Health Records Act 2001

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

(c) providing an accessible framework for the resolution of complaints regarding the handling of health information.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision referred to in subsection (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;

S. 3(1) def. of Commis-sioner for Privacy and Data Protection inserted by No. 60/2014 s. 140(Sch. 3 item 25.1(a)), repealed by No. 20/2017 s. 134(Sch. 1 item 10.1(b)).

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;

S. 3(1) def. of Council amended by No. 9/2020 s. 390(Sch. 1 item 51).

Council has the same meaning as in the Local Government Act 2020;

disability has the same meaning as in the Disability Services Act 1991;

S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 6(Sch. 4 item 4.1(a)), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 29.1).

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

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. 3(1) def. of Health Complaints Commis-sioner inserted by No. 22/2016 s. 178(b).

Health Complaints Commissioner means the Commissioner within the meaning of the Health Complaints Act 2016;

S. 3(1) def. of Health Complaints Commis-sioner Advisory Council inserted by No. 22/2016 s. 178(b).

Health Complaints Commissioner Advisory Council means the Council within the meaning of the Health Complaints Act 2016;

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(1) def. of health information statement inserted by No. 39/2022 s. 829.

health information statement has the same meaning as it has in the Mental Health and Wellbeing Act 2022;

Health Privacy Principle means any of the Health Privacy Principles set out in Schedule 1;

HPP means Health Privacy Principle;

S. 3(1) def. of health service amended by Nos 13/2010 s. 51(Sch. item 28.2), 20/2016 s. 147, 61/2017 s. 139, 34/2019 s. 49.

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 registered under the Health Practitioner Regulation National Law; or

(cb) the sale or supply of a voluntary assisted dying substance within the meaning of the Voluntary Assisted Dying Act 2017 in accordance with that Act by a pharmacist registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student); or

(cc) the supply or administration of a voluntary assisted dying substance within the meaning of the Voluntary Assisted Dying Act 2017 in accordance with that Act by a registered medical practitioner; or

(d) a service, or a class of service, provided in conjunction with an activity or service referred to in paragraph (a), (b), (c), (cb) or (cc) 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;

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;

S. 3(1) def. of Health Services Commis-sioner repealed by No. 22/2016 s. 178(a).

S. 3(1) def. of Health Services Review Council repealed by No. 22/2016 s. 178(a).

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 organisation for the purpose of uniquely identifying that individual;

illness means a physical, mental or psychological illness, and includes a suspected illness;

S. 3(1) def. of immediate family member amended by No. 27/2001 s. 6(Sch. 4 item 4.1(b)).

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 domestic partner 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;

S. 3(1) def. of Information Commis-sioner inserted by No. 20/2017 s. 134(Sch. 1 item 10.1(a)).

Information Commissioner means the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982;

S. 3(1) def. of law enforcement agency amended by Nos 52/2003 s. 52(Sch. 1 item 5), 37/2014 s. 10(Sch. item 77.1(b)), 57/2017 s. 49, 27/2018 s. 360.

law enforcement agency means—

(a) Victoria Police or the police force or police service of any other State or of the Northern Territory; or

(b) the Australian Federal Police; or

(c) the Australian Crime Commission; 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

(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

(j) the Australian Security Intelligence Organization; or

(k) the Australian Secret Intelligence Service; or

(ka) the Post Sentence Authority continued in existence under section 290 of the Serious Offenders Act 2018; or

(l) a prescribed body;

S. 3(1) def. of law enforcement function amended by Nos 52/2008 s. 250, 68/2008 s. 77, 53/2010 s. 221(Sch. item 6), 53/2016 s. 102.

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 an application for a family violence intervention order under the Family Violence Protection Act 2008;

(ca) the prevention, detection or investigation of conduct that could found an application for a personal safety intervention order under the Personal Safety Intervention Orders Act 2010;

(cb) the prevention, detection or investigation of conduct that could found an application for the variation or extension of a non-local DVO that is a recognised DVO, both within the meaning of the National Domestic Violence Order Scheme Act 2016;

(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;

(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;

S. 3(1) def. of mental health and wellbeing service provider inserted by No. 39/2022 s. 829.

mental health and wellbeing service provider has the same meaning as it has in the Mental Health and Wellbeing Act 2022;

S. 3(1) def. of NDIS Commis-sioner inserted by No. 19/2019 s. 264(1).

NDIS Commissioner means Commissioner of the NDIS Quality and Safeguards Commission established under section 181A of the National Disability Insurance Scheme Act 2013 of the Commonwealth;

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;

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;

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 77.1(a)).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3(1) def. of Privacy Commis-sioner repealed by No. 60/2014 s. 140(Sch. 3 item 25.1(b)).

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 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;

S. 3(1) def. of public sector agency substituted by No. 108/2004 s. 117(1) (Sch. 3 item 95).

public sector agency means a public service body or public entity within the meaning of the Public Administration Act 2004;

public sector organisation means a person or body that is referred to in Division 1 of Part 2;

S. 3(1) def. of registered health practitioner inserted by No. 22/2016 s. 178(d).

registered health practitioner has the same meaning as in the Health Practitioner Regulation National Law;

S. 3(1) def. of registered health service provider repealed by No. 22/2016 s. 178(c).

S. 3(1) def. of registered medical practitioner amended by No. 97/2005 s. 182(Sch. 4 item 26), substituted by No. 13/2010 s. 51(Sch. item 28.1).

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);

S. 3(1) def. of registration board substituted by No. 22/2016 s. 178(e).

registration board means a National Board established under the Health Practitioner Regulation National Law;

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;

S. 3(1) def. of spouse inserted by No. 27/2001 s. 6(Sch. 4 item 4.1(a)).

spouse of a person means a person to whom the person is married;

State contract means a contract between—

(a) a public sector organisation; and

(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.

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.

S. 3(3) inserted by No. 27/2001 s. 6(Sch. 4 item 4.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 29.2).

(3) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

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?

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 subsection (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, 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.

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;

S. 10(1)(j) substituted by No. 37/2014 s. 10(Sch. item 77.2).

(j) Victoria Police;

(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;

(m) any other body that is declared, or to the extent that it is declared, by an Order under subsection (2) to be an organisation for the purposes of this subsection—

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 subsection (1).

(3) A person or body to which this Act applies by force of subsection (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.

