disability of the individual; or (b) any findings on an examination of the individual in relation to the health, an illness or a disability of the individual; or (c) the results of an investigation into the health, an illness or a disability of the individual; or (d) a diagnosis, or preliminary diagnosis, of an illness or disability of the individual; or (e) a plan of management, or proposed plan of management, of the treatment or care of an illness or disability of the individual; or (f) action taken or services provided (whether or not in accordance with a plan of management) by or under the direction or referral of a health service provider in relation to the individual; or s. 25 -- 34 of 156 -- Act No. 2/2001 Health Records Act 2001 29 (g) personal information about the individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or (h) genetic information about an individual in a form which is or could be predictive of the health, at any time, of the individual or of any of his or her descendants. 26. No access to health information where threat to life or health of individual or another person 2 An organisation must not give an individual access under this Act to his or her health information, or part of his or her health information, if the organisation believes on reasonable grounds, having regard to the guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of HPP 6.1(a), that the provision of the health information, or that part of the health information, would pose a serious threat to the life or health of the individual or any other person. 27. No access to health information where information given in confidence 3 (1) Subject to sub-section (3), an organisation must not give an individual access under this Act to his or her health information if the health information is subject to confidentiality within the meaning of this section. (2) Health information relating to an individual is subject to confidentiality to the extent that it is given in confidence to the person who recorded the health information by a person other than— (a) the individual; or s. 26 -- 35 of 156 -- Act No. 2/2001 Health Records Act 2001 30 (b) a health service provider in the course of, or otherwise in relation to, the provision of health services to the individual— with a request that the information not be communicated to the individual to whom it relates. (3) A person who gives health information in confidence may consent to the information being communicated to the individual to whom it relates. 28. How right of access may be exercised (1) A right of access may be exercised in any one or more of the following ways— (a) by inspecting the health information or, if the health information is stored in electronic form, a print-out of the health information, and having the opportunity to take notes of its contents; (b) by receiving a copy of the health information; (c) by viewing the health information and, if it is held by a health service provider, having its content explained. (2) If the organisation holding the health information is not a health service provider, the organisation may agree to provide an explanation of its content to an individual exercising a right to view the information. (3) An explanation under sub-section (1)(c) or (2) is to be provided— (a) by the organisation holding the information if the organisation is a suitably qualified health service provider and is willing to do so; or s. 28 -- 36 of 156 -- Act No. 2/2001 Health Records Act 2001 31 (b) if paragraph (a) does not apply, by a suitably qualified health service provider who practises in Victoria and— (i) is nominated by the organisation and has consented to being so nominated and is approved by the individual to whom the health information relates; or (ii) if the individual does not approve the health service provider nominated under sub-paragraph (i), is nominated by the individual and has consented to being so nominated. (4) Despite anything to the contrary in this section, a right of access to health information referred to in section 25(3) may only be exercised— (a) in a way provided by this section, with the agreement of the organisation holding the health information; or (b) in the absence of such an agreement, by receiving an accurate summary of the health information. 29. Providing access (1) An organisation must provide access to an individual's health information— (a) in the case of a request to inspect the health information, or a print-out of the health information, by making the health information or print-out available to the individual immediately or at a date, time and place in Victoria specified in a written notice given to the individual; (b) in the case of a request to receive a copy of the health information, by giving to the individual— s. 29 -- 37 of 156 -- Act No. 2/2001 Health Records Act 2001 32 (i) a copy of the health information; or (ii) if the individual agrees, an accurate summary of the health information; (c) in the case of a request to view the health information, by making the health information available to the individual; (d) if a request to view the health information is accompanied by a request to have its content explained and the organisation is required, or has agreed, to provide that explanation, by explaining its content immediately or giving to the individual a written notice stating— (i) if the organisation is a suitably qualified health service provider and is willing to do so, that the organisation will be available to explain the health information at a date, time and place in Victoria specified in the notice; or (ii) in any other case, the name and address of a suitable health service provider who will be available in Victoria by arrangement with the individual, to explain the health information. (2) Despite anything to the contrary in this section, an organisation is not required to provide access in accordance with this section to an individual's health information of a kind referred to in section 25(3) but may agree to do so and, in the absence of such an agreement, must give to the individual an accurate summary of the health information. 30. Individual may authorise another person to be given access If an individual— s. 30 -- 38 of 156 -- Act No. 2/2001 Health Records Act 2001 33 (a) has a right of access; and (b) has signed a written authority for access to be provided to a person named in the authority— the person so named must be given access to the health information. 31. Organisation may require evidence of identity or authority Before giving a person access to health information, the organisation must take reasonable steps to be satisfied about that person's right to it and, for this purpose, may require evidence of— (a) the person's identity; and (b) if an individual has authorised the organisation to provide access to that person, the authority of the individual; and (c) if the person seeking access is an authorised representative of the individual within the meaning of section 85(6) or the legal representative of a deceased individual, the authority of that person. 32. Fees (1) An organisation is not required to charge a fee for providing access to health information under this Act. (2) A fee may not be charged under this Act for providing a manner of access to health information (except under section 29(1)(d)) unless a maximum fee has been prescribed for that manner of access. (3) An organisation must not charge a fee exceeding the prescribed maximum fee. s. 31 -- 39 of 156 -- Act No. 2/2001 Health Records Act 2001 34 (4) A person who gives an explanation of health information to an individual under section 29(1)(d) may charge a fee for the service that does not exceed the amount of the person's usual fee for a consultation of a comparable duration. (5) An organisation must not charge for the lodgment of a request for access. Division 2—Request for Access 33. Request for access (1) An individual who has a right of access under section 25 to health information may request the organisation holding the information to provide access to it. (2) An organisation may assist an individual in making a request by advising him or her about the different ways in which a right of access may be exercised. (3) A request must— (a) state the name and, unless it is already known to the organisation, the address of the individual; and (b) sufficiently identify the health information to which access is sought; and (c) specify the way in which the individual wishes to have access, being a way referred to in section 28; and (d) be in writing if it is— (i) a request by an authorised representative within the meaning of section 85(6); or (ii) a request by a legal representative of a deceased individual. s. 33 -- 40 of 156 -- Act No. 2/2001 Health Records Act 2001 35 (4) If the request is made orally, the organisation possessing the health information— (a) may, as soon as reasonably practicable, ask the individual to make the request in writing; and (b) if the organisation does so, need not take any further action in respect of the oral request. 34. Response to request (1) This section applies to a request made under section 33, other than an oral request which the organisation has asked the individual to make in writing. (2) Within 45 days after receiving a request, the organisation must— (a) give to the individual a written reason for refusal of access to the health information, being a reason for refusal provided by this Part or HPP 6; or (b) if the organisation is charging a fee in accordance with section 32 for giving access— (i) give to the individual a written notice stating that the organisation will give access to the health information on payment of the fee specified in the notice; and (ii) give access to the health information in accordance with section 29 or HPP 6.2 within 7 days after payment of the fee or 45 days after receiving the request, whichever is the later; or s. 34 -- 41 of 156 -- Act No. 2/2001 Health Records Act 2001 36 (c) in every other case, give access to the health information in accordance with section 29 or HPP 6.2 as soon as practicable but not later than 45 days after receiving the request. (3) If the organisation gives a notice under sub- section (2)(a) that relates only to a part of the health information held by the organisation, the organisation must comply with sub-section (2) in respect of the remainder of the health information. 35. Refusal of access An organisation is taken to have refused access to the health information if— (a) the organisation fails to comply with a requirement of section 29 or 34; or (b) in the case of a notice given by the organisation under section 29(1)(a) or 29(1)(d)(i)— (i) the notice does not specify a date, time or place that, in all the circumstances, is reasonable; or (ii) the organisation unreasonably fails to allow inspection of the health information, or to give a reasonable explanation, in accordance with the notice; or (c) in the case of a notice given by the organisation under section 29(1)(d)(ii), the health service provider specified in the notice unreasonably fails— (i) to make an arrangement with the individual to explain the health information; or s. 35 -- 42 of 156 -- Act No. 2/2001 Health Records Act 2001 37 (ii) to comply with an arrangement so made. Division 3—Refusal of Access on Ground of Threat to Life or Health of the Individual Requesting Access 36. Application This Division applies if an organisation that holds health information about an individual refuses under section 26 to provide the individual with access to the health information on the ground that providing access would pose a serious threat to the life or health of the individual. 37. Offer to discuss health information (1) If the organisation considers that it would be desirable for a suitably qualified health service provider to discuss the health information with the individual, the organisation may include in, or attach to, the notice of refusal an offer— (a) to discuss the health information with the individual, if the organisation is a suitably qualified health service provider; or (b) to arrange for a specified health service provider who practises in Victoria, is suitably qualified and has consented to being nominated, to discuss the health information with the individual. (2) The organisation must advise the individual in the notice of refusal that he or she may nominate a health service provider in the circumstances referred to in section 38, whether or not the organisation makes an offer under sub-section (1). 38. Individual may nominate health service provider to assess ground for refusal etc. (1) If— s. 36 -- 43 of 156 -- Act No. 2/2001 Health Records Act 2001 38 (a) the organisation does not make an offer referred to in section 37; or (b) the individual does not accept an offer made under that section; or (c) the individual is not satisfied with the outcome of the discussion— the individual may, within the period specified in sub-section (2), give a written notice to the organisation nominating a health service provider for the purposes of this Division. (2) The period for giving a written notice under sub- section (1) is— (a) the period of 21 days after receiving the notice of refusal, if the organisation does not make an offer referred to in section 37 or the individual does not accept such an offer; or (b) the period of 21 days after a discussion with the organisation or a health service provider held under such an offer. (3) An individual may only nominate a health service provider who has consented to being nominated for the purposes of this Division. 39. Organisation may object to nomination (1) Subject to sub-section (2), if— (a) an organisation receives a notice under section 38(1) nominating a health service provider; and (b) the organisation believes on reasonable grounds that the nominated health service provider is not suitable to act as the nominated health service provider— s. 39 -- 44 of 156 -- Act No. 2/2001 Health Records Act 2001 39 the organisation may, within 14 days after receiving the notice, give a written notice to the individual— (c) stating that the organisation objects to the nominated health service provider and specifying the ground of the objection; and (d) if the organisation considers it appropriate to do so, suggesting the class of health service providers from which a health service provider should be nominated. (2) Sub-section (1) does not apply in any of the following cases— (a) if the health service provider who recorded the health information and the nominated health service provider are registered with the same registration board; (b) if the nominated health service provider is a registered medical practitioner and has the ability to understand and interpret the health information; (c) if the nominated health service provider provides the same kind of service as the health service provider who recorded the health information and the nominated health service provider has the ability to understand and interpret the health information. 40. Lapsing of nomination (1) The nomination of a health service provider lapses if— (a) the organisation gives a notice in accordance with section 39(1); or (b) the nominated health service provider— (i) dies; or s. 40 -- 45 of 156 -- Act No. 2/2001 Health Records Act 2001 40 (ii) ceases to be a health service provider; or (iii) refuses or fails to act within a reasonable time. (2) If a nomination lapses, the individual may make one more nomination under section 38(1). 41. Organisation must give health information to nominee If— (a) an organisation has made an offer referred to in section 37(1)(b) and it is advised by the individual of the acceptance of that offer; or (b) an organisation receives from the individual a notice under section 38(1) nominating a health service provider— the organisation must give the health information, or a copy of it, to the nominated health service provider within 14 days after receiving the advice or notice unless within that period— (c) in a case referred to in paragraph (a), the individual withdraws consent to discuss the health information; or (d) in a case referred to in paragraph (b), the organisation gives a notice under section 39(1) in respect of the notice given to it under section 38(1); or (e) in any case, the nomination of the health service provider lapses. 