This article applies to disability service providers and registered NDIS providers.
Disability and Social Services Regulation Amendment Act 2023 (Vic)
On 27 March 2024, subdivision 3 of division 2 of Part 2 of the Disability and Social Services Regulation Amendment Act 2023 (Vic) (the Amending Act) came into effect to amend the Disability Act 2006 (Vic) (the Act). The amendment will repeal certain subsections of section 39 of the Act and replace them with the new sections 202AB and 202AC of the Act.
Disclosure, use or transfer of protected information
The former section 39(2), (3), (3A), (4), (5), (6), (7), (8) and (9) of the Act, which dealt with information sharing obligations of disability service providers, has been repealed and re-enacted under the new Part 8A of the Act (containing sections 202AA – 202AE).
Section 202AB(1) of the Act, clarifies the obligation on a relevant person not to disclose, use or transfer protected information unless the disclosure, use or transfer is:
- made in the performance or a function or exercise of a power under the Act or any other Act (including any Commonwealth Act); or
- required or permitted by or under the Act or any other Act (including any Commonwealth Act).
The penalty for breach of section 202AB(1) remains the same as under the former section 39 of the Act, that being, 20 penalty units (currently, $3846.20).
The definition of relevant person has been introduced under the new section 202AA of the Act to clarify and expand the categories of persons who are caught by the information sharing obligations under the Act. They now include any of the following:
- a person who is or has been appointed to any office under the Act or employed or engaged under the Act;
- a disability service provider;
- a former disability service provider;
- a person who is, or has been, employed or engaged by a disability service provider or former disability service provider;
- a person who otherwise provides or has provided, services under the Act;
- a person who is or has been a member of staff of the public service for the purposes of the Act;
- the Senior Practitioner;
- a registered NDIS provider that uses restrictive practices or implements supervised treatment orders;
- a former NDIS provider that used restrictive practices or implemented supervised treatment orders;
- a person who is, or has been, employed or engaged by a registered NDIS provider specified in the eighth dot point above;
- a person who is, or has been, employed or engaged by a former NDIS provider specified in the ninth dot point above.
The definition of protected information has also been added into the new section 202AA of the Act and means information that is gained by or given to a relevant person in their official capacity and identifies, or is likely to identify a person to whom the information relates, and it is either obtained:
- during the course of providing disability services to the person; or
- by the relevant person using restrictive practices or implementing supervised treatment on the person.
Exceptions
The former section 39(4) has been repealed and re-enacted under the new section 202AB(2), to provide exceptions to section 202AB(1) of the Act. While section 202AB(2) remains relatively the same as the former section 39(4), section 202AB(2) inserts additional classes of people to whom a relevant person can disclose protected information, that being:
- the Secretary to the department for which the Minister administering the Commonwealth Disability Support for Older Australian program or a prescribed program is responsible;
- the Secretary, for the purposes of enabling the Secretary to perform the functions conferred, and meet the obligations imposed, on the Secretary under this Act or any other Act including any Commonwealth Act;
- an emergency service provider if the disclosure is reasonably required for the emergency service provider to carry out a function under any Act in relation to the person to whom the information relates; and
- another relevant person, if the disclosure is reasonably required in connection with the provision by that person or body of services under the Act or the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to the person to whom the information relates including for the purposes of:
- assessing, developing or implementing a treatment plan, behaviour support plan or NDIS behaviour support plan; or
- implementing, monitoring and supervising a supervised treatment order.
In addition, section 202AB(3) inserts new circumstances in which a relevant person is permitted to disclose protected information. The new circumstances are:
- for the purposes of obtaining and seeking legal advice; or
- if the disclosure is reasonably necessary to lessen or prevent:
- a serious threat to a person’s life, health, safety or wellbeing; or
- a serious threat to public health, public safety or public wellbeing.
Under the new sections 202AB(4) and 202AB(5), if it is reasonably necessary for a relevant person to disclose protected information for the following purposes:
- for the performance of a function or the exercise of power under the Act, the Social Services Regulation Act 2021 (Vic) or the NDIS Act; or
- for the performance of a function or the exercise of a power under the Act or any other Act by a person or a body under section 202AB(4);
the relevant person is permitted to disclose the protected information to specified persons or bodies listed in section 202AB(4), including, a police officer, the Coroner or the Disability Services Commissioner.
Use, transfer or disclosure of information relating to disability services or disability service providers
The former section 39(6) will be replaced with the new section 202AC(1) of the Act, which will remain the same as the former section 39(6). In addition, the new section 202AC(3) will replace the former section 39(8) and will also remain the same as the former section 39(8).
The penalty for breach of section 202AC(3) will remain at 20 penalty units (currently, $3846.20).
Conclusion
Organisations should ensure that they have systems and policies in place to ensure any disclosure, use or transfer of protected information is in accordance with the new Part 8A of the Act, in particular, taking into account the changes to the classes of persons who are now subject to the information sharing obligations.