S. 10(5) inserted by No. 98/2003 s. 12(1).

(5) Despite subsections (1) and (2), nothing in this Act applies to an agency within the meaning of the Privacy Act 1988 of the Commonwealth.

Division 2—Private sector organisations

11 Application to private sector

(1) This Act applies to—

1. 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 subsection (1) is an organisation for the purposes of this Act.

(3) This section is subject to Division 3.

S. 11(4) inserted by No. 98/2003 s. 12(2).

(4) Despite subsection (1), nothing in this Act applies to an agency within the meaning of the Privacy Act 1988 of the Commonwealth.

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.

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.

S. 14A inserted by No. 67/2014 s. 147(Sch. 2 item 19).

14A Royal Commissions etc.

(1) Nothing in this Act or in any HPP applies in respect of the collection, holding, management, use, disclosure or transfer of health information by a Royal Commission, a Board of Inquiry or a Formal Review for the purposes of, or in connection with, the performance of its functions.

(2) In this section—

Board of Inquiry has the same meaning as in the Inquiries Act 2014;

Formal Review has the same meaning as in the Inquiries Act 2014;

Royal Commission means—

(a) a Royal Commission established under the Inquiries Act 2014; or

(b) a Royal Commission established under the prerogative of the Crown.

S. 14B inserted by No. 23/2017 s. 18.

14B Information sharing under the Family Violence Protection Act 2008

(1) Nothing in HPP 1.3 or 1.5 applies to the collection of health information for the purposes of Part 5A of the Family Violence Protection Act 2008 by an organisation that is an information sharing entity about a person who is a person of concern, or who is alleged to pose a risk of committing family violence.

(2) Nothing in HPP 1.3 or 1.5 applies to the collection of health information about an individual by the Central Information Point for the purposes of Part 5A of the Family Violence Protection Act 2008.

S. 14B(2A) inserted by No. 11/2018 s. 42(1).

(2A) Nothing in HPP 1.3, 1.4 or 1.5 applies to the collection of health information by an authorised Hub entity for the purposes of Part 5B of the Family Violence Protection Act 2008.

(3) Nothing in HPP 6 applies to the collection of health information about an individual by the Central Information Point for the purposes of Part 5A of the Family Violence Protection Act 2008.

S. 14B(4)
def. of authorised Hub entity inserted by No. 11/2018 s. 42(2).

authorised Hub entity has the meaning given in the Family Violence Protection Act 2008;

Central Information Point has the meaning given in section 144O of the Family Violence Protection Act 2008;

family violence has the meaning given in the Family Violence Protection Act 2008;

information sharing entity has the meaning given in the Family Violence Protection Act 2008;

person of concern has the meaning given in section 144B of the Family Violence Protection Act 2008.

S. 14C inserted by No. 11/2018 s. 30.

14C Information sharing under the Child Wellbeing and Safety Act 2005

(1) Nothing in HPP 1.3, or any applicable code of practice modifying the application of HPP 1.3 or prescribing how HPP 1.3 is to be applied or complied with, applies to the collection of health information by an information sharing entity or a restricted information sharing entity for the purposes of Part 6A of the Child Wellbeing and Safety Act 2005 or by a Child Link user or the Secretary to the Department of Education and Training for the purposes of Part 7A of that Act.

(2) Nothing in HPP 1.5, or any applicable code of practice modifying the application of HPP 1.5 or prescribing how HPP 1.5 is to be applied or complied with, applies to the collection of health information by an information sharing entity or a restricted information sharing entity for the purposes of Part 6A of the Child Wellbeing and Safety Act 2005, to the extent that the application of, or compliance with, HPP 1.5 would be contrary to the promotion of the wellbeing or safety of a child to whom the information relates.

(3) Nothing in HPP 1.5, or any applicable code of practice modifying the application of HPP 1.5 or prescribing how HPP 1.5 is to be applied or complied with, applies to the collection of health information by a Child Link user or the Secretary to the Department of Education and Training for the purposes of Part 7A of the Child Wellbeing and Safety Act 2005.

(4) Nothing in HPP 4.3, or any applicable code of practice modifying the application of HPP 4.3 or prescribing how HPP 4.3 is to be applied or complied with, applies to the deletion of health information by the Secretary to the Department of Education and Training for the purposes of Part 7A of the Child Wellbeing and Safety Act 2005.

(5) Nothing in an HPP, or any applicable code of practice modifying the application of an HPP or prescribing how an HPP is to be applied or complied with, applies to the collection, use or disclosure of health information by an information sharing entity or a restricted information sharing entity for the purposes of Part 6A of the Child Wellbeing and Safety Act 2005, or by a Child Link user or the Secretary to the Department of Education and Training for the purposes of Part 7A of that Act, to the extent that the HPP requires the consent of the person to whom the health information relates for the collection, use or disclosure of that information.

(6) In this section—

Child Link user has the same meaning as in the Child Wellbeing and Safety Act 2005;

information sharing entity has the same meaning as in the Child Wellbeing and Safety Act 2005;

restricted information sharing entity has the same meaning as in the Child Wellbeing and Safety Act 2005.

S. 14D inserted by No. 34/2019 s. 86.

14D Information sharing for quality and safety purposes under the Health Services Act 1988

(1) Nothing in HPP 1.3, or any applicable code of practice modifying the application of HPP 1.3 or prescribing how HPP 1.3 is to be applied or complied with, applies to the collection of health information for the purposes of Part 6B of the Health Services Act 1988 by any of the following—

(a) the Secretary;

(b) a quality and safety body;

(c) a health service entity;

(d) a special adviser.

(2) Nothing in HPP 1.5, or any applicable code of practice modifying the application of HPP 1.5 or prescribing how HPP 1.5 is to be applied or complied with, applies to the collection of health information for the purposes of Part 6B of the Health Services Act 1988 by any of the following—

(a) the Secretary;

(b) a quality and safety body;

(c) a health service entity;

(d) a special adviser.

(3) Nothing in an HPP, or any applicable code of practice modifying the application of an HPP or prescribing how an HPP is to be applied or complied with, applies to the collection, use or disclosure of health information for the purposes of Part 6B of the Health Services Act 1988 by—

(a) the Secretary; or

(b) a quality and safety body; or

(c) a health service entity; or

(d) a special adviser—

to the extent that the HPP requires the consent of the person to whom the health information relates for the collection, use or disclosure of that information.

health service entity has the same meaning as in section 134V of the Health Services Act 1988;

quality and safety body has the same meaning as in section 134V of the Health Services Act 1988;

special adviser has the same meaning as in section 134V of the Health Services Act 1988.

