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[2022] VSC 524
General information, not legal advice.
Supreme Court of Victoria
2022-09-07
Ginnane J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Health - Health Privacy Principles - Complaint about correctness of health records following insurer declining insurance application - Whether recorded diagnoses actually made - Health Complaints Commissioner referring complaint to VCAT - Deletions to health records not recorded as Principles require - Applicant disputes recorded diagnosis was made - VCAT misunderstanding applicant's case - Failure to exercise jurisdiction - Whether reasons were adequate - Whether VCAT's decision was unreasonable or open on the evidence - Whether VCAT had regard to relevant considerations or had regard to irrelevant considerations - Error of law - Appeal allowed - Victorian Civil and Administrative Tribunal Act 1998 s 148; Health Records Act 2001 Health Privacy Principles 3, 4.2, 4.3, 6.5.
1 The applicant, EXW, seeks leave to appeal from orders made by a Senior Member of the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal') on 13 April 2021. EXW alleges that the respondent, Dr Christopher Mulroney, interfered with her privacy by breaching the Health Privacy Principles ('HPPs' or the 'Principles'), as contained in Sch 1 of the Health Records Act 2001 ('HRA' or 'the Act') in connection with her health records. Dr Mulroney is a General Practitioner at a medical clinic ('the Clinic') and was EXW's treating practitioner between August 2017 and August 2018.
2 The Tribunal found EXW's main claims 'not proven', but found other claims 'proven' and ordered that Dr Mulroney make corrections to her health records because he had made deletions to them that did not follow the procedures required by HPP 4.3.[1] The Tribunal ordered that he pay EXW $2,000 as compensation for breach of HPP 4.3.
3 The purpose of the HRA is to promote fair and responsible handling of health information, by protecting the privacy of individuals' health information, providing individuals with a right of access to their health information, and providing an accessible framework for resolving complaints about the handling of health information.[2]
4 EXW is aged 35 and is a single mother with a child and is engaged in full time employment. On 26 November 2016, she consulted a psychiatrist, who told her that she had attention deficit hyperactivity disorder ('ADHD'). The psychiatrist prescribed stimulant medication to treat the ADHD, but EXW experienced side effects. The psychiatrist attributed these symptoms to 'life anxiety', but EXW did not agree with that opinion.
5 In January 2017, EXW undertook a Global Mind Screen Assessment at the Clinic and met with Dr Saseendran, a medical practitioner there. EXW discussed the results of the Assessment with her and after undertaking research, she discussed with her the use of antidepressants to treat her ADHD, rather than stimulant medication. Dr Saseendran prescribed the antidepressant Pristiq, but EXW did not commence it immediately, as she was concerned how it might make her feel. The Tribunal found that '[t]his was a very stressful time' in EXW's life. When she commenced taking Pristiq, she slept a lot and gained weight. In April 2018, at her request, Dr Saseendran referred her to Dr Reddy, a psychiatrist, who suggested that she take Concerta for her ADHD. EXW understood that she was also to continue taking Pristiq to counter any adverse side effects.
6 On 4 August 2017, EXW first consulted the respondent, Dr Mulroney, another general practitioner at the Clinic, because Dr Saseendran had left. Dr Mulroney took over the stimulant permit for medications that Dr Reddy had obtained. EXW said that they discussed her lethargy and weight gain while on Pristiq and that Dr Mulroney recommended that she change to using Brintellix, a new type of antidepressant not on the Pharmaceutical Benefits Scheme, but which had been found to improve ADHD symptoms. EXW took Concerta and Brintellix but without experiencing significant improvement. EXW said that in October 2017 Dr Mulroney 'convinced her' to try Vyvanse, which was a 'long acting' dexamphetamine, and to continue with Brintellix to avoid any of the adverse symptoms that she had experienced when taking dexamphetamines prescribed by her original psychiatrist.
7 The dispute giving rise to this litigation arose following EXW's application in May 2018 to increase her life insurance, income protection, and total disability insurance available as part of her superannuation fund membership. As part of her application, Dr Mulroney, as her treating doctor, was asked to answer a questionnaire about her medical history and he did so on 21 June 2018.[3] Dr Mulroney was requested by the insurer to provide information on, among other things, EXW's ADHD and history of depression.
