The NPRM would have allowed covered entities on their own initiative to disclose to law enforcement officials protected health information that the covered entity believed in good
faith constituted evidence
of criminal conduct that arose
out of and was directly related to: (A) The receipt
of health care or payment for health care, including a fraudulent claim for health care; (B) qualification for or receipt
of benefits, payments, or services based on a fraudulent statement or material misrepresentation
of the health
of the individual; that
occurred on the covered entity's premises or was witnessed by a member
of the covered entity's workforce.
If an application overcomes the hurdles in CA 2006, s 263 (2) the court will then take into account the discretionary factors set
out in s 263 (3) which states: «(3) In considering whether to give permission (or leave) the court must take into account, in particular --(a) whether the member is acting in good
faith in seeking to continue the claim; (b) the importance that a person acting in accordance with section 172 (duty to promote the success
of the company) would attach to continuing it; (c) where the cause
of action results from an act or omission that is yet to
occur, whether the act or omission could be, and in the circumstances would be likely to be --(i) authorised by the company before it
occurs, or (ii) ratified by the company after it
occurs; (d) where the cause
of action arises from an act or omission that has already
occurred, whether the act or omission could be, and in the circumstances would be likely to be, ratified by the company; (e) whether the company has decided not to pursue the claim; (f) whether the act or omission in respect
of which the claim is brought gives rise to a cause
of action that the member could pursue in his own right rather than on behalf
of the company.»