Health Records and Information Privacy Regulation 2012 (NSW)

1Name of Regulation

This Regulation is the Health Records and Information Privacy Regulation 2012.

2Commencement

This Regulation commences on 1 September 2012 and is required to be published on the NSW legislation website.

Note—

This Regulation replaces the Health Records and Information Privacy Regulation 2006 which is repealed on 1 September 2012 by section 10 (2) of the Subordinate Legislation Act 1989.

3Definitions(1)

In this Regulation:

accredited chaplain, in relation to a public hospital or health institution, means a person:

• (a)

  who has been accredited for the purposes of providing chaplaincy services in the hospital or institution by the chief executive of a public health organisation that is responsible for controlling that hospital or institution, and

• (b)

  whose accreditation has not been revoked.

chief executive, in relation to a public health organisation, has the same meaning as in the Health Services Act 1997.

health institution, public health organisation and public hospital have the same meanings as in the Health Services Act 1997.

Ministry means the Ministry of Health.

the Act means the Health Records and Information Privacy Act 2002.

(2)

A reference in this Regulation to a hospital or health institution controlled by a public health organisation includes a reference to a hospital or health institution that is conducted by or on behalf of such an organisation.

Note—

Clause 2 of Part 2 of the Dictionary to the Health Services Act 1997 contains a similar provision in relation to references in that Act to hospitals, health institutions and services controlled by a public health organisation or other body or person.

(3)

Notes included in this Regulation do not form part of this Regulation.

4Definition of “health service”

For the purposes of paragraph (l) of the definition of health service in section 4 (1) of the Act, the following are prescribed:

• (a)

  the services provided by an accredited chaplain in a public hospital or a health institution controlled by a public health organisation,

• (b)

  research services conducted by or on behalf of one or more of the following:

  • (i)

    the Ministry,

  • (ii)

    the Health Administration Corporation,

  • (iii)

    a public health organisation or public hospital,

  • (iv)

    the Cancer Institute (NSW),

• (c)

  research services conducted pursuant to an agreement with an organisation referred to in paragraph (b) (i)–(iv).

5Health information may be used or disclosed for purpose of chaplaincy services

For the purposes of clauses 10 (1) (k) and 11 (1) (l) of Schedule 1 to the Act, an organisation may use or disclose health information for a secondary purpose if:

• (a)

  the organisation is a public health organisation, and

• (b)

  the secondary purpose is the service of an accredited chaplain in a public hospital or health institution that is controlled by the organisation, and

• (c)

  in the case of a disclosure—the person to whom the disclosure is made is an accredited chaplain for the hospital or institution, and

• (d)

  the individual to whom the health information relates would reasonably expect the organisation to use or disclose the information for the secondary purpose.

6Health information may be used or disclosed for purpose of Health Practitioner Regulation National Law(1)

For the purposes of clauses 10 (1) (k) and 11 (1) (l) of Schedule 1 to the Act, an organisation may use or disclose health information for a secondary purpose if:

• (a)

  the organisation has reasonable grounds to suspect that a person has or may have engaged in conduct that may be unsatisfactory professional performance, professional misconduct or unprofessional conduct under the Health Practitioner Regulation National Law, and

• (b)

  the organisation uses or discloses the information as a necessary part of an investigation of the matter by, or in reporting concerns to, relevant persons or authorities (including a National Board or an investigator appointed under the Health Practitioner Regulation National Law by a National Board).

(2)

In this clause:

Health Practitioner Regulation National Law means the Health Practitioner Regulation National Law as in force from time to time, as set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland and as applied by a participating jurisdiction (within the meaning of that law) other than New South Wales.

National Board has the same meaning as it has in the Health Practitioner Regulation National Law.

6AHealth information may be disclosed for purpose of organ donor registers(1)

For the purposes of clauses 10 (1) (k) and 11 (1) (l) of Schedule 1 to the Act, an organisation may use and disclose health information if:

• (a)

  the information relates to whether a person had, during the person’s lifetime, given his or her consent or expressed an objection to the removal after that person’s death of tissue from that person’s body (including, in the case of consent, details and any conditions of the consent), and

• (b)

  the information was obtained from, or comprised part of, the organ donor register administered by Roads and Maritime Services, and

• (c)

  the information is disclosed for the purpose of providing that information to:

  • (i)

    the Australian Organ Donor Register, or

  • (ii)

    the NSW Organ and Tissue Donation Service.

(2)

In this clause:

Australian Organ Donor Register means the Australian Organ Donor Register administered by the Commonwealth and referred to in Schedule 1 to the Human Services (Medicare) (Medicare Programs) Specification 2011 (of the Commonwealth).

NSW Organ and Tissue Donation Service means the NSW Organ and Tissue Donation Service of the South Eastern Sydney Local Health District.

tissue has the same meaning as in the Human Tissue Act 1983.

6BExemption for My Health Record system trial(1)

Clause 15 of Schedule 1 to the Act does not apply to an organisation to the extent that the organisation includes health information about an individual registered for the My Health Record system trial in the My Health Record system.

(2)

In this clause:

My Health Record system has the same meaning as in the My Health Records Act 2012 of the Commonwealth.

My Health Record system trial means any trial of the opt-out model contained in Part 2 of Schedule 1 to the My Health Records Act 2012 of the Commonwealth that is established by rules under clause 1 of Schedule 1 to that Act.

7Certain public sector agencies to be treated as a single agency

The following public sector agencies are to be treated as a single agency for the purposes of all of the Health Privacy Principles and any health privacy codes of practice:

• (a)

  the Ministry,

• (b)

  the Health Administration Corporation,

• (c)

  local health districts (within the meaning of the Health Services Act 1997),

• (d)

  statutory health corporations (within the meaning of the Health Services Act 1997),

• (e)

  the Cancer Institute (NSW).

8Savings

Any act, matter or thing that, immediately before the repeal of the Health Records and Information Privacy Regulation 2006, had effect under that Regulation continues to have effect under this Regulation.