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Privacy and capacity

Information about the exceptions to divulging private health information if a patient lacks capacity to consent or to understand treatment.

There are exemptions to restrictions on disclosing personal health information to others at both state and Commonwealth laws.

Commonwealth

Despite Australian Privacy Principle 6 which sets out the rules for disclosure of personal information, the Privacy Act 1988 allows private health information, relating to a service that they have provided to a person (the patient), to be disclosed if the patient is physically or legally incapable of giving consent to the disclosure of the information and the person who is given the information is a carer for the person. The person who is providing the health information must be satisfied that the disclosure is necessary to provide appropriate care or treatment to the patient. It can also be made on compassionate grounds.

For example, this allows a carer to be able to get the information that they need about medications, directions about treatment and diet needed to care for a patient when they are sent home from hospital.

Information may be divulged on compassionate grounds about the likely outcome of a person's health and wellbeing, for example if the patient is terminally ill.

See s. 16B(5) and Schedule APP6—Privacy Act 1988 (Cth) (link below)

Victorian law

Most of the concerns about invasion of health privacy are likely to be covered under Victorian law. This is because hospitals, medical practitioners and other health service providers come under state jurisdiction.

A patient is incapable of giving consent if they are incapable because of age, injury, disease, senility, illness, disability, physical impairment or mental disorder to:

  • understand the general nature and effect of giving of consent, exercising a right of access, or making a request, or
  • communicate their consent, refusal of consent, making a request or personally exercising the right to access information.

See s. 85(3)—Health Records Act 2001 (Vic) (link below)

If consent is needed for the collection, use or disclosure of health information, or to the transfer of health information outside Victoria, the power to give consent may be exercised on behalf of a patient who is incapable of giving consent by an authorised representative of the patient.

An authorised representative is a person who is a guardian, attorney, or agent under Medical Treatment Act 1988, administrator, or parent or someone who is empowered by law to perform functions or duties or to exercise powers as an agent of, or acting in the best interests of the person.

This can only be done if the information is reasonably necessary for the authorised person to perform functions or duties, or to exercise powers for the patient.

Access to information

A supportive attorney acting under the Powers of Attorney Act 2014 (Vic) may request access to, or the correction of health information for a person. An authorised representative may also do this if it is reasonably necessary.

Can the family be told?

Disclosure to the immediate family is permitted if the patient is incapable of giving consent, has no authorised representative and has not expressed a prohibition on disclosing this information at a time when they were capable.

An immediate family member of a person is:

  • a person who is a parent, child or sibling
  • a spouse or domestic partner
  • member of the person's household who is a relative
  • person nominated to a health service provider by the individual as a person to whom health information may be disclosed.

If the disclosure is made to a person under 18 the health provider must consider the circumstances of the disclosure to decide whether they are mature enough to receive the information.

See ss. 85(3), (6) and 1.1, 2 Schedule 1—Health Records Act 2001 (Vic) (link below)

More information

Legislation

Privacy Act 1988 (Cth)

  • s. 16B(5)—disclosure in situations where person is physically or legally incapable of giving consent
  • Schedule—APP 6—use or disclosure of personal information

See Privacy Act 1988 (Cth).

Health Records Act 2001 (Vic)

  • s. 3(1)—defines an 'immediate family member'
  • s. 85—capacity to consent or make a request or exercise right of access.
  • Privacy Principle 1—How health information is to be collected
  • Privacy Principle 2—Use and disclosure

See Health Records Act 2001 (Vic).

Powers of Attorney Act 2014 (Vic)

See Powers of Attorney Act 2014 (Vic).

Related pages

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