S. 14E inserted by No. 47/2021 s. 26.

14E Information sharing under Division 6 of Part 4A of the Terrorism (Community Protection) Act 2003

(1) Nothing in HPP 1.3, 1.4 or 1.5, or any applicable code of practice modifying the application of HPP 1.3, 1.4 or 1.5 or prescribing how HPP 1.3, 1.4 or 1.5 is to be applied or complied with, applies to the collection of personal information by an authorised discloser in accordance with Division 6 of Part 4A of the Terrorism (Community Protection) Act 2003.

(2) Nothing in HPP 2, or any applicable code of practice modifying the application of HPP 2 or prescribing how HPP 2 is to be applied or complied with, applies to the use or disclosure, for the purposes of Part 4A of the Terrorism (Community Protection) Act 2003, of personal information that an authorised discloser has had disclosed to them in accordance with Division 6 of that Part.

(3) Nothing in HPP 6, or any applicable code of practice modifying the application of HPP 6 or prescribing how HPP 6 is to be applied or complied with, applies to personal information that an authorised discloser has had disclosed to them in accordance with Division 6 of Part 4A of the Terrorism (Community Protection) Act 2003.

authorised discloser has the same meaning as it has in Division 6 of Part 4A of the Terrorism (Community Protection) Act 2003.

See section 22EJ of that Act.

S. 14F inserted by No. 4/2023 s. 5.

14F Health information collected or held by the Electronic Patient Health Information Sharing System

(1) Nothing in HPP 1.3 or 1.5 applies to the collection of health information by the Secretary for the purposes of the Electronic Patient Health Information Sharing System established by Part 6C of the Health Services Act 1988.

(2) Nothing in Part 5 or HPP 6 applies to health information held by the Secretary in the Electronic Patient Health Information Sharing System established by Part 6C of the Health Services Act 1988.

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—

1. 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 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

S. 16(b) amended by No. 6/2012 s. 36.

(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), 6 or 6AA of that Act.

17 News media

S. 17(1) amended by No. 14/2002 s. 48(a)(b).

(1) Nothing in HPP 1, HPP 2 or HPP 9 applies to the collection, use, disclosure or transfer 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.

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.

(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.

S. 20(6) inserted by No. 14/2002 s. 49.

(6) To avoid doubt it is declared that, despite the commencement of section 19 and Schedule 1 on 1 March 2002, an act or practice that occurs at any time before the commencement of Part 6 does not constitute an interference with the privacy of an individual—

(a) about which a complaint may be made under section 45(1); or

S. 20(6)(b) amended by No. 22/2016 s. 179.

(b) that may be dealt with in any way by the Health Complaints Commissioner under this Act, including by the service of a compliance notice under section 66(1)—

whether before or after the commencement of that Part.

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) Subsection (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) Subsection (1) does not apply to the doing of an act, or the engaging in of a practice, by an organisation that, but for this subsection, 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 subsection (4).

S. 21(4) amended by No. 22/2016 s. 180(a).

(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 subsection, the Health Complaints 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) Subsection (1) does not apply to the doing of an act, or the engaging in of a practice, by an organisation that, but for this subsection, would constitute a breach of HPP 2, in relation to health information collected by the organisation before the commencement of section 20, if—

S. 21(5)(a) amended by No. 22/2016 s. 180(b).

(a) the Health Complaints 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.

S. 21(6) amended by No. 22/2016 s. 180(c).

(6) The Health Complaints Commissioner may grant an exemption under subsection (5) if he or she is of 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) Subsection (1) does not apply to the doing of an act, or the engaging in of a practice, by an organisation that, but for this subsection, 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.

Part 4—Guidelines

S. 22 (Heading) amended by No. 22/2016 s. 181.

22 Health Complaints Commissioner may issue, approve or vary guidelines

S. 22(1) amended by No. 22/2016 s. 182(a).

(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 Complaints 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

S. 22(1)(c) amended by No. 22/2016 s. 182(b).

(c) vary any guidelines as issued or approved by the Health Complaints Commissioner.

S. 22(1A) inserted by No. 39/2022 s. 830(1).

(1A) The Health Complaints Commissioner, by notice published in the Government Gazette, may issue and vary guidelines in relation to the operation of section 16 and HPP 6.5 for the purposes of providing guidance—

(a) to a person—

(i) who intends to make a health information statement in respect of the health information held about the person by a mental health and wellbeing service provider; and

(ii) in relation to accessing the health information held by a mental health and wellbeing service provider in respect of the person; and

(b) to a mental health and wellbeing service provider in respect of the recording of any health information statement made by a person in relation to the health information held by the provider about the person.

See also Part 17.2 of the Mental Health and Wellbeing Act 2022.

S. 22(2) amended by Nos 22/2016 s. 182(c), 39/2022 s. 830(2).

(2) Before exercising a power conferred by subsection (1) or (1A), the Health Complaints 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 subsection (2) must—

(a) state where copies of the guidelines (as proposed to be issued, approved or varied) can be obtained; and

S. 22(3)(b) amended by No. 22/2016 s. 182(d).

(b) specify a period of not less than 28 days after the date of the notice for making submissions to the Health Complaints Commissioner on them.

S. 22(4) amended by Nos 22/2016 s. 182(e), 39/2022 s. 830(2).

(4) After considering any submissions received, the Health Complaints Commissioner may proceed under subsection (1) or (1A), as proposed or with any amendments that the Health Complaints Commissioner considers appropriate.

S. 22(5) amended by Nos 22/2016 s. 182(f), 39/2022 s. 830(2).

(5) For the purposes of subsection (1) or (1A), the Health Complaints 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.

S. 23 amended by No. 22/2016 s. 183.

23 Revocation of issue or approval

The Health Complaints 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. 24 amended by No. 22/2016 s. 184.

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 Complaints Commissioner to issue, approve or vary guidelines or to revoke an issue or approval of guidelines.

Part 5—Access to health information

Division 1—Right of access

25 Right of access

(1) Subject to subsections (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 held[1] by a health service provider or any other organisation.

