Circular 1999/10: Access to Health Service providers records

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The purpose of this circular is to clarify the Commonwealth's position in relation to accessing staff medical records held by health service providers, including Health Services Australia (HSA) in the Australian Capital Territory (ACT) where the medical examination is conducted at the request of the Commonwealth.

Background

2. On 24 March 1999, HSA wrote to Recruitment Advisers in the Australian Public Service (APS) advising that in order to release medical records or reports generated by HSA for the purpose of assessing whether a person is fit for permanent or continued employment, the written consent of the person being examined must be obtained. HSA pointed to the Health Records (Privacy and Access) Act 1997, which is Australian Capital Territory legislation, as the source of this requirement. That Act prohibits requesting and providing a health status report without the consent of the consumer.

Public Service legislation

3. Within the Australian Public Service (APS), certain provisions of the Public Service Act 1922 expressly authorise medical examinations. Sections 47, 76P and 76Y provide that certain decision-making processes under the Act will involve consideration of a report of a medical practitioner. Also relevant are Public Service Regulations 45-51 which provide Agency Heads with the power to direct an officer to attend a medical examination for a number of reasons. The officer is obliged to attend the medical examination and the information from the examination is released to the officer's department or agency.

Legal advice

4. A legal opinion obtained from the Australian Government Solicitor concluded that the ACT Health Records (Privacy and Access) Act 1997 does not apply in relation to the provision of health status reports by health service providers to the Commonwealth, where those reports are produced and provided for the purposes of the Public Service Act 1922 and the Public Service Regulations. This was based on the view that a medical examination of an individual under the framework of the Act and regulations is requested, obtained and provided "in accordance with a law of the Commonwealth" which is an exception to the general law imposed by the ACT enactment.

5. Any queries regarding this matter should be directed to the PSMPC's Hotline at (02) 6202 3859.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

August 1999