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Where am I now? Lawlink > privacynsw > NSW Privacy Laws > Direction For The Department Of Ageing,
Disability And Home Care And Associated Agencies
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Direction For The Department Of Ageing,
Disability And Home Care And Associated Agencies
Privacy and Personal Information Protection Act 1988 (NSW)
I, Judge K V Taylor, Privacy Commissioner hereby make the following Direction pursuant to section 41 of the Privacy and Personal Information Protection Act 1998 :
Overview
This is a direction made under section 41(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act). It should be read in conjunction with that Act.
Coverage
This Direction is intended to cover the Department of Ageing, Disability and Home Care, the Guardianship Tribunal and the Disability Council.
Provisions
This Direction aims to resolve three interrelated difficulties faced by the three agencies in collecting, using and disclosing personal information about individuals. It does this by providing for the following exemptions from the information protection principles in the PPIP Act:
1. Where an individual is:
· not able to provide fully informed consent to the collection, use or disclosure of personal information relating to them;
· is 16 years of age or over; and
· does not have a legally appointed guardian with power to make a decision on their behalf regarding the information;
then, in matters involving collection, use and disclosure of personal information pursuant to the PPIP Act consent must be sought from the next most appropriate person.
This consent can only operate where reasonable steps have been taken to involve the individual about whom the information relates in the consent process.
2. In circumstances where:
i. there is no imminent threat to the life or health of the individual concerned; and
ii. sensitive personal information must be collected or disclosed for appropriate planning for individual clients in the context of preventing harm to the individual or others, or significant damage to property;
then, collection of personal information from, or disclosure of, personal information to a person or organisation delivering a service to the individual, to whom the information relates, is permitted.
3. Limited disclosure of personal information including sensitive personal information to non-government professionals and organisations may be made, provided that a confidentiality agreement exists with that professional or organisation and it is not practicable to obtain the appropriate authority for disclosure from the person, guardian or next most appropriate person.
4. This Direction does not apply to “health information”, as defined in section 6 of the Health Records & Information Privacy Act 2002 (HRIP Act).
This Direction has been written primarily to provide for the involvement of guardians or the next most appropriate person in situations where an individual does not have the capacity to consent to the collection, use and disclosure of their personal information. Wherever possible reasonable steps must be taken to involve individuals throughout the process of collection, use and disclosure of their personal information.
Duration
This Direction replaces the Directions made on 16 March 2001, 5 June 2001, 28 December 2001, 29 April 2002, 26 June 2002, 29 October 2002, 31 March 2003, 19 December 2003, 31 December 2004, 31 December 2005, 29 December 2006 and 28 December 2007.
This Direction has effect from 1 January 2009 to 31 December 2009 or until the making of a revised Direction.
1. Interpretation
In this Direction:
“agency” means public sector agency as defined in section 3 of the Privacy and Personal Information Protection Act 1998;
“authorised person” is a medical practitioner, health worker or other official or employee providing health or community services who is employed or engaged by a public sector agency.
“guardian” has the same meaning as in Part 2 or 3 of the NSW Guardianship Act 1987.
“next most appropriate person” includes any individual coming under the definition of persons responsible as defined in s33A of the NSW Guardianship Act 1987, but not necessarily according to the hierarchy set out in that section; or an advocate appointed to represent a particular individual’s best interests.
“section” refers to sections of the Privacy and Personal Information Protection Act 1998;
2. Modification of Information Protection Principles
Section 8
There is no intention to depart from the requirements of section 8
Section 9
There is no intention to depart from the requirements of section 9 with two exceptions:
(1) Where the individual is 16 years of age or over and is incapable of giving consent to the collection of personal information and where all practicable steps have been taken to obtain the views of the person.
Where the individual has a guardian appointed under Part 2 or 3 of the NSW Guardianship Act 1987 the guardian will, for the purposes of the section 9 and 10, act for and on behalf of the individual to whom the information relates where the guardianship order encompasses such decisions.
Where the individual does not have the capacity to consent and there is no guardian appointed with the relevant functions, then the next most appropriate person will be deemed to be acting for and on behalf of the individual to whom the information relates.
This consent can only operate where reasonable steps have been taken to involve the individual about whom the information relates in the consent process.
(2) In limited circumstances this Direction allows the collection of personal information from a person or organisation delivering a service to the individual, to whom the information relates. Collection may occur in this manner where it is not reasonable in the circumstances to collect the information from the guardian or next most appropriate person and, where it is appropriate to the compilation of an individual service plan or is otherwise required, to ensure the appropriate priority and or placement of the individual in a service. Collection may also be reasonably necessary in order to make a decision, which requires the balancing of the legitimate interests of other individual service users against the interests of the individual, to whom the information relates. Collection in this manner must only occur where it is essential to the prevention of harm to the individual or others or to prevent significant damage to property.
Section 10
There is no intention to depart from the requirements of section 10 except in cases, where information has been collected from or authorised by the guardian or the next most appropriate person and where the individual has been unable to consent to the collection as outlined in Section 9 (1) above. In these situations, the guardian or next most appropriate person must be informed as to the fact of collection, the purposes of that collection the intended recipients of that information and the other matters set out in section 10.
Section 11
There is no intention to depart from the requirements of section 11.
Section 12
There is no intention to depart from the requirements of section 12.
Section 13
There is no intention to depart from the requirements of section 13.
Section 14
There is no intention to depart from the requirements of section 14, except that the right to access that would otherwise be available to the individual, to whom the information relates, may be exercisable, at the Ageing and Disability Department’s discretion, by the person’s guardian or next most appropriate person.
Section 15
There is no intention to depart from the requirements of section 15, except that the right to request amendments, that would otherwise be available to the individual to whom the information relates, may be exercisable, at the Ageing and Disability Department’s discretion, by the person’s guardian or next most appropriate person.
Section 16
There is no intention to depart from the requirements of section 16
Section 17
There is no intention to depart from the requirements of section 17, except in cases where the individual is 16 years of age or over and is incapable of giving consent to use personal information, for a purpose other than that, for which it was collected. In that case, consent is required to be obtained from the guardian or next most appropriate person, in the same manner, as it is required in sections 9 and 10 above.
Section 18
Where an individual is incapable of giving consent for the disclosure of personal information, consent may be obtained from the guardian or next most appropriate person in the same manner, as it is required in sections 9 and 10 above.
Section 19
There is no intention to depart from the requirements of section 19, except where the individual is 16 years of age or over and is incapable of giving consent to use personal information and where all practicable steps have been taken to obtain the views of the person.
In limited circumstances, this Direction allows the disclosure of personal information to a person or organisation delivering a service to the individual, to whom the information relates.
Disclosure may occur in this manner, where it is not reasonable in the circumstances to obtain consent for the disclosure from the guardian or next most appropriate person, and where it is appropriate to the treatment or care of the individual, the compilation of an individual service plan or is otherwise required to ensure the appropriate priority and or placement of the individual in a service.
Disclosure may also be reasonably necessary, in order to make a decision, which requires the balancing of the legitimate interests of other individual service users against the interests of the individual, to whom the information relates. Disclosure in this manner may only occur, where it is essential to the prevention of harm to the individual or others, or to prevent significant damage to property.
This Direction permits disclosure of information, in circumstances where the consent of the individual, the guardian or the next most appropriate person cannot be obtained, to non-government health care workers and non-government organisations engaged or funded by the Department where those persons or organisations have entered a confidentiality agreement with the Department, prohibiting the disclosure of personal information to any other person or body, without the written permission of the individual’s guardian or the next most appropriate person.
Signed by me on this 23 day of December 2008.
K V Taylor
Privacy Commissioner
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