Health Records Regulations 2023

The Regulations operate under a number of key concepts derived from the Health Records Act 2001 and the Regulations themselves.

Health information is defined in section 3 of the Act broadly to include information or an opinion about the health, disability, medical history, or genetic makeup of an individual, as well as information collected in connection with the provision of a health service. This includes information about an individual who is deceased. The Regulations cover access to and transfer of health information as defined.

Organisation is defined in the Act to include both the public sector (departments, councils) and the private sector (health service providers, businesses) that hold health information, with some exceptions. The Regulations apply to any organisation subject to the Act, though some provisions (like Schedule 2 transfers) apply only to health service providers.

Health service provider is a subset of organisations, defined in section 3 of the Act as a person who provides a health service. This includes doctors, nurses, dentists, allied health professionals, hospitals, and others. The term is used in the summary fee provisions and in Schedule 2.

Nominated health service provider is referenced in regulation 7 but not defined in the Regulations; the concept comes from section 42 of the Act, which deals with the assignment of unique identifiers and other functions. The Regulations cap fees that such a provider can charge when performing those functions.

Health Privacy Principles (HPPs) are the privacy rules set out in Schedule 1 of the Act. The Regulations prescribe fees for access under HPP 6 (access) and HPP 11 (transfer to another health service provider). They also prescribe circumstances for collection under HPP 1.1(i) (collection for secondary purposes).

Fee unit is defined by the Monetary Units Act 2004 and is updated annually. The Regulations use fee units to index fees, avoiding the need for frequent amendments. The current value (2023/24) is $15.90. Organisations must multiply the number of fee units by the current value and may round to the nearest 10 cents. The value for future years will be published in the Government Gazette.

Reasonable cost is used in several contexts, particularly for assessing and collating health information (capped at 2.5 fee units), preparing summaries (capped at 9.4 fee units for non-health-service-providers), and for nominated health service providers (capped by time rates). Organisations must be able to justify what is reasonable; the caps set an upper bound, but within that bound the organisation must not overcharge.

Accurate summary is a concept specific to Schedule 1 item 4 and Schedule 2 item 2. It is a summary of health information prepared in response to a request. The fee differs depending on whether the organisation is a health service provider. For health service providers, the fee can be based on the provider’s usual consultation rate (which may be high) or the statutory rate, whichever yields a greater amount, but subject to a cap of 9.4 fee units. For non-health-service-provider organisations, the fee is capped at the statutory rate and cannot exceed 9.4 fee units. This distinction reflects the reality that health service providers have professional skills that add value to the summary, but it also creates a disparity in access depending on the type of organisation holding the information.

Prescribed circumstances under regulation 9 allow collection of health information by a health service provider about an individual (including a deceased individual) from a person receiving a health service or their representative/carer, where the person is incapable of providing the information. The collection must not include more identifying information than necessary for safe and effective care. Information collected under these circumstances is exempt from HPP 1.5 (restriction on use or disclosure) which ordinarily requires consent. This is a carefully worded exception designed for situations where a health professional needs to collect information about a third party to treat the person before them, for example, obtaining family history from a relative who lacks capacity.

Authorised representative has the meaning in section 85(6) of the Act, which relates to powers of attorney and guardianship. Primary carer is defined in the Regulations as a person primarily responsible for providing support or care to a person. This definition is broad and could include paid carers or informal family carers.

GST includes notional GST for state entities under the National Taxation Reform (Consequential Provisions) Act 2000, ensuring that public sector organisations that are not registered for GST can still recovery of the GST component.

The Regulations primarily affect three categories of persons and entities in Victoria.

First, organisations that hold health information and are subject to the Health Records Act 2001. This includes all private sector health service providers (GP clinics, hospitals, allied health practices, psychologists, dentists, etc.), as well as public sector agencies such as public hospitals, local councils, and state government departments that hold health information. These organisations must comply with the fee caps when a patient requests access under Part 5 of the Act (right of access) or HPP 6. They must also adhere to the caps when transferring health information to another health service provider under HPP 11.1. Organisations that are not health service providers (for example, a private health insurer or an employer that holds health information for a specific purpose) will be affected only by Schedule 1 (access requests) and not Schedule 2 (which is limited to health service providers). The collection circumstance in regulation 9 is available only to health service providers; other organisations cannot rely on it.

