Div 2AConfidential communications and protected health information

Division 2A—Confidential communications and protected health information S. 32AB inserted by No. 2/2006 s. 27, amended by Nos 68/2009 s. 97(Sch. item 54.4), 52/2012 s. 15. 32AB Guiding principles It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that— (a) there is a high incidence of sexual violence within society; and (b) sexual offences are significantly under-reported; and (c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and (d) offenders are commonly known to their victims; and (e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred. S. 32B inserted by No. 21/1998 32B Definitions (1) In this Division— S. 32B(1) def. of *applicant for leave* inserted by No. 38/2022 s. 82(1). ***applicant for leave*** means a party that applies for leave under section 32C(1); S. 32B(1) def. of *civil proceeding* inserted by No. 38/2022 s. 82(1). ***civil proceeding*** means any proceeding in a court other than a criminal proceeding; ***confidential communication*** means a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred; S. 32B(1) def. of *confidential statement* inserted by No. 38/2022 s. 82(1). ***confidential statement*** has the meaning given by section 32CE(2); ***counsellor*** means a person who is treating a person for an emotional or psychological condition; ***harm*** includes actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear); S. 32B(1) def. of *held* inserted by No. 38/2022 s. 82(1). ***held***, in relation to protected health information, has the meaning given by section 5 of the **Health Records Act 2001**; S. 32B(1) def. of *protected confider* repealed by No. 38/2022 s. 82(2). S. 32B(1) def. of *protected evidence* amended by No. 2/2006 s. 28. ***protected evidence*** means evidence that is protected from being produced or adduced by section 32C(1); S. 32B(1) def. of *protected health information* inserted by No. 38/2022 s. 82(1). ***protected health information*** has the meaning given by section 32BA; ***protected identity information***, in relation to a person, is information about, or enabling a person to ascertain, the address (including a private, business or official address) or telephone number (including a private, business or official telephone number) of the person; S. 32B(1) def. of *protected person* inserted by No. 38/2022 s. 82(1). ***protected person*** means— (a) in relation to a confidential communication—the person who made the communication; or (b) in relation to protected health information—the person whom that information is about; S. 32B(1) def. of *registered medical practitioner* amended by No. 97/2005 s. 182(Sch. 4 item 19.1), substituted by No. 13/2010 s. 51(Sch. item 22.1). ***registered medical practitioner*** means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); ***sexual offence*** means an offence to which clause 1 of Schedule 1 to the **Sentencing Act 1991** applies. (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication or further the treatment or counselling process. S. 32BA inserted by No. 38/2022 s. 83. 32BA Meaning of *protected health information* (1) In this Division, health information is ***protected health information*** for the purposes of a proceeding if— (a) the proceeding is a criminal proceeding; and (b) the proceeding relates (wholly or partly) to a charge for a sexual offence; and (c) the health information is about a person against whom— (i) that sexual offence is alleged to have been committed; or (ii) any other sexual offence has been committed or is alleged to have been committed; and (d) the person who recorded or collected the information (or, if the information is an opinion, formed that opinion) did so in a professional capacity. (2) It does not matter whether the information was recorded or collected (or, if the information is an opinion, was formed) before or after the conduct constituting the sexual offence occurred or is alleged to have occurred. (3) In this section— ***health information*** has the same meaning as in the **Health Records Act 2001**. S. 32C (Heading) inserted by No. 38/2022 s. 84(1). S. 32C inserted by No. 21/1998 32C Exclusion of evidence of confidential communications and protected health information S. 32C(1AA) inserted by No. 38/2022 s. 84(2). (1AA) This section applies to the following information— (a) in a civil proceeding, a confidential communication; (b) in a criminal proceeding— (i) a confidential communication; or (ii) protected health information. S. 32C(1) substituted by No. 2/2006 s. 29(1), amended by No. 38/2022 s. 84(4). (1) In a legal proceeding— S. 32C(1)(a) amended by No. 38/2022 s. 84(3). (a) a party cannot seek to compel another party to produce a document containing information to which this section applies; S. 32C(1)(b) amended by No. 38/2022 s. 84(3). (b) a document is not to be produced if it would disclose information to which this section applies; (c) evidence is not to be adduced if it would disclose— S. 32C(1)(c)(i) amended by No. 38/2022 s. 84(3). (i) information to which this section applies; or S. 32C(1)(c)(ii) amended by No. 38/2022 s. 84(3). (ii) the contents of a document recording information to which this section applies— unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has complied with the requirements under section 32CA or 32CC (as the case requires) that are not waived. S. 32C(2) amended by No. 2/2006 s. 29(2)(a)(b), repealed by No. 38/2022 s. 84(5). S. 32C(3)–(6) repealed by No. 38/2022 s. 84(5). S. 32C(7) amended by No. 2/2006 s. 29(3). (7) Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding. S. 32CA inserted by No. 38/2022 s. 85. 