9 In August 2018, the insurer declined EXW's application for Total and Permanent Disability and Salary Continuance Insurance giving as its reason that:[6]
The report from [the Clinic] confirmed a history of ADHD which was complicated in 2017 due to an episode of major depression. It was due to the recency of the major depression which led to the decline of TPD and SCI cover.
10 Upon EXW's enquiry, the insurer informed her that Dr Mulroney had advised that she was being treated for a Major Depressive Disorder ('MDD'). She then met with Dr Mulroney on 24 August 2018 to discuss the insurer's response and to 'correct the mistake'. She said that he skimmed her records and said 'you are right, there is no history of depression here. Why are you taking antidepressants?'[7] She told him that Dr Saseendran had prescribed them as an alternative treatment to stimulant medication as she had read that they were used as an off-label treatment for ADHD. During the meeting, Dr Mulroney prepared a letter that he sent to the insurer acknowledging that he had made an error and stating that EXW was being treated for Generalised Anxiety Disorder ('GAD') and not MDD. The letter stated:[8]
...I filled out a report for [EXW] which stated that she was suffering from a depressive/anxiety disorder. This was not in fact true. She was suffering from a Generalised Anxiety Disorder as a complication of her Adult ADHD. There was no documented evidence of Depression. I include a letter from her Psychiatrist Dr Jaya Reddy attached to this letter.
She is currently on Brintellix for the Anxiety disorder.
11 EXW had never heard of GAD and, after the consultation, she read the Diagnostic and Statistical Manual of Mental Disorders. She considered that she did not meet the diagnostic criteria of GAD. She had never been diagnosed with, or told that she was suffering from, GAD. She requested further information from the Clinic, which on 30 August 2018 replied stating that:[9]
Dr Mulroney has let us know that you were originally diagnosed with anxiety by Dr Saseendran. In addition the medication you are currently taking can only be prescribed for patients with Major Depression or Generalised Anxiety Disorder...
12 On 4 September 2018, EXW responded, challenging that she had ever been diagnosed with GAD and stating that it was not an appropriate diagnosis for her. She wrote that:[10]
I am deeply concerned that I have been labelled with a disorder without clinical basis. My primary concern is [to have] my medical records corrected. I have never suffered depression or anxiety - nor have I sought treatment for either.
13 EXW asked to be provided with her medical records, but the Clinic told her that they could not provide them, but that Dr Mulroney had asked that she attend a consultation because he intended to reassess her to consider if an amended diagnosis was appropriate. EXW did not do so.
14 EXW lodged a complaint with the Health Complaints Commissioner ('HCC') and was later provided with a copy of her medical records.
(a) Dr Saseendran had diagnosed her with ADHD and prescribed antidepressants as an off-label product to treat it and avoid the adverse effects of stimulant medication;
(b) Dr Saseendran had never diagnosed her with GAD and there were no markers on her Global Mind Screen Assessment; and
(c) Her medical history had been changed for the year 2003. On her medical records, the entry under 2003 stated 'Generalised Anxiety Disorder (GAD) 17 yrs & 21 yrs & 25 yrs & 28 yrs'. However, the referral letter from Dr Mulroney to Dr Reddy dated 14 August 2017 stated 'Depressive Anxiety Disorder'.
16 In Dr Mulroney's reply to the HCC in 2019, in response to EXW's complaint, he referred to EXW's medical records, including her first attendance at the Clinic on 13 January 2017. In her New Patient Details form, she had answered the question 'do you suffer from any of the following?' by ticking the box for depression. During EXW's first consultation, Dr Saseendran spent a considerable amount of time collecting a detailed medical and mental health history, including a formal medical history, past medical history, medication history, full life history, past psychiatric history and family history. In the subjective history that she provided, she reported a history of depression.
17 Dr Mulroney also referred to the Global Mind Screen Assessment conducted by Dr Saseendran. The Assessment included the description of her ADHD and MDD as 'severe' and recorded reported suicidal ideation but no intent. He stated that these conclusions were supported by the extensive history that she provided. Following the Assessment, Dr Saseendran prepared a Treatment Plan, which with respect to MDD, noted 'Depressive Symptoms' under the Treatment Goals heading, but indicated that the MDD was not clinically confirmed.