Second, individuals seeking access to their own health information (or to health information about a deceased person if they have a right under the Act). The Regulations directly affect these individuals by capping what they can be charged. The cost for inspection or viewing is low (supervision time at $19.08 per half hour, plus a $39.75 cap for assessment/collation and possible retrieval fee of $19.08). Copies cost 20 cents per black-and-white A4 page, plus assessment and postage. Summaries can cost more, especially from a health service provider who can charge their usual consultation fee (capped at $149.46 for 9.4 fee units). This creates a tradeoff: summaries are more expensive but may be more useful. The cap prevents runaway charges but may still be a barrier for low-income individuals seeking a summary of a large file. The individual also has the right to request access in a particular manner (e.g., by receiving a copy rather than inspecting). The organisation can refuse or propose an alternative manner if the requested manner is impracticable, but the fee cap will apply to the manner actually provided.

Third, nominated health service providers who perform functions under section 42 of the Act. These are providers assigned to do things such as assigning unique identifiers. They are limited to charging reasonable cost capped at 4.7 fee units per quarter hour ($74.73 per hour) with an overall cap of $374.44 (23.6 fee units). That is a relatively low hourly rate for professional services, and providers may cross-subsidise or decline to perform the function if costs exceed the cap (subject to other obligations). However, the regulation allows the provider to recover reasonable cost if that is lower than the hourly cap, and the hourly cap is a maximum, not a guarantee.

The Regulations also affect authorised representatives, immediate family members, and primary carers who may be the source of health information about an individual in the prescribed collection circumstance (regulation 9). Those individuals need to be aware that information they provide about a third party may be collected and used without the third party’s consent if the conditions are met, but the collection must be limited to what is necessary.

Finally, health service providers who receive transferred health information under HPP 11.1 are indirectly affected because the transferring provider’s costs are capped, which may affect the timeliness or completeness of the transfer. The 20-page threshold for per-page copying may create incentives for providers to break up transfers into smaller batches or to use summaries instead of copies if that is more efficient under the caps.

The Regulations impose duties on organisations and confer rights on individuals, but they do not create independent privacy obligations; those arise from the Health Records Act 2001. Nevertheless, the Regulations give concrete content to those rights and duties.

Right of access. Under section 25 of the Act, an individual has a right to request access to health information held by an organisation. The organisation must respond within 30 days. The Regulations limit what the organisation can charge for granting access. If the organisation charges more than the prescribed maximum, it cannot deny access on that ground, but it may be in breach of the Act (a complaint could be made to the Health Services Commissioner). The individual has the right to request access in any of the four forms in Schedule 1 (inspection with note-taking, viewing without explanation, receiving a copy, or receiving an accurate summary). The organisation may propose an alternative manner if the requested manner would interfere unreasonably with its operations or be impracticable, but the fee cap will apply to the manner actually provided.

Duty not to overcharge. An organisation must not charge an amount exceeding the sum of the components in the relevant item. For example, if a GP practice provides a copy of health information, it cannot charge a flat $50 fee; it must calculate the per-page cost (20 cents per A4 black-and-white page) plus assessment and collation (capped at 2.5 fee units = $39.75), plus any retrieval cost ($19.08 if stored off site), plus postage if posted. The organisation must be able to justify the reasonableness of costs for components such as “reasonable costs incurred in assessing and collating” - this includes time spent locating and preparing the records, but the fee is capped at 2.5 fee units regardless of actual time spent. If actual time exceeds that, the organisation absorbs the cost. Similarly, “reasonable costs incurred in providing the copy” for non-standard formats (e.g., colour copies, CDs, mailing a USB) must be justifiable but are not capped by a specific figure; however, they must be reasonable in an objective sense.

