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Access to health records and the Health Records Regulations 2002

1. Access to health information

Individuals have an enforceable right of access to their health information under the Victorian Health Records Act 2001 (the Act), if the request for access is made to a private sector organisation on or after 1 July 2002.

Private sector organisation, includes health service providers who are sole practitioners or in partnerships. Further information.

Access requests to Victorian public sector organisations will continue to be subject to the Freedom of Information Act 1982. If you wish to apply for your records that are held by the Victorian Department of Human Services, go to http://www.dhs.vic.gov.au/dhsforms.htm

1.1 What health information is an individual entitled to receive?

An individual has a right of access to their health information under Part 5 and Health Privacy Principle 6 (HPP 6) of the Act. This right applies when the information is held by a private sector organisation. It relates to all health information collected by the organisation on or after 1 July 2002.

A more limited right of access also applies to certain health information that is collected by a private sector organisation before 1 July 2002, including:

• the individual's health or disability history;
• the results of an examination or investigation;
• a diagnosis or speculative diagnosis;
• a plan or proposed plan of management;
• services provided or action taken;
• genetic information that is or could be predictive of health; and
• other personal information about a donation of body parts.

In both cases an individual's right to obtain access is subject to the grounds set out in HPP 6 that permit an organisation to lawfully refuse access.

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1.2 Forms of access

The Act enables an individual to request health information collected on or after 1 July 2002 in a number of ways. Access can be by way of:

• inspection of the health information or, if the health information is in an electronic form, a print out of that information, and having the opportunity to take notes of its contents;
• the provision of a copy of the health information;
• the provision of an accurate summary, instead of a copy, if the organisation and the individual agree that a summary is appropriate; or
• an opportunity to view the record, and in the case of health information held by a health service provider, it may be accompanied by an explanation of the information by the health service provider. (In addition, if the organisation that has received the request for an explanation is not a health service provider, it may agree to allow an explanation to be given by a suitable health service provider, but it is not legally obliged to do so under the Act.)

Access may also be granted in any of these ways to health information collected by the organisation before 1 July 2002, where the organisation agrees to this. In the absence of any agreement, the Act entitles the individual to receive an accurate summary of the information.

In addition, Health Privacy Principle 11 (HPP 11) gives an individual a right to request that their health information be transferred from one health service provider to another. The request can be made on or after 1 July 2002. The health service provider must then consider the request under HPP 11, regardless of whether the information was originally collected by that provider before or after 1 July 2002. The requirements of HPP 11 are outlined further below.

2. Fees for access and related activities

The Act provides that regulations may be made by the Governor in Council to fix the maximum levels of fees that may be charged when organisations provide access under the Act from 1 July 2002.

A key objective in the regulations is to strike an appropriate balance between allowing adequate cost recovery for organisations and not setting maximum fees that are prohibitive for applicants.

These regulations apply when an individual is exercising a statutory right to obtain access to, or requests the transfer of, health information under the Act. No person other than the individual concerned (or their guardian, authorised representative or other authorised person) has the ability to require access under the Act.

When an organisation voluntarily gives information to a third-party, as permitted under the standards set out in HPP 2 of the Act or another law, this is 'disclosure' of health information; it is not 'access' under the Act and is not be covered by the fees regulations.

Fees may only be charged for granting access under the Act where this is permitted by the Act itself or the regulations.

These regulations were prepared after two rounds of public consultation conducted by the Victorian Government. This included the release of an issues paper, and the subsequent release of a regulatory impact statement and draft regulations.

Health Records Regulations 2002 (MS Word file 43KB)

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generally, the regulations set out:

• when a fee may be charged;
• how the fee may be calculated in a particular case; and
• what is the maximum fee that may be charged in a particular situation.

A number of the 'maximum fees' have multiple components. A fee may only be charged where the relevant component is applicable to the case at hand. For instance, item 3 of schedule 1 of the regulations sets out the various aspects of the maximum fee that a private sector organisation may decide to charge for providing a copy of health information under Part 5 of the Act. In the case of copies of A4 black and white pages, the organisation may charge up to:

• 20 cents per page;
• if the organisation incurs costs in assessing and collecting the health information, up to $20- but only if this amount is actually incurred in staff time or associated costs; and
• if the relevant documents are not stored at the organisation's usual place of business, $10.

Organisations must consider each element of the fee structure as set out in the regulations, and determine if it is applicable to the particular access request.

The Act does not require any fee to be charged when access is given or information transferred. Organisations are encouraged to consider whether a charge is appropriate in relation to each request. This is especially the case in situations where no (or minimal) costs would be incurred. (For instance, if information is readily available in an electronic form and a print out is provided.)

An organisation may therefore decide not to charge a fee, or to charge the maximum fee permitted in the particular case, or a lesser fee.

