HEALTH RECORDS (PRIVACY AND ACCESS) ACT 1997 - SCHEDULE 1
HEALTH RECORDS (PRIVACY AND ACCESS) ACT 1997 - SCHEDULE 1
Schedule 1 The privacy principles
(see s 5)
Principle 1: Manner and purpose of collection of personal health information
1 A collector must not collect personal health information for inclusion in a health record or in a generally available publication unless—
(a) the information is collected for a lawful purpose that is directly related to a function or activity of the collector; and
(b) the collection of the information is necessary for or directly related to that purpose.
2 A collector must not collect personal health information by unlawful or unfair means.
3 Where personal health information or health records are required to be collected by someone as part of their employment for the management, funding or quality of a health service received by the consumer, then that person is allowed access to the information only for those purposes, unless these principles otherwise provide.
Principle 2: Purpose of collection of personal health information to be made known
1 Subject to clause 2 of this principle, where—
(a) a collector collects personal health information for inclusion in a health record or in a generally available publication; and
(b) the information is solicited by the collector from the consumer concerned;
the collector must take such steps (if any) as are reasonable in the circumstances to ensure that, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the consumer is generally aware of—
(c) the purpose for which the information is being collected; and
(d) if the collection of the information is required or authorised by law—the fact that the collection of the information is so required or authorised; and
(e) unless it is obvious from the circumstances of any health service provided—the identity of all members of the treating team who will have access to the consumer's personal health information; and
(f) the identity of any person to whom, or agency to which, the collector would, in accordance with the collector's usual practice, disclose the information for inclusion in a health record or in a generally available publication; and
(g) if it is, to the knowledge of the collector, the usual practice of any such person or agency to pass on such information to other persons or agencies—the identity of each of those other persons or agencies.
2 The collector is not required to notify the consumer of the identity of individuals, or classes of individuals, who are employed by the collector and who are required for the management, funding or quality of the health service received by the consumer to handle health records or personal health information as part of their employment.
Principle 3: Solicitation of personal health information generally
Where—
(a) a collector collects personal health information about a consumer for inclusion in a record or in a generally available publication; and
(b) the information is solicited by the collector;
the collector must take such steps (if any) as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is collected—
(c) the information is relevant, up to date and accurate; and
(d) the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the consumer.
Principle 4.1: Storage, security and destruction of personal health information—safekeeping requirement
1 A record keeper who has possession or control of a health record must ensure that—
(a) the record is protected, by reasonable security safeguards, against each of the following:
(i) loss;
(ii) unauthorised access, use, modification or disclosure;
(iii) other misuse; and
(b) if the record is given to another entity—everything reasonably within the power of the record keeper is done to prevent unauthorised use or disclosure of any information contained in the record.
2 A record keeper must keep, and must not destroy, a health record about a consumer, even if it is later found or claimed to be inaccurate.
3 However, clause 2 does not apply to the destruction of a health record about a consumer if—
(a) the destruction is required or allowed under a law of the Territory; or
Note Law of the Territory —see dict.
(b) the destruction is not prohibited under any other law and happens after—
(i) if the consumer is under 18 years old when the information is collected—the day the consumer turns 25 years old; or
(ii) if the consumer is an adult when the information is collected—7 years after the day a service was last provided to the consumer by the record keeper; or
(c) an electronic copy of the record has been generated—
(i) by a method described in the Electronic Transactions Act 2001
, section 11 (2) (b); and
(ii) when the record is destroyed it is reasonable to expect that the information contained in the electronic copy will be readily accessible so as to be useable for subsequent reference.
Note The Electronic Transactions Act 2001
, section 11 (Retention of information and documents) provides that, if a person is required to retain a document, the requirement is taken to be met if the person retains an electronic form of the document.
Principle 4.2: Storage, security and destruction of personal health information—register of destroyed or transferred records
1 A record keeper must keep a register of records that have been destroyed or transferred to another entity.
Note Entity includes a person (see Legislation Act
, dict, pt 1).