42. Functions of nominated health service provider (1) Subject to sub-section (2), the functions of a nominated health service provider are— s. 41 -- 46 of 156 -- Act No. 2/2001 Health Records Act 2001 41 (a) to notify the individual that the provider will discuss with the organisation the basis for the refusal of access by the organisation; and (b) to contact the organisation that refused access in order to discuss the nature of its concerns; and (c) to form an opinion on the validity or otherwise of the refusal to provide the individual with access on the ground that providing access would pose a serious threat to the life or health of the individual; and (d) if the nominated health service provider thinks it appropriate to do so, to explain the grounds of the claim to the individual; and (e) if the nominated health service provider thinks it appropriate to do so, to discuss the content of the health information with the individual; and (f) if the provider is satisfied that to do so would not constitute a serious threat to the life or health of the individual, to allow the individual to inspect the health information or, if the individual so wishes and the organisation agrees, to have a copy of it; and (g) if the provider is not so satisfied, to decline to allow the individual to have access to the health information. (2) A nominated health service provider must not disclose to the individual any health information to which access has been refused under this Part or HPP 6 on any ground other than the ground referred to in section 36. (3) The nominated health service provider may charge the individual a fee (not exceeding the s. 42 -- 47 of 156 -- Act No. 2/2001 Health Records Act 2001 42 prescribed maximum fee) for performing the functions set out in sub-section (1). (4) For the avoidance of doubt it is declared that the act of forming an opinion in the exercise by a nominated health service provider of a function under sub-section (1)(c) is not an interference with the privacy of the individual to whom the information relates. Division 4—Miscellaneous 43. Alternative arrangements may be made Nothing in this Part (except sections 26 and 27) is intended to prevent or discourage an organisation from providing an individual, with his or her consent, with access to his or her health information otherwise than as required by this Part. 44. Provision of health services and keeping of health information—terms and conditions (1) It is a term of a contract, whether oral or in writing, for the provision of a health service to an individual that the health service provider will allow the individual to have access, in accordance with this Act, to health information relating to the individual that relates to, or is made in consequence of the provision of, the service. (2) Sub-section (1) applies to a contract, whether or not the individual is a party to the contract, made after the commencement of this section and— (a) the contract is made in Victoria; or (b) the contract has been, or is to be, performed wholly or partly in Victoria; or s. 43 -- 48 of 156 -- Act No. 2/2001 Health Records Act 2001 43 (c) the individual is present or resides in Victoria when the contract is made. (3) For the purposes of this section, it is immaterial whether— (a) the health service was provided in Victoria; or (b) the health information is kept or located in Victoria. (4) If a contract or other agreement purports to exclude, or is inconsistent with, a provision of this section, the contract or agreement is, to that extent, void. _______________ s. 44 -- 49 of 156 -- Act No. 2/2001 Health Records Act 2001 44 PART 6—COMPLAINTS Division 1—Making a Complaint 45. Complaints (1) An individual may complain to the Health Services Commissioner about an act or practice that may be an interference with the privacy of the individual 4 . (2) In the case of an act or practice that may be an interference with the privacy of a deceased individual, it is immaterial whether the act or practice occurred, or is alleged to have occurred, during the lifetime or after the death of the individual. (3) In the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint under sub-section (1) on behalf of all of the individuals with their consent. (4) A complaint must be in writing and be lodged with the Health Services Commissioner by hand, facsimile or other electronic transmission or post. (5) A complainant may request that his or her complaint be expedited and give grounds for the request. (6) It is the duty of the Health Services Commissioner to provide appropriate assistance to an individual who wishes to make a complaint and requires assistance to formulate the complaint. (7) The complaint must specify the respondent to the complaint. (8) If the organisation represents the Crown, the State shall be the respondent. s. 45 -- 50 of 156 -- Act No. 2/2001 Health Records Act 2001 45 (9) If the organisation does not represent the Crown and— (a) is a legal person, the organisation shall be the respondent; or (b) is an unincorporated body, the members of the committee of management of the organisation shall be the respondents. (10) A failure to comply with sub-section (7) does not render the complaint, or any step taken in relation to it, a nullity. 46. Complaint referred to Health Services Commissioner The Health Services Commissioner may treat a complaint referred to him or her by— (a) the Ombudsman under section 15B of the Ombudsman Act 1973; or (b) the Privacy Commissioner under section 34A of the Information Privacy Act 2000— as if it were a complaint made under section 45(1). 47. Complaints by children and people with an impairment (1) A complaint may be made— (a) by a child; or (b) on behalf of a child by— (i) a parent of the child; or (ii) any other person chosen by the child or by a parent of the child; or (iii) any other person who, in the opinion of the Health Services Commissioner, has a sufficient interest in the subject- matter of the complaint. s. 46 -- 51 of 156 -- Act No. 2/2001 Health Records Act 2001 46 (2) A child who is capable of understanding the general nature and effect of choosing a person to make a complaint on his or her behalf may do so even if he or she is otherwise incapable of exercising powers. (3) If an individual is unable to complain by reason of injury, disease, senility, illness, disability, physical impairment or mental disorder, a complaint may be made on behalf of that individual by— (a) another person authorised by the individual to complain on his or her behalf; or (b) if the individual is unable to authorise another person, any other person on his or her behalf who, in the opinion of the Health Services Commissioner, has a sufficient interest in the subject-matter of the complaint. (4) An individual who is capable of understanding the general nature and effect of authorising another person to complain on his or her behalf may do so even if he or she is otherwise incapable of exercising powers. Division 2—Procedure after a Complaint is Made 48. Health Services Commissioner must notify respondent The Health Services Commissioner must notify the respondent in writing of the complaint as soon as practicable after receiving it. 49. Preliminary assessment of complaint (1) Within a reasonable period after receiving a complaint but not later than 90 days after the day on which a complaint is lodged, the Health Services Commissioner must decide whether, and to what extent, to entertain the complaint. s. 48 -- 52 of 156 -- Act No. 2/2001 Health Records Act 2001 47 (2) To enable the Health Services Commissioner to make a decision under sub-section (1), he or she may, by written notice, invite any person— (a) to attend before the Health Services Commissioner for the purpose of discussing the subject-matter of the complaint; or (b) to produce any documents specified in the notice. (3) If the Health Services Commissioner considers it appropriate, he or she may attempt to resolve the complaint informally. 50. Splitting complaints (1) If a complaint— (a) deals with more than one subject-matter; or (b) deals with more than one set of circumstances; or (c) makes allegations against more than one organisation; or (d) makes more than one allegation against an organisation; or (e) for any other reason is suitable to be dealt with in separate parts— the Health Services Commissioner— (f) may if it is administratively convenient to do so; or (g) must if it is in the interest of the complainant to do so— determine that any subject-matter, set of circumstances, allegation or part, as the case requires, be treated as a separate complaint. s. 50 -- 53 of 156 -- Act No. 2/2001 Health Records Act 2001 48 (2) The Health Services Commissioner must not make a determination under sub-section (1) unless he or she is satisfied that any attempt at conciliation is unlikely to be prejudiced by the making of the determination. 51. Circumstances in which Health Services Commissioner may decline to entertain complaint (1) The Health Services Commissioner may decline to entertain a complaint made under section 45(1) by notifying the complainant and the respondent in writing to that effect within 90 days after the day on which the complaint was lodged if the Health Services Commissioner considers that— (a) the act or practice about which the complaint has been made is not an interference with the privacy of an individual; or (b) the complaint is made on behalf of a complainant by a person who is not authorised by section 47 to do so; or (c) although a complaint has been made to the Health Services Commissioner about the act or practice, the complainant has not complained to the respondent; or (d) the complaint to the Health Services Commissioner was made more than 12 months after the complainant became aware of the act or practice; or (e) the complaint is frivolous, vexatious, misconceived or lacking in substance; or (f) the act or practice is the subject of— (i) an application under another enactment; or (ii) a proceeding in a court or tribunal— s. 51 -- 54 of 156 -- Act No. 2/2001 Health Records Act 2001 49 and the subject-matter of the complaint has been, or is being, dealt with adequately by that means; or (g) the act or practice could be made the subject of an application under another enactment for a more appropriate remedy; or (h) the complainant has complained to the respondent about the act or practice and either— (i) the respondent has dealt, or is dealing, adequately with the complaint; or (ii) the respondent has not yet had an adequate opportunity to deal with the complaint. (2) A notice under sub-section (1) must state that the complainant, by notice in writing given to the Health Services Commissioner, may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6. (3) If the act or practice could be made the subject of an application under— (a) the Information Privacy Act 2000; or (b) the Privacy Act 1988 of the Commonwealth; or (c) the Ombudsman Act 1973— the Health Services Commissioner may refer the complaint to the Privacy Commissioner, the Federal Privacy Commissioner or the Ombudsman, as the case may be, and notify the complainant and the respondent in writing of the referral. (4) If the document to which the individual seeks access is a document referred to in section 16, the s. 51 -- 55 of 156 -- Act No. 2/2001 Health Records Act 2001 50 Health Services Commissioner may advise the complainant to make a request for access to the document under the Freedom of Information Act 1982. (5) Within 60 days after receiving the Health Services Commissioner's notice declining to entertain a complaint, the complainant, by notice in writing given to the Health Services Commissioner, may require him or her to refer the complaint to the Tribunal for hearing under Division 6. (6) The Health Services Commissioner must comply with a notice under sub-section (5). (7) If the complainant does not notify the Health Services Commissioner under sub-section (5), the Health Services Commissioner may dismiss the complaint. (8) As soon as possible after a dismissal under sub- section (7), the Health Services Commissioner must, by written notice, notify the complainant and the respondent of the dismissal. (9) A complainant may take no further action under this Act in relation to the subject-matter of a complaint dismissed under this section. 52. Referral to registration board (1) If a complaint, or part of a complaint, relates to a registered health service provider, the Health Services Commissioner may refer the complaint, or that part of the complaint, to the appropriate registration board if— (a) the registration board has power to resolve or deal with the matter; and (b) the Health Services Commissioner considers that it is appropriate to refer the complaint or that part of the complaint to the registration board; and s. 52 -- 56 of 156 -- Act No. 2/2001 Health Records Act 2001 51 (c) the registration board is willing to accept the complaint or that part of the complaint. (2) Within 14 days after referring a complaint, or part of a complaint, about a registered health service provider to a registration board, the Health Services Commissioner must notify the complainant and the registered health service provider in writing of the referral. (3) If a complaint, or part of a complaint, has been referred to a registration board, the registration board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (4) Advice under sub-section (3) must include any information that the Health Services Commissioner specifies by written notice to the registration board. 53. Health Services Commissioner may dismiss stale complaint (1) The Health Services Commissioner may dismiss a complaint if he or she has had no substantive response from the complainant in the period of 90 days following a request by the Health Services Commissioner for a response in relation to the complaint. (2) As soon as possible after a dismissal under sub- section (1), the Health Services Commissioner must, by written notice, notify the complainant and the respondent of the dismissal. (3) A complainant may take no further action under this Act in relation to the subject-matter of a complaint dismissed under this section. 54. Minister may refer a complaint direct to Tribunal s. 53 s. 54 -- 57 of 156 -- Act No. 2/2001 Health Records Act 2001 52 (1) If the Minister considers that the subject-matter of a complaint raises an issue of important public policy, the Minister may refer the complaint directly to the Tribunal for hearing under Division 6, whether or not the Health Services Commissioner has considered it or the complaint is in the process of being conciliated. (2) The Minister is not a party to a proceeding on a complaint referred to the Tribunal under sub- section (1) unless joined by the Tribunal. 55. Complaint about registered health service provider (1) If the Health Services Commissioner— (a) accepts a complaint, in whole or in part, about an act or practice of a registered health service provider; or (b) refers such a complaint to an authority other than the appropriate registration board— the Health Services Commissioner must give a copy of the complaint to the appropriate registration board. (2) The giving of a copy of a complaint under sub- section (1) must not be taken to be a complaint to, or a referral of the complaint to, the registration board for the purposes of this or any other Act and the information provided must not be used by the registration board as the basis for any investigation, inquiry into, or other action relating to, the complaint unless the complaint is referred to the board under section 52. 56. What happens if a complaint is accepted? (1) If the Health Services Commissioner decides to accept a complaint in whole or in part, he or she may adopt one of the following options— s. 56 -- 58 of 156 -- Act No. 2/2001 Health Records Act 2001 53 (a) if the Health Services Commissioner considers that it is reasonably possible that the complaint may be conciliated successfully under Division 3, he or she may decide to conciliate the complaint; or (b) if the Health Services Commissioner— (i) does not consider that it is reasonably possible that the complaint may be conciliated successfully under Division 3; or (ii) considers that the complaint is more likely to be resolved by the making of a ruling under Division 4— he or she may decide to proceed under Division 4; or (c) if the Health Services Commissioner considers that, in the circumstances of the complaint, conciliation or the making of a ruling is inappropriate, he or she may decide to decline to further entertain the complaint. (2) Sub-section (1) does not apply to a complaint— (a) that the Health Services Commissioner has declined to entertain under section 51 or dismissed under section 53; or (b) that the Minister has referred to the Tribunal under section 54. (3) In making a decision under sub-section (1), the Health Services Commissioner may take into account the wishes, if expressed, of the complainant and the respondent. -- 59 of 156 -- Act No. 2/2001 Health Records Act 2001 54 (4) The Health Services Commissioner must notify the complainant and the respondent in writing of his or her decision under sub-section (1). (5) A notice under sub-section (4) must state that the complainant, by notice in writing given to the Health Services Commissioner, may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6. 57. What happens if conciliation or ruling is inappropriate? (1) Within 60 days after receiving the Health Services Commissioner's notice under section 56(4), the complainant, by written notice, may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6. (2) The Health Services Commissioner must comply with a notice under sub-section (1). (3) If the complainant does not notify the Health Services Commissioner under sub-section (1), the Health Services Commissioner may dismiss the complaint. (4) As soon as possible after a dismissal under sub- section (3), the Health Services Commissioner must, by written notice, notify the complainant and the respondent of the dismissal. (5) A complainant may take no further action under this Act in relation to the subject-matter of a complaint dismissed under this section. 58. Duty to stop proceedings (1) The Health Services Commissioner must cease dealing with an issue raised in a complaint if he or she— s. 57 s. 58 -- 60 of 156 -- Act No. 2/2001 Health Records Act 2001 55 (a) becomes aware that the complainant or respondent has begun legal proceedings which relate to that issue; or (b) becomes aware that proceedings relating to that specific issue have been initiated before a court or tribunal; or (c) considers that the issue should properly be dealt with by a court or tribunal. (2) Within 14 days after ceasing to deal with a complaint under sub-section (1), the Health Services Commissioner must give written notice of the fact to the complainant and the respondent. (3) Despite sub-section (1), the Health Services Commissioner— (a) may, with the consent of the complainant and the respondent, continue dealing with the matter, but only by referring it to conciliation; and (b) must cease dealing with the matter when the Health Services Commissioner becomes aware that a court or tribunal has commenced to hear a proceeding relating to the complaint. (4) If the Health Services Commissioner has ceased dealing with an issue raised in a complaint and later becomes aware that the complainant or the respondent has withdrawn proceedings relating to the complaint, the Health Services Commissioner may, with the consent of the complainant, re-open proceedings under this Act. (5) The Health Services Commissioner may continue to deal with a complaint about a health service provider which the Commissioner has referred to the appropriate registration board under section 52 unless the board asks the Health Services -- 61 of 156 -- Act No. 2/2001 Health Records Act 2001 56 Commissioner to suspend dealing with the complaint until the board has completed the matter and advised the Health Services Commissioner of the outcome under section 52(3). Division 3—Conciliation of Complaints 59. Conciliation process (1) If the Health Services Commissioner decides under section 56(1) to conciliate a complaint, he or she must make all reasonable endeavours to conciliate the complaint. (2) The Health Services Commissioner may require a party to attend a conciliation either personally or by a representative who has authority to settle the matter on behalf of the party. 