(2) Subsection (1) applies to all health information collected on or after the commencement of this section.

(3) Subsection (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

(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.

S. 26 amended by No. 22/2016 s. 185.

26 No access to health information where threat to life or health of individual or another person[[2]](#endnote-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 Complaints 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]](#endnote-3)

(1) Subject to subsection (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

(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 subsection (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

(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 subparagraph (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—

(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.

S. 30 amended by No. 57/2014 s. 153(1) (ILA s. 39B(1)).

30 Individual may authorise another person to be given access

(1) If an individual—

(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.

S. 30(2) inserted by No. 57/2014 s. 153(1).

(2) In this section—

written authority includes a supportive attorney appointment within the meaning of the Powers of Attorney Act 2014.

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.

S. 32(2A) inserted by No. 39/2022 s. 831 (as amended by No. 20/2023 s. 49(13)).

(2A) Despite subsection (2), a mental health and wellbeing service provider must not charge a fee to a person for providing access to health information held by the mental health and wellbeing service provider in respect of that person if the information is held by the mental health and wellbeing service provider as a result of providing a mental health and wellbeing service to the person.

(3) An organisation must not charge a fee exceeding the prescribed maximum fee.

(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.

(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

(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 subsection (2)(a) that relates only to a part of the health information held by the organisation, the organisation must comply with subsection (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

(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 subsection (1).

38 Individual may nominate health service provider to assess ground for refusal etc.

(1) If—

(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 subsection (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 subsection (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 subsection (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—

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) Subsection (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

(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 subsection (2), the functions of a nominated health service provider are—

(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 prescribed maximum fee) for performing the functions set out in subsection (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 subsection (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) Subsection (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

(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.

Part 6—Complaints

Division 1—Making a complaint

45 Complaints

S. 45(1) amended by No. 22/2016 s. 186(a).

(1) An individual may complain to the Health Complaints 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 subsection (1) on behalf of all of the individuals with their consent.

S. 45(4) amended by No. 22/2016 s. 186(b).

(4) A complaint must be in writing and be lodged with the Health Complaints 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.

S. 45(6) amended by No. 22/2016 s. 186(c).

(6) It is the duty of the Health Complaints 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.

(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 subsection (7) does not render the complaint, or any step taken in relation to it, a nullity.

S. 46 (Heading) amended by No. 22/2016 s. 187.

S. 46 amended by No. 22/2016 s. 188.

46 Complaint referred to Health Complaints Commissioner

The Health Complaints Commissioner may treat a complaint referred to him or her by—

S. 46(a) amended by Nos 82/2012 s. 289, 30/2016 s. 81.

(a) the Ombudsman under section 16I of the Ombudsman Act 1973; or

S. 46(ab) inserted by No. 6/2012 s. 37, repealed by No. 20/2017 s. 134(Sch. 1 item 10.2(a)).

S. 46(b) substituted by Nos 60/2014 s. 140(Sch. 3 item 25.2), 20/2017 s. 134(Sch. 1 item 10.2(b)).

(b) the Information Commissioner under section 61C of the Freedom of Information Act 1982 or section 63 of the Privacy and Data Protection Act 2014—

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

S. 47(1)(b)(iii) amended by No. 22/2016 s. 189(1).

(iii) any other person who, in the opinion of the Health Complaints Commissioner, has a sufficient interest in the subject-matter of the complaint.

(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

S. 47(3)(b) amended by No. 22/2016 s. 189(2).

(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 Complaints 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

S. 48 (Heading) amended by No. 22/2016 s. 190.

S. 48 amended by No. 22/2016 s. 191.

48 Health Complaints Commissioner must notify respondent

The Health Complaints Commissioner must notify the respondent in writing of the complaint as soon as practicable after receiving it.

49 Preliminary assessment of complaint

S. 49(1) amended by No. 22/2016 s. 192(a).

(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 Complaints Commissioner must decide whether, and to what extent, to entertain the complaint.

S. 49(2) amended by No. 22/2016 s. 192(b).

(2) To enable the Health Complaints Commissioner to make a decision under subsection (1), he or she may, by written notice, invite any person—

S. 49(2)(a) amended by No. 22/2016 s. 192(c).

(a) to attend before the Health Complaints Commissioner for the purpose of discussing the subject-matter of the complaint; or

(b) to produce any documents specified in the notice.

S. 49(3) amended by No. 22/2016 s. 192(d).

(3) If the Health Complaints Commissioner considers it appropriate, he or she may attempt to resolve the complaint informally.

50 Splitting complaints

S. 50(1) amended by No. 22/2016 s. 193(a).

(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 Complaints 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(2) amended by No. 22/2016 s. 193(b).

(2) The Health Complaints Commissioner must not make a determination under subsection (1) unless he or she is satisfied that any attempt at conciliation is unlikely to be prejudiced by the making of the determination.

S. 51 (Heading) amended by No. 22/2016 s. 194.

51 Circumstances in which Health Complaints Commissioner may decline to entertain complaint

S. 51(1) amended by No. 22/2016 s. 195(a).

(1) The Health Complaints 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 Complaints 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

S. 51(1)(c) amended by No. 22/2016 s. 195(b).

(c) although a complaint has been made to the Health Complaints Commissioner about the act or practice, the complainant has not complained to the respondent; or

S. 51(1)(d) amended by No. 22/2016 s. 195(c).

(d) the complaint to the Health Complaints 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—

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.

S. 51(2) amended by No. 22/2016 s. 195(d).

(2) A notice under subsection (1) must state that the complainant, by notice in writing given to the Health Complaints Commissioner, may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

S. 51(3) amended by Nos 23/2006 s. 241(b), 6/2012 s. 38(b), 60/2014 s. 140(Sch. 3 item 25.3(b)), 22/2016 s. 195(e), 20/2017 s. 134(Sch. 1 item 10.3), 19/2019 s. 264(2)(c).