2 The register must identify the following for records that have been destroyed or transferred:
(a) the consumer to whom the record relates;
(b) the period of time the record covers;
(c) for a destroyed record—the date the record was destroyed;
(d) for a transferred record—the entity to which the record has been transferred.
3 A record keeper need not keep a record on the register under clause 1 for longer than 7 years after the day the record is made.
Principle 4.3: Storage, security and destruction of personal health information—destruction of health information
1 Health information may be kept by a health service provider if it is needed for the purpose for which it was collected, or another purpose allowed under a law of the Territory, even if its destruction is allowed under principle 4.1.
2 An entity other than a health service provider must take reasonable steps to destroy, or permanently deidentify, health information if it is no longer needed for the purpose for which it was collected or for any other purpose allowed under a law of the Territory.
Principle 5: Information relating to records kept by record keeper
1 A record keeper who has possession or control of health records must, subject to clause 2 of this principle, take such steps as are reasonable in the circumstances to enable any consumer to ascertain—
(a) whether the record keeper has possession or control of any health records, or personal health information, relating to the consumer; and
(b) if so—
(i) the nature of the records or information; and
(ii) the main purposes for which the records are, or the information is, used; and
(iii) the steps that the person should take if the person wishes to obtain access to the records or the information.
2 A record keeper is not required to give a person information if, under a law of the Territory (including this Act) or a law of the Commonwealth, the record keeper is required or authorised to refuse to give that information to the person.
Principle 6: Access to health records by people other than the consumer
1 A health service provider who is a member of a treating team for a consumer may have access to the personal health information about the consumer so far as necessary for the provision by the provider of a health service to the consumer.
2 If a person reasonably requires access to personal health information about a consumer for the purpose of the management, funding or quality of a health service received, or being received, by the consumer, the person may have access to the extent necessary for that purpose without the consumer's consent.
3 A treating health service provider for a consumer may disclose personal health information about the consumer to an immediate family member if—
(a) the disclosure is made for compassionate reasons; and
(b) the provider believes, on reasonable grounds, that the disclosure would be expected by the consumer; and
(c) the disclosure is not contrary to any wishes previously expressed by the consumer that the provider is, or ought reasonably to be, aware of.
Note Section 17 deals with information subject to confidentiality.
4 An entity must not require a consumer, directly or indirectly, to obtain or grant access to a health record about the consumer unless the entity is required or allowed to make the requirement under—
(a) a law of the Territory; or
(b) a law of the Commonwealth; or
(c) an order of a court.
Principle 7: Alteration of health records
1 A person must not delete information from a health record, even where it is later found or claimed to be inaccurate, unless the deletion is part of a program of archival destruction.
2 A record keeper who has possession or control of a health record must take such steps, by way of making appropriate corrections and additions as are reasonable in the circumstances, to ensure that the record is—
(a) up to date and accurate; and
(b) relevant to the purpose for which the information was collected or is to be used and to any other purpose that is directly related to that purpose.
3 Where—
(a) the record keeper of a health record is not willing to amend that record, by making a correction or an addition, in accordance with a request by the consumer concerned; and
(b) no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request is pending, or has been made, under a law of the Territory (including this Act) or a law of the Commonwealth;
the record keeper must, if the consumer gives to the record keeper a written statement concerning the requested correction or addition, take such steps as are reasonable in the circumstances to include the statement in the record.
4 Where the record keeper accepts the need to amend the health record but—
(a) the record keeper considers it likely that leaving incorrect information on a health record, even if corrected, could cause harm to the consumer or result in incorrect health care treatment or assistance being provided; or
(b) the form in which the record 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 amended;
the record keeper must place the incorrect information on a record which is not generally available to the consumer's treating practitioner or treating team, and to which access is restricted, and take such steps as are reasonable in the circumstances to ensure that only the corrected copy is generally available to the practitioner or treating team.
Principle 8: Record keeper to check accuracy etc of personal health information before use etc
1 A record keeper who has possession or control of a health record must not use personal health information in that record without taking such steps (if any) as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is up to date and accurate.
