Making Healthcare decisions

Under the Right to Information Act 20091(RTI Act) people can apply to access documents in the possession or control of Queensland government agencies2.

The RTI Act provides that a ground for refusal under the Act is where the documents contain healthcare information which would be prejudicial to the applicant's physical or mental health or wellbeing, if released.

Power to make Healthcare Decisions under the RTI Act

The power to make decisions under the RTI Act is given to the principal officer3 of the agency, who can then delegate it to other officers.

However, the power to make healthcare decisions can only be exercised by the principal officer, or Minister, or given to an appointed, appropriately qualified healthcare professional.4

Healthcare decisions

Healthcare decisions are decisions to refuse access to the applicant's own relevant healthcare information because releasing it might be prejudicial to the applicant's physical or mental health or wellbeing.5

Despite the refusal, the agency or Minister may direct access be given instead to an appropriately nominated and approved healthcare professional.

The nominated healthcare professional may decide whether or not to disclose all or part of the relevant health care information and the way in which to disclose the information.6

Note

Healthcare decisions cannot be internally reviewed.  They can only be externally reviewed by the Information Commissioner.7

Who can be an appropriately qualified healthcare professional?

A healthcare professional means:

…a person who carries on, and is entitled to carry on, an occupation involving the provision of care for a person’s physical or mental health or wellbeing, including, for example—

(a)        a doctor, including a psychiatrist; or

(b)        a psychologist; or

(c)        a social worker; or

(d)        a registered nurse.8

Appropriately qualified means having the qualifications and experience appropriate to assess relevant healthcare information.9

Note

Because the list of who can be a healthcare professional is not exhaustive, other occupations involved in the care of a person’s physical or mental health or wellbeing can be healthcare professionals for the purposes of the RTI Act.

Deciding to refuse access to relevant healthcare information

When making a healthcare decision it is important to consider the following questions:

  • do the documents contain relevant healthcare information of the applicant?
  • is it possible that giving the relevant healthcare information to the applicant may prejudice their physical or mental health or wellbeing?

What is relevant healthcare information?

Relevant healthcare information is healthcare information given by a healthcare professional.10 It is not limited to medical information prepared by a registered medical practitioner. It extends to information prepared by a psychologist, social worker, registered nurse or other healthcare professional.

Because of the broad range of information that is considered to be relevant healthcare information, many agencies hold this type of information, although on most occasions it will be held by a Hospital and Health Service.

Might disclosing the relevant healthcare information to the applicant be prejudicial to their physical or mental health or wellbeing?

To refuse access there must be a real and tangible possibility of prejudice to the applicant's health or wellbeing. The anticipated prejudice must not be fanciful, remote or far-fetched.11

On external review, the Office of the Information Commissioner might expect the healthcare professional to explain how the disclosure of the healthcare information might have a detrimental impact on the applicant.

Healthcare decisions must be made on a case-by-case basis, taking into account all of the relevant factors relating to the specific content of the information and the individual considerations relating to the applicant. It is not appropriate, for example, to make a broad policy decision that a document which contains information about an applicant’s psychiatric diagnosis will, in every case, cause prejudice to the applicant’s physical or mental health or wellbeing.

Mixed applications – healthcare and non-healthcare information

Note

In this guideline we use the phrase 'standard decision' to refer to a decision about access to non-health care information, for example to refuse access to exempt or contrary to the public interest information.

If an agency receives an application where its entire scope consists only of relevant healthcare information that might be prejudicial to the applicant's wellbeing to release, the healthcare decision maker decides the whole application.

Where the scope of the application -

  • covers both relevant healthcare information and other information; and
  • the healthcare decision maker believes releasing the relevant healthcare information might be prejudicial to the applicant's wellbeing,

it is necessary to ensure that the correct decision maker makes the decision on each kind of information.

One option is to have the principal officer make the decision on the entire application—generally with the advice of a suitably qualified health care professional—as the principal officer has the power to make both standard and healthcare decisions.