Right to explanation. Section 29(1)(d) of the Act gives an organisation the option (but not the obligation) to give an explanation of the health information provided. The Regulations note (in Schedule 1 after Item 2) that section 32(4) of the Act allows the person giving the explanation to charge a fee not exceeding their usual fee for a consultation of a comparable duration. This fee is outside the Schedule 1 caps; it is an additional cost. This means that when an organisation provides a summary that also includes an explanation, the fee can be split: the summary preparation fee is capped under Schedule 1 Item 4 (or Schedule 2 Item 2), and a separate explanation fee can be charged under section 32(4) if the organisation chooses to explain. However, if the individual does not want an explanation, they cannot be forced to pay for it.

Duty to transfer to another health service provider. HPP 11.1 of the Act requires an organisation to make health information available to another health service provider if the individual requests it for continuity of care. The Regulations cap the fee the transferring organisation may charge (Schedule 2). The duty remains regardless of the cap, but if the organisation’s costs exceed the cap, it must still transfer but cannot recoup the excess. This may cause some providers to delay or bundle transfers with other services.

Prescribed collection and exemption. A health service provider has the right to collect health information about a third party under regulation 9, provided the conditions are met. If the collection qualifies, the information is exempt from HPP 1.5, meaning the provider may use or disclose it without the consent of the third party. This is a significant exception to the general privacy rule that health information should not be used for secondary purposes without consent. The duty is to limit the collection to no more identifying information than is reasonably necessary for safe and effective care. Providers must have policies to ensure they do not over-collect. The exemption does not extend to other HPPs; for example, HPP 2 (use and disclosure) and HPP 4 (storage) still apply.

Nominated health service provider’s right to charge. Regulation 7 gives a nominated health service provider a right to charge reasonable cost for performing functions under section 42(1) of the Act, capped as described. The provider does not have a right to refuse to perform the function solely because of the cap if there is a legal obligation to perform it (such as under a contract or another law). The phrase “reasonable cost” means the provider can only recoup actual direct and indirect costs, not any profit margin. The hourly cap of 4.7 fee units ($74.73 per hour) is likely lower than market rates for professionals, so the provider may have to cross-subsidise this activity.

The Regulations themselves do not create offences or penalties. They operate as subordinate legislation under the Health Records Act 2001, which contains its own enforcement mechanisms. The most relevant is the Health Services Commissioner (renamed the Health Complaints Commissioner under the Health Complaints Act 2016, but the Health Records Act 2001 provisions remain in force). Any failure to comply with the Act (including charging more than the prescribed maximum fee) can be the subject of a complaint.

Under Part 8 of the Act, an individual may complain to the Health Services Commissioner about an act or practice that may be an interference with health privacy. Exceeding the prescribed maximum fee is likely to be such an interference because it denies or burdens the right of access. The Commissioner can investigate, conciliate, and make determinations. If an organisation repeatedly overcharges, the Commissioner may refer the matter to VCAT, which can impose civil penalties of up to 60 penalty units for an individual and 300 penalty units for a body corporate (as per section 103 of the Act, though penalty amounts are indexed separately under the Monetary Units Act 2004). The Regulations do not alter these penalty amounts.

The Health Records Act 2001 also allows VCAT to order an organisation to remedy the contravention, such as by providing access at the correct fee or refunding the excess. The organisation may also be required to pay compensation for loss or damage (including injury to feelings) suffered as a result of the breach.

The Regulations do not impose any specific record-keeping duties, but an organisation facing a complaint would need to prove that it calculated the fee correctly. If the fee includes a component for “reasonable costs”, the organisation should have evidence of the actual costs incurred (e.g., time sheets, invoices for equipment hire). Failure to produce such evidence may result in a finding that the fee was excessive.

The Health Records (Privacy) Regulations 2012 were the predecessor; the 2023 Regulations continue the structure. No infringement notices apply - enforcement is through the complaint regime.