(3) If the act or practice could be made the subject of an application under—

S. 51(3)(a) substituted by No. 60/2014 s. 140(Sch. 3 item 25.3(a)).

(a) the Privacy and Data Protection Act 2014; or

(b) the Privacy Act 1988 of the Commonwealth; or

S. 51(3)(ba) inserted by No. 23/2006 s. 241(a).

(ba) the Disability Act 2006; or

S. 51(3)(bb) inserted by No. 6/2012 s. 38(a).

(bb) Part VIA of the Freedom of Information Act 1982; or

S. 51(3)(c) amended by No. 19/2019 s. 264(2)(a).

(c) the Ombudsman Act 1973; or

S. 51(3)(d) inserted by No. 19/2019 s. 264(2)(b).

(d) the National Disability Insurance Scheme Act 2013 of the Commonwealth—

the Health Complaints Commissioner may refer the complaint to the Information Commissioner, the Federal Privacy Commissioner, the Disability Services Commissioner, the Ombudsman or the NDIS Commissioner, as the case may be, and notify the complainant and the respondent in writing of the referral.

S. 51(4) amended by No. 22/2016 s. 195(f).

(4) If the document to which the individual seeks access is a document referred to in section 16, the Health Complaints Commissioner may advise the complainant to make a request for access to the document under the Freedom of Information Act 1982.

S. 51(5) amended by No. 22/2016 s. 195(g).

(5) Within 60 days after receiving the Health Complaints Commissioner's notice declining to entertain a complaint, the complainant, by notice in writing given to the Health Complaints Commissioner, may require him or her to refer the complaint to the Tribunal for hearing under Division 6.

S. 51(6) amended by No. 22/2016 s. 195(h).

(6) The Health Complaints Commissioner must comply with a notice under subsection (5).

S. 51(7) amended by No. 22/2016 s. 195(i).

(7) If the complainant does not notify the Health Complaints Commissioner under subsection (5), the Health Complaints Commissioner may dismiss the complaint.

S. 51(8) amended by No. 22/2016 s. 195(j).

(8) As soon as possible after a dismissal under subsection (7), the Health Complaints 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

S. 52(1) amended by No. 22/2016 s. 196(1)(a)(b).

(1) If a complaint, or part of a complaint, relates to a registered health practitioner, the Health Complaints 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

S. 52(1)(b) amended by No. 22/2016 s. 196(1)(c).

(b) the Health Complaints Commissioner considers that it is appropriate to refer the complaint or that part of the complaint to the registration board; and

(c) the registration board is willing to accept the complaint or that part of the complaint.

S. 52(2) substituted by No. 22/2016 s. 196(2).

(2) Within 14 days after referring a complaint, or part of a complaint, about a registered health practitioner to a registration board, the Health Complaints Commissioner must notify the complainant and the registered health practitioner in writing of the referral.

S. 52(3) amended by No. 22/2016 s. 196(1)(d).

(3) If a complaint, or part of a complaint, has been referred to a registration board, the registration board must advise the Health Complaints Commissioner of the progress of the matter, when required by the Health Complaints Commissioner to do so, and, when the matter is completed, of the outcome of the matter.

S. 52(4) amended by No. 22/2016 s. 196(1)(e).

(4) Advice under subsection (3) must include any information that the Health Complaints Commissioner specifies by written notice to the registration board.

S. 53 (Heading) amended by No. 22/2016 s. 197.

53 Health Complaints Commissioner may dismiss stale complaint

S. 53(1) amended by No. 22/2016 s. 198(a).

(1) The Health Complaints 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 Complaints Commissioner for a response in relation to the complaint.

S. 53(2) amended by No. 22/2016 s. 198(b).

(2) As soon as possible after a dismissal under subsection (1), the Health Complaints 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. 54(1) amended by No. 22/2016 s. 199.

(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 Complaints 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 subsection (1) unless joined by the Tribunal.

S. 55 (Heading) amended by No. 22/2016 s. 200.

55 Complaint about registered health practitioner

S. 55(1) amended by No. 22/2016 s. 201(1).

(1) If the Health Complaints Commissioner—

S. 55(1)(a) amended by No. 22/2016 s. 201(2).

(a) accepts a complaint, in whole or in part, about an act or practice of a registered health practitioner; or

(b) refers such a complaint to an authority other than the appropriate registration board—

the Health Complaints Commissioner must give a copy of the complaint to the appropriate registration board.

(2) The giving of a copy of a complaint under subsection (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?

S. 56(1) amended by No. 22/2016 s. 202(a).

(1) If the Health Complaints Commissioner decides to accept a complaint in whole or in part, he or she may adopt one of the following options—

S. 56(1)(a) amended by No. 22/2016 s. 202(b).

(a) if the Health Complaints 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

S. 56(1)(b) amended by No. 22/2016 s. 202(c).

(b) if the Health Complaints 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

S. 56(1)(c) amended by No. 22/2016 s. 202(d).

(c) if the Health Complaints 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) Subsection (1) does not apply to a complaint—

S. 56(2)(a) amended by No. 22/2016 s. 202(e).

(a) that the Health Complaints 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.

S. 56(3) amended by No. 22/2016 s. 202(f).

(3) In making a decision under subsection (1), the Health Complaints Commissioner may take into account the wishes, if expressed, of the complainant and the respondent.

S. 56(4) amended by No. 22/2016 s. 202(g).

(4) The Health Complaints Commissioner must notify the complainant and the respondent in writing of his or her decision under subsection (1).

S. 56(5) amended by No. 22/2016 s. 202(h).

(5) A notice under subsection (4) must state that the complainant, by notice in writing given to the Health Complaints Commissioner, may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

57 What happens if conciliation or ruling is inappropriate?

S. 57(1) amended by No. 22/2016 s. 203(a).

(1) Within 60 days after receiving the Health Complaints Commissioner's notice under section 56(4), the complainant, by written notice, may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

S. 57(2) amended by No. 22/2016 s. 203(b).

(2) The Health Complaints Commissioner must comply with a notice under subsection (1).

S. 57(3) amended by No. 22/2016 s. 203(c).

(3) If the complainant does not notify the Health Complaints Commissioner under subsection (1), the Health Complaints Commissioner may dismiss the complaint.

S. 57(4) amended by No. 22/2016 s. 203(d).

(4) As soon as possible after a dismissal under subsection (3), the Health Complaints 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

S. 58(1) amended by No. 22/2016 s. 204(a).

(1) The Health Complaints Commissioner must cease dealing with an issue raised in a complaint if he or she—

(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.

S. 58(2) amended by No. 22/2016 s. 204(b).

(2) Within 14 days after ceasing to deal with a complaint under subsection (1), the Health Complaints Commissioner must give written notice of the fact to the complainant and the respondent.