60. Power to obtain information and documents (1) If the Health Services Commissioner has reason to believe that a person has information or a document relevant to a conciliation under this Division, the Health Services Commissioner may give to the person a written notice requiring the person— (a) to give the information to the Health Services Commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or (b) to produce the document to the Health Services Commissioner. (2) If the Health Services Commissioner has reason to believe that a person has information relevant to a conciliation under this Division, the Health Services Commissioner may give to the person a written notice requiring the person to attend s. 59 -- 62 of 156 -- Act No. 2/2001 Health Records Act 2001 57 before the Health Services Commissioner at a time and place specified in the notice to answer questions relevant to the complaint. (3) The Health Services Commissioner is not entitled to require an agency within the meaning of the Freedom of Information Act 1982 or a Minister to give any information if the Secretary to the Department of Premier and Cabinet furnishes to the Health Services Commissioner a certificate certifying that the giving of that information (including in answer to a question) would involve the disclosure of information which, if included in a document of the agency or an official document of the Minister, would cause the document to be an exempt document of a kind referred to in section 28(1) of the Freedom of Information Act 1982. (4) The Health Services Commissioner may not conduct an investigation in respect of a certificate under sub-section (3) or question whether the information is of a kind referred to in section 28(1) of the Freedom of Information Act 1982 or a decision to sign such a certificate. 61. Conciliation agreements (1) If, following conciliation, the parties to the complaint reach agreement with respect to the subject-matter of the complaint— (a) at the request of any party made within 30 days after agreement is reached, a written record of the conciliation agreement is to be prepared by the parties or the Health Services Commissioner; and (b) the record must be signed by or on behalf of each party and certified by the Health Services Commissioner; and s. 61 -- 63 of 156 -- Act No. 2/2001 Health Records Act 2001 58 (c) the Health Services Commissioner must give each party a copy of the signed and certified record. (2) Any party, after notifying in writing the other party, may lodge a copy of the signed and certified record with the Tribunal for registration. (3) Subject to sub-section (4), the Tribunal must register the record and give a certified copy of the registered record to each party. (4) If the Tribunal, constituted by a presidential member, considers that it may not be practicable to enforce, or to supervise compliance with, a conciliation agreement, the Tribunal may refuse to register the record of the agreement. (5) On registration, the record must be taken to be an order of the Tribunal in accordance with its terms and may be enforced accordingly. (6) The refusal of the Tribunal to register the record of a conciliation agreement does not affect the validity of the agreement. 62. Conciliation statements, acts and documents inadmissible (1) Subject to sub-section (2), evidence of anything said or done in the course of a conciliation is not admissible in proceedings before the Tribunal or any other legal proceedings or proceedings before a registration board relating to the subject-matter of the health information or the complaint, unless all parties to the conciliation otherwise agree. (2) A document prepared by a party for the purpose of, or in connection with, a conciliation (or a copy of such a document), whether or not produced or used in the course of the conciliation, is not admissible in proceedings before the Tribunal or any other legal proceedings or proceedings before s. 62 -- 64 of 156 -- Act No. 2/2001 Health Records Act 2001 59 a registration board relating to the subject-matter of the health information or the complaint, unless all parties to the conciliation otherwise agree. 63. What happens if conciliation fails? (1) If the Health Services Commissioner has attempted unsuccessfully to conciliate a complaint, he or she— (a) must decide whether to investigate the complaint under Division 4 or to take no further action in respect of the complaint; and (b) must notify the complainant and the respondent in writing. (2) A notice under sub-section (1) must state that the complainant, by notice in writing given to the Health Services Commissioner— (a) may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6; and (b) if the Health Services Commissioner proposes to investigate the complaint, may object or agree to the investigation. (3) If the Health Services Commissioner proposes to take no further action in respect of a complaint, the complainant, by written notice to the Health Services Commissioner within 60 days after receiving the notice under sub-section (1), may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6. (4) If the Health Services Commissioner proposes to investigate a complaint under Division 4, the complainant, by written notice to the Health Services Commissioner within 60 days after receiving the notice under sub-section (1)— s. 63 -- 65 of 156 -- Act No. 2/2001 Health Records Act 2001 60 (a) may object to the investigation and may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6; or (b) may agree to the investigation. (5) The Health Services Commissioner must comply with a notice under sub-section (3) or (4)(a). (6) If the complainant does not notify the Health Services Commissioner under sub-section (3) or (4), the Health Services Commissioner must dismiss the complaint. (7) If the complainant objects to the investigation but does not require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6, the Health Services Commissioner must dismiss the complaint. (8) As soon as possible after a dismissal under sub- section (6) or (7), the Health Services Commissioner must, by written notice, notify the complainant and the respondent of the dismissal. (9) A complainant may take no further action under this Act in relation to the subject-matter of a complaint dismissed under this section. (10) If a complainant agrees to an investigation of the complaint, the Health Services Commissioner— (a) must notify the respondent in writing that an investigation will be conducted; and (b) must investigate the complaint as soon as practicable after receipt of the notice under sub-section (4)(b). Division 4—Investigation, Rulings and Compliance Notices 64. Investigation and ruling s. 63 s. 64 -- 66 of 156 -- Act No. 2/2001 Health Records Act 2001 61 (1) The Health Services Commissioner may investigate— (a) a complaint in respect of which he or she has made a decision under section 56(1)(b); and (b) a complaint referred to in section 63(1) which he or she has decided to investigate and the complainant has agreed to the investigation— and make a ruling as to whether the act or practice of the respondent that is the subject of the complaint is an interference with the privacy of the complainant 5 . (2) Within 14 days after ruling as to whether there has been an interference with the privacy of the complainant, the Health Services Commissioner must serve written notice of the ruling on the complainant and the respondent. (3) A ruling must include— (a) the reasons for the ruling; and (b) the action, if any, that the Health Services Commissioner specifies to remedy the complaint; and (c) a specified period, not exceeding one month, within which the action must be taken. (4) If the Health Services Commissioner is satisfied, on the application of an organisation on which a ruling is served, that it is not reasonably possible to take the action specified in the ruling within the period specified in the ruling, the Health Services Commissioner may extend the period specified in the ruling on the giving to him or her by the -- 67 of 156 -- Act No. 2/2001 Health Records Act 2001 62 organisation of an undertaking to take the specified action within the extended period. (5) The Health Services Commissioner may only extend a period under sub-section (4) if an application for the extension is made before the period specified in the ruling expires. (6) If the Health Services Commissioner thinks it appropriate, he or she may give a copy of a ruling to the registration board by which the respondent is registered and must give written notice of having done so to the respondent. (7) A respondent who receives notice of a ruling under sub-section (2) which requires the respondent to take specified action must report in writing to the Health Services Commissioner, within 7 days after the expiry of the period, or extended period, within which the action must be taken, on the action taken by the respondent with respect to the ruling. Penalty: 10 penalty units. (8) The Health Services Commissioner must give written notice to the complainant of the contents of a report referred to in sub-section (7) within 7 days after receipt of the report or, if the report has not been provided, must give written notice to the complainant of that fact within 7 days after the expiry of the period, or extended period, referred to in sub-section (7). 65. Referral to Tribunal (1) The complainant or the respondent, by written notice within 60 days after receiving notice of a ruling under section 64(2), may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6. (2) If the respondent fails— s. 64 s. 65 -- 68 of 156 -- Act No. 2/2001 Health Records Act 2001 63 (a) to comply with a ruling; or (b) to report to the Health Services Commissioner as required by section 64(7)— the complainant, by written notice within 30 days after receipt of a notice under section 64(8), may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing under Division 6. (3) The Health Services Commissioner— (a) must comply with a notice under sub-section (1) or (2); and (b) must provide to the Tribunal a copy of all documents that were considered by the Health Services Commissioner in the investigation of the complaint. 66. Compliance notice (1) The Health Services Commissioner may serve a compliance notice on the organisation, if it appears to him or her that— (a) the organisation has done an act or engaged in a practice in contravention of this Act; and (b) the act or practice— (i) constitutes a serious or flagrant contravention; or (ii) is of a kind that has been done or engaged in by the organisation on at least 5 separate occasions within the previous 2 years. (2) A compliance notice requires the organisation to take specified action within a specified period for the purpose of ensuring compliance with this Act and to report the taking of that action to the Health -- 69 of 156 -- Act No. 2/2001 Health Records Act 2001 64 Services Commissioner in a specified manner within a specified period after taking that action. (3) If the Health Services Commissioner is satisfied, on the application of an organisation on which a compliance notice is served, that it is not reasonably possible to take the action specified in the notice within the period specified in the notice, the Health Services Commissioner may extend the period specified in the notice on the giving to him or her by the organisation of an undertaking to take the specified action within the extended period. (4) The Health Services Commissioner may only extend a period under sub-section (3) if an application for the extension is made before the period specified in the notice expires. (5) The Health Services Commissioner may act under sub-section (1)— (a) on his or her own initiative at any stage and irrespective of whether a complaint has been made or a complainant has objected to an investigation; or (b) on an application by an individual who was a complainant under this Part and the complaint was the subject of a conciliation agreement or was determined by the Tribunal. (6) In deciding whether or not to serve a compliance notice, the Health Services Commissioner may have regard to the extent to which the organisation has complied with a decision of the Tribunal under Division 6. s. 66 -- 70 of 156 -- Act No. 2/2001 Health Records Act 2001 65 67. Power to obtain information and documents (1) If the Health Services Commissioner has reason to believe that a person has information or a document relevant to a decision under section 64(1) or 66, the Health Services Commissioner may give to the person a written notice requiring the person— (a) to give the information to the Health Services Commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or (b) to produce the document to the Health Services Commissioner. (2) If the Health Services Commissioner has reason to believe that a person has information relevant to a decision under section 64(1) or 66, the Health Services Commissioner may give to the person a written notice requiring the person to attend before the Health Services Commissioner at a time and place specified in the notice to answer questions relevant to the decision. (3) The Health Services Commissioner is not entitled to require an agency within the meaning of the Freedom of Information Act 1982 or a Minister to give any information if the Secretary to the Department of Premier and Cabinet furnishes to the Health Services Commissioner a certificate certifying that the giving of that information (including in answer to a question) would involve the disclosure of information which, if included in a document of the agency or an official document of the Minister, would cause the document to be an exempt document of a kind referred to in section 28(1) of the Freedom of Information Act 1982. s. 67 -- 71 of 156 -- Act No. 2/2001 Health Records Act 2001 66 (4) The Health Services Commissioner may not conduct an investigation in respect of a certificate under sub-section (3) or question whether the information is of a kind referred to in section 28(1) of the Freedom of Information Act 1982 or a decision to sign such a certificate. 68. Conduct of investigation etc. In exercising a power under section 64, 66 or 67, the Health Services Commissioner— (a) must proceed with as much expedition as the requirements of this Act and proper investigation of the matter permit; and (b) is not bound by the rules of evidence. 69. Power to examine witnesses (1) The Health Services Commissioner may administer an oath or affirmation to a person required under section 67(2) to attend before the Health Services Commissioner and may examine the person on oath or affirmation. (2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true. 70. Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information or answer a question or to produce a document when required to do so under this Part if giving the information or answering the question or producing the document might tend to incriminate the person. (2) This section does not limit section 67(3). 71. Offence not to comply with compliance notice s. 68 s. 70 -- 72 of 156 -- Act No. 2/2001 Health Records Act 2001 67 (1) An organisation must comply with a compliance notice served on it under section 66(1) that is in effect. Penalty: In the case of a body corporate, 3000 penalty units; In any other case, 600 penalty units. (2) A compliance notice served under section 66(1) does not take effect— (a) until the expiry of the period specified in the notice; or (b) until the expiry of any extended period fixed under section 66(3); or (c) until the expiry of the period within which an application for review of the decision to serve the notice may be made to the Tribunal under section 72(1); or (d) if an application is made under section 72(1) for review of the decision to serve the notice, unless and until the decision is affirmed on the review— whichever is the later. (3) An offence against sub-section (1) is an indictable offence. 