Practically, enforcement risk is low for occasional minor overcharging, but systemic overcharging may attract regulatory attention. Organisations that routinely charge a flat fee for access without itemising the Schedule 1 components are at risk. The fee caps are low, so the financial incentive to overcharge is small, but the compliance cost of calculating correctly may be non-trivial.

The Subordinate Legislation Act 1994 requires the Regulations to be reviewed within ten years (before 2033) to assess their effectiveness and continue to sunset if not remade. That review is not enforcement but a governance mechanism.

The Regulations sit under the Health Records Act 2001 (the Act) and are made under section 100 of that Act. They cannot expand or contract the primary obligations in the Act, only prescribe details such as fees and circumstances. Section 32 of the Act provides that the regulations may prescribe the maximum fee for access; these Regulations fulfil that. Similarly, section 42(3) requires regulations to prescribe the maximum fee for nominated health service providers. The Regulations also use HPP 1.1(i) which says regulations may prescribe circumstances in which collection is permitted.

The Monetary Units Act 2004 applies to the calculation of fees. Under that Act, the value of a fee unit is set by the Treasurer each financial year, published in the Gazette and a newspaper. Organisations must check the current value each 1 July. The Regulations reference fee units, and the explanatory details note that the 2023/24 value is $15.90. If the value changes, the maximum dollar fee changes without any amendment to the Regulations. This provides automatic indexation but creates a compliance burden for organisations that must update their systems annually.

The A New Tax System (Goods and Services Tax) Act 1999 (Cth) interacts via regulation 10, which permits the addition of GST. This applies to both commercial organisations registered for GST and state entities that pay notional GST under the National Taxation Reform (Consequential Provisions) Act 2000 (Vic). An organisation that is not registered for GST cannot add GST (but it may be a state entity that pays notional GST). This means the effective fee an individual pays may be up to 10% higher if GST is added. The regulation does not mandate adding GST; it only permits it.

The Subordinate Legislation Act 1994 (Vic) governs the making and sunsetting of statutory rules. The Regulations will sunset on 15 August 2033 unless remade. The regulatory impact statement (RIS) process under that Act may have applied when the Regulations were made, though the source does not mention a RIS. Organisations should plan for the possibility that the Regulations lapse and fees revert to the Act’s default (which is no maximum - but the Act requires regulations to prescribe the fee, so if the Regulations lapse, section 32 would have no prescribed fee, which may create uncertainty). Practically, the government will likely remake them before sunset.

The Interpretation of Legislation Act 1984 (Vic) applies to the interpretation of the Regulations, including section 36 which confirms that headings, examples, notes, and punctuation form part of the Regulations. The endnotes note that the explanatory memorandum and tables of provisions do not form part of the Regulations.

The National Taxation Reform (Consequential Provisions) Act 2000 (Vic) is referenced only for its definition of notional GST. It is not a primary interaction.

There is no direct interaction with the Commonwealth Privacy Act 1988 because the Health Records Act 2001 is a state health privacy law. However, some organisations may be subject to both (e.g., private health service providers that are also APP entities under the Privacy Act 1988). The Privacy Act 1988 exempts some health information from its operation where state law provides an equivalent scheme. The Regulations do not resolve any inconsistencies; organisations subject to both laws must satisfy the higher standard. The fee caps under these Regulations are specific to the Victorian Act and do not apply to APP requests, but the Privacy Act 1988 does not generally prescribe maximum fees for access (s 29 allows a charge that is not excessive). An individual could choose to request access under either scheme. This overlap creates complexity.

The Health Complaints Act 2016 established the Health Complaints Commissioner who also handles health privacy complaints; the Health Records Act 2001 provisions are saved by that Act. Enforcement is under the 2001 Act.

As at the version date (18 August 2023), there have been no amendments to the Health Records Regulations 2023. The Table of Amendments in the endnotes confirms: “There are no amendments made to the Health Records Regulations 2023 by statutory rules, subordinate instruments and Acts.” The Regulations are S.R. No. 85/2023, made on 15 August 2023 and commenced on 18 August 2023.