S. 58(3) amended by No. 22/2016 s. 204(c).

(3) Despite subsection (1), the Health Complaints 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

S. 58(3)(b) amended by No. 22/2016 s. 204(d).

(b) must cease dealing with the matter when the Health Complaints Commissioner becomes aware that a court or tribunal has commenced to hear a proceeding relating to the complaint.

S. 58(4) amended by No. 22/2016 s. 204(e).

(4) If the Health Complaints 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 Complaints Commissioner may, with the consent of the complainant, re-open proceedings under this Act.

S. 58(5) amended by No. 22/2016 s. 204(f).

(5) The Health Complaints 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 Complaints Commissioner to suspend dealing with the complaint until the board has completed the matter and advised the Health Complaints Commissioner of the outcome under section 52(3).

Division 3—Conciliation of complaints

59 Conciliation process

S. 59(1) amended by No. 22/2016 s. 205(a).

(1) If the Health Complaints Commissioner decides under section 56(1) to conciliate a complaint, he or she must make all reasonable endeavours to conciliate the complaint.

S. 59(2) amended by No. 22/2016 s. 205(b).

(2) The Health Complaints 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

S. 60(1) amended by No. 22/2016 s. 206(a).

(1) If the Health Complaints Commissioner has reason to believe that a person has information or a document relevant to a conciliation under this Division, the Health Complaints Commissioner may give to the person a written notice requiring the person—

S. 60(1)(a) amended by No. 22/2016 s. 206(b).

(a) to give the information to the Health Complaints Commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or

S. 60(1)(b) amended by No. 22/2016 s. 206(c).

(b) to produce the document to the Health Complaints Commissioner.

S. 60(2) amended by No. 22/2016 s. 206(d).

(2) If the Health Complaints Commissioner has reason to believe that a person has information relevant to a conciliation under this Division, the Health Complaints Commissioner may give to the person a written notice requiring the person to attend before the Health Complaints Commissioner at a time and place specified in the notice to answer questions relevant to the complaint.

S. 60(3) amended by No. 22/2016 s. 206(e).

(3) The Health Complaints 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 Complaints 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. 60(4) amended by No. 22/2016 s. 206(f).

(4) The Health Complaints Commissioner may not conduct an investigation in respect of a certificate under subsection (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—

S. 61(1)(a) amended by No. 22/2016 s. 207(a).

(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 Complaints Commissioner; and

S. 61(1)(b) amended by No. 22/2016 s. 207(b).

(b) the record must be signed by or on behalf of each party and certified by the Health Complaints Commissioner; and

S. 61(1)(c) amended by No. 22/2016 s. 207(c).

(c) the Health Complaints 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 subsection (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 subsection (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 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?

S. 63(1) amended by No. 22/2016 s. 208(a).

(1) If the Health Complaints 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.

S. 63(2) amended by No. 22/2016 s. 208(b).

(2) A notice under subsection (1) must state that the complainant, by notice in writing given to the Health Complaints Commissioner—

S. 63(2)(a) amended by No. 22/2016 s. 208(c).

(a) may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6; and

S. 63(2)(b) amended by No. 22/2016 s. 208(d).

(b) if the Health Complaints Commissioner proposes to investigate the complaint, may object or agree to the investigation.

S. 63(3) amended by No. 22/2016 s. 208(e).

(3) If the Health Complaints Commissioner proposes to take no further action in respect of a complaint, the complainant, by written notice to the Health Complaints Commissioner within 60 days after receiving the notice under subsection (1), may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

S. 63(4) amended by No. 22/2016 s. 208(f).

(4) If the Health Complaints Commissioner proposes to investigate a complaint under Division 4, the complainant, by written notice to the Health Complaints Commissioner within 60 days after receiving the notice under subsection (1)—

S. 63(4)(a) amended by No. 22/2016 s. 208(g).

(a) may object to the investigation and may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6; or

(b) may agree to the investigation.

S. 63(5) amended by No. 22/2016 s. 208(h).

(5) The Health Complaints Commissioner must comply with a notice under subsection (3) or (4)(a).

S. 63(6) amended by No. 22/2016 s. 208(i).

(6) If the complainant does not notify the Health Complaints Commissioner under subsection (3) or (4), the Health Complaints Commissioner must dismiss the complaint.

S. 63(7) amended by No. 22/2016 s. 208(j).

(7) If the complainant objects to the investigation but does not require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6, the Health Complaints Commissioner must dismiss the complaint.

S. 63(8) amended by No. 22/2016 s. 208(k).

(8) As soon as possible after a dismissal under subsection (6) or (7), the Health Complaints 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.

S. 63(10) amended by No. 22/2016 s. 208(l).

(10) If a complainant agrees to an investigation of the complaint, the Health Complaints 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 subsection (4)(b).

Division 4—Investigation, rulings and compliance notices

64 Investigation and ruling

S. 64(1) amended by No. 22/2016 s. 209(a).

(1) The Health Complaints 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].

S. 64(2) amended by No. 22/2016 s. 209(b).

(2) Within 14 days after ruling as to whether there has been an interference with the privacy of the complainant, the Health Complaints 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

S. 64(3)(b) amended by No. 22/2016 s. 209(c).

(b) the action, if any, that the Health Complaints Commissioner specifies to remedy the complaint; and

(c) a specified period, not exceeding one month, within which the action must be taken.

S. 64(4) amended by No. 22/2016 s. 209(d).

(4) If the Health Complaints 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 Complaints Commissioner may extend the period specified in the ruling on the giving to him or her by the organisation of an undertaking to take the specified action within the extended period.

S. 64(5) amended by No. 22/2016 s. 209(e).

(5) The Health Complaints Commissioner may only extend a period under subsection (4) if an application for the extension is made before the period specified in the ruling expires.

S. 64(6) amended by No. 22/2016 s. 209(f).

(6) If the Health Complaints 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.

S. 64(7) amended by No. 22/2016 s. 209(g).

(7) A respondent who receives notice of a ruling under subsection (2) which requires the respondent to take specified action must report in writing to the Health Complaints 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.

1. 10 penalty units.

S. 64(8) amended by No. 22/2016 s. 209(h).

(8) The Health Complaints Commissioner must give written notice to the complainant of the contents of a report referred to in subsection (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 subsection (7).

