The Confidential Communications and Protected Health Information guideline specifies that a victim-survivor of sexual offences applying to exclude evidence of confidential communications and protected health information under s 32CE of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘the Act’) may meet the conditions of this guideline.
We note that ‘sexual offence’ means an offence to which clause 1 of Schedule 1 to the Sentencing Act 1991 applies.
It is helpful to understand what is meant by ‘victim-survivor’ as this is not a term used in the Act as well as ‘confidential communications’ and ‘protected health information.’
While the guideline uses the term ‘victim-survivor of sexual offences,’ the Act refers to a ‘protected person,’ defined as follows:
protected person means:
- in relation to a confidential communication – the person who made the communication; or
- in relation to protected health information – the person whom that information is about.
The intention of the guideline is that these two terms be used interchangeably.
S.32CE defines ‘health information’ as having the same meaning as in the Health Records Act 2001. ‘Protected health information’ is defined as follows:
‘…health information is protected health information for the purposes of a proceeding if:
- the proceeding is a criminal proceeding; and
- the proceeding relates (wholly or partly) to a charge for a sexual offence; and
- the health information is about a person against whom:
- that sexual offence is alleged to have been committed; or
- any other sexual offence has been committed or is alleged to have been committed; and
- the person who recorded or collected the information (or, if the information is an opinion, formed that opinion) did so in a professional capacity.
It does not matter whether the information was recorded or collected (or, if the information is an opinion, was formed) before or after the conduct constituting the sexual offence occurred or is alleged to have occurred.
‘Confidential communication’ means:
“…a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.”
The guideline applies to applications to exclude both confidential communications and protected health information as defined by the Act.
Allocation of Funding
In line with the requirements of the funding body, applications assessed under State Civil guideline 15 do not need to meet the means test but are subject to the funds available and VLA’s standard terms and conditions.
As this is a pilot program it is unclear what the demand on the service will be and whether the service will be able to meet the demands of all applicants who meet the criteria under the guideline (including satisfying the State Reasonableness Test).
VLA will prioritise the allocation of funding under this guideline in accordance with a prioritisation framework, which can be provided on request, if/when the demand for services exceeds the level of funding available, i.e., where there are multiple applications that meet the guideline but insufficient resources to allocate all of those matters to a lawyer.
The aim of the prioritisation framework is to ensure the most disadvantaged clients receive urgent and priority assistance. This will be monitored quarterly, with the threshold for applying this prioritisation framework as follows:
| End of Quarter 1 | Over 25% of funding used |
| End of Quarter 2 | Over 50% of funding used |
| End of Quarter 3 | Over 75% of funding used |
The prioritisation framework sets out the process for triaging matters and allocating funding in circumstances where these thresholds are met. This includes refusal of some applications for grants on the basis the Victims Legal Service Commonwealth Pilot service providers do not have the capacity to assist. VLA has absolute discretion to determine funding in accordance with the prioritisation framework.
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