2 Where a person gives information in confidence to a health service provider about a consumer, the provider must—
(a) encourage the person to waive the requirement of confidentiality; and
(b) if the information remains confidential—
(i) record the information only if it is likely to assist in the treatment or care of the consumer; and
(ii) take such steps (if any) as are reasonable in the circumstances to ensure that the information is accurate and not misleading.
Principle 9: Limits on use of personal health information
1 Except where personal health information is being shared between members of a treating team to the extent necessary to improve or maintain the consumer's health or to manage a disability of the consumer, a record keeper who has possession or control of a health record that was obtained for a particular purpose must not use the information for any other purpose unless—
(a) the consumer has consented to use of the information for that other purpose; or
(b) the record keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a significant risk to the life or physical, mental or emotional health of the consumer or another person; or
(c) use of the information for that other purpose is required or authorised by—
(i) a law of the Territory; or
(ii) a law of the Commonwealth; or
(iii) an order of a court of competent jurisdiction;
(d) the purpose for which the information is used is directly related to the purpose for which the information was obtained; or
(e) the use of the information is related to the management, funding or quality of the health service received by the consumer.
2 In relation to the sharing of information among a treating team, unless it is obvious from the circumstances or context of the health service, the person in charge of the treating team must inform the consumer of the identity of all members of the treating team who will have access to the consumer's personal health information.
3 The treating team leader is not required to notify the consumer of the identity of individuals, or of classes of individuals, who are required for the management, funding or quality of the health service received by the consumer to handle health records or personal health information.
Principle 10: Limits on disclosure of personal health information
1 A record keeper who has possession or control of a health record must not disclose personal health information about a consumer from the record to an entity other than the consumer.
2 Clause 1 does not apply to the disclosure of personal health information about a consumer to an entity if—
(a) the information is being shared between members of a treating team for the consumer only to the extent necessary to improve or maintain the consumer's health or manage a disability of the consumer; or
(b) the consumer is reasonably likely to have been aware, or to have been made aware under principle 2, that information of the kind disclosed is usually disclosed to the entity; or
(c) the consumer has consented to the disclosure; or
(d) the record keeper believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent risk to the life or physical, mental or emotional health of the consumer or someone else; or
(e) the disclosure is required or allowed under—
(i) a law of the Territory (including this Act); or
Note Disclosure is allowed under cl 8, cl 9 and cl 10.
(ii) a law of the Commonwealth; or
(iii) an order of a court; or
(f) the disclosure of the information is necessary for the management, funding or quality of the health service received, or being received, by the consumer.
3 Clause 1 also does not apply to the disclosure of personal health information about a consumer to an entity if—
(a) the disclosure is necessary for the purpose of research or the compilation or analysis of statistics, in the public interest; and
(b) it is impracticable to seek the consumer's consent before disclosure; and
(c) the purpose mentioned in paragraph (a) cannot be achieved by the disclosure of information that does not identify the consumer and from which the consumer's identity cannot reasonably be worked out; and
(d) the entity is required for any disclosed information ( identifiable information ) that identifies the consumer, or from which the consumer's identity can be reasonably worked out—
(i) to provide protection that is at least equal to that of this Act and that prevents any further disclosure of it; and
(ii) to take reasonable steps to deidentify the information and destroy identifiable information at the earliest possible opportunity; and
(iii) to ensure that identifiable information is not made publicly available.
(e) the disclosure is in accordance with guidelines prescribed by regulation for this clause; and
(f) the record keeper believes, on reasonable grounds, that the recipient of the health information will not disclose the personal health information.
4 Clause 1 also does not apply to the disclosure of personal health information about a consumer to the consumer's carer if—
(a) the consumer cannot give or withhold consent to the disclosure, whether or not because the consumer is a—
(i) child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person's request to access a health record and the nature of the record; or
(ii) legally incompetent person; and
(b) in the record keeper's opinion, the disclosure is necessary to enable the carer to safely and effectively provide appropriate services to, or care for, the consumer.