65 Referral to Tribunal

S. 65(1) amended by No. 22/2016 s. 210(a).

(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 Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

S. 65(2) amended by No. 22/2016 s. 210(c).

(2) If the respondent fails—

(a) to comply with a ruling; or

S. 65(2)(b) amended by No. 22/2016 s. 210(b).

(b) to report to the Health Complaints 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 Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

S. 65(3) amended by No. 22/2016 s. 210(d).

(3) The Health Complaints Commissioner—

(a) must comply with a notice under subsection (1) or (2); and

S. 65(3)(b) amended by No. 22/2016 s. 210(e).

(b) must provide to the Tribunal a copy of all documents that were considered by the Health Complaints Commissioner in the investigation of the complaint.

66 Compliance notice

S. 66(1) amended by No. 22/2016 s. 211(a).

(1) The Health Complaints 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.

S. 66(2) amended by No. 22/2016 s. 211(b).

(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 Complaints Commissioner in a specified manner within a specified period after taking that action.

S. 66(3) amended by No. 22/2016 s. 211(c).

(3) If the Health Complaints 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 Complaints 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.

S. 66(4) amended by No. 22/2016 s. 211(d).

(4) The Health Complaints Commissioner may only extend a period under subsection (3) if an application for the extension is made before the period specified in the notice expires.

S. 66(5) amended by No. 22/2016 s. 211(e).

(5) The Health Complaints Commissioner may act under subsection (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.

S. 66(6) amended by No. 22/2016 s. 211(f).

(6) In deciding whether or not to serve a compliance notice, the Health Complaints Commissioner may have regard to the extent to which the organisation has complied with a decision of the Tribunal under Division 6.

67 Power to obtain information and documents

S. 67(1) amended by No. 22/2016 s. 212(a).

(1) If the Health Complaints 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 Complaints Commissioner may give to the person a written notice requiring the person—

S. 67(1)(a) amended by No. 22/2016 s. 212(b).

(a) to give the information to the Health Complaints Commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or

S. 67(1)(b) amended by No. 22/2016 s. 212(c).

(b) to produce the document to the Health Complaints Commissioner.

S. 67(2) amended by No. 22/2016 s. 212(d).

(2) If the Health Complaints Commissioner has reason to believe that a person has information relevant to a decision under section 64(1) or 66, the Health Complaints Commissioner may give to the person a written notice requiring the person to attend before the Health Complaints Commissioner at a time and place specified in the notice to answer questions relevant to the decision.

S. 67(3) amended by No. 22/2016 s. 212(e).

(3) The Health Complaints 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 Complaints 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(4) amended by No. 22/2016 s. 212(f).

(4) The Health Complaints Commissioner may not conduct an investigation in respect of a certificate under subsection (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.

S. 68 amended by No. 22/2016 s. 213.

68 Conduct of investigation etc.

In exercising a power under section 64, 66 or 67, the Health Complaints 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

S. 69(1) amended by No. 22/2016 s. 214.

(1) The Health Complaints Commissioner may administer an oath or affirmation to a person required under section 67(2) to attend before the Health Complaints 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

(1) An organisation must comply with a compliance notice served on it under section 66(1) that is in effect.

1. 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 subsection (1) is an indictable offence.

72 Application for review—compliance notice

S. 72(1) amended by No. 22/2016 s. 215(a).

(1) An individual or organisation whose interests are affected by a decision of the Health Complaints 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

(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.

S. 72(3) amended by No. 22/2016 s. 215(b).

(3) The Health Complaints 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

S. 73(1) amended by No. 22/2016 s. 216.

(1) A complainant or a respondent or the Health Complaints 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 subsection (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.

(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 subsection (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 subsection (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—

S. 74(1)(a) amended by No. 22/2016 s. 217.

(a) referred to it by the Health Complaints Commissioner under section 51, 57, 63 or 65;

(b) referred to it by the Minister under section 54.

(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).

S. 75(2) amended by No. 22/2016 s. 218.

(2) The Health Complaints 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 subsection (1) by one further period of not more than 30 days.

77 Inspection of exempt documents by Tribunal

(1) Subject to subsection (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

(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.

S. 77(3) substituted by No. 18/2005 s. 18(Sch. 1 item 48), amended by No. 17/2014 s. 160(Sch. 2 item 47).

(3) If the applicant is represented by an Australian legal practitioner, orders under subsection (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 practitioner.

(4) In making an order under subsection (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—

(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

(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed; or

1. 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 subparagraph (ii) or (iii) of subsection (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.

S. 78(3) amended by No. 22/2016 s. 219(a).

(3) If an order of the Tribunal relates to a public register, the Health Complaints 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.

S. 78(4) amended by No. 22/2016 s. 219(b).

(4) The Health Complaints Commissioner may include in a report under subsection (3) recommendations in relation to any matter that concerns the need for, or the desirability of, legislative or administrative action in the interests of privacy of individuals.

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.

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.

(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.

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.

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

S. 83(a)(ii) amended by No. 22/2016 s. 220.

(ii) a complaint to the Health Complaints Commissioner under Part 6; or

(b) to withdraw a request or complaint referred to in paragraph (a).

S. 84 (Heading) amended by No. 22/2016 s. 221.

84 Failure to attend etc. before Health Complaints Commissioner

A person or body must not—

S. 84(a) amended by No. 22/2016 s. 222(b).

(a) without reasonable excuse, refuse or fail—

S. 84(a)(i) amended by No. 22/2016 s. 222(a).

(i) to attend before the Health Complaints 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 Complaints Commissioner under this Act; or

S. 84(b) amended by No. 22/2016 s. 222(c).

(b) wilfully obstruct, hinder or resist the Health Complaints Commissioner or an employee in the office of the Health Complaints Commissioner or a delegate of the Health Complaints 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

S. 84(c) amended by No. 22/2016 s. 222(d).

(c) furnish information or make a statement to the Health Complaints Commissioner knowing that it is false or misleading in a material particular.

