Page 4229 - Week 13 - Thursday, 19 November 2015
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guardian in other legislation. The amendments will also clarify the application of the act to records held by the Health Services Commissioner.
The Human Rights Commission has raised concerns about the way in which the health records act refers to young people and the complex way that it deals with access to health records of children and young people. The government agrees that these issues should be clarified in the legislation, and the terminology used in relation to children and young people and guardianship should be made consistent with other legislation.
Currently the Human Rights Act provides in subsection 10(6) that where the consumer is less than 18 years of age, the right of access to their health records is exercisable “(a) if the consumer does not have the status under this Act of a young person—by the consumer personally” or “(b) in any other case—on behalf of a consumer by a guardian of the consumer”. In order to make sense of this provision, it is necessary to refer to the definition of young person in the dictionary of the act, which provides:
… young person means a person under 18 years of age, other than a person who is of sufficient age, and of sufficient mental and emotional maturity, to—
(a) understand the nature of a health service; and
(b) give consent to a health service.
The government considers that this definition of young people is confusing and inconsistent with other relevant legislation such as the Children and Young People Act.
In relation to defining a young person for the purposes of health or medical records, there are two issues—firstly, the definition of what a child or a young person is, and secondly a legislative standard of maturity for access to their health or medical record. The government believes it is more appropriate to adopt the accepted definitions of child and young person as contained in the Children and Young People Act and to separately identify those young people who meet the legislative standard of maturity as set out in the bill in relation to accessing records.
While the government supports the use of the principle from the Gillick case, it is the government’s view that it would appear disrespectful to suggest that a young person is by definition immature and unable to understand the nature of a health service or to give consent to it. In relation to access to health records, the government believes the issue should be whether the person is currently of sufficient maturity and developmental capacity to understand the nature of their request to access health records and the nature of the record itself, rather than whether they have the capacity to consent to a health service at the time it was provided.
The government is also of the view that to make it easier for health service providers to understand their obligations under the act in relation to providing access to the health records of children and young people, the relevant information regarding children and young people should be set out in one place in the act. The government
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