However, if the entire application will not be dealt with by the principal officer, the healthcare decision maker12 must make the decision on the relevant healthcare information and the standard decision maker must make the decision on the rest of the documents and information.

The power to make standard decisions and the power to make healthcare decisions are differently delegated powers with different review rights.  Accordingly, in this one specific circumstance it is possible to make two decisions on a single application. This is not possible in any other type of decision or in any other circumstance.

This division of decision making must be managed carefully. Ideally, the decisions should be communicated simultaneously to the applicant (eg, included in the same envelope or attached to the same email). An explanation should be included as to why the applicant is receiving two decisions.

Sample text for inclusion in the decision letters has been included at Appendix One.

Access through a nominated healthcare professional

If the principal officer, Minister or appointed healthcare professional decides to refuse access to a document containing the applicant’s relevant healthcare information13, they may instead direct that access is given to the applicant through an appropriately qualified healthcare professional, identified by the applicant.14

The applicant can nominate the healthcare professional through which they wish to access the documents. However, the principal officer or appointed healthcare professional has the discretion to not approve the applicant’s nominee.15 There is no criteria in the RTI Act on which to base this approval.  It is anticipated that wherever possible, the applicant’s nominated healthcare professional will be approved, taking into account their qualifications and relationship to the applicant.

If the applicant fails to nominate an appropriate healthcare professional it may not be possible for them to access the documents. It is therefore important to assist the applicant with the process of nominating a healthcare professional.

It is also good practice to check with the nominated healthcare professional that they understand and accept responsibility for determining disclosure of the relevant healthcare information to the applicant. The nominated healthcare professional can then decide:

  • whether or not to disclose all or part of the relevant healthcare information; and
  • the way in which the information is disclosed to the applicant.

Note

To ensure the nominated healthcare professional is still practicing and has no limitations placed on their right to practice, you can research the practitioner on the Australian Health Practitioner Regulation Agency's Register of Practitioners here:
http://www.ahpra.gov.au/registration/registers-of-practitioners.aspx

Review rights

As noted above, the decision to refuse access to relevant healthcare information because it might be prejudicial to an applicant's physical or mental health or wellbeing cannot be internally reviewed.16 Only external review to OIC can be sought.17

Some decisions relating to healthcare information are not reviewable at all.18 These non-reviewable decisions are:

  • whether or not to approve a nominated healthcare professional
  • directing that access be given to a nominated health care professional under section 77 of the RTI Act and section 92 of the IP Act
  • the nature of the access the nominated healthcare professional decides to give the applicant.
    • 1 And chapter 3 of the Information Privacy Act 2009 (IP Act).  For simplicity the body of the Guideline will refer to the RTI Act, however, relevant references to the IP Act are included in the footnotes.
    • 2 References to an agency in this guideline include a Minister and references to a delegation include a Ministerial direction.
    • 3 Or Minister where the Minister is being applied to.
    • 4 Section 30(5) and 31(2) of the RTI Act; section 50(5) and 51(2) of the IP
    • 5 Section 51 of the RTI Act, Contrary to the applicant’s best interests-healthcare information. Section 67 of the IP Act provides that access may be refused in the same way and to the same extent as under the RTI Act
    • 6 Section 77(3) of the RTI Act; 92(3) of the IP Act.
    • 7 Section 81(b) and (d) RTI Act; section 95(b) and (d) of the IP Act.
    • 8 Schedule 5 of the RTI Act and schedule 5 of the IP Act.
    • 9 ibid.
    • 10 ibid.
    • 11 As stated in Re K and Director‑General of Social Security (1984) 6 ALD 354 at 356-7 in relation to the equivalent provision in the Freedom of Information Act 1988 (Cth). This interpretation was adopted by the Information Commissioner in S and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 12 October 1994) when considering section 44(3) of the repealed Freedom of Information Act 1992.  Section 51(2) of the RTI Act is the equivalent provision and as it also contains the phrase “might be prejudicial” the Information Commissioner considers the interpretation is still persuasive.
    • 12 Or principal officer, as the principal officer can make a decision on the relevant healthcare information only and leave the remainder of the documents and information to the standard decision maker.
    • 13 As per section 47(3)(d) of the RTI Act
    • 14 As per section 77 of the RTI Act and section 92 of the IP Act.
    • 15 As per section 77(2) of the RTI Act and section 92(2) of the IP Act.
    • 16 Section 81 of RTI Act and section 95 of the IP Act;
    • 17 If a standard decision is made as well as a healthcare decision, however, the standard decision will be internally reviewable, unless it is made by the principal officer.
    • 18 Schedule 5 of the RTI Act and schedule 5 of the IP Act.

