Occupational Health, Safety and Welfare (Confidentiality of Health Records) Regulations 1991 (SA)

SOUTH AUSTRALIA

OCCUPATIONAL HEALTH, SAFETY AND WELFARE

(CONFIDENTIALITY OF HEALTH RECORDS) REGULATIONS 1991 REGULATIONS UNDER THE OCCUPATIONAL HEALTH, SAFETY

AND WELFARE ACT 1986

Occupational Health, Safety and Welfare

(Confidentiality of Health Records) Regulations 1991

being

No. 44 of 1991: Gaz. 24 April 1991, p. 13841

1 Came into operation 1 July 1991: reg. 2.

Citation

1. These regulations may be cited as the Occupational Health, Safety and Welfare (Confidentiality of Health Records) Regulations 1991.

Commencement

2. These regulations will come into operation on 1 July 1991.

Interpretation

3. In these regulations—

"the Act" means the Occupational Health, Safety and Welfare Act 1986:

"occupational health service" means a service that has essentially preventive functions and is

responsible for—

(a)	advising on the requirements for establishing and maintaining a safe and healthy working environment that will facilitate optimal physical and mental health in relation to work;
(b)	promoting the adaptation of work to the capabilities of workers in view of their physical and mental health;
(c)	providing vocational rehabilitation, health surveillance, and first aid or emergency treatment:

"personal information" includes—

(a)	any opinion or observation formed or made in relation to the health of any person;
(b)	the results of any examination or test carried out on, or performed in relation to the health, of any person, and any interpretation or assessment of those results.

Note: For definition of divisional penalties (and divisional expiation fees) see Appendix.

Confidentiality of health records

4. (1) Subject to this regulation, an employer must take reasonable steps to ensure that a person engaged or employed by the employer to provide an occupational health service for the benefit of his or her employees does not divulge to any other person (including the employer) personal information regarding the health of an employee that comes to the knowledge of the person in the course of the provision of that service.

Penalty: Division 6 fine.

(2) Subject to this regulation, a person who works in an occupational health service must not divulge to any other person (including the employer) personal information regarding the health of an employee that comes to the knowledge of the person in the course of work.

Penalty: Division 7 fine.

(3) Subregulations (1) and (2) do not prevent—

(a)	a disclosure of information that is required or authorized by or under any other law;
(b)	the disclosure of information before a court or tribunal constituted by law;
(c)	the disclosure of information with the written consent of the person to whom the information relates;
(d)	the disclosure of information on a confidential basis to another person who works for the same occupational health service, insofar as to do so is relevant to the health, safety or welfare of the person to whom the information relates;
or
(e)	the disclosure of information by a person who believes on reasonable grounds that the disclosure is necessary to avert, eliminate or minimize a serious and immediate danger to the health or safety of any person.

(4) The following qualifications apply in relation to the operation of subregulation (3)(c):

(a)

the person to whom the information relates must be informed of the purpose of the proposed disclosure before his or her consent is obtained, and the person who makes the disclosure must be satisfied that this has occurred;

and

(b)

agreement must be reached on—

(i)	the information that may be disclosed;
(ii)	the person or persons to whom the information may be disclosed, or the situation or situations in which the information may be disclosed;

and

(iii) the period for which the consent is to operate.

(5) Where an occupational health service is provided by or on behalf of an employer for the benefit of his or her employees, the employer must take reasonable steps to ensure that the following information relating to the records kept by or on behalf of the service (insofar as they relate to personal information) is provided whenever a person first uses the service:

(a)	the nature of those records;
(b)	the reason or reasons for the creation of those records and the period for which they are kept;
and
(c)	the grounds upon which a person may gain access to those records, the steps that must be taken to gain such access, and the conditions under which access may be given.

APPENDIX

DIVISIONAL PENALTIES AND EXPIATION FEES

At the date of publication of this reprint divisional penalties and expiation fees are, as provided by section 28A of the Acts Interpretation Act 1915, as follows:

Division Maximum Maximum Expiation

imprisonment fine fee

1	15 years	$60 000	—
2	10 years	$40 000	—
3	7 years	$30 000	—
4	4 years	$15 000	—
5	2 years	$8 000	—
6	1 year	$4 000	$300
7	6 months	$2 000	$200
8	3 months	$1 000	$150

9	—	$500	$100
10	—	$200	$75
11	—	$100	$50
12	—	$50	$25

Note: This appendix is provided for convenience of reference only.