Today’s correspondent asks:

Can a virtual care centre (in NSW) legally and ethically use a recorded calls for staff education and training purposes without the consent of the employee involved? If so, what privacy, consent, and confidentiality requirements must be met before doing so?

The NSW privacy legislation seeks to govern the collection and use of personal and sensitive information.  The Health Records and Information Privacy Act 2002 (NSW) s 5 defines ‘personal information’ as

… information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(And see also Privacy and Personal Information Protection Act 1998 (NSW) s 4 for a matching definition).

Health information means (s 6):

(a) personal information that is information or an opinion about–

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual’s express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, or

(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual’s body parts, organs or body substances, or

(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or

(e) healthcare identifiers,

One cannot imagine that in a call with a virtual care centre personal or health information about the call taker is being recorded so these Acts will not be relevant.

The Workplace Surveillance Act 2005 (NSW) defines ‘surveillance’ as (s 3):

(a) “camera surveillance”, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place,

(b) “computer surveillance”, which is surveillance by means of software or other equipment that monitors or records the information input or output, or other use, of a computer (including, but not limited to, the sending and receipt of emails and the accessing of Internet websites),

(c) “tracking surveillance”, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device).

None of those relate the recording and use of phone calls so that Act, too, will not be relevant.

The Surveillance Devices Act 2007 (NSW) s 7 says:

(1) A person must not knowingly install, use or cause to be used or maintain a listening device–

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

(2) …

(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if–

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation–

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

The person doing the recording is the virtual care centre (assuming it is a corporate or government entity). The call taker is the virtual care centre’s employee. The care centre cannot actually answer calls except via its employees so it is the care centre, and not the employee that is a principal to the conversation.  

The Telecommunications (Interception and Access) Act 1979 (Cth) makes it an offence to intercept a phone conversation (s 7).  Intercepting a phone conversation means (s 6):

… listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

I also assume the person calling gets the standard warning that calls to this service are recorded for training and quality assurance purposes. I also assume the call takers are aware that calls are being recorded.

If those assumptions are true then all of the principal parties to the conversation (ie the virtual care centre and the person calling) consent to the recording. Further everyone knows that the communication is being recorded. In that case there is no breach of either the Surveillance Devices Act 2007 (NSW) or the Telecommunications (Interception and Access) Act 1979 (Cth).  I cannot see legal any reason why the calls cannot be used for staff education and training purposes without the consent of the employee involved.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.