85Capacity to consent or make a request or exercise right of access

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.