72. Application for review—compliance notice (1) An individual or organisation whose interests are affected by a decision of the Health Services Commissioner under section 66(1) to serve a compliance notice may apply to the Tribunal for review of the decision. (2) An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or s. 72 -- 73 of 156 -- Act No. 2/2001 Health Records Act 2001 68 (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 61(5) of that Act that a statement of reasons will not be given. (3) The Health Services Commissioner is a party to a proceeding on a review under this section. Division 5—Interim Orders 73. Tribunal may make interim orders before hearing (1) A complainant or a respondent or the Health Services Commissioner may apply to the Tribunal for an interim order to prevent any party to the complaint from acting in a manner prejudicial to negotiations or conciliation or to any decision or order the Tribunal might subsequently make. (2) An application may be made under sub-section (1) at any time before the complaint is referred to the Tribunal. (3) In making an interim order, the Tribunal must have regard to— (a) whether or not the complainant has established a prima facie case with respect to the complaint; and (b) any possible detriment or advantage to the public interest in making the order; and (c) any possible detriment to the complainant's or the respondent's case if the order is not made. -- 74 of 156 -- Act No. 2/2001 Health Records Act 2001 69 (4) An interim order applies for the period, not exceeding 28 days, specified in it and may be extended from time to time by the Tribunal. (5) The party against whom the interim order is sought is a party to the proceeding on an application under sub-section (1). (6) In making an interim order, the Tribunal— (a) may require any undertaking as to costs or damages that it considers appropriate; and (b) may make provision for the lifting of the order if specified conditions are met. (7) The Tribunal may assess any costs or damages referred to in sub-section (6)(a). (8) Nothing in this section affects or takes away from the Tribunal's power under section 123 of the Victorian Civil and Administrative Tribunal Act 1998 to make orders of an interim nature in a proceeding in the Tribunal in respect of a complaint. Division 6—Jurisdiction of the Tribunal 74. When may the Tribunal hear a complaint? (1) The Tribunal may hear a complaint— (a) referred to it by the Health Services Commissioner under section 51, 57, 63 or 65; (b) referred to it by the Minister under section 54. s. 73 s. 74 -- 75 of 156 -- Act No. 2/2001 Health Records Act 2001 70 (2) The Tribunal also has the jurisdiction conferred by section 73. 75. Who are the parties to a proceeding? (1) The complainant and the respondent are parties to a proceeding in respect of a complaint referred to in section 74(1). (2) The Health Services Commissioner is not a party to a proceeding in respect of a complaint referred to in section 74(1)(a) unless joined by the Tribunal. 76. Time limits for certain complaints (1) The Tribunal must commence hearing a complaint within 30 days after its referral to the Tribunal if the complaint was referred to it by the Minister under section 54. (2) The Tribunal, constituted by a presidential member, may extend the period of 30 days under sub-section (1) by one further period of not more than 30 days. 77. Inspection of exempt documents by Tribunal (1) Subject to sub-section (2) and to any order made by the Tribunal under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal must do all things necessary to ensure that— (a) any document produced to the Tribunal in proceedings under this Act that is claimed to be an exempt document of a kind referred to in section 28(1) of the Freedom of Information Act 1982, or the contents of that document, is not disclosed to any person other than— (i) a member of the Tribunal as constituted for the proceedings; or -- 76 of 156 -- Act No. 2/2001 Health Records Act 2001 71 (ii) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and (b) the document is returned to the respondent at the conclusion of the proceedings. (2) The Tribunal may make such orders as it thinks necessary having regard to the nature of the proceedings. (3) If the applicant is represented by a qualified legal practitioner, orders under sub-section (2) may include an order that the contents of a document produced to the Tribunal that is claimed to be an exempt document be disclosed to that legal practitioner. (4) In making an order under sub-section (2), the Tribunal must be guided by the principle that the contents of a document that is claimed to be an exempt document should not normally be disclosed except in accordance with an order of the Tribunal under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998. (5) If a complaint referred to in section 74(1) relates to a document or part of a document in relation to which disclosure has been refused on the grounds specified in section 28 of the Freedom of Information Act 1982, the Tribunal may, if it regards it as appropriate to do so, announce its findings in terms which neither confirm nor deny the existence of the document in question. 78. What may the Tribunal decide? (1) After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may— s. 77 s. 78 -- 77 of 156 -- Act No. 2/2001 Health Records Act 2001 72 (a) find the complaint or any part of it proven and make any one or more of the following orders— (i) an order that the respondent provide the complainant with access to health information that relates to the complainant; (ii) an order restraining the respondent, or the organisation of which the respondent is the committee of management, from repeating or continuing any act or practice the subject of the complaint which the Tribunal has found to constitute an interference with the privacy of an individual; (iii) an order that the respondent perform or carry out any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, including injury to the complainant's feelings or humiliation suffered by the complainant, by reason of the act or practice the subject of the complaint; (iv) an order that the complainant is entitled to a specified amount, not exceeding $100 000, by way of compensation for any loss or damage suffered by the complainant, including injury to the complainant's feelings or humiliation suffered by the complainant, by reason of the act or practice the subject of the complaint; or (b) find the complaint or any part of it proven but decline to take any further action in the matter; or -- 78 of 156 -- Act No. 2/2001 Health Records Act 2001 73 (c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed; or (d) in any case, make an order that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the proceedings held in respect of it under this Act. (2) In an order under sub-paragraph (ii) or (iii) of sub- section (1)(a) arising out of a breach of HPP 6.5, 6.6 or 6.7, the Tribunal may include an order that— (a) an organisation or respondent make an appropriate correction to the health information; or (b) an organisation or respondent attach to the health information a statement provided by the complainant of a correction sought by the complainant; or (c) an organisation or respondent place the incorrect information on a record which is not generally available to anyone involved in providing health services to the complainant and to which access is restricted. (3) If an order of the Tribunal relates to a public register, the Health Services Commissioner must, as soon as practicable after its making, report the order to the Minister responsible for the public sector agency or Council that administers that public register. (4) The Health Services Commissioner may include in a report under sub-section (3) recommendations in relation to any matter that concerns the need s. 78 -- 79 of 156 -- Act No. 2/2001 Health Records Act 2001 74 for, or the desirability of, legislative or administrative action in the interests of privacy of individuals. _______________ s. 78 -- 80 of 156 -- Act No. 2/2001 Health Records Act 2001 75 PART 7—OFFENCES 79. Definition In this Part, "false representation" means a representation that is— (a) false in a material particular; and (b) made knowing that it is false in that particular or without believing that it is true in that particular. 80. Unlawfully requiring consent etc. A person or body must not, by threat, intimidation or false representation, require another person or body— (a) to give a consent under this Act; or (b) to do, without consent, an act for which a consent under this Act is required. Penalty: In the case of a body corporate, 300 penalty units; In any other case, 60 penalty units. 81. Unlawful destruction etc. or removal of health information (1) A person or body must not destroy, deface or damage health information held by an organisation or any other document with intent to evade or frustrate the operation of this Act. Penalty: In the case of a body corporate, 300 penalty units; In any other case, 60 penalty units. s. 79 -- 81 of 156 -- Act No. 2/2001 Health Records Act 2001 76 (2) A person or body must not remove from Victoria health information held by an organisation with intent to evade or frustrate the operation of this Act. Penalty: In the case of a body corporate, 300 penalty units; In any other case, 60 penalty units. 82. Unlawfully requesting or obtaining access to health information A person or body must not, by threat, intimidation or false representation, request or obtain access to health information relating to himself, herself or any other person. Penalty: In the case of a body corporate, 300 penalty units; In any other case, 60 penalty units. 83. Persons not to be persuaded not to exercise rights under Act A person or body must not, by threat, intimidation or false representation, persuade or attempt to persuade another person— (a) to refrain from making or pursuing— (i) a request for access to health information under Part 5; or (ii) a complaint to the Health Services Commissioner under Part 6; or (b) to withdraw a request or complaint referred to in paragraph (a). Penalty: In the case of a body corporate, 300 penalty units; In any other case, 60 penalty units. s. 82 -- 82 of 156 -- Act No. 2/2001 Health Records Act 2001 77 84. Failure to attend etc. before Health Services Commissioner A person or body must not— (a) without reasonable excuse, refuse or fail— (i) to attend before the Health Services Commissioner; or (ii) to be sworn or to make an affirmation; or (iii) to give information; or (iv) to answer a question or produce a document— when so required by the Health Services Commissioner under this Act; or (b) wilfully obstruct, hinder or resist the Health Services Commissioner or an employee in the office of the Health Services Commissioner or a delegate of the Health Services Commissioner in— (i) performing, or attempting to perform, a function or duty under this Act; or (ii) exercising, or attempting to exercise, a power under this Act; or (c) furnish information or make a statement to the Health Services Commissioner knowing that it is false or misleading in a material particular. Penalty: In the case of a body corporate, 300 penalty units; In any other case, 60 penalty units. _______________ s. 84 -- 83 of 156 -- Act No. 2/2001 Health Records Act 2001 78 PART 8—GENERAL 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. s. 85 -- 84 of 156 -- Act No. 2/2001 Health Records Act 2001 79 (3) For the purposes of sub-sections (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. s. 85 -- 85 of 156 -- Act No. 2/2001 Health Records Act 2001 80 (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. 86. Protection from liability (1) A person who lodges a complaint under section 45(1) is not personally liable for any loss, damage or injury suffered by another person by reason only of the lodging of the complaint. (2) A person who produces a document, or gives any information or evidence, to the Health Services Commissioner under this Act is not personally liable for any loss, damage or injury suffered by another person by reason only of that production or giving. s. 86 -- 86 of 156 -- Act No. 2/2001 Health Records Act 2001 81 (3) Sub-section (4) applies where— (a) a person has been provided by an organisation with access to health information under this Act; and (b) the access was required by Part 5 or HPP 6 or the organisation, or an employee or agent of the organisation acting within the scope of his or her actual or apparent authority, believed in good faith that the access was required by Part 5 or HPP 6. (4) The provision of access to health information in the circumstances referred to in sub-section (3)— (a) is not to be regarded as making the organisation, or any employee or agent of the organisation, liable for defamation or breach of confidence or guilty of a criminal offence by reason only of the provision of access; or (b) is not to be regarded as making any person who provided the health information to the organisation liable for defamation or breach of confidence in respect of any publication involved in, or resulting from, the provision of access by reason only of the provision of access; or (c) must not be taken for the purpose of the law relating to defamation or breach of confidence to constitute an authorisation or approval of the publication of the information by the person who is provided with access to it. (5) An organisation is not in breach of this Act by reason only of— (a) collecting, using, disclosing or transferring health information; or (b) providing access to health information; or s. 86 -- 87 of 156 -- Act No. 2/2001 Health Records Act 2001 82 (c) correcting health information— of an individual in response to a consent or request by an authorised representative whose consent or request is void by virtue of section 85(4). 87. Functions of Health Services Commissioner The functions of the Health Services Commissioner under this Act are— (a) to promote an understanding and acceptance of the Health Privacy Principles and of the objects of those Principles; (b) in accordance with Part 4, to issue, approve or vary guidelines for the purposes of the Health Privacy Principles; (c) to publish model terms capable of being adopted by an organisation in a contract or arrangement with a recipient of health information being transferred by the organisation outside Victoria; (d) subject to this Act, to receive complaints about an act or practice of an organisation— (i) that may contravene a Health Privacy Principle; or (ii) that may interfere with the privacy of an individual or may otherwise have an adverse effect on the privacy of an individual— and, if the Health Services Commissioner considers it appropriate to do so, to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the complaint; (e) to investigate, conciliate and make rulings on complaints under this Act; s. 87 -- 88 of 156 -- Act No. 2/2001 Health Records Act 2001 83 (f) to serve compliance notices on organisations; (g) subject to approval from the Minister, to initiate inquiries into— (i) matters referred by the Health Services Review Council; and (ii) broader issues of health care arising out of complaints received under this Act; (h) to conduct or commission audits of records of health information held by an organisation for the purpose of ascertaining whether the records are handled according to the Health Privacy Principles; (i) to monitor and report on the adequacy of equipment and user safeguards; (j) to undertake research into, and to monitor developments in, data processing and computer technology (including data matching and data linkage) to ensure that any adverse effects of such developments on personal privacy are minimised, and to report to the Minister the results of the research and monitoring; (k) for the purpose of promoting the protection of personal privacy, to undertake educational programs on the Health Services Commissioner's own behalf or in co- operation with other persons or bodies whose functions concern the protection of personal privacy; (l) from time to time, in the public interest, to publish reports and recommendations relating generally to the Health Services Commissioner's functions under this Act or to any matter investigated by the Health s. 87 -- 89 of 156 -- Act No. 2/2001 Health Records Act 2001 84 Services Commissioner under this Act, whether or not the matters to be dealt with in any such report have been the subject of a report to the Minister; (m) to consult and co-operate with other persons and bodies concerned with personal privacy; (n) to provide advice to the Health Services Review Council; (o) to provide advice (with or without a request) to any individual or organisation on any matter relevant to the operation of this Act; (p) to examine and assess (with or without a request) the impact on personal privacy of any act or practice, or proposed act or practice, of an organisation; (q) to make suggestions to any individual or organisation in relation to any matter that concerns the need for, or the desirability of, action by that individual or organisation to protect the privacy of health information; (r) to gather information that, in the opinion of the Health Services Commissioner, will assist the Health Services Commissioner in carrying out his or her functions under this Act; (s) to perform any other function conferred on the Health Services Commissioner by this Act. 88. Powers The Health Services Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions under this Act. s. 88 -- 90 of 156 -- Act No. 2/2001 Health Records Act 2001 85 89. Health Services Commissioner to have regard to certain matters The Health Services Commissioner must have regard to the objects of this Act in the performance of his or her functions and the exercise of his or her powers under this Act. 90. Secrecy (1) A person who is, or has been, the Health Services Commissioner, an acting Health Services Commissioner, a delegate of the Health Services Commissioner or an employee in the office of the Health Services Commissioner must not, directly or indirectly, make a record of, disclose or communicate to any person any information relating to the affairs of any individual or organisation acquired in the performance of functions or duties or the exercise of powers under this Act, unless— (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under, or in relation to, this, or any other, Act; or (b) the individual or organisation to whom the information relates gives written consent to the making of the record, disclosure or communication. Penalty: 60 penalty units. (2) A person who is, or has been, the Health Services Commissioner, an acting Health Services Commissioner, a delegate of the Health Services Commissioner or an employee in the office of the Health Services Commissioner must not disclose or communicate to any person any information given to the Health Services Commissioner s. 89 -- 91 of 156 -- Act No. 2/2001 Health Records Act 2001 86 pursuant to a requirement made under Division 3 of Part 6 (including information contained in a document required to be produced to the Health Services Commissioner) unless all parties to the conciliation consent to the making of the disclosure or communication. Penalty: 60 penalty units. (3) Sub-section (2) does not prevent— (a) the disclosure to the Health Services Commissioner, an acting Health Services Commissioner, a delegate of the Health Services Commissioner or an employee in the office of the Health Services Commissioner of whether the conciliation under Division 3 of Part 6 was successful and the terms of any agreement reached; or (b) the making of a recommendation that the Health Services Commissioner should investigate a complaint under Division 4 of Part 6. (4) A person who is, or has been, the Health Services Commissioner, an acting Health Services Commissioner, a delegate of the Health Services Commissioner or an employee in the office of the Health Services Commissioner must not disclose or communicate to any person, other than a person employed in the office of the Health Services Commissioner, any information given to the Health Services Commissioner pursuant to a requirement made under Division 4 of Part 6 (including information contained in a document required to be produced to the Health Services Commissioner) unless— s. 90 -- 92 of 156 -- Act No. 2/2001 Health Records Act 2001 87 (a) he or she has notified the person from whom the information was obtained of the proposal to disclose or communicate that information; and (b) he or she has given that person a reasonable opportunity to object to the disclosure or communication; and (c) that person has not objected to the disclosure or communication. Penalty: 60 penalty units. 