Program Management Circulars Index <

Confidentiality under the Mental Health Act 1986 - November 2008

This guideline has been developed to explain the operation of section 120A of the Mental Health Act 1986 and its interaction with the Health Records Act 2001. It has been prepared to assist service providers to manage confidential information consistent with the law, but it is also relevant to consumers and carers wanting to understand the legal framework governing the disclosure of such information.

Feedback is sought about the form and content of the guideline, to ensure it meets users’ needs. Feedback will be used to review and revise the guideline, to ensure its relevance to service providers and other stakeholders.

Comments may be provided up to 30 June 2009 to Kristen.Densley@dhs.vic.gov.au or by telephone (Mon-Wed) to Kristen Densley (03) 9096 6931.

[Download this page (PDF file 273KB)]

• Key message
• 1. Purpose
• 2. Introduction
• 3. Scope of s. 120A
• 4. What is the relationship between s. 120A and the Health Records Act
• 5. Disclosure of information under s. 120A
• 6. Documenting decisions
• 7. Health Services Commissioner's guidelines
• 8. Charter of human rights
• 9. Administrative definitions
• 10. Further enquiries about confidentiality and information privacy
• Appendix 1: Quick reference guide
• About program mangement circulars

Key message

Section 120A of the Mental Health Act is the principal law regulating the disclosure of health information by mental health services.

The Health Records Act is the principal law regulating the collection and use of health information by mental health services.

1. Purpose

To provide information about the law and clinical policy requirements concerning:

• the operation of the confidentiality provisions in the Mental Health Act 1986 (the Act)
• the relationship between the confidentiality provisions in the Act and the Health Records Act 2001

2. Introduction

The obligation to keep consumer information confidential is longstanding and well understood by clinicians and consumers. The essence of the obligation is to protect health information from unauthorised use or disclosure by placing a responsibility on the individual who holds the information to keep it confidential. Confidentiality is enforced by both legislation and professional codes of conduct.

Section 120A of the Act is the principal law that regulates the confidentiality of information about consumers of mental health services. The provision has been regularly amended over the years and has become increasingly complex. The most recent changes have been to improve its consistency with the Health Records Act.

This guideline has been developed to explain the operation of s. 120A and to explain its interaction with the Health Records Act. A quick reference guide summarising the legal grounds for disclosing information is included in appendix 1.

3. Scope of s. 120A

3.1 Who is bound by s. 120A?

Section 120A applies to all current and former employees, contractors, proprietors, owners and board members of a ‘relevant psychiatric service’ (see definition below), as well as the ‘relevant psychiatric service’ itself. They are collectively referred to in s. 120A as a ‘relevant person’.

Relevant psychiatric service

A ‘relevant psychiatric service’ is an organisation that provides one or more of the following services:

• An approved mental health service An approved mental health service is any service or premises that has been proclaimed by the Governor in Council under s. 94 of the Act as a place at which treatment can be provided to patients under the Act or is subject to an emergency declaration by the Secretary to the Department of Human Services under s. 94A. The proclamation or declaration is subsequently published in the Victorian Government Gazette (hence the term ‘gazetted services’). Typically, public hospitals that have an acute psychiatric in-patient unit are proclaimed as approved mental health services.
• A child and adolescent psychiatry service
• An agency providing community support services Community support services are defined in s. 98 of the Act to be services funded by the Secretary to the Department of Human Services to provide care or support intended to assist people with a mental disorder to live, work and participate in the community. It includes Psychiatric Disability and Rehabilitation Support Services (PDRSS).
• Any premises licensed under s. 75 These are premises licensed to perform electroconvulsive therapy and include both public and private facilities.
• A hospital admitting and caring for people with a mental disorder This includes public, denominational and private hospitals admitting and caring for people with a mental disorder, whether the person has been admitted to a psychiatric unit or another part of the hospital, for example an emergency department or a medical/surgical unit managing a person with a mental disorder.
• Any mental health service of a community health centre
• A psychiatric out-patient clinic
• A community mental health service.

Most public and private mental health services are therefore covered by s. 120A. Private practitioners, such as private psychiatrists and general practitioners, are not covered by the provision. The privacy laws covering these practitioners are the Health Records Act and the Commonwealth Privacy Act 1988.

3.2 What information does s. 120A cover?

Section 120A covers any information acquired by a ‘relevant person’ through their work at a ‘relevant psychiatric service’ that identifies a consumer or from which a consumer could be identified. It does not cover information that has been de-identified or de-identified aggregated data that is used for planning, funding, research and other purposes.

3.3 What does s. 120A do?

Section 120A broadly prohibits a ‘relevant person’ from disclosing identified mental health information about current and former consumers of ‘relevant psychiatric services’.

Section 120A also prescribes general and specific circumstances when identified consumer information may be disclosed to external organisations and individuals. These are discussed in detail below.

4. What is the relationship between s. 120A and the Health Records Act

The Health Records Act establishes a comprehensive regime for the protection of health information held by health service providers and other organisations in Victoria (both public and private) and creates an enforceable right of access to the health information. The Health Records Act does not override other legislative regimes for confidentiality or access (for example, the Freedom of Information Act 1982), but rather complements and supplements those regimes.

Section 7 of the Health Records Act provides that where a provision under the Health Records Act is inconsistent with a provision made under another Act, that other provision takes precedence. Section 120A is such a law and is considered to be the principal law regulating the disclosure of information by ‘relevant psychiatric services’ and takes precedence over the Health Records Act for the purposes of disclosure.

