Australian Capital Territory
Health Legislation Amendment Act 2016
A2016-11
    
Contents
	Page
Part 1	Preliminary
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
Part 2	Civil Law (Wrongs) Act 2002
	4	Protection of good samaritans from liability
New section 5 (2A)	3
Part 3	Health Act 1993
	5	Local Health and Hospitals Network
Part 3A	4
	6	Dictionary, definition of council	4
	7	Disclosure of interests by committee members
Section 190 (1), note 1	4
	8	Legislation repealed	4
Part 4	Health Records (Privacy and Access) Act 1997
	9	Consent by consumer to obtaining health status report
Section 7 (4) (a) (i)	5
	10	New section 7 (4) (a) (ia)	5
	11	Statement of principle regarding right of access
New section 10 (4A) and (4B)	5
	12	Section 10 (6)	6
	13	New section 10A	6
	14	Requests for access
Section 12 (1)	6
	15	Section 12 (2) (d) (i)	7
	16	Response to request for access
New section 13 (2) (aa)	7
	17	Section 13B heading	7
	18	Section 13B (1)	7
	19	Section 13B (3) (c)	8
	20	Section 13B (3) (c) (i)	8
	21	New section 13BA	8
	22	Access taken to have been refused
Section 13D (a) (iii)	10
	23	No access to health record where material given in confidence
New section 17 (2) (ba)	10
	24	Section 25 heading	10
	25	Section 25	10
	26	Section 25 (a)	11
	27	Jurisdiction of Magistrates Court
Section 31 (1) (a) (iii) and (iv)	11
	28	The privacy principles
Schedule 1, principle 10, clause 4	11
	29	Schedule 1, principle 10, clause 4 (a)	12
	30	Schedule 1, principle 10, clause 7 (a) (i)	12
	31	Schedule 1, principle 10, clause 10	12
	32	Schedule 1, principle 10, clause 10 (a)	13
	33	Schedule 1, principle 10, clause 10 (b)	13
	34	Schedule 1, principle 10, clause 11 (a)	13
	35	Schedule 1, principle 10, new clause 12	14
	36	Dictionary, definition of child	15
	37	Dictionary, definition of consumer, paragraph (a)	15
	38	Dictionary, definition of guardian	15
	39	Dictionary, new definition of person with parental responsibility	16
	40	Dictionary, definition of young person	16

Australian Capital Territory
Health Legislation Amendment Act 2016
A2016-11

An Act to amend legislation about health, and for other purposes

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1	Preliminary
1	Name of Act
This Act is the Health Legislation Amendment Act 2016.
2	Commencement
This Act commences on the day after its notification day.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended
This Act amends the following legislation:
·	Civil Law (Wrongs) Act 2002
·	Health Act 1993
·	Health Records (Privacy and Access) Act 1997.
Note	This Act also repeals legislative instruments (see s 8).

Part 2	Civil Law (Wrongs) Act 2002
4	Protection of good samaritans from liability
New section 5 (2A)
insert
	(2A)	Despite subsection (2) (b), if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person, the protection under subsection (1) applies even if the good samaritan’s capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug.
Examples—opioid drugs
·	heroin
·	methadone
·	morphine

Part 3	Health Act 1993
5	Local Health and Hospitals Network
Part 3A
omit
6	Dictionary, definition of council
omit
7	Disclosure of interests by committee members
Section 190 (1), note 1
omit
the council (see s 19E),
8	Legislation repealed
All legislative instruments made under the Health Act 1993, part 3A are repealed.

Part 4	Health Records (Privacy and Access) Act 1997
9	Consent by consumer to obtaining health status report
Section 7 (4) (a) (i)
omit
young person or
10	New section 7 (4) (a) (ia)
insert
	(ia)	if the consumer is a child or young person—by the person with parental responsibility for the child or young person; or
11	Statement of principle regarding right of access
New section 10 (4A) and (4B)
insert
	(4A)	However, if the health services commissioner receives a request under section 12 in relation to a health record prepared by a health service provider, the health services commissioner—
	(a)	need not give access in accordance with subsection (3) (a), (b) or (c); and
	(b)	may instead refer the request to the health service provider. 
	(4B)	If the health services commissioner refers a request to a health service provider under subsection (4A) (b), the health service provider is taken to have received it under section 12.
12	Section 10 (6)
omit
13	New section 10A
insert
10A	Statement of principle regarding right of access—children and young people
		The right of access to a health record conferred by section 10 (1) is exercisable—
	(a)	for a consumer who is a child—on behalf of the child by the person with parental responsibility for the child; and
	(b)	for a consumer who is a young person—
	(i)	if the young person has sufficient maturity and developmental capacity to understand the nature of the young person’s request to access a health record and the nature of the record—by the young person personally; or
	(ii)	in any other case—on behalf of the young person by the person with parental responsibility for the young person.
14	Requests for access
Section 12 (1)
after 
section 10
insert
or section 10A
15	Section 12 (2) (d) (i)
substitute
	(i)	a request by a person with parental responsibility for a child or young person unless, in the 12 months before making the request, the person with parental responsibility consented to the treatment of the child or young person that gave rise to the health record that is the subject of the request; or
16	Response to request for access
New section 13 (2) (aa)
before paragraph (a), insert
	(aa)	if the health services commissioner is the record keeper and refers the request to a health service provider under section 10 (4A)—give the consumer written notice that the request has been referred to the health service provider who prepared the health record; or
17	Section 13B heading
substitute
13B	Giving access to health records—generally
18	Section 13B (1)
after
person
insert
(other than a child or young person)
19	Section 13B (3) (c)
omit
a young person,
20	Section 13B (3) (c) (i)
omit
young person or
21	New section 13BA
insert
13BA	Giving access to health records—children and young people
	(1)	This section applies if a record keeper must give a child or young person access to a health record.
	(2)	Access to a health record must be given—
	(a)	if the record keeper has given a notice under section 13 (2) (c) (ii) and the fee stated in the notice has been paid—no later than the later of the following:
	(i)	1 week after the day the fee is paid;
	(ii)	30 days after the day the record keeper received the request for access to the health record; or
	(b)	if the record keeper has not given a notice under section 13 (2) (c) (ii)—no later than 30 days after the day the record keeper receives the request for access to the health record.
	(3)	However, before giving access to the record to a person (the relevant person), the record keeper must take reasonable steps to require evidence of, and be satisfied about—
	(a)	the relevant person’s identity; and
	(b)	if someone else has authorised the access to be given to the relevant person—the identity and authority of the other person; and
	(c)	if the consumer is a child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person’s request to access the record and the nature of the record—the fact that the relevant person (or, if paragraph (b) applies, the person authorising the relevant person) is the person with parental responsibility for the child or young person.
	(4)	Before giving access to a relevant person who is a young person, the record keeper may require that the young person—
	(a)	meet with the record keeper so that the record keeper can explain the nature of the record to the young person; or
	(b)	consent to a person with parental responsibility for the young person attending that meeting.
	(5)	Before giving access to a relevant person who has parental responsibility for a young person, the record keeper may—
	(a)	require that the young person consent to the access; or
	(b)	discuss the access with the young person.
	(6)	If the record keeper requires evidence under this section before giving access to a health record and the evidence is not provided or does not satisfy the record keeper, the record keeper need not provide access to the health record.
22	Access taken to have been refused
Section 13D (a) (iii)
after
health records
insert
—generally
23	No access to health record where material given in confidence
New section 17 (2) (ba)
insert
	(ba)	a person with parental responsibility for the consumer; or
24	Section 25 heading
substitute
25	Children and young people
25	Section 25
omit
where a consumer is a young person,
substitute
if a consumer is a child or young person,
26	Section 25 (a)
omit