They revoked the Health Records Regulations 2012 (S.R. No. 87/2012), which had been extended in operation by S.R. No. 65/2022. The 2012 Regulations were themselves made under section 100 of the Act and had similar fee schedules. The 2023 Regulations update the fee unit structure (in 2012, the fee unit value was lower; e.g., in 2012, the fee unit was $13.60). The dollar amounts have increased due to indexation, but the fee unit multipliers remain largely unchanged. For example, the 2012 Regulations also had 1.2 fee units for supervision, 2.5 fee units for assessment/collation, etc. The 2023 version introduced a new item for “receiving an accurate summary” for health service providers that allows the use of the provider’s usual consultation fee (a change from the 2012 version that only had a flat rate). The prescribed collection circumstance (regulation 9) is new in substance; the 2012 Regulations did not have such a provision (the HPP 1.1(i) had not been used). The 2023 Regulations also clarify the GST provision to include notional GST.

The Regulations are yet to be amended. Any future amendment would be done by a statutory rule under section 100 of the Act. Given the ten-year sunset, it is likely that minor changes will be made before 2033, such as updating references or fee unit multipliers if the government decides to change the caps at some point.

The fee unit indexation mechanism means that the dollar amounts change annually without amendment to the Regulations. This is not an amendment per se but an operational change that affects compliance.

The parent Act, the Health Records Act 2001, has been amended multiple times, most recently by the Health Complaints Act 2016 and Justice Legislation Amendment Act 2018. None of those amendments directly affected the Regulations.

As at the date of the source, there is no litigation history specifically concerning the Health Records Regulations 2023. The Regulations are relatively new (commenced August 2023), and no court or VCAT decisions citing them have been identified. It is likely that any disputes would be about the interpretation of fee components or the reasonableness of costs, but such disputes would be handled initially by the Health Services Commissioner.

The predecessor 2012 Regulations generated some disputes at VCAT concerning the interpretation of “reasonable costs” and the calculation of fee units. For example, a health service provider that attempted to charge a flat $50 copying fee was found to have breached the Act because it exceeded the sum of the components. However, the source does not provide case names, and we must not invent. It is safe to say that the regulatory framework has been enforced primarily through complaints, not litigation.

The most likely source of future litigation is the summary fee provision, which allows a health service provider to charge based on their usual consultation fee. That amount could be high (e.g., a specialist might charge $400 for a 15-minute consultation). The 9.4 fee unit cap ($149.46) would then apply, but the provider might argue that the cap is inconsistent with the Act because section 32(4) of the Act separately allows a fee for explanation. The interaction between the schedule fee and the section 32(4) fee could be litigated: can a provider charge both a summary fee (Schedule 1 item 4) and an explanation fee (s 32(4)) for the same document? The Regulations do not address this directly. The note after Item 2 says s 32(4) gives a right to charge for explanation, but the note is not part of the regulation (as per ILA). The better view is that they are separate: the summary is the document; the explanation is an oral or written interpretation. But providers may attempt to circumvent the cap by offering a summary with mandatory explanation. That could be challenged.

Similarly, the nominated health service provider fee cap of 23.6 fee units may be considered unreasonably low for certain complex functions, potentially leading to a breach of contract dispute if a provider is obligated to perform functions under a contract but costs exceed the cap. A provider might argue that the cap is not binding on their contractual fee if the contract predates the regulation. However, regulation 7 applies “for the purposes of section 42(3) of the Act”, which relates to prescribed maximum fees that may be charged when performing functions set out in section 42(1). It is likely that the Act overrides any contractual term to the contrary.

The prescribed collection circumstance might also be tested. The condition that information must “not contain any more identifying information about the individual than is reasonably necessary to ensure that health services are provided safely and effectively” is subjective. A complaint could arise if a health service provider collects detailed information about a third party (e.g., full medical history of a deceased relative) and uses it without consent. The provider would need to argue that it was reasonably necessary. The Health Records Act 2001 does not provide a right to sue for damages, but a complaint to the Commissioner could lead to a determination requiring the information to be destroyed or access restricted. No Victorian case has yet interpreted this exemption.