Appendix A

Sample text for standard decision

I am delegated to make decisions under section [30(2) of the RTI Act/50(2) of the IP Act]. This delegation does not include the power to make healthcare decisions. The power to make healthcare decisions can only be exercised by the agency's appointed healthcare decision maker.

Your application was for:

[repeat scope].

This scope included documents containing relevant healthcare information that the agency's healthcare decision maker believes falls within the scope of their authority to make decisions. Their decision is [attached/enclosed/included].

My decision on the other [documents/information] is below.

[place your standard decision here].

Review Rights

These review rights apply only to this decision on these [documents/information]. The healthcare decision will have different review rights.

If you are not happy with my decision you have 20 business days from the date of this decision notice to seek a review. You can seek an internal review from this agency or an external review from the Office of the Information Commissioner. If you seek an internal review from this agency and are not satisfied you will still have the right to seek an external review from the Office of the Information Commissioner.

Internal Review

A request for internal review must:

  • be in writing
  • provide an address where correspondence can be sent (this can be an email or a postal address)
  • be made within 20 business days from the date stated on this decision notice, not from when you receive the notice; and
  • be sent to [insert address where they should send it].

External Review

A request for external review must:

  • be in writing
  • be made within 20 business days from the date stated on the decision notice
  • provide an address
  • give details of the decision for review; and
  • be lodged with the OIC by one of the following methods:


In person:
Level 8, 160 Mary St, Brisbane
Post: PO Box 10143, Adelaide Street, Brisbane, Qld, 4000
Fax: 07 3405 1122
Email: administration@oic.qld.gov.au
Online: www.oic.qld.gov.au

Sample text for the healthcare decision

I am the agency's healthcare decision maker, appointed to make healthcare decisions under section [30(5) of the RTI Act/50(5) of the IP Act]. This appointment does not include the power to make non-healthcare decisions under the [RTI Act/IP Act].

Your application was for:

[repeat scope].

As the appointed healthcare decision maker I have decided to make a healthcare decision on [documents containing relevant healthcare information]. The agency's delegated [RTI/IP] decision maker has made a decision on the other documents and their decision is [attached/enclosed/included].

My decision is [place your decision and reasons here].

Access through a nominated healthcare professional

I have refused to give you access to the above healthcare information, but despite this I am prepared to direct that access be given to you through an appropriately qualified healthcare professional that you nominate. The healthcare professional you nominate must be approved by me before access can be given. Please advise me of the healthcare professional you wish to nominate by [date].

You should be aware that it will be up to the healthcare professional you nominate whether or not they give you access to the information. They may decide whether or not to disclose all or part of the information to you and it will be up to them how they choose to do so.

Review Rights

If you are not happy with my decision you have 20 business days from the date of this decision notice to seek an external review from the Office of the Information Commissioner.

A request for external review must:

  • be in writing
  • be made within 20 business days from the date stated on the decision notice
  • provide an address
  • give details of the decision for review; and
  • be lodged with the OIC by one of the following methods:


In person:
Level 7, 133 Mary St, Brisbane
Post: PO Box 10143, Adelaide Street, Brisbane, Qld, 4000
Email: administration@oic.qld.gov.au
Online: www.oic.qld.gov.au

Current as at: September 11, 2018