Confidentiality and privacy of health information
Health information must not be disclosed without the person’s consent, unless specific exceptions apply (see ‘Privacy and confidentiality’ in Chapter 9.1: Health and the law).
When can health information be disclosed?
The Mental Health Act 2014 (Vic) (‘MHA 2014’) (s 346) has specific exceptions that authorise the disclosure of health information about a consumer without consent in limited circumstances:
- when the person to whom the information relates is deceased and the senior available next of kin consents to disclosure;
- when disclosure is reasonably necessary for the mental health service providers (MHSPs) to perform their functions or exercise powers under MHA 2014 or another Act;
- when disclosure is permitted by an Act other than the Health Records Act 2001 (Vic) (‘HRA 2001’);
- when disclosure is permitted by the Health Privacy Principles 2.1, 2.2(a), (f), (g), (h) or (k) or 2.5;
- when disclosure is required by another MHSP in order to provide health services to the person within the meaning of section 3 of the HRA 2001;
- when disclosure is made in general terms to a friend, family member or carer of the person and that disclosure is not contrary to the views and preferences of the person;
- when the information relates to a patient and disclosure is reasonably required by a carer to determine the nature and scope of the care and to make necessary arrangements in preparation for that role or to provide care to the patient, and the person’s views and preferences (including in an advance statement) have been considered;
- when disclosure involves access to a patient’s clinical records and discussing their treatment for the purpose of a second psychiatric opinion under Division 4 of Part 5 of the MHA 2014;
- when the person is under 16 years old and the disclosure is to their parent, or – if they are subject to a custody or guardianship order – to the Secretary of the DFFH;
- when disclosure is to the person’s guardian or medical treatment decision-maker or support person and it is reasonably required for carrying out their duties or functions; or
- when, in relevant circumstances, giving of information to the Secretary of the Department of Health (Vic), the Minister of Mental Health, the Mental Health Tribunal, Victorian Mental Health Complaints Commissioner, the Chief Psychiatrist, VCAT, a court in relation to a proceeding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Forensic Leave Panel is required; and
- when disclosure is required in connection with a notification, claim or possible claim for any possible liability of the MHSP arising out of the provision of mental health services.
Section 347 of the MHA 2014 deals specifically with disclosure of information on the electronic health information system, which is shared between MHSP to enable continuity of mental health services.
The disclosure of information must also be in accordance with the mental health principles (s 11). Penalties apply for breaching confidentiality.
Information exchange between health professionals is also covered by the HRA 2001, which includes the Health Privacy Principles.
The HRA 2001, the Privacy and Data Protection Act 2014 (Vic) and the Privacy Act 1988 (Cth) allow a person to take action if their privacy is breached (see Chapter 12.4: Privacy and your rights).
Patients’ other rights
Inpatients have the right to communicate lawfully with any person (div 2 pt 3 MHA 2014).
Section 16 of the MHA 2014 permits an authorised psychiatrist to restrict a person’s right to communicate if it is reasonably necessary to protect the health, safety and wellbeing of the inpatient or another person.
No such restriction can be made in relation to communicating with:
- a legal representative;
- the Chief Psychiatrist;
- the Victorian Mental Health Complaints Commissioner;
- the Mental Health Tribunal;
- a Community Visitor;
- a prescribed person or body (s 16(2)).
Also, all patients have the right to vote.
If a patient brings personal possessions to hospital, they can request storage for those possessions. The patient should be given a receipt.