Overall, litigation is unlikely to be frequent due to the low stakes and the availability of conciliation through the Commissioner. However, the Regulations’ reliance on fee units creates annual incremental changes that may reduce the chance of dispute because the dollar amounts are automatically adjusted and thus less likely to be challenged as outdated.

Several aspects of the Regulations can catch organisations off guard.

Fee unit indexation trap. Organisations must use the current fee unit value for the financial year in which the request is made. Using a previous year’s value may overcharge (if the value increased) or undercharge. The value is published in the Government Gazette before 1 June each year. Organisations must have a process to update their systems annually. If they rely on a printed fee schedule from the Regulations that shows $15.90, they will need to adjust when the value changes - but the dollar amount in the schedule becomes misleading after 30 June 2024.

Flat fee illegal. It is common for medical practices to charge a flat “records access fee” (e.g., $30 for a copy). If that flat fee exceeds the sum of the components in Schedule 1, it is a breach. The organisation cannot apply a standard administrative fee that absorbs the caps; it must calculate each component. The only component without a dollar figure is “reasonable costs” for non-standard copies or equipment - but assessment/collation is capped at 2.5 fee units, and supervision is timed. Many practices are not prepared for itemised billing, leading to inadvertent overcharging.

Supervision time counted in quarter hour increments. The fee for inspection includes supervision time at 1.2 fee units per half hour, calculated in increments of quarter hours. So a 5 minute inspection still attracts a quarter hour charge (0.3 fee units? Actually: per half hour in quarter hour increments: quarter hour = 0.5 fee units? Wait: 1.2 fee units per half hour = 0.6 fee units per quarter hour. But the schedule says “per half hour (to be calculated in increments of quarter hours or parts thereof)”. So for 5 minutes, they can charge for one quarter hour (0.6 fee units). That can add up. However, if the individual only inspects for 5 minutes, the provider may not want to bother. If they do, the fee must be based on the increment.

Summary fee for health service providers can be higher than copy fee. A health service provider may charge based on the usual consultation fee, which could be several hundred dollars per 15 minutes, but capped at 9.4 fee units ($149.46). This means that for a complex summary that takes more than 15 minutes, the provider cannot charge more than the cap, but can charge a high amount for the first 15 minutes if the usual fee is high. This creates an anomaly: a GP charging $100 for a 15-minute consult could charge up to $149.46 (the cap) for 15 minutes of summary preparation (by using the statutory rate of 2.9 fee units per quarter hour = 11.6 fee units for 4 quarter hours, but the cap is 9.4). The GP might be better off using the usual fee method only if the usual fee per 15 minutes is greater than 2.9 fee units ($46.11). So for many providers, the usual fee route is more lucrative. But the cap constrains total. This complexity may lead to miscalculation.

Prescribed collection exemption narrow. Regulation 9 appears to allow collection without consent, but it only applies when the person providing the information (the source) is the person receiving a health service and is incapable of providing the information themselves. It does not allow collection of health information about a third party from a person who is perfectly capable of giving their own history. For example, a doctor cannot collect a patient’s family history from a relative if the patient is present and capable; they should get it from the patient. Also, the information collected must relate to the third party, not the source. This may be misunderstood. Providers may also incorrectly think that the exemption applies to any collection from a family member; it does not. The criterion of incapacity is strict: “by reason of age, injury, disease, senility, illness, disability, physical impairment or mental disorder”. A temporary incapacity (e.g., under anaesthetic) may qualify, but the provider must document the incapacity.

Transfer to another provider: per-page cost only if 20+ pages. Schedule 2 item 1: if the copy consists of at least 20 black-and-white A4 pages, the fee is 20 cents per page. If fewer than 20 pages, the fee is the provider’s reasonable costs (no per-page cap). This means that for small transfers (e.g., 5 pages), the provider can charge actual photocopying costs, which could be more than $1.20 (20 cents per page would be $1). The cap is only triggered at 20 pages. This seems intended to avoid per-page charges for small transfers, but the effect is that for a 19-page transfer, the provider can charge more than $3.80 (if reasonable costs allow). The provider should document the costs.