91. Delegation (1) The Health Services Commissioner may, by instrument, delegate to a person employed for the purposes of this Act, or a person belonging to a class of those persons, any of his or her powers under this Act other than this power of delegation. (2) The Health Services Commissioner may, by instrument, delegate to any person any of his or her powers under Division 3 of Part 6. 92. Employees and agents (1) Any act done or practice engaged in on behalf of an organisation by an employee or agent of the organisation acting within the scope of his or her actual or apparent authority is to be taken, for the purposes of this Act including a prosecution for an offence against this Act, to have been done or engaged in by the organisation and not by the employee or agent unless the organisation establishes that it took reasonable precautions and exercised due diligence to avoid the act being done or the practice being engaged in by its employee or agent. s. 91 -- 93 of 156 -- Act No. 2/2001 Health Records Act 2001 88 (2) If, for the purpose of investigating a complaint or a proceeding for an offence against this Act, it is necessary to establish the state of mind of an organisation in relation to a particular act or practice, it is sufficient to show— (a) that the act was done or practice engaged in by an employee or agent of the organisation acting within the scope of his or her actual or apparent authority; and (b) that the employee or agent had that state of mind. 93. Offences by organisations or bodies If this Act provides that an organisation or body is guilty of an offence, that reference to an organisation or body must, if the organisation or body is unincorporated, be read as a reference to each member of the committee of management of the organisation or body. 94. Prosecutions (1) A proceeding for an offence against this Act may only be brought by— (a) a member of the police force; or (b) the Health Services Commissioner; or (c) a person authorised to do so, either generally or in a particular case, by the Health Services Commissioner. (2) In a proceeding for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceeding was authorised to bring it. 95. Deceased individuals s. 93 s. 95 -- 94 of 156 -- Act No. 2/2001 Health Records Act 2001 89 (1) This Act applies in relation to a deceased individual who has been dead for 30 years or less, so far as it is reasonably capable of doing so, in the same way as it applies in relation to an individual who is not deceased. (2) Subject to sub-section (3), if an individual has died, a right or power conferred on individuals by a provision of this Act is exercisable in relation to the deceased individual, so far as the circumstances reasonably permit, by a legal representative of the deceased individual. (3) A purported consent by a legal representative of a deceased individual is void if, when giving it, the legal representative knows or believes that the consent does not accord with the wishes expressed, and not changed or withdrawn, by the individual in his or her lifetime. 96. Legal professional privilege not affected by this Act 6 Despite any other section, this Act does not— (a) apply in relation to a document that is the subject of legal professional privilege; or (b) affect the law or practice relating to legal professional privilege. 97. Defect or invalidity—protection if person acts in good faith etc. If a person takes any action in respect of, or in consequence of having received— (a) a notice or request, made or apparently made under this Act; or (b) a consent or authorisation, given or apparently given under this Act— -- 95 of 156 -- Act No. 2/2001 Health Records Act 2001 90 that is void or defective, the person is not liable in respect of the action by reason only that the notice, request, consent or authorisation was void or defective, if the person proves that they— (c) took the action in good faith; and (d) did not know, and had no reason to be aware, when taking the action, that the notice, request, consent or authorisation was void or defective (as the case may be). 98. Unqualified organisation may obtain and act on expert advice An organisation may, for the purpose of performing a function under this Act, obtain and act on the advice of a person possessing skill and training necessary for the performance of that function. 99. Supreme Court—limitation of jurisdiction It is the intention of section 8 to alter or vary section 85 of the Constitution Act 1975. 100. Regulations (1) The Governor in Council may make regulations for or with respect to— (a) prescribing maximum fees for providing access to health information under this Act; and (b) prescribing maximum fees for performing functions under section 42; and (c) prescribing maximum fees for transfers of health information under HPP 11; and (d) prescribing retention periods, whether greater or less than the periods specified in HPP 4.2, for the preservation of health s. 98 -- 96 of 156 -- Act No. 2/2001 Health Records Act 2001 91 information or classes of health information for the purposes of HPP 4.2; and (e) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations— (a) may be of general or limited application; and (b) may differ according to differences in time, place or circumstance; and (c) may apply, adopt or incorporate any matter contained in any document, whether— (i) wholly or partially or as amended by the regulations; or (ii) as in force at the time the regulations are made or at any time before then; or (iii) as in force from time to time; and (d) may confer a discretionary authority or impose a duty on a specified person or body or a specified class of person or body. (3) A power conferred by this Act to make regulations prescribing maximum fees for providing access to health information by way of a summary may be exercised by reference to the time taken to prepare the summary based on the usual fee of the health service provider for a consultation of a comparable duration. _______________ s. 100 -- 97 of 156 -- Act No. 2/2001 Health Records Act 2001 92 PART 9—AMENDMENT OF CERTAIN OTHER ACTS Division 1—Amendment of Acts other than Health Practitioner Acts 101. Amendment of Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 is amended as follows— (a) in section 5(1) insert the following definitions— ' "health information" has the same meaning as in the Health Records Act 2001; "Health Services Commissioner" means Health Services Commissioner appointed under the Health Services (Conciliation and Review) Act 1987 and includes the Acting Health Services Commissioner under that Act;'; (b) in section 22, after sub-section (1) insert— "(1A) Without limiting any other power to make regulations conferred by this Act, a power conferred by this Act to make regulations for or in relation to the making of charges for access to documents may, in the case of a document referred to in section 23(1)(e)— (a) prescribe different amounts according to the form in which access is given; (b) prescribe amounts by reference to the usual fee of a person for a s. 101 See: Act No. 9859 Reprint No. 5 as at 1 January 2000. LawToday: www.dms. dpc.vic. gov.au -- 98 of 156 -- Act No. 2/2001 Health Records Act 2001 93 consultation of a comparable duration."; (c) in section 23(1)(d), for "in the document." substitute— "in the document; or (e) in the case of a document containing health information relating to the person, by a way referred to in section 28(1), (2) or (3) of the Health Records Act 2001 in the manner provided in section 29(1) of that Act."; (d) in section 27(1)— (i) at the end of paragraph (d) omit "and"; (ii) after paragraph (d) insert— "(da) where the decision relates to a refusal to grant access to a document containing health information on the ground referred to in section 36 of the Health Records Act 2001, inform the applicant of the time within which— (i) a written notice may be given under section 38(1) of the Health Records Act 2001 nominating a health service provider for the purposes of Division 3 of Part 5 of that Act; (ii) an application for a review of the decision may be made under section 51(1) of this Act; s. 101 -- 99 of 156 -- Act No. 2/2001 Health Records Act 2001 94 (iii) an application for conciliation may be made under section 51A(1) of this Act; (db) where the decision relates to a refusal to grant access to a document containing health information on a ground other than the ground referred to in section 36 of the Health Records Act 2001, inform the applicant of the time within which— (i) an application for a review of the decision may be made under section 51(1) of this Act; (ii) if applicable, an application for conciliation may be made under section 51A(1) of this Act;"; (e) in section 50(2), for "section 51" substitute "sections 51 and 51A"; (f) in section 51(1), after "days" insert "(or, in the case of a decision refusing to grant access to a document containing health information on the ground referred to in section 36 of the Health Records Act 2001, within 70 days)"; (g) in section 51(2), for "A person" substitute "Subject to section 51A, a person"; (h) in section 52, after "51" insert "or notice under section 51A(4)". s. 101 -- 100 of 156 -- Act No. 2/2001 Health Records Act 2001 95 (2) In section 33 of the Freedom of Information Act 1982, for sub-section (4) substitute— "(4) If— (a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains health information concerning the person making the request; and (b) the principal officer or the Minister, as the case may be, believes on reasonable grounds that the provision of the health information would pose a serious threat to the life or health of the person— the principal officer or Minister must not give access to the document so far as it contains that information and— (c) the procedure set out in Division 3 of Part 5 of the Health Records Act 2001 applies as if the refusal of access were a refusal under section 26 of that Act; and (d) the document is an exempt document.". 102. New section 51A inserted in Freedom of Information Act 1982 After section 51 of the Freedom of Information Act 1982 insert— "51A. Conciliation by Health Services Commissioner (1) Subject to sub-section (2), if a decision referred to in section 50(2) has been made in relation to a document containing health information relating to the applicant, the s. 102 -- 101 of 156 -- Act No. 2/2001 Health Records Act 2001 96 applicant, instead of making an application under section 51(1) in relation to the decision, may apply to the Health Services Commissioner for conciliation under Division 3 of Part 6 of the Health Records Act 2001 and that Division (except section 63) applies to the conciliation as if it were a conciliation of a complaint made under that Act. (2) Sub-section (1) does not apply to an exempt document (other than an exempt document referred to in section 32, 33 or 38). (3) An application under sub-section (1) must be made within— (a) in the case of a decision referred to in section 27(1)(da), 70 days; or (b) in any other case, 28 days— after the day on which notice in writing of the decision is given to the applicant in accordance with section 27. (4) If the Health Services Commissioner has attempted unsuccessfully to conciliate a request, he or she must give notice in writing to the applicant and the principal officer of the agency or the Minister to whom the request was made.". 103. Amendment of Health Services Act 1988 (1) In section 141 of the Health Services Act 1988, after sub-section (2) insert— '(2A) For the purposes of sub-section (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. 103 See: Act No. 49/1988 Reprint No. 6 as at 1 July 2000. LawToday: www.dms. dpc.vic. gov.au -- 102 of 156 -- Act No. 2/2001 Health Records Act 2001 97 (2) In section 141(3) of the Health Services Act 1988— (a) for paragraph (e) substitute— "(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"; (b) after paragraph (ea) insert— "(eb) to the giving of information as described in HPP 2.2(f), 2.2(h) or 2.5 of the Health Privacy Principles in the Health Records Act 2001; or"; (c) in paragraph (g)— (i) in sub-paragraph (ii) for "or" substitute "and"; (ii) after sub-paragraph (ii) insert— "(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. 103 -- 103 of 156 -- Act No. 2/2001 Health Records Act 2001 98 (3) In section 141 of the Health Services Act 1988, after sub-section (3) insert— "(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 sub-section (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) In section 141(4) of the Health Services Act 1988— (a) in paragraph (b) for "requirements." substitute "requirements; and" (b) after paragraph (b) insert— "(c) the giving of information in accordance with HPP 2.2(g) of the Health Privacy Principles in the Health Records Act 2001.". s. 103 -- 104 of 156 -- Act No. 2/2001 Health Records Act 2001 99 (5) In section 158(1) of the Health Services Act 1988, after paragraph (n) insert— "(na) requirements or conditions relating to the giving or the use or collection of information for the purposes of section 141(3)(e)(ii) or section 141(3A) including, but not limited to, prescribing a class or classes of person who may give, use or collect that information;". 104. Transitional provisions—Health Services Act 1988 After section 178 of the Health Services Act 1988 insert— "178A. Transitional provisions—Health Records Act 2001 (1) Section 141(3)(g) as amended by the Health Records Act 2001 does not apply to the giving of information for the purposes of medical or social research if the use to which the information will be put and the research methodology has been approved by an ethics committee under that section before the commencement of that amendment even if the giving of the information occurs after that commencement. (2) Section 141(4) as amended by the Health Records Act 2001 does not apply to the giving of information, the giving of which has been approved as required by that section before the commencement of that amendment, even if the giving of the information occurs after that commencement.". 