The Act does not permit a fee to be charged for lodging a request for access. The maximum fees relate to the granting of access.

There are three main areas where the regulations fix maximum fees.

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2.1 Personal access

An individual may request access to health information about them that is held by a private sector organisation (including health service providers who are sole practitioners or in partnerships) under Part 5 and HPP 6 of the Act. This is outlined above.

These provisions set out where access to parts of a record may be legitimately refused, to take into account the fact that such access may not be appropriate. (For example, if providing access to information would have an unreasonable impact on the privacy of another person.)

Regulation 5 and schedule 1 to the regulations set out the maximum fees that may be charged by a private sector organisation when it provides a copy or an accurate summary, allows the individual to inspect the health information (with an opportunity to take notes), or allows the individual to view the information (without the opportunity to take notes).

The regulations do not specify a maximum fee that is available when a private sector health service provider gives an individual an explanation of their information under the Act. Section 32(4) of the Act provides that in such a case the person giving the explanation may charge the individual a fee that does not exceed their usual fee for a consultation of a comparable duration.

Public sector organisations (such as Government Departments and public hospitals) and others who are subject to the Freedom of Information Act 1982 (FOI Act) should note that, if they receive a request for access to health information, the request will continue to be governed by the FOI Act, not Part 5 and HPP 6 of the Health Records Act. However, the FOI Act has been amended to adopt the following two new forms of access referred to in the Health Records Act: allowing access to be provided by way of an accurate summary, or by an explanation. The Freedom of Information (Access Charges) (Amendment) Regulations 2002 will set out the new fees that may be charged in such cases. These regulations will be available at http://www.dms.dpc.vic.gov.au/: (look under 'Victorian Law Today').

2.2 "Second opinion" about serious threat

The Health Records Act (Part 5) and the Freedom of Information Act (section 33) both contain a special procedure that applies when a person applies for health information about them. The procedure applies if granting that person access under either Act would constitute a serious threat to their life or health. In such a case, the public or private sector organisation that has received the request must refuse to give the person access to this part of the health information.

The Acts provide that an independent health service provider nominated by an individual can be asked to give a "second opinion" about that decision. The organisation may also suggest a health service provider who can perform this role. Regulation 6 provides that the maximum fee that may be charged by the independent provider in these circumstances is $40 per quarter hour (or part of a quarter hour) spent performing this role, to a ceiling of $200.

If an individual chooses to nominate a health service provider for the purposes of this discussion, or accepts an independent nominee proposed by the organisation, that provider may charge the individual a fee for performing this service, provided the fee does not exceed the maximum set out regulation 6.

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2.3 Making information available to another health service provider

An individual may make a statutory request under HPP 11 to a health service provider for some or all of their health information to be made available to another health service provider. The individual may also authorise the other health service provider to make this request on their behalf.

Unlike the access regime for individuals under Part 5:

• HPP 11 only applies in relation to information held by a "health service provider". This includes any organisation to the extent that it that provides health, disability or aged care services, and pharmacists; and
• HPP 11 applies to health service providers in both the public and private sectors. (This includes private practitioners, private health and aged care disability providers, any other private organisation that provides a health, disability or aged care service, the Department of Human Services and public hospitals.) Further Information

This provision is especially relevant where an individual does not wish to personally obtain their health information under Part 5, but does require that it be made available to another provider.

It is customary for information to be shared between providers who are jointly involved in the care of an individual, without requiring that individual to pay a fee before one provider makes the information available to the other. For instance, general practitioners do not charge a fee before providing relevant information to a specialist to whom they have referred a patient, with the consent of the patient. Provided such disclosures are made in accordance with HPP 2, they are authorised under the Act and are not intended to fall within HPP 11. The Act is not intended to discourage the lawful exchange of information between providers on behalf of the patient, where this occurs free of charge.

However, such a transfer of information for further treatment or services is a voluntary disclosure by a provider. HPP 11 will give individuals a legal right to require that information be made available to another health service provider. Regulation 7 and schedule 2 allow a fee to be charged when information is made available in response to such a request as follows:

• copies of 20 (or more) black and white A4 pages;
• a copy in another form (eg colour pages or x rays);
• an accurate summary, which has to be prepared in response to the request (because it does not exist before the request is made), if it takes the health service provider at least 30 minutes to prepare.

Schedule 2 of the regulations sets out the maximum fees that can be charged in these cases.

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2.4 GST

Regulation 9 provides that if GST is payable for providing access under Part 5/HPP 6, transferring information to a health service provider under HPP 11, or acting as a "nominated health service provider" to assess serious threat, that the amount of GST payable may be added to the amount otherwise permitted under the relevant regulation. For example, if under schedule 1 a charge of $30.00 is the maximum amount that can be charged for providing copies of information to an individual, and GST is payable, then the overall maximum fee is $33.00.