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—

S. 85(2)(a) substituted by No. 57/2014 s. 153(2).

(a) by—

(i) the individual personally, except if the individual is a child who is incapable of making the request; or

S. 85(2)(a)(ii) amended by No. 69/2016 s. 157(1)(a).

(ii) a supportive attorney acting under a supportive attorney appointment, within the meaning of the Powers of Attorney Act 2014; or

S. 85(2)(a)(iii) inserted by No. 69/2016 s. 157(1)(b), amended by No. 13/2019 s. 221(Sch. 1 item 19.1).

(iii) a support person within the meaning of the Medical Treatment Planning and Decisions Act 2016 acting in accordance with the appointment of that support person; or

S. 85(2)(a)(iv) inserted by No. 13/2019 s. 221(Sch. 1 item 19.2).

(iv) a supportive administrator acting under a supportive administration order within the meaning of the Guardianship and Administration Act 2019; or

S. 85(2)(a)(v) inserted by No. 13/2019 s. 221(Sch. 1 item 19.2).

(v) a supportive guardian acting under a supportive guardianship order within the meaning of the Guardianship and Administration Act 2019; 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.

(3) For the purposes of subsections (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.

S. 85(4) amended by No. 13/2019 s. 221(Sch. 1 item 19.3).

(4) Subject to the Guardianship and Administration Act 2019, 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.

(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

S. 85(6)(c) substituted by No. 69/2016 s. 157(2)(a).

(c) the individual's medical treatment decision maker within the meaning of the Medical Treatment Planning and Decisions Act 2016;

S. 85(6)(d) amended by Nos 69/2016 s. 157(2)(b), 13/2019 s. 221(Sch. 1 item 19.3).

(d) an administrator within the meaning of the Guardianship and Administration Act 2019; 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.

S. 86(2) amended by No. 22/2016 s. 223.

(2) A person who produces a document, or gives any information or evidence, to the Health Complaints 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.

(3) Subsection (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 subsection (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

(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).

S. 87 (Heading) amended by No. 22/2016 s. 224.

S. 87 amended by No. 22/2016 s. 225(a).

87 Functions of Health Complaints Commissioner

The functions of the Health Complaints 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;

S. 87(d) amended by No. 22/2016 s. 225(b).

(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 Complaints 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;

(f) to serve compliance notices on organisations;

(g) subject to approval from the Minister, to initiate inquiries into—

S. 87(g)(i) amended by No. 22/2016 s. 225(c).

(i) matters referred by the Health Complaints Commissioner Advisory 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;

S. 87(k) amended by No. 22/2016 s. 225(d).

(k) for the purpose of promoting the protection of personal privacy, to undertake educational programs on the Health Complaints Commissioner's own behalf or in co‑operation with other persons or bodies whose functions concern the protection of personal privacy;

S. 87(l) amended by No. 22/2016 s. 225(e).

(l) from time to time, in the public interest, to publish reports and recommendations relating generally to the Health Complaints Commissioner's functions under this Act or to any matter investigated by the Health Complaints 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;

S. 87(n) amended by No. 22/2016 s. 225(f).

(n) to provide advice to the Health Complaints Commissioner Advisory 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;

S. 87(r) amended by No. 22/2016 s. 225(g).

(r) to gather information that, in the opinion of the Health Complaints Commissioner, will assist the Health Complaints Commissioner in carrying out his or her functions under this Act;

S. 87(s) amended by No. 22/2016 s. 225(h).

(s) to perform any other function conferred on the Health Complaints Commissioner by this Act.

S. 88 amended by No. 22/2016 s. 226.

88 Powers

The Health Complaints 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. 89 (Heading) amended by No. 22/2016 s. 227.

S. 89 amended by No. 22/2016 s. 228.

89 Health Complaints Commissioner to have regard to certain matters

The Health Complaints 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

S. 90(1) amended by No. 22/2016 s. 229(a).

(1) A person who is, or has been, the Health Complaints Commissioner, an acting Health Complaints Commissioner, a delegate of the Health Complaints Commissioner or an employee in the office of the Health Complaints 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.

S. 90(2) amended by No. 22/2016 s. 229(b).

(2) A person who is, or has been, the Health Complaints Commissioner, an acting Health Complaints Commissioner, a delegate of the Health Complaints Commissioner or an employee in the office of the Health Complaints Commissioner must not disclose or communicate to any person any information given to the Health Complaints Commissioner pursuant to a requirement made under Division 3 of Part 6 (including information contained in a document required to be produced to the Health Complaints Commissioner) unless all parties to the conciliation consent to the making of the disclosure or communication.

(3) Subsection (2) does not prevent—

S. 90(3)(a) amended by No. 22/2016 s. 229(c).

(a) the disclosure to the Health Complaints Commissioner, an acting Health Complaints Commissioner, a delegate of the Health Complaints Commissioner or an employee in the office of the Health Complaints Commissioner of whether the conciliation under Division 3 of Part 6 was successful and the terms of any agreement reached; or

S. 90(3)(b) amended by No. 22/2016 s. 229(d).

(b) the making of a recommendation that the Health Complaints Commissioner should investigate a complaint under Division 4 of Part 6.

S. 90(4) amended by No. 22/2016 s. 229(e).

(4) A person who is, or has been, the Health Complaints Commissioner, an acting Health Complaints Commissioner, a delegate of the Health Complaints Commissioner or an employee in the office of the Health Complaints Commissioner must not disclose or communicate to any person, other than a person employed in the office of the Health Complaints Commissioner, any information given to the Health Complaints 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 Complaints Commissioner) unless—

(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.

91 Delegation

S. 91(1) amended by No. 22/2016 s. 230(a).

(1) The Health Complaints 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.

S. 91(2) amended by No. 22/2016 s. 230(b).

(2) The Health Complaints 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.

(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—

S. 94(1)(a) substituted by No. 37/2014 s. 10(Sch. item 77.3).

(a) a police officer; or

S. 94(1)(b) amended by No. 22/2016 s. 231(a).

(b) the Health Complaints Commissioner; or

S. 94(1)(c) amended by No. 22/2016 s. 231(b).

(c) a person authorised to do so, either generally or in a particular case, by the Health Complaints 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

(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 subsection (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.

S. 96 (Heading) amended by No. 69/2009 s. 54(Sch. Pt 1 item 29.1).

96 Legal professional privilege and client legal privilege not affected by this Act[[6]](#endnote-6)

Despite any other section, this Act does not—

S. 96(a) amended by No. 69/2009 s. 54(Sch. Pt 1 item 29.2).

(a) apply in relation to a document that is the subject of legal professional privilege or client legal privilege; or

S. 96(b) amended by No. 69/2009 s. 54(Sch. Pt 1 item 29.2).

(b) affect the law or practice relating to legal professional privilege or client legal 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—

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.