Page 4230 - Week 13 - Thursday, 19 November 2015
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has proposed that a specific section in the act be designated to accommodate the issues surrounding children and young people. The proposed section replaces subsection 10(6) of the act and provides that where a consumer is a child or young person as defined in the Children and Young People Act, the right of access to their health records would be exercisable (a) if the consumer is a young person who is sufficiently mature, mentally and emotionally, to understand the nature of the request to access the health record and the nature of the health record, by the consumer personally, or (b) in any other case, on behalf of the consumer by a person with parental responsibility for the consumer. This would mean that young people would be able to directly access their health records or refuse to allow parental access where they have sufficient maturity to understand the nature of the request to access the record and the nature of it.
In addition, the government believes that the concept of “guardian” used in the act in relation to young people should be consistent with other relevant legislation such as the Children and Young People Act and the Guardianship and Management of Property Act. The act currently provides:
… guardian means—
(a) for a young person—a parent, a legally appointed guardian of the young person or someone else with parental responsibility for the young person under the Children and Young People Act 2008 …
The government is aware that this act no longer provides for the appointment of guardians for children and young people. In order to avoid confusion, therefore, the government has recommended that it would be preferable to refer only to the concept of a parent or person with parental responsibility for a child or young person, and that the concept of a “legally appointed guardian of the young person” should be removed from the act. The government also believes that it would be appropriate to include a definition of carer in the act to make it clear that a carer is not intended to include people such as school principals, teachers, or early childhood educators providing short-term care for a child. The definition of carer in the Guardianship and Management of Property Act has been adopted in the bill to address these concerns.
The government also considers that it would be appropriate to provide in the act that the Health Services Commissioner is not obliged to provide complainants with clinical records and should have the discretion to refer requests for access to health records back to the health service provider. These amendments have also been included in this bill.
There has been considerable consultation undertaken in relation to these amendments, especially the amendments to the Civil Law (Wrongs) Act and the health records act. Consultation has been undertaken with the Alcohol Tobacco and Other Drug Association, ATODA, in collaboration with the Canberra Alliance for Harm Minimisation and Advocacy, CAHMA; the Human Rights Commission as represented by the Health Services Commissioner, the Children & Young People Commissioner and the Human Rights Commissioner; and the secretariat of the Local Health Network Council.
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