105. Amendment of Health Services (Conciliation and Review) Act 1987 s. 104 s. 105 -- 105 of 156 -- Act No. 2/2001 Health Records Act 2001 100 The Health Services (Conciliation and Review) Act 1987 is amended as follows— (a) in the Preamble, paragraphs (g) and (h) are repealed; (b) in section 3(1), in the definition of "guiding principles", for "(a) to (h)" substitute "(a) to (f)"; (c) in section 5(1), for "For the purposes of this Act there" substitute "There"; (d) in section 9(1) after "functions of the Commissioner" insert "under this Act"; (e) in section 10— (i) after "functions" insert "under this Act"; (ii) in paragraph (g), omit "and" at the end of the paragraph; (f) in section 12(2), for "nine" substitute "11"; (g) in section 12(3)(c), for "or users." substitute— "or users; and (d) one is a person who, in the Minister's opinion, has experience of matters affecting the privacy of individuals in relation to health information or is able to express the interests of individuals in relation to such matters; and (e) one is a person who, in the Minister's opinion, has experience of, or is able to express the interests of, organisations that handle health information."; (h) in section 12, after sub-section (7) insert— See: Act No. 25/1987 Reprint No. 3 as at 1 July 2000. LawToday: www.dms. dpc.vic. gov.au -- 106 of 156 -- Act No. 2/2001 Health Records Act 2001 101 "(8) Despite the increase in the membership of the Council effected by section 105 of the Health Records Act 2001, the Council is deemed to be the same body after the commencement of that section as it was before that commencement."; (i) in section 13(1), for "five" substitute "6"; (j) in section 14(1)— (i) in paragraph (a), after "Commissioner" insert "under this Act and the Health Records Act 2001"; (ii) in paragraph (c), after "complaints" insert ", or interferences with privacy within the meaning of the Health Records Act 2001,"; (k) in section 14(2), after "Act" insert "or the Health Records Act 2001"; (l) in section 16(1)— (i) paragraphs (d) and (e) are repealed; (ii) in paragraph (f), for "(e)" substitute "(c)"; (m) in section 16, after sub-section (2) insert— "(3) A complaint cannot be made under sub- section (1) if the complaint concerns a matter that could be the subject of a complaint under the Health Records Act 2001."; (n) in section 32(1), in the definition of "confidential information" after "33" insert "but does not include information to which section 90 of the Health Records Act 2001 applies gained because of a person's position, other than a position as a member of the Health Services Review Council". s. 105 -- 107 of 156 -- Act No. 2/2001 Health Records Act 2001 102 106. Amendment of Infertility Treatment Act 1995 (1) In section 89(4) of the Infertility Treatment Act 1995, after paragraph (a) insert— "(ab) the Health Privacy Principles in the Health Records Act 2001 or Part 3 or Part 5 of that Act unless the information given— (i) is about the person who has applied for access or to whom the disclosure would be made and no other person; or (ii) is about one person only, and the person who has applied for access or to whom the disclosure would be made is the first-mentioned person's guardian; or". (2) In section 90 of the Infertility Treatment Act 1995, after sub-section (3) insert— "(4) A reference to any other Act or to a regulation made under any other Act in sub- section (1) does not include a reference to the Health Privacy Principles in the Health Records Act 2001 or Part 3 or Part 5 of that Act unless the information given— (a) is about the person who has applied for access or to whom the disclosure would be made and no other person; or (b) is about one person only, and the person who has applied for access or to whom the disclosure would be made is the first-mentioned person's guardian.". 107. Amendment of Information Privacy Act 2000 s. 106 s. 107 -- 108 of 156 -- Act No. 2/2001 Health Records Act 2001 103 The Information Privacy Act 2000 is amended as follows— (a) in section 3, in the definition of "personal information", for "Schedule 2" substitute "the Health Records Act 2001"; (b) in section 12(b), after "section" insert "5(3) or"; (c) in Schedule 1, in the definition of "unique identifier" where appearing before Principle 1, after "name" insert "but does not include an identifier within the meaning of the Health Records Act 2001"; (d) Schedule 2 is repealed. 108. New section 34A inserted in Information Privacy Act 2000 In the Information Privacy Act 2000, after section 34 insert— "34A. Referral of complaint to Health Services Commissioner If the complaint could be made the subject of a complaint under the Health Records Act 2001, the Privacy Commissioner may refer the complaint to the Health Services Commissioner and notify the complainant and the respondent in writing of the referral.". 109. Amendment of Intellectually Disabled Persons' Services Act 1986 In section 16 of the Intellectually Disabled Persons' Services Act 1986, after sub-section (4) insert— -- 109 of 156 -- Act No. 2/2001 Health Records Act 2001 104 '(5) For the purposes of sub-section (4)(a), "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.'. 110. Amendment of Magistrates' Court Act 1989 In Schedule 4 to the Magistrates' Court Act 1989, before item 44 insert— "43. Non-compliance with enforcement notice— health information Offences under section 71(1) of the Health Records Act 2001.". 111. Amendment of Mental Health Act 1986 (1) In section 120A of the Mental Health Act 1986, after sub-section (2) insert— '(2A) For the purposes of sub-section (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.'. (2) In section 120A(3) of the Mental Health Act 1986— (a) for paragraph (e) substitute— "(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 an approved mental health service by means of an electronic records system established for the purpose of enabling the sharing of information in or between s. 110 -- 110 of 156 -- Act No. 2/2001 Health Records Act 2001 105 approved 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(f), 2.2(h) or 2.5 of the Health Privacy Principles in the Health Records Act 2001; or"; (b) in paragraph (g)— (i) in sub-paragraph (ii) for "or" substitute "and"; (ii) after sub-paragraph (ii) insert— "(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". (3) In section 120A of the Mental Health Act 1986, after sub-section (3A) insert— "(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 sub-section (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 an approved mental health service; and (ii) to enable the treatment of that second-mentioned person at or by that approved mental health service; and s. 111 -- 111 of 156 -- Act No. 2/2001 Health Records Act 2001 106 (iii) in accordance with the regulations (if any); 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) In section 120A(4) of the Mental Health Act 1986— (a) in paragraph (b) for "requirements." substitute "requirements; and"; (b) after paragraph (b) insert— "(c) the giving of information is in accordance with HPP 2.2(g) of the Health Privacy Principles in the Health Records Act 2001.". (5) In section 142(1) of the Mental Health Act 1986, after paragraph (j) insert— "(ja) requirements or conditions relating to the giving or the use or collection of information for the purposes of section 120A(3)(e)(ii) or 120A(3B) including, but not limited to, prescribing a class or classes of person who may give, collect or use that information;". 112. Transitional provisions—Mental Health 1986 s. 111 s. 112 -- 112 of 156 -- Act No. 2/2001 Health Records Act 2001 107 After section 145 of the Mental Health Act 1986 insert— "146. Transitional provisions—Health Records Act 2001 (1) Section 120A(3)(g) as amended by the Health Records Act 2001 does not apply to the giving of information for the purposes of medical or social research if the use to which the information will be put and the research methodology has been approved by an ethics committee under that section before the commencement of that amendment even if the giving of the information occurs after that commencement. (2) Section 120A(4) as amended by the Health Records Act 2001 does not apply to the giving of information, the giving of which has been approved as required by that section before the commencement of that amendment, even if the giving of the information occurs after that commencement.". 113. New section 15B inserted in Ombudsman Act 1973 In Part IV of the Ombudsman Act 1973, at the end of Division 1 insert— "15B. Referral of complaint (health records) If the complaint could be made the subject of an application under the Health Records Act 2001, the Ombudsman may refer the complaint to the Health Services Commissioner and notify the complainant and the respondent in writing of the referral.". -- 113 of 156 -- Act No. 2/2001 Health Records Act 2001 108 114. New section 20C inserted in Ombudsman Act 1973 In the Ombudsman Act 1973, before section 21 insert— "20C. Communication of information to the Health Services Commissioner The Ombudsman or the Acting Ombudsman may communicate to the Health Services Commissioner appointed under the Health Services (Conciliation and Review) Act 1987 any information obtained or received in the course or as a result of the exercise of the functions of the Ombudsman under this Act, being information relating to a complaint referred to the Health Services Commissioner under section 15B.". 115. Amendment of Parliamentary Committees Act 1968 In section 4D(a) of the Parliamentary Committees Act 1968, before sub-paragraph (iv) insert— "(iiib) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001; or". 116. Amendment of Subordinate Legislation Act 1994 In section 21(1) of the Subordinate Legislation Act 1994, before paragraph (h) insert— "(gb) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001;". s. 114 -- 114 of 156 -- Act No. 2/2001 Health Records Act 2001 109 117. Amendment of Victorian Civil and Administrative Tribunal Act 1998 In Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, before Part 6 insert— "PART 5B—HEALTH RECORDS ACT 2001 11F. Intervention by Health Services Commissioner The Health Services Commissioner may intervene at any time in a proceeding under the Health Records Act 2001. 11G. Notification in other proceedings (1) If an application is made under section 73 (interim order) or a referral under section 54 (Minister's referral) of the Health Records Act 2001, the principal registrar must notify the Health Services Commissioner. (2) Sub-clause (1) does not apply in the case of an application by the Health Services Commissioner under section 73 of the Health Records Act 2001. 11H. Health Services Commissioner may apply for interim injunction The Health Services Commissioner may apply for an order granting an interim injunction under section 123 in a proceeding under the Health Records Act 2001 whether or not he or she is a party to that proceeding. 11I. Compulsory conference The presiding member at a compulsory conference in a proceeding under the Health Records Act 2001 may refer any matter to the Health Services Commissioner for investigation, negotiation or conciliation. 11J. Settlement offers Sections 112 to 115 do not apply to a proceeding under the Health Records Act 2001.". s. 117 -- 115 of 156 -- Act No. 2/2001 Health Records Act 2001 110 Division 2—Amendment of Health Practitioner Acts 118. Amendment of Chinese Medicine Registration Act 2000 (1) In section 23(1) of the Chinese Medicine Registration Act 2000— (a) after "registered practitioner" insert "or a person who was a registered practitioner referred to in section 22(2)"; (b) after "1987" insert "or the Health Records Act 2001". (2) In section 23(3) of the Chinese Medicine Registration Act 2000, after "Commissioner" insert "under that Act". (3) In section 23 of the Chinese Medicine Registration Act 2000, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 23(4) of the Chinese Medicine Registration Act 2000, after "1987" insert "or section 52 of the Health Records Act 2001". 119. New section 23A inserted into Chinese Medicine Registration Act 2000 After section 23 of the Chinese Medicine Registration Act 2000 insert— "23A. Board may deal with health records complaint (1) The Board— s. 118 -- 116 of 156 -- Act No. 2/2001 Health Records Act 2001 111 (a) may accept a complaint, or part of a complaint, relating to a registered practitioner that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 120. Amendment of Chiropractors Registration Act 1996 (1) In section 21(1) of the Chiropractors Registration Act 1996 after "1987" insert "or the Health Records Act 2001". (2) In section 21(3) of the Chiropractors Registration Act 1996, after "Commissioner" insert "under that Act". (3) In section 21 of the Chiropractors Registration Act 1996, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the s. 120 -- 117 of 156 -- Act No. 2/2001 Health Records Act 2001 112 complaint were made under section 45(1) of that Act.". (4) In section 21(4) of the Chiropractors Registration Act 1996, after "1987" insert "or section 52 of the Health Records Act 2001". 121. New section 21A inserted into Chiropractors Registration Act 1996 After section 21 of the Chiropractors Registration Act 1996 insert— "21A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered chiropractor that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services s. 121 -- 118 of 156 -- Act No. 2/2001 Health Records Act 2001 113 Commissioner specifies by written notice to the Board.". 122. Amendment of Dental Practice Act 1999 (1) In section 22(1) of the Dental Practice Act 1999— (a) after "registered dental care provider" insert "or a person who was a registered dental care provider referred to in section 21(2)"; (b) after "1987" insert "or the Health Records Act 2001". (2) In section 22(3) of the Dental Practice Act 1999, after "Commissioner" insert "under that Act". (3) In section 22 of the Dental Practice Act 1999, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 22(4) of the Dental Practice Act 1999, after "1987" insert "or section 52 of the Health Records Act 2001". 123. New section 22A inserted into Dental Practice Act 1999 After section 22 of the Dental Practice Act 1999 insert— "22A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered dental care provider that the Health s. 122 -- 119 of 156 -- Act No. 2/2001 Health Records Act 2001 114 Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 124. Amendment of Medical Practice Act 1994 (1) In section 23(1) of the Medical Practice Act 1994— (a) after "registered medical practitioner" insert "or a person who was a registered medical practitioner referred to in section 22(2)"; (b) after "1987" insert "or the Health Records Act 2001". (2) In section 23(3) of the Medical Practice Act 1994, after "Commissioner" insert "under that Act". (3) In section 23 of the Medical Practice Act 1994, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to s. 124 -- 120 of 156 -- Act No. 2/2001 Health Records Act 2001 115 be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 23(4) of the Medical Practice Act 1994, after "1987" insert "or section 52 of the Health Records Act 2001". 125. New section 23A inserted into Medical Practice Act 1994 After section 23 of the Medical Practice Act 1994 insert— "23A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered medical practitioner that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services s. 125 -- 121 of 156 -- Act No. 2/2001 Health Records Act 2001 116 Commissioner specifies by written notice to the Board.". 126. Amendment of Nurses Act 1993 (1) In section 21(1) of the Nurses Act 1993, after "1987" insert "or the Health Records Act 2001". (2) In section 21(3) of the Nurses Act 1993, after "Commissioner" insert "under that Act". (3) In section 21 of the Nurses Act 1993, after sub- section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 21(4) of the Nurses Act 1993, after "1987" insert "or section 52 of the Health Records Act 2001". 127. New section 21A inserted into Nurses Act 1993 After section 21 of the Nurses Act 1993 insert— "21A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered nurse that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under s. 126 -- 122 of 156 -- Act No. 2/2001 Health Records Act 2001 117 section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 128. Amendment of Optometrists Registration Act 1996 (1) In section 23(1) of the Optometrists Registration Act 1996 after "1987" insert "or the Health Records Act 2001". (2) In section 23(3) of the Optometrists Registration Act 1996, after "Commissioner" insert "under that Act". (3) In section 23 of the Optometrists Registration Act 1996, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 23(4) of the Optometrists Registration Act 1996, after "1987" insert "or section 52 of the Health Records Act 2001". 129. New section 23A inserted into Optometrists Registration Act 1996 s. 128 s. 129 -- 123 of 156 -- Act No. 2/2001 Health Records Act 2001 118 After section 23 of the Optometrists Registration Act 1996 insert— "23A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered optometrist that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 130. Amendment of Osteopaths Registration Act 1996 (1) In section 21(1) of the Osteopaths Registration Act 1996 after "1987" insert "or the Health Records Act 2001". s. 130 -- 124 of 156 -- Act No. 2/2001 Health Records Act 2001 119 (2) In section 21(3) of the Osteopaths Registration Act 1996, after "Commissioner" insert "under that Act". (3) In section 21 of the Osteopaths Registration Act 1996, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 21(4) of the Osteopaths Registration Act 1996, after "1987" insert "or section 52 of the Health Records Act 2001". 131. New section 21A inserted into Osteopaths Registration Act 1996 After section 21 of the Osteopaths Registration Act 1996 insert— "21A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered osteopath that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. -- 125 of 156 -- Act No. 2/2001 Health Records Act 2001 120 (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 132. Amendment of Physiotherapists Registration Act 1998 (1) In section 20(1) of the Physiotherapists Registration Act 1998 after "1987" insert "or the Health Records Act 2001". (2) In section 20(3) of the Physiotherapists Registration Act 1998, after "Commissioner" insert "under that Act". (3) In section 20 of the Physiotherapists Registration Act 1998, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 20(4) of the Physiotherapists Registration Act 1998, after "1987" insert "or section 52 of the Health Records Act 2001". 133. New section 20A inserted into Physiotherapists Registration Act 1998 s. 132 s. 133 -- 126 of 156 -- Act No. 2/2001 Health Records Act 2001 121 After section 20 of the Physiotherapists Registration Act 1998 insert— "20A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered physiotherapist that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 134. Amendment of Podiatrists Registration Act 1997 (1) In section 21(1) of the Podiatrists Registration Act 1997 after "1987" insert "or the Health Records Act 2001". s. 134 -- 127 of 156 -- Act No. 2/2001 Health Records Act 2001 122 (2) In section 21(3) of the Podiatrists Registration Act 1997, after "Commissioner" insert "under that Act". (3) In section 21 of the Podiatrists Registration Act 1997, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 21(4) of the Podiatrists Registration Act 1997, after "1987" insert "or section 52 of the Health Records Act 2001". 