However, s. 120A does not govern the collection or use of health information by ‘relevant psychiatric services’ (with the one exception of information stored in the statewide mental health client information management system known as the ODS). This means that the Health Records Act should be taken as the principal law regulating the collection and use of health information by ‘relevant persons’ and ‘relevant psychiatric services’.

5. Disclosure of information under s. 120A

For full documentation of the following download this page (PDF file 273KB)

1. General grounds for disclosure
2. Specific grounds for disclosure
3. Disclosure with consent
4. Disclosure to a guardian, family member or primary carer
5. Disclosure in general terms
6. Disclosure for further treatment
7. Information sharing through the CMI/ODS
8. Disclosure in accordance with the Health Privacy Principles
9. Disclosure for research
10. Disclosure to a court
11. Disclosure for an insurance claim
12. Disclosure to a support organisation
13. Disclosure to review bodies
14. Disclosure in the public interest
15. Disclosure to the Department of Human Services
16. Disclosure to the Australian Red Cross
17. Disclosure under the Children Youth and Families Act 2005
18. Disclosure under the Child Wellbeing and Safety Act 2005

6. Documenting decisions

All decisions to disclose information should be documented in the consumer’s clinical record. Records
should show who made the decision, to who was the information disclosed, when and why, and what information was disclosed.

7. Health Services Commissioner's guidelines

The Health Services Commissioner is empowered by s. 22 of the Health Records Act to issue guidelines for the purposes of the Health Privacy Principles (HPP). The guidelines are binding and have the same authority as the Health Records Act itself.

The Commissioner has issued guidelines concerning HPP 2.2(g): Statutory guidelines on research (Health Services Commissioner, February 2002) and may issue other guidelines in the future. Mental health service providers should keep up to date with the Commissioner’s guidelines.

8. Charter of human rights

8.1 Introduction

The Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) seeks to promote and protect certain human rights. The Charter defines the protected rights, specifies when and how these rights can be limited and requires public authorities, which include public sector mental health services, to act compatibly with the rights and to give proper consideration to the rights when making decisions. The obligations on public authorities came into operation on 1 January 2008.

The Charter recognises that human rights are not absolute but may be limited in certain circumstances. This allows a balance to be struck between individual rights and the public interest. Section 7 of the Charter provides that a right can be subject to such reasonable limits as can be demonstrably justified in a free and democratic society, based on human dignity, equality and freedom and taking into account relevant factors, including:

• the nature of the right – what does the right protect and what are its underlying values
• the importance of the purpose of the limitation – is the purpose for wanting to limit the right very pressing and important in the public interest
• the nature and extent of the limitation – how does it infringe human rights, in what way and to what extent does the limitation interfere with the right
• the relationship between the limitation and its purpose – is there a logical connection between the limitation and its purpose and is it proportionate to its purpose
• any less restrictive means reasonably available to achieve the purpose.

8.2 Privacy

The Charter establishes a right to privacy and requires that a person must not have their privacy unlawfully or arbitrarily interfered with. This means any decision to use or disclose information must have a legal basis and should not be arbitrary. This will require an individual judgement, having regard to the relevant law, the reasons for the disclosure and the factors described above and also at chapter 5.2. A decision to disclose information that has been made in this context and in good faith will be consistent with the Charter.

Further information about the Charter is available from the Victorian Equal Opportunity and Human Rights Commission website

9. Administrative definitions

Collection. Information is collected by an organisation whenever it gathers, acquires or obtains the information from any source and by any means including where it keeps information it has not asked for.

Consent. The voluntary agreement of a person or a person’s authorised representative about a proposed action. It can be either express or implied. Express consent is provided explicitly, either orally or in writing. It is unequivocal and does not require any inference on the part of the organisation seeking consent. Implied consent arises where consent may be reasonably inferred from the action or inaction of a person. Consent must be meaningful, that is, a person must understand what has been consented to and the implications of this. Consent must be obtained without coercion.

De-identify. In order for information to be considered de-identified, all identifiable references to a person must be removed and the context and content of the remaining details must not allow the identity of a person to be reasonably ascertained.

Disclosure. Disclosure refers to an organisation communicating information to another organisation or person outside the organisation.

Use. Use refers to the handling of information within an organisation.

10. Further enquiries about confidentiality and information privacy

Mental health services providers must refer to the Act and the Health Records Act for a complete understanding of the legislation and the Health Privacy Principles. If staff have queries about their duty to maintain the confidentiality of a consumer, service providers should obtain independent legal advice about their obligations under s. 120A of the Act and the Health Records Act.

For further information about the Health Records Act, visit the department’s website at www.dhs.vic.gov.au/privacy or www.health.vic.gov.au/healthrecords or the website of the Health Services Commissioner

A quick reference guide summarising the legal grounds for disclosing information is included in appendix 1. (See below)

Appendix 1: Quick reference guide

Download this page (PDF file 273KB) for full reference guide (pages 21-28 of whole document)

About program management circulars

The information provided in this circular is intended as general information and not as legal advice.

Mental health service management should ensure that procedures are developed and implemented to enable staff to respond to requests for information about consumers in an appropriate manner. If staff have queries about their duty to maintain the confidentiality of a consumer, service providers should obtain independent legal advice about their obligations under s. 120A of the Act and the Health Records Act.