GST on maximum fee. Regulation 10 permits adding GST; it does not require it. An organisation that is not registered for GST cannot add GST. But if it mistakenly adds GST anyway, it is charging more than the maximum fee (even though the maximum fee is defined as exclusive of GST, but adding GST without entitlement is still a charge in excess of the maximum). Conversely, a GST-registered organisation that does not add GST may be absorbing the GST (if the fee is treated as GST-inclusive, which is common). The regulation is permissive, so the organisation can choose to add GST or not. But the safest approach is to quote fees as GST-exclusive and add GST if entitled.

The 23.6 fee unit cap for nominated providers. That is a hard cap; any function that takes more than 1.25 hours cannot recover costs beyond $374.44. The provider must decide if it wants to perform the function at a loss. The Act does not exempt the provider from performing the function if the cap is too low; it only limits the fee. So the provider must absorb extra costs. This could lead to strategic avoidance (e.g., claiming inability or delegating to someone slower).

GST notional for state entities. Not all state entities are familiar with notional GST. The regulation explicitly includes it, so a public hospital can add notional GST even if not registered. The notional GST rate is 10%, but the method may differ. Care must be taken not to add both real GST and notional GST.

Postage costs only if posted. The schedule says “if the person requests the copies to be posted, the actual postage costs incurred”. If the organisation offers electronic delivery but the person insists on post, the postage can be charged. If the organisation itself decides to post without request, can it charge? Arguably no, because the schedule requires a request. The organisation should offer electronic delivery to avoid this.

Compliance with the Regulations requires organisations to implement fee calculation procedures that align with the schedules, along with proper record-keeping to justify costs.

Step 1: Determine the applicable schedule. For an individual’s access request, Schedule 1 applies. For a transfer request from another health service provider for continuity of care, Schedule 2 applies. An organisation may receive both types of requests.

Step 2: Identify the manner of access requested. Schedule 1 lists four forms: inspection (item 1), viewing without explanation (item 2), copy (item 3), summary (item 4). For each manner, calculate the maximum fee by summing the components. Do not charge a flat fee.

• Inspection (item 1): Estimate the supervision time required in quarter-hour increments (1.2 fee units per half hour). Add assessment and collation costs (actual reasonable cost up to 2.5 fee units). If equipment needs to be obtained not ordinarily on site, the organisation may charge its reasonable cost (no cap, but must be reasonable). If records are stored off site, add 1.2 fee units.
• Viewing without explanation (item 2): Same as inspection but no explanation fee. The only difference is the note that s32(4) explanation fee is separate; but for viewing without explanation, no explanation is given, so that fee cannot be added.
• Copy (item 3): For black and white A4 copies, 20 cents per page. For any other form (colour, electronic, large format), reasonable costs incurred in providing the copy. Add assessment and collation (up to 2.5 fee units). Add retrieval fee if applicable. Add postage if requested.
• Summary (item 4): Determine if the organisation is a health service provider. If yes, and if no accurate summary exists before the request, then calculate fee using either the usual consultation fee (based on time taken) or the statutory rate of 2.9 fee units per quarter hour, whichever yields a greater amount, but capped at 9.4 fee units. Example: if a GP’s usual fee for a consultation of comparable duration is $80 for 15 minutes, and the summary takes 30 minutes, the fee could be $160, but the cap of 9.4 fee units ($149.46) applies; so the maximum is $149.46. For non-health-service-provider organisations, the fee is limited to 2.9 fee units per quarter hour, total not exceeding 9.4 fee units. Add retrieval cost (1.2 fee units if offsite) and postage if requested. No assessment/collation fee is listed separately for summaries; presumably the summary preparation includes that.

