Access to health records and maximum fees for access
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 Health, please visit http://www.health.vic.gov.au/foi.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:
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.
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:
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.
The Health Records Regulations 2002 (the regulations) are the regulations that currently apply. They can be viewed at www.legislation.vic.gov.au.
A key objective of 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'
Fees may only be charged for granting access under the Act where this is permitted by the Act itself or the regulations. Generally, the regulations set out:
New feesThe new fee caps are summarised in the table below. The fee caps are expressed in 'fee units', the value of which is determined each year by the Treasurer under the Monetary Units Act 2004. This allows the fee cap to increase each year in line with general cost increases.
(* The indicative fee amounts reflect that fee unit values are rounded to 1 decimal point, and that in calculating fee amounts, fees are rounded to the nearest 10 cents. The fee unit value of $12.53 applies to 2012-13 and has been used in the above calculations.
** The current fee for supervision is expressed in terms of quarter hours. However, in order to make use of the Monetary Units Act, the fee units must be expressed as 1 fee unit or more. Therefore this has changed to be expressed in terms of a half-hour, although the Regulations provide for charges to be made in quarter-hour increments.)
Item 3 above (providing a copy) is most relevant, as most individuals who are seeking access request a copy of their records. Note the following:
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.
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 is governed by the FOI Act, not Part 5 and HPP 6 of the Health Records Act.
2.2 "Second opinion" about serious threat
The Act (Part 5) and the FOI Act (s 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.
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:
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:
Schedule 2 of the regulations sets out the maximum fees that can be charged in these cases.See the Table of Fees above to calculate the fee payable
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.
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.
The Health Records Regulations 2002 are available from http://www.legislation.vic.gov.au.
Last updated: 3 October, 2012
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