135. New section 21A inserted into Podiatrists Registration Act 1997 After section 21 of the Podiatrists Registration Act 1997 insert— "21A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered podiatrist that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under -- 128 of 156 -- Act No. 2/2001 Health Records Act 2001 123 section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". 136. Amendment of Psychologists Registration Act 2000 (1) In section 23(1) of the Psychologists Registration Act 2000— (a) after "registered psychologist" insert "or a person who was a registered psychologist referred to in section 22(2)"; (b) after "1987" insert "or the Health Records Act 2001". (2) In section 23(3) of the Psychologists Registration Act 2000, after "Commissioner" insert "under that Act". (3) In section 23 of the Psychologists Registration Act 2000, after sub-section (3) insert— "(3A) The Health Records Act 2001 applies to a complaint made under this Part which is to be dealt with by the Health Services Commissioner under that Act as if the complaint were made under section 45(1) of that Act.". (4) In section 23(4) of the Psychologists Registration Act 2000, after "1987" insert "or section 52 of the Health Records Act 2001". 137. New section 23A inserted into Psychologists Registration Act 2000 s. 136 s. 137 -- 129 of 156 -- Act No. 2/2001 Health Records Act 2001 124 After section 23 of the Psychologists Registration Act 2000 insert— "23A. Board may deal with health records complaint (1) The Board— (a) may accept a complaint, or part of a complaint, relating to a registered psychologist that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and (b) must treat a complaint, or part of a complaint, referred to it under section 52 of the Health Records Act 2001 as if it were made under this Act. (2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter. (3) Advice under sub-section (2) must include any information that the Health Services Commissioner specifies by written notice to the Board.". __________________ s. 137 -- 130 of 156 -- Act No. 2/2001 Health Records Act 2001 125 SCHEDULE 1 Section 19 THE HEALTH PRIVACY PRINCIPLES 1. Principle 1—Collection When health information may be collected 1.1 An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies— (a) the individual has consented; (b) the collection is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law); (c) the information is necessary to provide a health service to the individual and the individual is incapable of giving consent within the meaning of section 85(3) and— (i) it is not reasonably practicable to obtain the consent of an authorised representative of the individual within the meaning of section 85; or (ii) the individual does not have such an authorised representative; (d) the information is disclosed to the organisation in accordance with HPP 2.2(a), (f), (i) or (l) or HPP 2.5; (e) if the collection is necessary for research, or the compilation or analysis of statistics, in the public interest— (i) that purpose cannot be served by the collection of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained; and (ii) it is impracticable for the organisation to seek the individual's consent to the collection; and (iii) the information is collected in accordance with guidelines issued or approved by the Health Sch. 1 -- 131 of 156 -- Act No. 2/2001 Health Records Act 2001 126 Services Commissioner under section 22 for the purposes of this sub-paragraph; (f) the collection is necessary to prevent or lessen— (i) a serious and imminent threat to the life, health, safety or welfare of any individual; or (ii) a serious threat to public health, public safety or public welfare— and the information is collected in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph; (g) the collection is by or on behalf of a law enforcement agency and the organisation reasonably believes that the collection is necessary for a law enforcement function; (h) the collection is necessary for the establishment, exercise or defence of a legal or equitable claim; (i) the collection is in the prescribed circumstances. How health information is to be collected 1.2 An organisation must collect health information only by lawful and fair means and not in an unreasonably intrusive way. 1.3 If it is reasonable and practicable to do so, an organisation must collect health information about an individual only from that individual. 1.4 At or before the time (or, if that is not practicable, as soon as practicable thereafter) an organisation collects health information about an individual from the individual, the organisation must take steps that are reasonable in the circumstances to ensure that the individual is generally aware of— (a) the identity of the organisation and how to contact it; and (b) the fact that he or she is able to gain access to the information; and (c) the purposes for which the information is collected; and Sch. 1 -- 132 of 156 -- Act No. 2/2001 Health Records Act 2001 127 (d) to whom (or the types of individuals or organisations to which) the organisation usually discloses information of that kind; and (e) any law that requires the particular information to be collected; and (f) the main consequences (if any) for the individual if all or part of the information is not provided. 1.5 If an organisation collects health information about an individual from someone else, it must take any steps that are reasonable in the circumstances to ensure that the individual is or has been made aware of the matters listed in HPP 1.4 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual or would involve the disclosure of information given in confidence7. 1.6 An organisation is not required to notify the individual of the identity of persons, or classes of persons, to whom health information may be disclosed in accordance with HPP 2.2(f). Information given in confidence8 1.7 If personal information is given in confidence to a health service provider about an individual by a person other than— (a) the individual; or (b) a health service provider in the course of, or otherwise in relation to, the provision of health services to the individual— with a request that the information not be communicated to the individual to whom it relates, the provider must— (c) confirm with the person that the information is to remain confidential; and (d) if the information remains confidential— (i) record the information only if it is relevant to the provision of health services to, or the care of, the individual; and (ii) take reasonable steps to ensure that the information is accurate and not misleading; and (e) take reasonable steps to record that the information is given in confidence and is to remain confidential. Sch. 1 -- 133 of 156 -- Act No. 2/2001 Health Records Act 2001 128 2. Principle 2—Use and Disclosure9 2.1 An organisation may use or disclose health information about an individual for the primary purpose for which the information was collected in accordance with HPP 1.1. 2.2 An organisation must not use or disclose health information about an individual for a purpose (the "secondary purpose") other than the primary purpose for which the information was collected unless at least one of the following paragraphs applies10— (a) both of the following apply— (i) the secondary purpose is directly related to the primary purpose; and (ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or (b) the individual has consented to the use or disclosure; or (c) the use or disclosure is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law); or (d) all of the following apply— (i) the organisation is a health service provider providing a health service to the individual; and (ii) the use or disclosure for the secondary purpose is reasonably necessary for the provision of the health service; and (iii) the individual is incapable of giving consent within the meaning of section 85(3) and— (A) it is not reasonably practicable to obtain the consent of an authorised representative of the individual within the meaning of section 85; or (B) the individual does not have such an authorised representative; or (e) all of the following apply— (i) the organisation is a health service provider providing a health service to the individual; and Sch. 1 -- 134 of 156 -- Act No. 2/2001 Health Records Act 2001 129 (ii) the use is for the purpose of the provision of further health services to the individual by the organisation; and (iii) the organisation reasonably believes that the use is necessary to ensure that the further health services are provided safely and effectively; and (iv) the information is used in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph; or (f) the use or disclosure is for the purpose of— (i) funding, management, planning, monitoring, improvement or evaluation of health services; or (ii) training provided by a health service provider to employees or persons working with the organisation— and— (iii) that purpose cannot be served by the use or disclosure of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the individual's consent to the use or disclosure; or (iv) reasonable steps are taken to de-identify the information— and— (v) if the information is in a form that could reasonably be expected to identify individuals, the information is not published in a generally available publication; and (vi) the information is used or disclosed in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this sub- paragraph; or (g) if the use or disclosure is necessary for research, or the compilation or analysis of statistics, in the public interest— Sch. 1 -- 135 of 156 -- Act No. 2/2001 Health Records Act 2001 130 (i) it is impracticable for the organisation to seek the individual's consent before the use or disclosure; and (ii) that purpose cannot be served by the use or disclosure of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained; and (iii) the use or disclosure is in accordance with guidelines issued or approved by the Health Services Commissioner under section 22 for the purposes of this sub-paragraph; and (iv) in the case of disclosure— (A) the organisation reasonably believes that the recipient of the health information will not disclose the health information; and (B) the disclosure will not be published in a form that identifies particular individuals or from which an individual's identity can reasonably be ascertained; or (h) the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent— (i) a serious and imminent threat to an individual's life, health, safety or welfare; or (ii) a serious threat to public health, public safety or public welfare— and the information is used or disclosed in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph; or (i) 11the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the health information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities and, if the organisation is a registered health service provider, the use or disclosure would not be a breach of confidence; or (j) 12the organisation reasonably believes that the use or disclosure is reasonably necessary for a law Sch. 1 -- 136 of 156 -- Act No. 2/2001 Health Records Act 2001 131 enforcement function by or on behalf of a law enforcement agency and, if the organisation is a registered health service provider, the use or disclosure would not be a breach of confidence; or (k) the use or disclosure is necessary for the establishment, exercise or defence of a legal or equitable claim; or (l) the use or disclosure is in the prescribed circumstances. Note: Nothing in HPP 2 requires an organisation to disclose health information about an individual. An organisation is always entitled not to disclose health information in the absence of a legal obligation to disclose it. 2.3 If an organisation discloses health information under paragraph (i) or (j) of HPP 2.2, it must make a written note of the disclosure. 2.4 Despite HPP 2.2, a health service provider may disclose health information about an individual to an immediate family member of the individual if— (a) either— (i) the disclosure is necessary to provide appropriate health services to or care of the individual; or (ii) the disclosure is made for compassionate reasons; and (b) the disclosure is limited to the extent reasonable and necessary for the purposes mentioned in paragraph (a); and (c) the individual is incapable of giving consent to the disclosure within the meaning of section 85(3); and (d) the disclosure is not contrary to any wish— (i) expressed by the individual before the individual became incapable of giving consent and not changed or withdrawn by the individual before then; and (ii) of which the organisation is aware or could be made aware by taking reasonable steps; and (e) in the case of an immediate family member who is under the age of 18 years, considering the Sch. 1 -- 137 of 156 -- Act No. 2/2001 Health Records Act 2001 132 circumstances of the disclosure, the immediate family member has sufficient maturity to receive the information. 2.5 Despite HPP 2.2, an organisation may use or disclose health information about an individual where— (a) it is known or suspected that the individual is dead; or (b) it is known or suspected that the individual is missing; or (c) the individual has been involved in an accident or other misadventure and is incapable of consenting to the use or disclosure— and the use or disclosure is to the extent reasonably necessary— (d) to identify the individual; or (e) to ascertain the identity and location of an immediate family member or other relative of the individual for the purpose of— (i) enabling a member of the police force, a coroner or other prescribed organisation to contact the immediate family member or other relative for compassionate reasons; or (ii) to assist in the identification of the individual— and, in the circumstances referred to in paragraph (b) or (c)— (f) the use or disclosure is not contrary to any wish— (i) expressed by the individual before he or she went missing or became incapable of consenting and not withdrawn by the individual; and (ii) of which the organisation is aware or could have become aware by taking reasonable steps; and (g) the information is used or disclosed in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph. 3. Principle 3—Data Quality Sch. 1 Sch. 1 -- 138 of 156 -- Act No. 2/2001 Health Records Act 2001 133 3.1 An organisation must take steps that are reasonable in the circumstances to make sure that, having regard to the purpose for which the information is to be used, the health information it collects, uses, holds or discloses is accurate, complete, up to date and relevant to its functions or activities. 4. Principle 4—Data Security and Data Retention 4.1 An organisation must take reasonable steps to protect the health information it holds from misuse and loss and from unauthorised access, modification or disclosure. 4.2 A health service provider must not delete health information relating to an individual, even if it is later found or claimed to be inaccurate, unless— (a) the deletion is permitted, authorised or required by the regulations or any other law; or (b) the deletion is not contrary to the regulations or any other law and occurs— (i) in the case of health information collected while the individual was a child, after the individual attains the age of 25 years; or (ii) in any case, more than 7 years after the last occasion on which a health service was provided to the individual by the provider— whichever is the later. 4.3 A health service provider who deletes health information in accordance with HPP 4.2 must make a written note of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted. 4.4 A health service provider who transfers health information to another individual or organisation and does not continue to hold a record of that information must make a written note of the name and address of the individual or organisation to whom it was transferred. 4.5 An organisation other than a health service provider must take reasonable steps to destroy or permanently de-identify health information if it is no longer needed for the purpose -- 139 of 156 -- Act No. 2/2001 Health Records Act 2001 134 for which it was collected or any other purpose authorised by this Act, the regulations made under this Act or any other law. 5. Principle 5—Openness 5.1 An organisation must set out in a document— (a) clearly expressed policies on its management of health information; and (b) the steps that an individual must take in order to obtain access to their health information. The organisation must make the document available to anyone who asks for it. 5.2 On request by an individual, an organisation must take reasonable steps— (a) to let the individual know— (i) whether the organisation holds health information relating to the individual; and (ii) the steps that the individual should take if the individual wishes to obtain access to the information; and (b) if the organisation holds health information relating to the individual, to let the individual know in general terms— (i) the nature of the information; and (ii) the purposes for which the information is used; and (iii) how the organisation collects, holds, uses and discloses the information. 