Case Note: Privacy and Health Records
The New South Wales Civil and Administrative Tribunal found that certain hospital CCTV footage could be released under freedom of information legislation, despite public interest and privacy concerns, if the faces, heads, necks and any tattoos or other identifying marks of persons in the footage were pixelated.
Big Data and the Risk of Re-Identification
On 12 September 2016, researchers at the University of Melbourne alerted the Commonwealth Government that it was possible to re-identify ostensibly “de-identified” Medicare Benefits Scheme (MBS) data that had been released for public access and analysis. The MBS Re-identification Event attracted significant media attention, generated an Australian Office of the Information Commissioner (OAIC) investigation and resulted in the introduction of the Privacy Amendment (Re-identification Offence) Bill 2016 (Cth).
The MBS Re-identification Event is a reminder of the importance of considering the privacy implications of big data analytics.
Case Note: Duty to Warn of Genetic Risks?
To what extent does a health service provider owe a duty of care to (third party) relatives of a patient who may be predisposed to a genetic condition?
This is the question raised by ABC against the St George’s Healthcare NHS Trust, the South West London and St George’s Mental Health NHS Trust and the Sussex Partnership NHS Foundation Trust.
Terminating Employees for Misconduct
Are your procedures fair?
Employers will be familiar with the concept of procedural fairness (also referred to as natural justice) and the need to ensure that employees are subjected to a process which complies with its requirements.
ICT Procurement Tips and Traps
Good technology is fundamental to your business. There are many ICT products on the market but often they are only as good as the relationships and contracts behind them. Entering into a one-sided supplier contract can significantly diminish your subsequent contractual rights and might leave you without compensation if the product or services fail to deliver. Developing your own suite of templates, or using a government template is always a good starting point as long as the procurement team have been trained in the use of the template.
Changes to FOI–Victorian Information Commissioner
The Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) has amended the Freedom of Information Act 1982 (Vic) (the FOI Act) making significant changes to the way in which Freedom of Information (FOI) matters are dealt with in Victoria. The FOI act is amended effective 1 September 2017.
Elder Law Update–Responding to Elder Abuse
The Australian Law Commission (the ALRC) is currently conducting an inquiry into elder abuse (the Inquiry). The Inquiry is tasked with identifying a “best practice legal framework” for the prevention, mitigation and response to elder abuse.
Do your accreditation policies create a contract?
Typically medical specialists must submit their credentials in order to provide services at a hospital. This way, health service organisations are able to ensure that practitioners are sufficiently qualified and experienced to practice with that particular organisation within a defined scope of practice (commonly referred to as an ‘accredited practitioner’). In applying to be accredited, practitioners will often be required to agree to abide by a range of by-laws, codes of conduct and policies. The question is; does this agreement create a contract? And if a contract is created, what are the implications for the health service?
Medical Decision Making and Advanced Care Planning
The Medical Treatment Planning and Decisions Bill 2016 (Vic) passed the Legislative Assembly on 24 November 2016 and received Royal Assent on 29 November 2016. The Medical Treatment Planning and Decisions Act 2016 (Vic) (the Act) is set to commence on the earliest of a day to be proclaimed or 12 March 2018.
State Govt appeal child abuse liability decision
In this case, the High Court granted special leave to appeal from the decision in DC v State of New South Wales  NSWCA 198 (summarised in the November 2016 edition of the Case Law Update), in which the State of New South Wales (the State) was held liable for the failure of the Department of Youth and Community Services (the Department) to prevent the continuing sexual abuse of two children who were the subject of child protection proceedings in the 1970s and 1980s.
Children Legislation Amendment
The Children Legislation Amendment (Reportable Conduct) Bill (Vic) which will amend the Child Wellbeing and Safety Act 2005 (Vic) passed the Upper House of the Parliament of Victoria on 23 February 2017 and is awaiting Royal Assent.
The Bill is due to commence on 1 September 2017 (unless it comes into force earlier).
NSW - Fire and Emergency Services Levy
The Fire and Emergency Services Levy Bill 2017 (NSW) passed its Third Reading on 29 March 2017 and received Royal Assent on 4 April 2017. The Bill commenced on the date of Assent.
The Bill proposes to impose a fire and emergency services levy, which will be payable on all land that is situated in a council area or on Lord Howe Island. Only government land will be exempt from the levy.
New data breach notification laws
The Privacy Act 1988 (Cth) (Act) has been amended by the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) (the amending Act).
The amending Act introduces a mandatory data breach notification regime where an ‘eligible data breach’ occurs.
The amendments will commence on 23 February 2018, unless they are proclaimed to commence earlier.
Williams Group Australia Pty Ltd v Crocker 
Electronic signature technologies are increasingly used to execute documents used in commercial transactions. In this case, the New South Wales Court of Appeal held that a genuine electronic signature affixed to a personal guarantee by an unauthorised (and unknown) individual was ineffective to bind the apparent signatory.
The implications of this case may appear concerning because it could be difficult for clients to determine whether a genuine electronic signature was affixed properly (binding) or improperly (non-binding). However, it should be noted that the case concerned a personal guarantee, not a document executed by an individual in their capacity as an officer of a company.
Nevertheless, the case stands as a salient reminder to ensure that clients are aware of the nature of the parties with whom they are dealing. More specifically, to ensure that personal guarantees are properly executed by, or with the full knowledge of, the putative signatory.
Hinton v Alpha Westmead Private Hospital  FC
This case concerned an appeal heard by the Full Court of the Federal Court of a decision by the primary judge in the Federal Circuit Court to dismiss an application for associated discrimination under the Disability Discrimination Act 1992 (Cth) as an abuse of process on the basis that the Appellant had no reasonable prospect of success.
TAS - Associations Incorporation
The Associations Incorporation Amendment Act 2016 (Tas) passed its third reading in the Upper House on 2 June 2016. The Act amends the Associations Incorporation Act 1964 (Tas) and commences on 1 October 2016.
The main objective of the Act is to reduce the regulatory burden on Tasmanian incorporated associations who are also registered under the Commonwealth’s Australian Charities and Not-for-profit Commission.
Managing Contested Bequests
It is not uncommon for patients and community members to leave bequests to health services, community health organisations and research institutes. In many cases, the family of the deceased will be supportive of their relative’s wishes to leave money to the service. However, in some instances, family members will object to the bequest being made and will make a claim against the executor, or even against the beneficiary health service.
Responding to Elder Abuse
The Australian Law Reform Commission is currently conducting an inquiry into elder abuse. The Inquiry is tasked with identifying a "best practice legal framework” for the prevention, mitigation and response to elder abuse.
Health Privacy in a Big Data World
The consultation draft of the ‘Guide to Big Data and the Australian Privacy Principles’ was released by the Office of the Australian Information Commissioner in May. The consultation period closed in July and we can expect a finalised Guide in the coming months. It is therefore timely to consider some of the key concepts in the big data and privacy conversation and how they apply to health services.
QLD - Safe Nurse/Midwife-to-Patient Ratios
The Hospital and Health Boards (Safe Nurse-to-Patient and Midwife-to-Patient Ratios) Amendment Act 2016 (Qld) and the Hospital and Health Boards Amendment Regulation (No.2) 2016 (Qld) both commenced on 1 July 2016.
The main objective of the amending Act and Regulations is to provide for safer patient care in hospitals by guaranteeing minimum nurse-to-patient ratios and midwife-to-patient ratios for public sector health services. Along with the improved patient safety and quality of care, minimum ratios also ensure safer workloads for the nursing and midwifery staff, providing greater workforce sustainability and staff satisfaction.
VIC - Rooming House Operators
The Rooming House Operators Act 2016 (Vic) commenced on 1 July 2016.
With a view to improving the operation of rooming houses, and to protect the rights of rooming house residents, the Act establishes a new licensing scheme for rooming house operators, whereby only ‘fit and proper persons’ are permitted to operate rooming houses.
Prior to the commencement of the Act, there was no legislation in Victoria regulating who could and could not operate a rooming house. The Act changes this by requiring individuals or eligible corporate entities to apply for and be granted a licence in order to operate a rooming house (as well as to meet existing legal requirements).
Compliance Leader in the Healthcare Industry
Health Legal/Law Compliance has been selected as one of APAC CIO Outlook's 25 Most Promising Compliance Solution Providers of 2016 and has been described as a 'Compliance Leader in the Healthcare Industry'.
VIC - Health Complaints Act 2016 (Vic)
The Health Complaints Act 2016 (Vic) passed the Lower House of Parliament on 27 April 2016, received Royal Assent on 3 May 2016 and is due to commence on 1 February 2017.
The primary purpose of the Act is to establish a more comprehensive complaints process to better support the Victorian public. To this end, the Act will repeal the Health Services (Conciliation and Review) Act 1987 (Vic), and the existing Health Services Commissioner will be replaced by the Health Complaints Commissioner (the HCC).
Organisations should be aware that the HCC will be empowered under section 47 of the Act to conduct an investigation into the conduct of a health services provider even when no complaint about that health services provider has been lodged with the HCC.