18 Dr Mulroney's letter also contained the following response:
Reasons for my response:
After another review of the available medical information on [EXW's] file, it is my medical opinion that she suffered from lifelong Attention Deficit Hyperactivity Disorder (ADHD), complicated by a history of Major Depressive Disorder (MDD) that had resolved and Generalised Anxiety Disorder (GAD).
[EXW] asserts that her diagnosis of MDD and GAD are inaccurate as they are not supported by clinical notes or diagnosis of either condition from January 2017 to date. The clinical notes do support these diagnoses, but more importantly as her treating practitioner from August 2017 to August 2018, I confirm the diagnosis of GAD from my own examinations and history obtained.
[EXW] incorrectly believes that the antidepressant medication she was on was being used to counteract the 'side effects' of stimulant medication that was for her ADHD. This was definitely not the case. As stated above, Dr Saseendran noted clear evidence of MDD on her initial consultation. As a medical professional, I have reviewed the detailed consultation notes taken by Dr Saseendran on that occasion, and the GMS completed, and from my own knowledge of [EXW] after having treated her myself for a year, I consider that Dr Saseendran made a clinical decision to initially treat the primary medical issue - [EXW's] ADHD, to see if the depressive symptoms settled. The reverse occurred and they were amplified by the simulant medication, leading to commencement of antidepressant medication which continued to be used.
[EXW] says the reference to '2003 - depressive anxiety disorder' is irrelevant as it had been 15 years earlier and was 'unrealised ADHD while in high school after a traumatic event'. In my medical opinion, I do not agree, and this is not what is recorded in the notes and her GMS.
Reasonable steps to associate her statement with her health information:
In accordance with HPP 6.5, [EXW] has specifically requested corrections to:
Any reference to:
Generalised Anxiety Disorder
2003 history of depressive anxiety disorder (not diagnosed)
Brintellix as treatment for 'depressive anxiety disorder'
Medications:
Brintellix was discontinued October 2018
Implanon - never implanted
[EXW] has also requested that I send a retraction to UHG insurance to confirm the error.
For the reasons I have given in this response, I do not agree that any matters require correction, but I will take the following reasonable steps to address the matters [EXW] has requested above.
In accordance with HPP 6.6, I will associate [EXW's] letter addressed to Sue Joseph of the HCC with her medical records held by [the Clinic]. To do this, I will scan a copy of her letter into our medical records system with a note that it is to be printed if any future request for her records is made.
I will make a further note to confirm that her Implanon was not implanted. My consultation note of 12 June 2018 refers to 'implanon script & chat' and confirms I printed a prescription for her. The reference under 'Reason for contact: Contraception - implant' was selected from a pre-populated list on our medical records program. I confirm that the Implanon was not implanted on that day. Therefore, in accordance with HPP 6.8 I will add a further note in her records to the following effect: 'Correction to consult note on 12 June 2018 - Implanon script provided on this date. Implanon was not implanted on this date'.
[EXW] would like me to acknowledge that Brintellix was discontinued after October 2018. My consultation note of 24 August 2018 clearly states 'Reduce Brintellix to 10mg 2 months & cease'. As [EXW] did not return to the practice for any further consultations, I am not able to confirm in these medical records if it was ceased after that 2 month period.
As for [EXW's] request that I send a retraction to UHG, I am unable to do this as I do not retract the diagnosis of GAD. If [EXW] wishes to provide a copy of her letter to the HCC and a copy of her medical records from [the Clinic}, she is able to do this.
I trust I have satisfied the [requirements] of HPP 6.
19 The dispute about the corrections that EXW sought was not resolved through conciliation and was referred to the Tribunal pursuant to s 63 of the HRA.
20 At the Tribunal hearing, EXW sought correction of the following features of her health records:
(a) That her records be amended to substitute 'ADHD' for 'Depressive Anxiety Disorder' where it appeared as a reason for the prescription of Brintellix. Her claim was that she had not, and could not have been, diagnosed with a depressive disorder and its retention on her records was incorrect.