5 In relation to the sharing of information among the treating team under clause 2 (a), unless it is obvious from the circumstances and context of the health service, the person in charge of the treating team must tell the consumer about the identity of each member of the treating team who will have access to the personal health information about the consumer.
6 However, the treating team leader need not tell the consumer about the identity of individuals who are required to handle health records, or personal health information about the consumer, for the management, funding or quality of the health service received, or being received, by the consumer.
7 A consent given by a consumer for clause 2 (c) must—
(a) be in writing and signed—
(i) if the consumer is a child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person's request to access a health record and the nature of the record—by a person with parental responsibility for the consumer; or
(ii) if the consumer is a legally incompetent person—by a guardian of the consumer; or
(iii) in any other case—by the consumer; and
(b) name the health service provider who made the record.
8 An entity to which information is disclosed under clause 2, clause 3 or clause 4 must not use or disclose the information for a purpose other than the purpose for which the information was given to the entity.
9 If there is an emergency and a consumer cannot give or withhold consent to the disclosure of personal health information about the consumer, the treating health service provider may discuss relevant personal health information with an immediate family member of the consumer to the extent reasonable and necessary for the proper treatment of the consumer.
10 A treating health service provider for a consumer may disclose personal health information about the consumer to the consumer's carer if—
(a) the consumer cannot give or withhold consent to the disclosure, whether or not because the consumer is a child, young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person's request to access the health record and the nature of the record or legally incompetent person; and
(b) in the provider's opinion, the disclosure is necessary to enable the carer to safely and effectively provide appropriate services to, or care for, the consumer.
11 A treating health service provider for a consumer may disclose personal health information about the consumer to an immediate family member if—
(a) the consumer cannot give or withhold consent to the disclosure, whether or not because the consumer is—
(i) a child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person's request to access the health record and the nature of the record; or
(ii) a legally incompetent person; and
(b) the disclosure is made for compassionate reasons; and
(c) the provider believes, on reasonable grounds, that the disclosure would be, or would have been, expected by the consumer; and
(d) the disclosure is not contrary to any wishes previously expressed by the consumer of which the provider is aware or ought reasonably to be aware.
Example for par (a)
Jo has died, and Jo's daughter who has looked after him for many years cannot understand why he died when he seemed to have recovered from a recent illness. She is extremely distressed. Subject to clause 11 (c) and (d), the treating health service provider may disclose personal health information about Jo's illness if she considers that the disclosure would help Jo's daughter.
12 In this principle:
"carer", of a consumer, means a person who gives care, support or assistance to the consumer but does not include—
(a) a person who gives short-term care, support or assistance to the consumer; or
(b) a person who gives care, support or assistance to the consumer—
(i) under a commercial arrangement, or an arrangement that is substantially commercial; or
(ii) in the course of doing voluntary work for a charitable, welfare or community organisation; or
(iii) as part of a course of education or training; or
Examples—people not included as carers
1 Yiannis is the principal of Haig Park Primary School. Although Yiannis owes a duty of care to the students at Haig Park Primary School, Yiannis is not a carer for the purposes of principle 10.
2 The ACAT makes an order under the Guardianship and Management of Property Act 1991
, s 7 (2) appointing Tash as a guardian for Olympia. Even though Tash has a guardianship order in relation to Olympia, Tash is not a carer for the purposes of principle 10. Tash would need to give Olympia care, support or assistance to be a carer.
(c) a person just because the person—
(i) is the domestic partner, parent, child or other relative, or guardian of the consumer; or
(ii) lives with the consumer.
Principle 11: Relocation and closure of health service practice
1 This principle applies if a health service practice is or is proposed to be—
(a) relocated; or
(b) permanently closed.
2 Not later than 30 days before the proposed relocation or closure, the provider must—
(a) give public notice of the relocation or closure (a transfer notice ); and
(b) take other practicable steps to inform each consumer who has attended the health service practice of the matters mentioned in the transfer notice.
Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act
, dict, pt 1).
