If you are receiving mental health and wellbeing services (‘service/s’) in Victoria, you have rights related to your health information.
These rights apply:
- to children, young adults, and older adults
- whether you are receiving voluntary or compulsory treatment.
The Mental Health and Wellbeing Act 2022 (the MHW Act), the Freedom of Information Act 1982 (the FOI Act) and the Health Records Act 2001 (the Health Records Act) explain these rights.
Your health information rights
Under these Acts, you have the right to:
- view your health information
- get a copy of your health information
- request changes to your health information
- make a health information statement.
Note: The health information statement is a document you can make after your request for changes to your health information has been refused. It explains the changes to your health information that you wanted.
On this page we explain your health information rights under the MHW Act, the FOI Act, and the Health Records Act. We will use ‘service provider’ to mean mental health and wellbeing service provider.
How your health information is recorded
Your service keeps records about your health information. Health records can be paper based or electronic. Health information is defined in the Health Records Act. Usually, your health information can include:
- information or opinions about:
- your health (physical, mental or psychological)
- your disability
- what health services you’ve said you want in the future
- what health services were provided to you, or will be in the future
- your personal information such as:
- your name, date of birth, gender and pronouns
- where you live or where you work, and your family situation or personal details
- other personal information including information:
- collected to provide you with a health service
- collected in connection with certain bodily donations
- that is about your genetic information.
What your service provider must do
Your mental health and wellbeing service provider must take reasonable steps to make sure the health information it has about you is accurate, relevant and up-to-date.
The Health Records Act says your service should keep your health information for either:
- at least seven years from the date of your last visit if you are an adult, or older adult
- until you are 25 years of age if you are a child or young person.
Your service may keep your health information for longer.
Each Victorian health service makes their own health records. If you receive a service from a mental health and wellbeing service provider and other areas or departments at the same health service provider, then all of this information will be in the same record.
Any member of your treating team can record health information about you in your health record.
The Health Records Act and the Privacy and Data Protection Act 2014 protect any health information recorded about you.
These laws are designed to assist in the protection of your privacy, and to try and help ensure the security of your health information.
How to view or get a copy of your health information
You have the right to view or get a copy of your health information. Your service must follow the law when it comes to your privacy and health records.
Be aware your health records may either:
- include opinions about you that you might not agree with
- have information that you believe is incorrect.
You can ask for support when reading your health record. Support can be from anyone you choose.
There are three main ways to access your health information.
Accessing information under the MHW Act
Under the MHW Act, you must be given a copy (if you have one) of certain documents, including your:
- assessment order
- temporary treatment order
- treatment order
- second psychiatric opinion report.
Also, if you have a Mental Health Tribunal hearing, you have the right to a copy of the report and to view the documents your treating team have given to the Mental Health Tribunal at least two business days before the hearing.
Your psychiatrist can ask the Mental Health Tribunal to stop you reading the report or documents if it could cause serious harm to yourself or someone else.
Accessing information under the Health Records Act
Under the Health Records Act, your service may be able to give you access to, or a copy of, certain documents in your health record without you having to go through a specific process in writing.
Your service can only do this for specific types of information when the law allows for it. For example, they might give you your discharge summary if you have been in hospital.
Accessing information under the FOI Act
Under the FOI Act, you have the right to request to view or get copies of your health information from Victorian public sector organisations, including, public hospitals. This is called a Freedom of Information (FOI) request.
If you are making an FOI request, you must give it to the service that has recorded the information you want a copy of. Your request must be in writing, and there is a fee. Your service will have forms you can use to help write an FOI request.
If you cannot pay the fee, you can:
- ask your service to waive the fee. You can provide a copy of your healthcare card to support your request. They may decide you don’t have to pay the fee if they think you can’t afford it
- ask for help from a support person or advocate to have the fee waived.
The FOI process can be confusing and can take time. You can ask for support with the application or when reading what is written. Support can be from anyone you choose.
Why is there information missing?
There may be some information that has been removed or covered so you can’t read it. This is because a health service can legally decide not to share documents or parts of documents with you under certain circumstances in the FOI Act and the Health Records Act.
This can include information:
- that was shared confidentially, like reports from child protection
- about police and keeping the public safe
- that the law says must be kept confidential and private
- about someone’s personal life or an organisation’s business matters.
Making changes to your health information
If you have read health information about you that you disagree with, you have the right to request changes to that information under the FOI Act or the Health Records Act.
You can get help with asking for changes from a support person or advocate. Learn more by reading the Know your rights: your health information fact sheet and form.
How to make the changes
Step 1: Ask your service about making changes
You will need to talk to the service that created the health information. You can ask your treating team, ward clerk, the patient liaison officer, or the FOI Officer at your service for more information on how to ask for changes.
Step 2: Explain what changes you want to make
There are a few different ways to ask for changes.
These include:
- Verbally – for example, you could sit with your psychiatrist and talk to them about the changes you want made.
- In writing – for example, you could make changes on a copy of your health information to give to the service provider. Remember to ask them to give you back a copy to keep.
- Formal request under the FOI Act – you can do this in writing. You must include your address, what changes you want and why. Your request for changes could be because the information is incomplete, incorrect, out of date or misleading, out of date or misleading.
You can ask a support person or advocate to help you ask for changes.
Provide evidence with your request
You can provide evidence that supports what changes you are asking for.
For example, you could provide a copy of a letter from a doctor, family member, or carer that confirms the changes you want.
Make a record of your request
When asking for changes to your health information, you should take note of the:
- date you asked
- name of your service provider
- name of the person you asked
- changes you requested.
This will help you to follow up your request. You will also need this information later if the service says no to your request.
Step 3: After you ask for changes
Your service must tell you if they will make the changes you asked for.
If your service provider decides not to make the changes you asked for, they must tell you the reasons and write these down for you.
Some possible reasons why they might not approve your request for changes include:
- They disagree with what you want to have changed. For example, their opinion about your treatment or support is different from yours.
- They did not write the health information you want to have changed. For example, a different service provider wrote it.
Step 4: How to make a health information statement
This is a written document of the changes you wanted to make to your health information that the provider refused. It must be kept on your health record.
To prepare and submit the document:
- Your health information statement must be in writing. You can use the Know your rights: your health information fact sheet and form on the Department of Health website, or make your own.
- You must give your health information statement to the service provider that said no to the changes you asked for. You must give it to them within 12 months after the service provider told you in writing that they won’t make the changes.
- The service provider must then keep this document in your health information record.
Your health information fact sheet
The Know your rights: your health information fact sheet and form is available on the Department of Health website.
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