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LIV action protects health information

Briefs

Cite as: (2008) 82(12) LIJ, p.14

A strong working relationship between the LIV and Department of Justice (DOJ) has resulted in welcome proposals in the Coroners Bill 2008 (Vic) to reform the coronial system.

The Bill was introduced into state Parliament in October and at the time of writing parliamentary debate had not resumed. If it is ultimately passed into law in its current form, the Bill will establish a Coroner’s Court and introduce changes to the coronial powers and processes governed by the Coroners Act 1985.

Before the Bill’s introduction into state Parliament in October, the LIV Administrative Law and Human Rights (AL&HR) Section’s Health Law Committee and Legal Policy and Practice Department (LPP) successfully lobbied to obtain protection for medical files in the coroners’ possession.

Under the LIV-driven amendments proposed in the Bill, the state coroner could approve an application by a member of the public to view private medical files only after weighing up public interest and privacy considerations. This is in contrast to the situation under the current laws which provide public access to coronial files without express privacy safeguards in place.

Clause 8(e) of the Bill says: “When exercising a function under this Act, a person should have regard, where practicable, to the following – that there is a need to balance the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information”.

LIV president Tony Burke said it was an excellent outcome and “a classic instance of concerned members doggedly chiselling away in the public interest and achieving a public good”.

And in a 9 October letter to Mr Burke, DOJ courts executive director John Griffin thanked “those members for their thorough and prompt advice and suggestions [that]clearly improved the Bill, especially the provisions relating to access to records”.

In 2004, the Victorian Parliament Law Reform Committee (VPLRC) was asked to review the Coroners Act 1985, including provisions on access to files, after the public release by the Coroner’s office of the medical files of a woman who had been treated to terminate a pregnancy.

In 2006, the VPLRC made 138 recommendations for operational and legislative reform across the Victorian coronial system and last year the LIV made a proactive submission to the DOJ on a number of matters, including the need to protect private information.

Members of several AL&HR Section committees provided input into the submission, including the Health Law, Disability Law and Indigenous Issues and Reconciliation Committees.

This led to a series of meetings between the LIV and the DOJ.

LIV representatives involved in the discussion process included former LIV president Bill O’Shea, AL&HR Section Health Law Committee chair John Bolitho and committee member Elizabeth Kennedy, AL&HR Section lawyer Alice Palmer and AL&HR Section policy adviser Laura Helm.

Other changes to the Coroners Act 1985 anticipated in the Bill include a broader scope of deaths to be reported to a coroner, implementing in large part the VPLRC’s recommendations concerning Aboriginal deaths in custody and deaths of people with some disabilities and mental health illnesses.

The LIV remains concerned that some categories of deceased people – such as a person who dies soon after being released from state care – might fall outside the scope of a “reportable death” under the Bill and is continuing to call for increased and dedicated legal aid resources for families affected by a coronial investigation.

LIV LPP general manager Joy Acquaro said the successful outcome arising out of the Coroners Bill lobbying efforts highlighted the invaluable endeavour and commitment of members working on LIV lobbying initiatives.

“In this case [the Coroners Bill], it was a combination of a well thought out lobbying program leveraging off the intellectual capital of the committees and LIV staff,” Ms Acquaro said.

“It is a good example of the LIV’s strong voice and reputation in law reform.”

LIV AL&HR Health Law Committee chair John Bolitho, AL&HR Section policy adviser Laura Helm, AL&HR Section lawyer Alice Palmer and Health Law Committee member Elizabeth Kennedy

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