The Law Handbook 2024

872 Section 9: Health, wills and other legal issues affecting older people consent of the senior available next of kin of that person; or • to a court, in the course of criminal proceedings; or • concerning the condition of a person who is a patient in, or is receiving health services from, a relevant health service, if the information is communicated: – in general terms; or – by a member of the medical staff of a relevant health service to the next of kin or a near relative of the patient in accordance with the recognised customs of medical practice; or • to the Australian Red Cross for the purpose of tracing blood, or blood products derived from blood, infected with any disease, or the donor or recipient of any such blood; or • if it is required in connection with the further treatment of a patient, or transferred electronically between hospitals via a specially established electronic records system for the treatment of patients; or • the giving of information in accordance with an agreement between the minister and a body to manage a hospital under section 53(1), or a service provider under section 69B(1); or • the giving of information as described in the following HPPs in the HR Act: HPP 2.2(a) (for a secondary purpose directly related to the primary purpose for collecting the information), 2.2(f) (for the management of a health service or training of employees), 2.2(h) (to lessen or prevent a serious threat to the life, health, safety or welfare of an individual or a serious threat to public health, public safety or public welfare), 2.2(k) (to establish, exercise, or defend a legal or equitable claim), 2.2(l) (to use or disclose in prescribed circumstances) or 2.5 (to identify an individual; or contact family members where the individual is missing or, due to an accident, the individual is unable to consent); or • the giving of information relating to a notification, claim or potential claim to a person or body providing insurance or indemnity (including discretionary indemnity) for any liability of the relevant health service or a person who is a relevant person in relation to the relevant health service arising from the provision of services by, on behalf of or at the relevant health service; or • to the Australian Statistician; or • for the purposes of medical or social research, if: – the use to which the information will be put and the research methodology have been approved by an ethics committee established under the by-laws of the agency; and – the giving of information does not conflict with any other requirements that may be prescribed in regulations under the Act; and – it is in accordance with HPP 2.2(g) of the HR Act; or • to a case-mix auditor or auditor under the Act; or • to a person or class of persons designated in the Government Gazette, employed by a health service or its support functions; or • in accordance with the Family Violence Information Sharing Scheme provisions of the Family Violence Protection Act 2008 or the Child Information Sharing Scheme provisions of the Child Wellbeing and Safety Act 2005 ; or • to a person to whom, in the opinion of the Minister for Health, it is in the public interest that the information be given. If a person who is subject to section 141 discloses identifying information without authority, they may have committed an offence under the HS Act for which they may be fined up to $9616 (or 50 penalty units with a value of $192.31 each). See ‘A note about penalty units’ at the start of this book. Confidentiality in a hospital setting is a fluid concept. There may be a large number of people (e.g. doctors, nurses, administration staff) who have access to a person’s file, all of whom have valid reasons for requiring that access. Confidentiality between patient and health service provider Doctors and other health service providers may be sued at common law (i.e. judge-made law) if they divulge confidential information without a person’s permission. The individual may sue for breach of contract, breach of confidence or because the health professional has been negligent in disclosing the information. However, such actions are very rare and complaints about breach of confidentiality would now almost always be dealt with under the privacy legislation described above. Again, it should be noted that it is lawful for a health professional to disclose information if: