The media statement regarding the Health and Other Legislation Amendment Act 2016 (Qld) states
The age of consent for all lawful sexual activity in Queensland will be standardised to 16 years after the Queensland Parliament voted today to remove a longstanding source of discrimination in Queensland’s Criminal Code.
Minister for Health and Ambulance Services Cameron Dick said this change would support the health of all young Queenslanders, regardless of their sexuality.
“The Palaszczuk Government is committed to improving the sexual health of Queenslanders, and we want the focus to be squarely on sexual health, not on stigmatising relationships,” he said.
A panel of health experts met in May 2016 to consider a change to the Criminal Code 1899 and found that standardising the age of consent would improve sexual health outcomes.
“The expert panel considered that the current laws may lead to people feeling compelled to withhold information about their sexual history from health practitioners.
“This may be because they fear possible legal consequences for themselves or their partner.
“Withholding this information could have serious implications for a young person’s medical treatment, particularly as unprotected anal intercourse is the highest-risk behaviour for transmission of HIV.” ...
Minister Dick said, “in May this year I released the draft Queensland Sexual Health Strategy 2016–2021 for public consultation.”
“The Health and Other Legislation Amendment Bill 2016 passed by the Parliament supports an action in that draft by removing the existing disparity between the age of consent for differing forms of sexual intercourse.
“Our government aims to support healthy and safe sexual experiences while providing Queenslanders with the knowledge required to maintain optimal sexual and reproductive health.
“The amendments passed by the parliament, and the proposed Queensland Sexual Health Strategy, will both help to deliver these outcomes.”The Bill, introduced on 16 June 2016 and passed on 15 September 2016, will amend the Criminal Code to standardise the age of consent for sexual intercourse to 16 years. The Bill will also make consequential amendments to a range of other Acts to support these amendments.
The Explanatory Memo states
In particular, the Bill amends:
- the Criminal Code to standardise the age of consent for sexual intercourse to 16 years and replace references to sodomy with anal intercourse
- the Hospital and Health Boards Act 2011 (the Hospital and Health Boards Act) to facilitate general practitioners (GPs) having access to the Queensland Health database, The Viewer; and enable more efficient disclosure of confidential patient information for research purposes
- the Public Health Act 2005 (the Public Health Act) to allow health information relating to deceased patients to be disclosed for research purposes; enable schools to share student information with school immunisation and oral health service providers to improve the uptake of the School Immunisation Program and School Dental Program; and make consequential amendments to reflect changes to the Australian Childhood Immunisation Register, and
- the Queensland Institute of Medical Research Act 1945 (the Queensland Institute of Medical Research Act) to facilitate the payment of bonuses to successful discoverers or inventors.
There is currently a disparity in the Criminal Code between the age of consent for anal intercourse, which is 18 years, and the age of consent for all other sexual activity, which is 16 years. With the exception of Queensland, all Australian states and territories provide an equal age of consent for all sexual activity.
While the discrepancy in the age of consent does not directly target young people on the basis of their sexual orientation, in practice, the law discriminates on this basis against young same-sex attracted men under 18 years.The Memo notes
Access to information systems by general practitioners
Queensland Health collects information about patients and stores it in several information systems. The Viewer is a read-only, web-based application that displays patient information consolidated from other information systems. The information accessible using The Viewer includes the patient’s name, address and demographic information, admission and discharge history, pathology and medical imaging reports, and other information relating to their medical history. The Viewer is currently available to authorised Queensland Health clinical and support staff. Each user has individual user logins and their activity in The Viewer is recorded and audited.
The duty of confidentiality in section 142 of the Hospital and Health Boards Act prohibits a designated person from disclosing patient information to another person, except in prescribed circumstances. Designated person is defined in part 7 and includes, for example, public service employees employed in the Department of Health and employees of a Hospital and Health Service. A designated person would be in breach of section 142 if they disclosed confidential information by permitting persons to have access to a Queensland Health information system, unless the disclosure is required or permitted under the Act. A number of exceptions to the duty of confidentiality are provided for in part 7 of the Act. However, these exceptions are not considered sufficient to allow access by a patient’s GP to The Viewer.
Queensland Health’s My health, Queensland’s future: Advancing Health 2026, the 10 year Vision and Strategic Framework for health in Queensland, was developed in response to the ongoing challenges facing the health system and launched by the Minister for Health and Minister for Ambulance Services on 19 May 2016. The Vision and Strategic Framework identifies connecting care as one of four strategic directions. To improve health outcomes, it is important that the entire health system works together, including a focus on improving collaboration between parts of the health system to enable better continuity of care for patients.
The headline measures of success in the Vision and Strategic Framework include increasing availability of electronic health data to consumers and to have the majority of clinical activities supported by a digital platform. Enabling GPs to access The Viewer will support the headline measures of success and provide GPs with a more comprehensive view of the patient’s clinical history, contributing to connected healthcare for the benefit of the patient.