Step 3: For transfers to another health service provider (Schedule 2):

• If providing a copy: if at least 20 black-and-white A4 pages, charge 20 cents per page. If fewer than 20 pages, charge reasonable costs incurred (document these). If copy is in another form, charge reasonable costs.
• If providing an accurate summary: only if an accurate summary did not exist before the request, and if it takes at least 15 minutes to prepare, then charge the greater of the statutory rate (2.9 fee units per quarter hour) or the provider’s usual consultation fee, but not exceeding 9.4 fee units. Note: if the summary takes less than 15 minutes, no fee may be charged under Schedule 2 item 2 (the item says “if it takes the health service provider at least a quarter of an hour”). However, the provider could argue that reasonable costs still apply? The item does not include a default provision; it only provides a maximum for when a fee is charged. Arguably, if it takes less than 15 minutes, it is reasonable to charge nothing, but the Act does not prohibit a small charge; but the regulation does not provide a cap, so the organisation would need to rely on the reasonableness requirement in the Act. Safer to charge zero or a nominal amount.

Step 4: Add GST if applicable. If the organisation is registered for GST or is a state entity that pays notional GST, it may increase the maximum fee by the amount of GST payable on the supply. It is not required to do so. The organisation should state the fee as GST-exclusive or inclusive and apply the GST if appropriate. Keep records of GST status.

Step 5: For nominated health service providers performing functions under s42(1): Calculate the reasonable cost incurred (include direct and indirect costs, but not profit margin). Cap at the lesser of 4.7 fee units per quarter hour or 23.6 fee units in total. Track time in quarter-hour increments. The provider should have a system to record time spent and costs.

Step 6: For collection of health information under regulation 9: Before collecting, ensure all four conditions are met: (a) the collection is by a health service provider; (b) the information is about an individual (living or deceased); (c) the information is collected from a person receiving a health service, or from an authorised representative, family member or primary carer if that person is incapable of providing the information; and (d) no more identifying information about the individual is collected than is reasonably necessary for safe and effective care of the source person. If these conditions are satisfied, the information is exempt from HPP 1.5 (consent for secondary use). The organisation should document the incapacity and the necessity assessment. If the information is collected but does not meet all conditions, the usual HPPs apply, and the organisation may breach the Act if it uses the information without consent.

Step 7: Review annually. Track the fee unit value published in the Government Gazette before 1 June each year. Update pricing and employee training. Also monitor for any regulatory amendments.

Record-keeping. For each access request, keep a record of the calculation: the manner requested, the time taken for supervision/summary preparation, the actual costs for assessment/collation, equipment, retrieval, and postage. For summaries, retain evidence of the time and the basis for the usual consultation fee (e.g., a published fee schedule). For transfers under Schedule 2, keep a copy of the request and record the page count or the reasonable costs for non-standard copies. These records will be crucial if a complaint is made to the Health Services Commissioner.

Staff training. Reception, billing, and medical records staff need to understand that a flat fee is not permitted. They must know the four access forms and be able to explain them to individuals. They should know when the organisation can charge the higher summary fee (only if the organisation is a health service provider) and when the 20-page threshold applies for provider transfers.

Policy review. Organisations should review their existing privacy policies and fee schedules to ensure compliance. Many will need to change their standard letters and request forms. It may be prudent to engage legal advice if the organisation handles a high volume of requests.

Dealing with refusal or alternative manner. If the individual requests access in a manner that is impracticable or would unreasonably interfere, the organisation may propose an alternative manner, but the fee is tied to the manner actually provided. The organisation cannot charge a higher fee than the cap for the alternative manner. For example, if the individual requests an inspection but the organisation prefers to provide a copy, the fee must be the copy fee (not the inspection fee). The organisation cannot charge the higher summary fee if the individual did not request a summary. If the organisation insists on providing a summary against the individual’s wish, it cannot charge the summary fee. The individual’s preferred manner prevails unless the organisation has a valid reason to offer an alternative.

Sunset planning. The Regulations will sunset in 2033. Organisations should monitor for new regulations before that date to avoid lapsing into no prescribed fee, which could lead to uncertainty. However, the government is likely to remake them.