a guardian of
substitute
a person with parental responsibility for
27	Jurisdiction of Magistrates Court
Section 31 (1) (a) (iii) and (iv)
substitute
	(iii)	a child or young person; or
	(iv)	a young person who has or does not have sufficient maturity and developmental capacity to understand the nature of the young person’s request to access a health record relating to the young person and the nature of the record; or
	(iva)	a person with parental responsibility for a child or young person; or
28	The privacy principles
Schedule 1, principle 10, clause 4
omit
a person responsible for the consumer’s care (the carer)
substitute
the consumer’s carer
29	Schedule 1, principle 10, clause 4 (a)
substitute
	(a)	the consumer cannot give or withhold consent to the disclosure, whether or not because the consumer is a—
	(i)	child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person’s request to access a health record and the nature of the record; or
	(ii)	legally incompetent person; and
30	Schedule 1, principle 10, clause 7 (a) (i)
substitute
	(i)	if the consumer is a child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person’s request to access a health record and the nature of the record—by a person with parental responsibility for the consumer; or
	(ia)	if the consumer is a legally incompetent person—by a guardian of the consumer; or
31	Schedule 1, principle 10, clause 10
omit
a person responsible for the consumer’s care (the carer)
substitute
the consumer’s carer
32	Schedule 1, principle 10, clause 10 (a)
omit
young person
substitute
child, young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person’s request to access the health record and the nature of the record
33	Schedule 1, principle 10, clause 10 (b)
omit
record keeper’s opinion
substitute
provider’s opinion
34	Schedule 1, principle 10, clause 11 (a)
substitute
	(a)	the consumer cannot give or withhold consent to the disclosure, whether or not because the consumer is—
	(i)	a child or a young person who does not have sufficient maturity and developmental capacity to understand the nature of the young person’s request to access the health record and the nature of the record; or
	(ii)	a legally incompetent person; and
35	Schedule 1, principle 10, new clause 12
after the note, insert
	12	In this principle:
carer, of a consumer, means a person who gives care, support or assistance to the consumer but does not include—
	(a)	a person who gives short-term care, support or assistance to the consumer; or
	(b)	a person who gives care, support or assistance to the consumer—
	(i)	under a commercial arrangement, or an arrangement that is substantially commercial; or
	(ii)	in the course of doing voluntary work for a charitable, welfare or community organisation; or
	(iii)	as part of a course of education or training; or
Examples—people not included as carers
1	Yiannis is the principal of Haig Park Primary School. Although Yiannis owes a duty of care to the students at Haig Park Primary School, Yiannis is not a carer for the purposes of principle 10.
2	The ACAT makes an order under the Guardianship and Management of Property Act 1991, s 7 (2) appointing Tash as a guardian for Olympia. Even though Tash has a guardianship order in relation to Olympia, Tash is not a carer for the purposes of principle 10. Tash would need to give Olympia care, support or assistance to be a carer.
	(c)	a person just because the person—
	(i)	is the domestic partner, parent, child or other relative, or guardian of the consumer; or
	(ii)	lives with the consumer.
36	Dictionary, definition of child
substitute
child—
	(a)	means a person who is under 12 years old; and
	(b)	in relation to a person, includes an adopted child or stepchild of that person.
37	Dictionary, definition of consumer, paragraph (a)
substitute
	(a)	if the consumer is a child or young person—a person with parental responsibility for the consumer; and 
	(aa)	if the consumer is a legally incompetent person—a guardian of the consumer; and
38	Dictionary, definition of guardian
substitute
guardian, for a legally incompetent person, means—
	(a)	a person who is—
	(i)	a legally appointed guardian of the legally incompetent person; or
	(ii)	an attorney, appointed under an enduring power of attorney that has become operative, of the legally incompetent person; and
	(b)	a person who has power to make decisions about the medical treatment or health care of the legally incompetent person.
39	Dictionary, new definition of person with parental responsibility
insert
person with parental responsibility, for a child or young person, means a parent or someone else with parental responsibility for the child or young person under the Children and Young People Act 2008, division 1.3.2.
40	Dictionary, definition of young person
substitute
young person—see the Children and Young People Act 2008, section 12.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 19 November 2015.
2	Notification
	Notified under the Legislation Act on 1 March 2016.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

I certify that the above is a true copy of the Health Legislation Amendment Bill 2016, which originated in the Legislative Assembly as the Health Legislation Amendment Bill 2015 and was passed by the Assembly on 18 February 2016. 

Acting Clerk of the Legislative Assembly

© Australian Capital Territory 2016