Application of sections 47(3)(d) and 51 RTI Act
1. Does the information in issue comprise the applicant's relevant healthcare information?
Relevant healthcare information means healthcare information given by a healthcare professional.1 'Healthcare information' is not defined in the RTI Act or the IP Act. Ordinarily, the documents on an individual’s medical record will comprise that individual’s relevant healthcare information.2
Relevant healthcare information must be distinguished from other information about the applicant. Only information that has been given by a healthcare professional can be relevant healthcare information. For example, a medical report on an individual’s human resources file would likely comprise relevant healthcare information, however, the remaining documents on that file would be unlikely to satisfy this criterion.3
2. Might disclosing the relevant healthcare information to the applicant be prejudicial to their physical or mental health or wellbeing?
The words 'might be prejudicial' require an assessment of whether there is a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or wellbeing of the applicant.4
Only a principal officer, Minister or appointed healthcare professional may decide whether disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant, under section 51 of the RTI Act.
3. Should the decision-maker exercise discretion to direct access to a nominated healthcare professional?
An agency’s decision to give access to healthcare information indirectly or through a healthcare professional nominated by the applicant, is entirely discretionary. Whether or not such indirect access is appropriate may depend on:
- the nature of the healthcare information
- the applicant’s state of health
- whether giving access to a healthcare professional overcomes the agency’s concern about the prejudicial effect on the applicant’s physical or mental health or wellbeing that would be caused by direct access; and
- the suitability of the healthcare professional to receive the information.
As the decision about how to deal with the healthcare information and whether and how to disclose it to the applicant is for the healthcare professional to make, the agency must be satisfied that the healthcare professional nominated by the applicant is appropriately qualified and will deal with the information in the best interests of the applicant.5
3 N55WLN and Department of Health (Unreported, Queensland Information Commissioner, 30 April 2012). See also 3ZA9CH and Cairns and Hinterland Hospital and Health Service  QICmr 51 (26 October 2017).
4 83DCQB and West Moreton Hospital and Health Service (Unreported, Queensland Information Commissioner, 29 October 2013) , endorsing the reasoning given in S and Medical Board of Queensland (1994) 2 QAR 249 which had considered section 44(3) of the repealed FOI Act.
5 For an example of a case where the agency refused to exercise its discretion under section 77 because of the previous actions of the applicant’s nominated healthcare professional, see 3ZA9CH and Cairns and Hinterland Hospital and Health Service  QICmr (26 October 2017).
Last updated: May 29, 2018