The Health Services Act 1991 (Qld) ("the Act") has been amended by Part 7 of the Health and Other Legislation Amendment Act 2009 No. 44 (Qld).
The amendments commenced on 11 December 2009 and follow recommendations made by the Commission for Children, Young People and Child Guardian and the Queensland Ombudsman. The objective of these amendments is to enable confidential information to be released for the protection, safety or well being of a child and to assist the Director-General and Queensland Health’s lawyers to effectively carry out their responsibilities.
The Health Services Act 1991 (Qld)
Section 62A of the Act imposes a duty of confidentiality on health service employees. A health service employee must not disclose to another person (directly or indirectly) confidential information acquired by virtue of the person’s employment with the health service if a person who is receiving or has received a public sector health service, that is, a patient, could be identified from the confidential information. The obligation applies to persons who are former employees and extends to information from which the identity of a deceased person could become known.
Whilst the Act does contain a number of exceptions for appropriate and accountable disclosure, some legitimate reasons for needing to disclose information had previously been overlooked. As such, it was possible for health service employees to inadvertently breach section 62A by providing confidential information to the Director-General or Queensland Health’s lawyers.
New section 62PA
The inclusion of section 62PA of the Act clarifies the position that the Chief Executive may disclose confidential information to a lawyer representing the State in a matter.
Section 62PA relevantly provides that the requirements of section 62A do not apply to the disclosure of confidential information by the Chief Executive if the disclosure is to a lawyer in relation to the matter and the lawyer is representing the State in relation to the matter.
The explanatory notes to the amending legislation provide the following further guidance, and indicate that the protection of section 62PA may extend to the release of information about a person:
- who is not a party to the litigation, but may be relevant to the matter in dispute, and advice is needed as to whether the information would be admissible evidence and should be relied upon in the litigation; and
- where the information may relate to a different incident or illness, but a causal connection is suspected and advice is needed as to whether the information should be relied upon (i.e. a person sues the State of Queensland for malpractice arising from a fracture, however the person's mental health records are assessed to determine whether they may be relevant to the matter).
Importantly, the explanatory notes stipulate that to ensure the effective operation of this provision, the Chief Executive will delegate this power to appropriately qualified people such as medical records staff, Health Information Managers, Freedom of Information Officers.
We recommend that employees seek medico-legal advice prior to releasing information.
Tsharna Stewart
Solicitor
Phone: 61 7 3004 3523
Tsharna_Stewart@tresscox.com.au
To see the contact details of the entire TressCox Health Services Team please click here.
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