Giving GPs access to The Viewer will facilitate information-sharing and collaboration, ensuring patients receive consistent, timely and better coordinated care. For example, where a patient attends an emergency department after hours and is instructed to follow up with their GP for further treatment or care, the GP will be able to access the relevant admission and discharge, pathology and imaging reports to ensure appropriate care is provided and only appropriate outpatient referrals are made. GPs will be able to see the results of pathology and other tests already performed at the hospital and avoid unnecessarily repeating tests.
Disclosure of patient data for research purposes
To undertake medical research, researchers are required to meet a number of requirements, including that the research project is submitted for review by a Human Research Ethics Committee or, in the case of low and negligible risk research, a Human Research Ethics Committee or another review body. Once the project is approved, a research governance review is undertaken within the Department of Health or Hospital and Health Service where the project is to be carried out. This ensures the regulatory, budgetary, and contractual requirements have been addressed, that the appropriate head of department and heads of supporting departments have indicated their awareness of and support of the project, and that any other site specific issues are dealt with. Once the research governance review is complete, the research project is authorised to commence at that site by the relevant chief executive.
Researchers require access to patient information to inform their research. In most instances, the patient can consent to their information being disclosed. However, the Australian Medical Association Queensland has identified a legislative barrier to researchers’ ability to efficiently gain access to patient information for research purposes where patients do not have capacity to consent. This may arise, for example, where researchers are undertaking a clinical trial in an intensive care unit or dementia unit. Substitute decision-making frameworks apply, including the Queensland Civil and Administrative Tribunal under the Guardianship and Administration Act 2000 (the Guardianship and Administration Act), and a statutory health attorney for an adult’s health matter under the Powers of Attorney Act 1998 (Powers of Attorney Act), to obtain consent to a patient’s participation in research. However, it is not clear that the substitute decision-maker can consent on the patient’s behalf to confidential patient information being disclosed.
A complex legislative framework currently exists for gaining access to patient information in these circumstances. The duty of confidentiality in section 142 of the Hospital and Health Boards Act prohibits designated persons from disclosing patient information to another person, except in prescribed circumstances. The circumstances currently prescribed under part 7 do not specifically include disclosing patient information for research purposes.
Under the current framework, researchers may apply to Queensland Health under chapter 6, part 4 of the Public Health Act for approval to obtain a patient’s confidential information. Section 281 of the Public Health Act provides that the chief executive may give health information held by a health agency despite any other provisions dealing with confidentiality, including section 142 of the Hospital and Health Boards Act. A person is required to apply in writing to the chief executive under section 282 to obtain health information for research conducted by them or an entity of which they are a member, with a range of particulars required to be included in the application. The chief executive can also require further information or documentation to support the application under section 283. The chief executive may only grant the application if satisfied that the giving of the information is in the public interest having regard to, among other things, the privacy of individuals to whom the health information relates, and the identification of any person by the information is necessary for the research.
This application process is an unnecessary burden in instances where a patient is unable to provide consent for researchers to access their information but the research project has met a number of other requirements, including that:
- the research has ethics approval
- commencement of the project has been authorised by the relevant chief executive in accordance with administrative requirements within Queensland Health, and
- the patient’s participation in the research has been approved under a substitute decision-making framework.
The Australian Medical Association Queensland has raised concerns that the Public Health Act application process may delay or temporarily suspend research projects.
The Bill amends the Hospital and Health Boards Act to enable more efficient disclosure of patient information for research purposes. The amendments remove the need for researchers to undertake the Public Health Act application process to obtain a patient’s confidential information in the above circumstances, while ensuring other appropriate approvals and authorisations in relation to the research have been obtained.
Public Health Act 2005
Deceased patient data
Researchers seek access to historical patient information, including information relating to deceased patients for research purposes including, for example, studies requiring information relating to factors contributing to causes of death. Section 142(3) of the Hospital and Health Boards Act provides that the duty of confidentiality in relation to patient information applies even if the patient is deceased.
The definition of health information held by a health agency under the Public Health Act, however, does not clearly relate to both living and deceased patients as it refers to ‘a person’. Person is defined in the Acts Interpretation Act 1954 to include an individual and a corporation, with an individual defined to mean a natural person. The term natural person is generally understood to relate only to living persons. As a result, it is unclear whether a researcher is able to obtain information relating to deceased patients through the Public Health Act application process outlined above.
The Bill makes a minor amendment to the Public Health Act to clarify that the definition of health information held by a health agency includes the information of both living and deceased persons. This supports the above amendment to the Hospital and Health Boards Act to enable more efficient disclosure of patient information for research purposes.