The Department of Human Services has obtained advice from the Australian Taxation Office (ATO) about when GST would be payable. ATO Advice RE: GST and Medical Services (PDF File 30KB)

In summary, the ATO advised that generally fees charged in respect of the following are subject to GST:

1. Fees charged to individuals for inspecting their health information under Part 5.
2. Fees charged to individuals to view their health information, with no explanation of the contents under Part 5.
3. Fees charged to individuals for receiving a copy of their health information under Part 5.
4. Fees charged to individuals for receiving an accurate summary of their health information under Part 5.
5. Fees charged for acting as a nominated health service provider under section 42.
6. Fees charged to provide a copy of an individual's health information to another health service provider, at the request of the individual, under HPP 11.
7. Fees charged to provide an accurate summary of the individual's health information to another health service provider, at the request of the individual, under HPP 11.

The ATO advised that fees charged pursuant to subsection 32(4) of the Health Records Act by

• a medical practitioner (as defined in the Health Insurance Act 1973), or an approved pathology provider (for the purposes of the Health Insurance Act 1973), or
• a recognised professional in one of the professions itemised in the table to subsection 38-10(1) ¹ of the GST Act -

for providing an individual with an explanation of their health information, may be GST free.

Specifically, the ATO has advised that fees charged to an individual for the provision of an explanation of their health information will be GST-free where:

1. the service is one in respect of which a Medicare benefit is payable; or
2. the service-
   • is supplied by a medical practitioner (as defined in the Health Insurance Act 1973), or an approved pathology provider (for the purposes of the Health Insurance Act 1973), or a recognised professional in one of the professions itemised in the table to subsection 38-10(1) of the GST Act; and
   • would be generally accepted in the particular profession as being necessary for the appropriate treatment of the recipient of the supply (i.e. the patient/client).

The ATO advised that a consultation undertaken for the purpose of providing an individual with an explanation of the information contained in their health records is considered to be 'appropriate treatment for the recipient of the supply'. The practitioner is not merely providing access to health information, but rather is providing an explanation of the individual's health condition and treatment options.

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If a provider has any queries about the above, they are encouraged to contact the ATO.

Victorian public sector organisations (such as State Government Departments and Public Hospitals) are subject to Health Privacy Principle 11 in 2.3 above. A mechanism exists under the Commonwealth’s GST legislation for the Commonwealth Treasurer to make a determination that a particular payment is not subject to GST if it is either a tax or fee imposed under an Australian law and payable to an Australian Government Agency. This has the affect of exempting the tax or fee from GST. In June 2002, the Treasurer made such a determination - A New Tax System (Goods and Services Tax) (Exempt Taxes, Fees and Charges) Determination 2002 - (PDF File 132KB). Victorian public sector organisations should note that as a result of this determination GST is not payable on the fee associated with the provision of a copy or summary of health information to another health service provider under HPP 11. It should also be noted that this determination exempts from the GST fees and charges payable under the Freedom of Information Act 1982 and the Freedom of Information Regulations.

Footnote 1: "Recognised Professionals" for the purposes of the GST Act

Effectively, a person is a recognised professional, in relation to the supply of a service of a kind specified in the table in subsection 38-10(1), if they have permission, approval, or are registered under the relevant State law or Territory law; or if there is no relevant State or Territory law, they are a member of a professional association that has uniform national registration requirements relating to the supply of services of that kind. In the case of audiology or audiometry services, a person will also be a recognised professional, if they are an accredited service provider within the meaning of section 4 of the Hearing Services Administration Act 1997.

The professions itemised in the table to subsection 38-10(1) are: Aboriginal or Torres Strait Islander health, acupuncture, audiology, audiometry, chiropody, chiropractic, dental, dietary, herbal medicine (including traditional Chinese herbal medicine), naturopathy, nursing, occupational therapy, optometry, osteopathy, paramedical, pharmacy, psychology, physiotherapy, podiatry, speech pathology, speech therapy and social work.

3. Further information

Further information is also available from the Office of the Health Services Commissioner at http://www.health.vic.gov.au/hsc/ . The Commissioner's office can be contacted on (03) 8601 5200 or toll free on 1800 136 066.

Copies of the Health Records Regulations 2002 and the Freedom of Information (Access Charges) (Amendment) Regulations 2002 can be purchased from:

• Information Victoria, 356 Collins St, Melbourne VIC 3000 (tel. 1300 366 356); or
• by mail order from Anstat Customer Services, PO Box 447, South Melbourne, VIC 3205 (tel. 03 9278 1144).

These regulations are also available at http://www.dms.dpc.vic.gov.au/ (look under 'Victorian Law Today').

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