6. Principle 6—Access and Correction Access13 6.1 If an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual in accordance with Part 5, unless— (a) providing access would pose a serious threat to the life or health of any person under section 26 and refusing access is in accordance with guidelines, if any, issued or approved by the Health Services Sch. 1 -- 140 of 156 -- Act No. 2/2001 Health Records Act 2001 135 Commissioner under section 22 for the purposes of this paragraph; or (b) providing access would have an unreasonable impact on the privacy of other individuals and refusing access is in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph; or (c) the information relates to existing legal proceedings between the organisation and the individual and the information would not be accessible by the process of discovery in those proceedings14or is subject to legal professional privilege; or (d) providing access would reveal the intentions of the organisation in relation to negotiations, other than about the provision of a health service, with the individual in such a way as to expose the organisation unreasonably to disadvantage; or (e) the information is subject to confidentiality under section 27; or (f) providing access would be unlawful; or (g) denying access is required or authorised by or under law; or (h) providing access would be likely to prejudice an investigation of possible unlawful activity; or (i) providing access would be likely to prejudice a law enforcement function by or on behalf of a law enforcement agency; or (j) a law enforcement agency performing a lawful security function asks the organisation not to provide access to the information on the basis that providing access would be likely to cause damage to the security of Australia; or (k) the request for access is of a kind that has been made unsuccessfully on at least one previous occasion and there are no reasonable grounds for making the request again; or (l) the individual has been provided with access to the health information in accordance with Part 5 and is making an unreasonable, repeated request for access to the same information in the same way. Sch. 1 -- 141 of 156 -- Act No. 2/2001 Health Records Act 2001 136 6.2 However, where providing access would reveal evaluative information generated within the organisation in connection with a commercially sensitive decision-making process, the organisation may give the individual an explanation for the commercially sensitive decision rather than access to the information. Note: An organisation breaches HPP 6.1 if it relies on HPP 6.2 to give an individual an explanation for a commercially sensitive decision in circumstances where HPP 6.2 does not apply. 6.3 If access is refused on the ground that it would pose a serious threat to the life or health of the individual, the procedure in Division 3 of Part 5 applies. 6.4 Without limiting sections 26 and 27, nothing in this Principle compels an organisation to refuse to provide an individual with access to his or her health information. Correction 6.5 15If an organisation holds health information about an individual and the individual is able to establish that the information is inaccurate, incomplete, misleading or not up to date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up to date but must not delete the information otherwise than in accordance with HPP 4.2. 6.6 If— (a) the organisation is not willing to correct the health information in accordance with a request by the individual; and (b) no decision or recommendation to the effect that the information should be corrected wholly or partly in accordance with the request, is pending or has been made under this Act or any other law; and (c) the individual gives to the organisation a written statement concerning the requested correction— the organisation must take reasonable steps to associate the statement with the information. 6.7 If the organisation accepts the need to correct the health information but— (a) the organisation considers it likely that leaving incorrect information, even if corrected, could cause Sch. 1 Sch. 1 -- 142 of 156 -- Act No. 2/2001 Health Records Act 2001 137 harm to the individual or result in inappropriate health services or care being provided; or (b) the form in which the health information is held makes correction impossible; or (c) the corrections required are sufficiently complex or numerous for a real possibility of confusion or error to arise in relation to interpreting or reading the record if it were to be so corrected— the organisation must place the incorrect information on a record which is not generally available to anyone involved in providing health services to the individual, and to which access is restricted, and take reasonable steps to ensure that only the corrected information is generally available to anyone who may provide health services to the individual. 6.8 If an organisation corrects health information about an individual, it must— (a) if practicable, record with the correction the name of the person who made the correction and the date on which the correction is made; and (b) take reasonable steps to notify any health service providers to whom the organisation disclosed the health information before its correction and who may reasonably be expected to rely on that information in the future. 6.9 If an individual requests an organisation to correct health information about the individual, the organisation must take reasonable steps to notify the individual of a decision on the request as soon as practicable but in any case not later than 30 days after the request is received by the organisation. Written reasons 6.10 An organisation must provide written reasons for refusal of access16 or a refusal to correct health information. 7. Principle 7—Identifiers 7.1 An organisation may only assign identifiers to individuals if the assignment of identifiers is reasonably necessary to enable the organisation to carry out any of its functions efficiently. 7.2 Subject to HPP 7.4, a private sector organisation may only adopt as its own identifier of an individual an identifier of an individual that has been assigned by a public sector Sch. 1 -- 143 of 156 -- Act No. 2/2001 Health Records Act 2001 138 organisation (or by an agent of, or contractor to, a public sector organisation acting in its capacity as agent or contractor) if— (a) the individual has consented to the adoption of the same identifier; or (b) the use or disclosure of the identifier is required or authorised by or under law. 7.3 Subject to HPP 7.4, a private sector organisation may only use or disclose an identifier assigned to an individual by a public sector organisation (or by an agent of, or contractor to, a public sector organisation acting in its capacity as agent or contractor) if— (a) the use or disclosure is required for the purpose for which it was assigned or for a secondary purpose referred to in one or more of paragraphs (c) to (l) of HPP 2.2; or (b) the individual has consented to the use or disclosure; or (c) the disclosure is to the public sector organisation which assigned the identifier to enable the public sector organisation to identify the individual for its own purposes. 7.4 If the use or disclosure of an identifier assigned to an individual by a public sector organisation is necessary for a private sector organisation to fulfil its obligations to, or requirements of, the public sector organisation, a private sector organisation may either— (a) adopt as its own identifier of an individual an identifier of the individual that has been assigned by the public sector organisation; or (b) use or disclose an identifier of the individual that has been assigned by the public sector organisation. 8. Principle 8—Anonymity 8.1 Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation. 9. Principle 9—Transborder Data Flows Sch. 1 -- 144 of 156 -- Act No. 2/2001 Health Records Act 2001 139 9.1 An organisation may transfer health information about an individual to someone (other than the organisation or the individual) who is outside Victoria only if— (a) the organisation reasonably believes that the recipient of the information is subject to a law, binding scheme or contract which effectively upholds principles for fair handling of the information that are substantially similar to the Health Privacy Principles; or (b) the individual consents to the transfer; or (c) the transfer is necessary for the performance of a contract between the individual and the organisation, or for the implementation of pre-contractual measures taken in response to the individual's request; or (d) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the individual between the organisation and a third party; or (e) all of the following apply— (i) the transfer is for the benefit of the individual; (ii) it is impracticable to obtain the consent of the individual to that transfer; (iii) if it were practicable to obtain that consent, the individual would be likely to give it; or (f) the organisation has taken reasonable steps to ensure that the information which it has transferred will not be held, used or disclosed by the recipient of the information inconsistently with the Health Privacy Principles; or (g) the transfer is authorised or required by any other law. 10. Principle 10—Transfer or closure of the practice of a health service provider 10.1 This Principle applies if the practice or business of a health service provider ("the provider") is to be— (a) sold or otherwise transferred and the provider will not be providing health services in the new practice or business; or (b) closed down. Sch. 1 -- 145 of 156 -- Act No. 2/2001 Health Records Act 2001 140 10.2 The provider or, if the provider is deceased, the legal representatives of the provider, must— (a) publish a notice in a newspaper circulating in the locality of the practice or business stating— (i) that the practice or business has been, or is about to be, sold, transferred or closed down, as the case may be; and (ii) the manner in which the provider proposes to deal with the health information held by the practice or business about individuals who have received health services from the provider, including whether the provider proposes to retain the information or make it available for transfer to those individuals or their health service providers; and (b) take any other steps to notify individuals who have received a health service from the provider in accordance with guidelines issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph. 10.3 Not earlier than 21 days after giving notice in accordance with HPP 10.2, the person giving the notice must, in relation to health information about an individual held by, or on behalf of, the practice or business, elect to retain that information or transfer it to— (a) the health service provider, if any, who takes over the practice or business; or (b) the individual or a health service provider nominated by him or her. 10.4 A person who elects to retain health information must continue to hold it or transfer it to a competent organisation for safe storage in Victoria, until the time, if any, when the health information is destroyed in accordance with HPP 4. 10.5 Subject to HPP 10.2, a person must comply with the requirements of this Principle as soon as practicable. 10.6 Despite any other provision of the Health Privacy Principles, a person who transfers health information in accordance with this Principle does not, by so doing, contravene the Health Privacy Principles. Sch. 1 -- 146 of 156 -- Act No. 2/2001 Health Records Act 2001 141 10.7 If— (a) an individual, in response to a notice published under HPP 10.2, requests that health information be transferred to him or her or to a health service provider nominated by him or her; and (b) the person who published the notice elects to retain the health information— the request must be taken to be— (c) in the case of a request that the health information be transferred to him or her, a request for access to that health information in accordance with Part 5 or HPP 6; and (d) in the case of a request that the health information be transferred to a health service provider nominated by him or her, a request for the transfer of that health information in accordance with HPP 11— and it must be dealt with in accordance with this Act. 10.8 This Principle operates subject to any other law, including the Public Records Act 1973. 10.9 For the purposes of HPP 10.1(a), a business or practice of a provider is transferred if— (a) it is amalgamated with another organisation; and (b) the successor organisation which is the result of the amalgamation is a private sector organisation. 11. Principle 11—Making information available to another health service provider 11.1 If an individual— (a) requests a health service provider to make health information relating to the individual held by the provider available to another health service provider; or (b) authorises another health service provider to request a health service provider to make health information relating to the individual held by that provider available to the requesting health service provider— a health service provider to whom the request is made and who holds health information about the individual must, on Sch. 1 -- 147 of 156 -- Act No. 2/2001 Health Records Act 2001 142 payment of a fee not exceeding the prescribed maximum fee and subject to the regulations, provide a copy or written summary of that health information to that other health service provider. 11.2 A health service provider must comply with the requirements of this Principle as soon as practicable. 11.3 Nothing in Part 5 or HPP 6 limits the operation of this Principle. 11.4 For the purposes of HPP 10.7, this Principle applies to a legal representative of a deceased health service provider in the same way that it applies to a health service provider. ═══════════════ -- 148 of 156 -- Act No. 2/2001 Health Records Act 2001 143 ENDNOTES † 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 "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 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. 10 Sch. 1 HPP 2.2: A use or disclosure may be permitted under more than one paragraph of HPP 2.2. Endnotes -- 149 of 156 -- Act No. 2/2001 Health Records Act 2001 144 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. 13 Sch. 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. 14 Sch. 1 HPP 6.1(c): See also section 96. 15 Sch. 1 HPP 6.5: See HPP 4.2 and HPP 4.3 for deletion or destruction of health information. 16 Sch. 1 HPP 6.10: See section 35 regarding refusal of access. -- 150 of 156 -- Act No. 2/2001 Health Records Act 2001 145 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 Actamendments to other Acts 101–137 application to deceased persons 95 application to private sector 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 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 -- 151 of 156 -- Act No. 2/2001 Health Records Act 2001 146 Subject Section conciliation 56, 58, 59–63 dismissal 51, 53, 57, 63, 78 expediting of 45 grounds for 45 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 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 unlawfully required 80 Courts exemptions from Act 14 Damages 78 Deceased persons application of Act to 95 complaints about interference with privacy of 45 -- 152 of 156 -- Act No. 2/2001 Health Records Act 2001 147 Subject Section Definitions authorised representative 85 child 3 consent 3 correct 3 Council 3 disability 3 enactment 3 false representation 79 Federal Privacy Commissioner 3 generally available publication 3 health information 3 Health Privacy Principle 3 HPP 3 health service 3 health service provider 3 Health Services Commissioner 3 Health Services Review Council 3 identifier 3 illness 3 immediate family member 3 individual 3 law enforcement agency 3 law enforcement function 3 legal representative 3 news activity 3 news medium 3 organisation 3 parent 3 personal information 3 Privacy Commissioner 3 private sector organisation 3 public register 3 public sector agency 3 public sector organisation 3 registered health service provider 3 registered medical practitioner 3 registration board 3 relative 3 sibling 3 State contract 3 the Tribunal 3 Evidence inadmissibility 62 Exemptions courts and tribunals 14 documents under Freedom of Information Act 1982 16 -- 153 of 156 -- Act No. 2/2001 Health Records Act 2001 148 Subject Section news media 17 personal, family or household affairs 13 publicly available health information 15 False representation 79 Federal Privacy Commissioner 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 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 19–21, Sch. 1 Health service providers complaints about 52, 55, 58 function when access to health information denied 42 nomination process 38–41 terms and conditions of contracts 44 Health Services Commissioner delegation of powers 91 duty to provide assistance in making of complaints 45 functions 87 powers in general 88 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 -- 154 of 156 -- Act No. 2/2001 Health Records Act 2001 149 Subject Section Impairment See People with impairment Interim orders 73 Legal professional privilege 96 Legal representatives 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 exemptions from Act 17 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 19–21, Sch. 1 interference with 18, 45 See also Complaints Privacy Commissioner referral of complaints to 51 Private sector organisations application of Act 11–12 Prosecutions 94 Public registers Tribunal orders regarding 78 Public sector organisations application of Act 10 -- 155 of 156 -- Act No. 2/2001 Health Records Act 2001 150 Subject Section Publicly available health information exemptions from Act 15 Registration boards copies of complaints referred to other authorities 55 copies of HS Commissioner's rulings 64 inadmissible evidence in hearings before 62 referral of complaints about providers to 52, 58 Regulations 100 Secrecy 90 Self-incrimination protection against 70 Supreme Court limitation of jurisdiction 99 Tribunals 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 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– -- 156 of 156 --