32CA Applicant for leave must give notice—civil proceedings (1) In a civil proceeding, an applicant for leave must give written notice of their intention to apply for leave under section 32C(1) to— (a) each other party; and (b) the medical practitioner or counsellor to whom the confidential communication was made. (2) The applicant for leave must give notice under subsection (1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced. (3) The court may— (a) fix a period of notice shorter than that referred to in subsection (2); or (b) waive a requirement to give notice to a person referred to in subsection (1)(a) or (b). S. 32CB inserted by No. 38/2022 s. 85. 32CB Persons other than parties appearing and making submissions as to leave—civil proceedings In an application for leave under section 32C(1) in a civil proceeding, the following persons may, with the leave of the court, appear and make submissions— (a) the protected person; (b) the medical practitioner or counsellor to whom the confidential communication was made. S. 32CC inserted by No. 38/2022 s. 85. 32CC Applicant for leave must give notice—criminal proceedings (1) In a criminal proceeding, an applicant for leave must give written notice of their intention to apply for leave under section 32C(1) to— (a) each other party; and (b) the informant; and (c) if the notice relates to a confidential communication—the medical practitioner or counsellor to whom that communication was made; and (d) if the notice relates to protected health information—whichever of the following entities the applicant for leave considers appropriate— (i) the person who recorded or collected the information (or, if the information is an opinion, formed that opinion); (ii) if the information is held by an organisation—that organisation. (2) The applicant for leave must give notice under subsection (1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced. (3) If the court is satisfied that it is in the interests of justice to do so, the court may— (a) fix a period of notice shorter than that referred to in subsection (2); or (b) waive a requirement to give notice to a person or organisation referred to in subsection (1)(c) or (d). S. 32CD inserted by No. 38/2022 s. 85. 32CD Prosecuting party to ensure notice is given to protected person—criminal proceedings (1) If an application for leave under section 32C(1) is made in a criminal proceeding, the prosecuting party must, subject to this section, ensure that written notice of the application is given to the protected person. (2) The prosecuting party must ensure that notice is given under subsection (1) within a reasonable time of the prosecuting party either giving or receiving, under section 32CC(1), notice of the application for leave. (3) Notice under subsection (1) must— (a) contain the matters specified in subsection (4); and (b) be in the form prescribed by the rules of court. (4) The matters are— (a) a statement that the protected person may appear in the proceeding, make submissions on the application and give a confidential statement; and (b) an explanation of how section 32CE(3) and (4) apply to a confidential statement; and (c) a statement that the protected person may wish to consider whether to obtain legal advice in relation to the application; and (d) information about the availability of legal advice in relation to the application. (5) The court may waive the requirement under subsection (1) if the court is satisfied that— (a) the prosecuting party has ensured that all reasonable steps to locate the protected person were taken, but the protected person has not been located; or (b) the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or (c) the protected person has already been given notice under subsection (1)— (i) in respect of the same confidential communication or protected health information as that to which the application relates; and (ii) in the same proceeding as that in which the application is made. S. 32CE inserted by No. 38/2022 s. 85. 32CE Persons other than parties appearing and making submissions as to leave—criminal proceedings (1) In an application for leave under section 32C(1) in a criminal proceeding, the protected person may appear, make submissions and give a statement in accordance with subsection (2). (2) The protected person may give the court, by affidavit, a statement (a ***confidential statement***) describing the harm that is likely to be caused to the protected person if the application is granted. (3) A court that receives a confidential statement must not make the statement available, or disclose its contents, to anyone other than the protected person or their legal representative, except in accordance with subsection (4). (4) The court may make the whole or any part of the confidential statement available, or disclose its contents, to a person other than the protected person or their legal representative if the court considers that it is in the interests of justice to do so. (5) If the application relates to a confidential communication, the medical practitioner or counsellor (as the case requires) may, with the leave of the court, appear and make submissions. (6) If the application relates to protected health information, the recipient of any notice given in accordance with section 32CC(1)(d) may, with the leave of the court, appear and make submissions. S. 32CF inserted by No. 38/2022 s. 85. 32CF Production of document for purposes of determining application for leave (1) For the purposes of determining— (a) the application for leave under section 32C(1); or (b) an application for leave under section 32CB or 32CE(5) or (6) that is made in the course of the application referred to in paragraph (a)— the court may order that the document to which the application under section 32C(1) relates be produced to it and may inspect it. (2) If a document is produced in accordance with an order under subsection (1), the court must not make the document available, or disclose its contents, to the party that applied for leave under section 32C(1). S. 32D inserted by No. 21/1998