HEALTH LAW

The interaction between law and health is vast and complex. The law regulates matters which one would normally tend to consider as health related, such as in-vitro fertilisation, or the framework governing the operation of hospitals and community health centres. However, it also deals with less obvious things, as diverse as standards for the re-use of waste water or the licensing of pest-control operators.

This fact sheet covers:

information and consent;
access to medical records;
privacy and confidentiality between health practitioner and consumer;
health complaints.

Information and consent

As a rule, doctors and other health professionals must obtain a patient's consent before they undertake any medical procedure. This applies even where the proposed treatment would clearly benefit the person and a failure to treat may result in harm that could have been avoided. The principle applies not only to treatment but also to diagnostic and investigative procedures.

It is based on a recognition that competent adult patients are entitled to make their own medical decisions even if their decision appears not to be in their "best interests". A health professional who treats a patient without informing them adequately about the procedure may be subject to an action in negligence or contract; and, if no consent is obtained to the procedure, even an action for trespass to the person (commonly called assault).

A parent is generally able to consent to medical procedures for a child under 18, though older children can consent if they are sufficiently mature. For patients who cannot consent because of their physical or mental condition, a close relative or carer (the 'person responsible') can usually consent but a guardian may need to be appointed if there is a dispute, or the proposed treatment is risky or contentious.

Access to medical records

Patients who have been treated in public hospitals are able to gain access to their medical records by means of the State and Commonwealth Freedom of Information Acts.

Patients treated in a private hospital, or by a private doctor, have a right to gain access under the Health Records Act 2001 (Vic) ("HRA 2001"), and also under the Privacy Act 1988 (Cth).

A person may complain to the Health Services Commissioner (see: contact details) if a hospital or doctor refuses to show the person their own records (though access may be refused in some circumstances).

Privacy and confidentiality

People generally assume that all communications between them and their doctor or other health professional will remain private, and the law generally reflects this expectation. If it were not so, some people might be reluctant to seek medical treatment. Also, patients may be less honest in describing their ailments if they are not assured of confidentiality. So most medical consultations are protected by a statutory or common law requirement of confidentiality, in addition to the more recent statutory obligations in relation to privacy.

Confidentiality between patient and doctor

In addition to the statutory offence of breaching confidentiality, doctors and other health service providers may be sued at common law (i.e. judge-made law) if they divulge confidential information without a patient's permission. The patient may sue for breach of contract or because the doctor has been negligent in disclosing the information. However, such actions are very rare and complaints about breach of confidentiality would now almost always be dealt with under the privacy legislation described above.

It is lawful for a health professional to disclose information if:

some other law requires disclosure; or
it can be argued that the person has provided express or implied consent for the disclosure; or
it may be in the public interest for the information to be disclosed.

Situations where some other laws may require disclosure of otherwise confidential information include:

revealing to police or a court the blood alcohol level of a car driver after a motor accident;
reporting of information under the Births Deaths and Marriages Registration Act 1996 (Vic);
reporting unusual deaths to the Coroner;
reporting cases of suspected child abuse; and
notifying infectious diseases to the Department of Human Services under the Health Act 1958.

Situations where consent to a breach of confidentiality may be implied include accident compensation claims where the employer may be given information about the nature of the employee's treatment, and reports provided for the purpose of insurance.

Making a complaint

There are two formal ways in which complaints may be made about practitioners or health care services in Victoria. A complaint may be lodged with the Office of the Health Services Commissioner or with a registration board.

It should be noted that most public hospitals also have complaints liaison officers who may be able to assist in the resolution of a complaint. Such an officer may be able to short-circuit the need to resort to a more formal mechanism.

Another channel of complaint is to make use of Community Visitor, who are appointed under the Mental Health Act 1986 (Vic) and who may inspect mental health services for people with a mental disorder and ask questions of residents or patients and employees and inspect documents or medical records. They submit a joint report to the Public Advocate on their visits, and an annual report of Community Visitors is laid before Parliament each year. They may inquire into any complaint by a resident or patient.

Where there has been a significant problem with management of a health service, a complaint may be made to the Department of Human Services.

The Health Services Commissioner

30th Floor, 570 Bourke Street

Melbourne Vic 3000

Tel: 8601 5200; 1800 136 066 (toll free, country areas)

Web: www.health.vic.gov.au/hsc

The Department of Human Services

Initial complaints are made to the Quality Assurance/Community Liaison Officer at your local office or your individual case worker.

There is also a general complaints line: 1300 884 706

Or for more information see:www.dhs.vic.gov.au/contact-us

For more information on this subject refer to The Law Handbook chapter 19.1.