3 The transfer notice must state—
(a) that the consumer may request (a transfer request ) that a copy or written summary of the consumer's health record be given to the consumer or a health service provider nominated by the consumer; and
(b) that the transfer request must be made not later than
14 days after the day the transfer notice (the transfer request period ) is
published; and
(c) if a fee has been determined under section 34 for this principle—that there is a fee that the consumer must pay before the provider will give a copy or written summary of the record to the consumer or health service provider nominated by the consumer; and
(d) that if the consumer does not make a transfer request within the transfer request period, a copy of the consumer's health record will be given to a stated health service provider or record keeper; and
(e) the stated health service provider's or record keeper's address and contact details.
4 As soon as practicable after publishing the transfer notice, the provider must give a copy of the transfer notice, or written notice of the information in the transfer notice, to the director-general.
Note 1 Director-general means the director-general of the administrative unit responsible for this Act (see Legislation Act
, s 163). Administrative units are established under the administrative arrangements (see Public Sector Management Act 1994
, s 13).
Note 2 Notice may be given electronically in certain circumstances (see Electronic Transactions Act 2001
, s 8).
5 If a consumer has made a transfer request, the provider must give the consumer or the consumer's nominated health service provider the requested copy or written summary of the consumer's health record as soon as practicable but not later than the later of—
(a) if a fee is payable for this principle—7 days after the day the fee is paid; and
(b) 30 days after the day the provider receives the transfer request.
6 If, however, the consumer is receiving or needs urgent health services, the provider must give the consumer or the consumer's nominated health service provider the requested copy or written summary of the consumer's health record as soon as practicable but not later than 7 days after the day the provider receives the transfer request.
Note Urgent health services —see cl 11 and cl 12.
7 If a consumer does not make a transfer request within the transfer request period, the provider must, within 30 days after the end of the transfer request period, give a copy of the consumer's health records to the health service provider or record keeper stated in the transfer notice.
Note 1 If the original or copy of a consumer's health record is given to another health service provider (the new provider ) or other record keeper (the "new record keeper")—
• the consumer may ask the new provider or new record keeper for access to the consumer's health record (see s 10 and s 12); and
• the new provider or new record keeper must give the consumer access to the consumer's health records in accordance with the Act (for example, see s 13 to s 13D).
Note 2 A fee may be payable by the consumer for certain types of access (see s 10 (7) and s 13 (2) (d) (ii)).
8 If a record keeper holds health records following the relocation or closure of a health service practice, the record keeper must promptly notify the director-general of any change to—
(a) the record keeper's contact details; or
(b) the location of the stored health records.
9 The director-general must promptly give a copy of a notice under clause 4 or clause 8 to the health services commissioner.
10 If this principle applies because a sole provider in a health service practice dies or becomes legally incompetent, a legal representative or guardian of the provider must comply with the requirements of this principle as soon as practicable.
11 It is sufficient to establish that a consumer is receiving or needs urgent health services for prioritising the giving of records by a provider (the record holder ) if another health service provider advises the record holder that the consumer is receiving or needs urgent health services.
12 However—
(a) an advice under clause 11 need not be in writing; and
(b) the record keeper may be satisfied that a consumer is receiving or needs urgent health services without an advice mentioned in clause 11.
13 The requirement under clause 5, clause 6 or clause 7 to give a copy of the consumer's health record is taken to be satisfied if the original of the record is given.
14 To remove doubt, clause 13 does not require a provider to give the original of the consumer's health record.
15 In this principle:
"health record" means a health record held by, or on behalf of, the provider.
"health service practice "means the business or premises where a health service provider provides health services.
"provider" means—
(a) the provider of a health service practice; or
(b) if the provider is legally incompetent—the guardian of the provider; or
(c) if the provider is dead—the legal representative of the provider.
"relocate", a practice, includes—
(a) relocate to another premises or location; or
(b) stop, temporarily or otherwise, the provision of health services at a particular location.
"transfer notice"—see clause 2 (a).
"transfer request"—see clause 3 (a).
"transfer request period"—see clause 3 (b).
Principle 12.1: Consumer moves to another health service provider
1 If a consumer moves from 1 health service provider (the first provider ) to another health service provider (the second provider ), the consumer may ask the first provider to give the second provider a copy or written summary of the consumer's health record.
