Legislative changes have been made to the My Health Records Act 2012 in relation to the obligations of authorised and nominated representatives.
These changes took effect on 1 March 2016.
What are authorised and nominated representatives?
To allow minors, and adults who do not have capacity, to have a My Health Record, a person can apply to become an authorised representative in order to register the minor or adult without capacity.
Individuals may choose to have nominated representatives to help them manage their My Health Record.
What has changed?
Authorised and nominated representatives were previously required to act in the best interests of an individual.
Authorised and nominated representatives are now required to act in accordance with the will and preferences of the individual.
Ascertaining the will and preferences of an individual involves a number of steps depending on the circumstances of the individual:
- a representative must make reasonable efforts to ascertain the individual’s will and preferences in relation to the individual’s My Health Record;
- if it is not possible to ascertain the individual’s will and preferences, the representative must make reasonable efforts to ascertain the individual’s likely will and preferences;
- the individual’s likely will and preferences may be obtained from the person appointing the representative or, to the extent legally possible, from consultation with people who may be aware of the individual’s will and preferences.
What if the individual’s will and preferences may cause harm to the individual?
If giving effect to the individual’s will and preferences would pose a risk to the individual’s personal and social wellbeing, the representative must instead act in a manner that promotes the personal and social wellbeing of the individual.
What if the will and preferences cannot be ascertained?
If the individual’s will and preferences cannot be ascertained, the representative must act in a manner that promotes the personal and social wellbeing of the individual.
Do I need to ascertain the will and preferences of a child?
Yes. Parents or guardians of minors should still make reasonable attempts to ascertain the minor’s will and preferences (if they have any). The older the minor gets the more likely it is that they will have will and preferences and the parent or guardian should ascertain these.
Why has this change been made?
In 2014 the Australian Law Reform Commission (ALRC) recommended in its ALRC Report 124 entitled Equality, Capacity and Disability in Commonwealth Laws, that a person providing decision-making support should, instead of acting in the person’s best interests, give effect to the will and preferences of the person to whom they provide decision-making support. This recommendation took into account international changes in the treatment of individuals who require supported decision‑making, recognising that one person cannot necessarily determine what is in the best interests of another person.