2 If the first provider receives a request under clause 1 (a "transfer request"), the first provider must—
(a) if a fee has been determined under section 34 for this principle—not later than 7 days after the day the first provider receives the transfer request, give the consumer notice that the consumer must pay a stated fee before the first provider will give the second provider the requested copy or written summary of the consumer's health record; or
(b) not later than 30 days after the day the first provider receives the transfer request, give the second provider the requested copy or written summary of the consumer's health record.
3 If the consumer pays the fee stated in a notice under clause 2 (a), the first provider must give the second provider the requested copy or written summary of the consumer's health record not later than the later of—
(a) 7 days after the day the fee is paid; and
(b) 30 days after the day the first provider receives the transfer request.
4 If the consumer is receiving or needs urgent health services, the first provider must give the second provider the requested copy or written summary of the consumer's health record as soon as practicable but not later than 7 days after the day the first provider receives the transfer request.
5 It is sufficient to establish that a consumer is receiving or needs urgent health services for prioritising the giving of records by the first provider (the record holder ) if another health service provider advises the record holder that the consumer is receiving or needs urgent health services.
6 However—
(a) an advice under clause 5 need not be in writing; and
(b) the record keeper may be satisfied that a consumer is receiving or needs urgent health services without an advice mentioned in clause 5.
7 The requirement under clause 2 (b), clause 3 or clause 4 to give a copy of the consumer's health record to the second provider is taken to be satisfied if the original of the record is given.
8 To remove doubt, clause 7 does not require the first provider to give the original of the consumer's health record to the second provider.
9 In this principle:
"first provider"—
(a) see clause 1; and
(b) includes—
(i) if the first provider becomes legally incompetent—a guardian of the provider; or
(ii) if the first provider dies—a legal representative of the provider.
"health record" means a health record held by, or on behalf of, the first provider.
"second provider"—see clause 1.
"transfer request"—see clause 2.
Principle 12.2: Health service provider moves to another health service practice
1 If a health service provider (the provider ) moves from 1 health service practice (the first practice ) to another health service practice and a consumer continues to see the provider, the consumer may ask the first practice to give the provider a copy or written summary of the consumer's health record.
2 If the first practice receives a request under clause 1 (a "transfer request"), the first practice must—
(a) if a fee has been determined under section 34 for this principle—not later than 7 days after the day the first practice receives the transfer request, give the consumer notice that the consumer must pay a stated fee before the first practice will give the provider the requested copy or written summary of the consumer's health record; or
(b) not later than 30 days after the day the first practice receives the transfer request, give the provider the requested copy or written summary of the consumer's health record.
3 If the consumer pays the fee stated in a notice under clause 2 (a), the first practice must give the provider the requested copy or written summary of the record not later than the later of—
(a) 7 days after the day the fee is paid; and
(b) 30 days after the day the first practice receives the transfer request.
4 If the consumer is receiving or needs urgent health services, the first practice must give the provider the requested copy or written summary of the consumer's health record as soon as practicable but not later than 7 days after the day the first practice receives the transfer request.
5 It is sufficient to establish that a consumer is receiving or needs urgent health services for prioritising the giving of records by the first practice (the record holder ) if another health service provider advises the first practice that the consumer is receiving or needs urgent health services.
6 However—
(a) an advice under clause 5 need not be in writing; and
(b) the record keeper may be satisfied that a consumer is receiving or needs urgent health services without an advice mentioned in clause 5.
7 The requirement under clause 2 (b), clause 3 or clause 4 to give a copy of the consumer's health record to the provider is taken to be satisfied if the original of the record is given.
8 To remove doubt, clause 7 does not require the first practice to give the original of the consumer's health record to the provider.
9 In this principle:
"first practice"—see clause 1.
"health record" means a health record held by, or on behalf of, the first provider.
"health service practice "means the business or premises where a health service provider provides health services.
"provider"—see clause 1.
"transfer request"—see clause 2.