(b) That the date against the entry 'Brintellix last Script' be corrected by placing a line through the date '14/03/2018' and inserting 'Discontinued 24/08/2018'.
(c) That the entry for 2003 be deleted in its entirety or replaced with the original content, and corrected by striking it out and inserting the reason for the strike out as 'no basis'.
(d) That the reason for contact notes of 4 August 2017 be corrected by the striking out of the words 'Depressive Anxiety Disorder' and the insertion of the word 'ADHD' with a date and note confirming the error.
(e) That the entry 'Implanon Last Script on 12/06/2018' be corrected with the inclusion of the words 'prescribed but not implanted'.
The Tribunal proceeding and the Health Privacy Principles
21 Before the Tribunal, EXW alleged that Dr Mulroney had contravened HPPs 4.2, 4.3 and 6.5 in making, or failing to make, the entries of which she sought correction. The alleged contraventions of the Principles, if proved, would be an interference with her privacy within the meaning of s 18 of the HRA, which states:
18 What is an interference with privacy?
For the purposes of this Act, an act or practice of an organisation is an interference with the privacy of an individual if, and only if -
(a) the act or practice breaches Part 5 or a Health Privacy Principle in relation to health information that relates to the individual; or
(b) the act or practice breaches HPP 7 in relation to an identifier; or
(c) the act or practice is or results in a failure to provide access to health information that relates to the individual in accordance with Part 5 or HPP 6.
22 Under s 45 of the HRA, an individual may complain to the HCC about interferences with their privacy. If a complaint referred to the Tribunal is 'proven', it has the power under s 78 of the HRA to make a wide range of orders to address the matters raised in the complaint. It can make an order restraining the respondent from repeating or continuing any act or practice the subject of the complaint, which the Tribunal has found to constitute an interference with the privacy of an individual and order that the respondent perform or carry out any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. In both those cases if the order arises out of a breach of HPPs 6.5, 6.6 or 6.7, the Tribunal may include an order that the respondent make an appropriate correction to the health information, attach to the health information a statement provided by the complainant of a correction sought by the complainant, or place the incorrect information on a record which is not generally available to anyone involved in providing health services to the complainant and to which access is restricted. It may also order that the complainant is entitled to compensation not exceeding $100,000 for loss or damage suffered.
3 Principle 3 - Data Quality
3.1 An organisation must take steps that are reasonable in the circumstances to make sure that, having regard to the purpose for which the information is to be used, the health information it collects, uses, holds or discloses is accurate, complete, up to date and relevant to its functions or activities.
Principle 4 - Data Security and Data Retention
...
4.2 A health service provider must not delete health information relating to an individual, even if it is later found or claimed to be inaccurate, unless -
(a) the deletion is permitted, authorised or required by the regulations or any other law; or
(b) the deletion is not contrary to the regulations or any other law and occurs -
(i) in the case of health information collected while the individual was a child, after the individual attains the age of 25 years; or
(ii) in any case, more than 7 years after the last occasion on which a health service was provided to the individual by the provider -
whichever is the later.
4.3 A health service provider who deletes health information in accordance with HPP 4.2 must make a written note of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted.
...
Principle 6 - Access and Correction
...
Correction
6.5 If an organisation holds health information about an individual and the individual is able to establish that the information is inaccurate, incomplete, misleading or not up to date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up to date but must not delete the information otherwise than in accordance with HPP 4.2.
EXW's allegations that Health Privacy Principles were breached
24 First, EXW alleged that Dr Mulroney had breached HPP 4.2 because the words in her health records, 'Depressive Anxiety Disorder' ('DAD'), had been impermissibly deleted and replaced by '2003 Generalised Anxiety Disorder (GAD) 17 yrs & 21 yrs & 25 yrs and 28 yrs'. She submitted that the entire entry should be struck out. In the alternative, EXW submitted that, even if the words 'Depressive Anxiety Disorder' had been deleted in accordance with HPP 4.2, Dr Mulroney did not make the required written note of the individual to whom the health information related, the period covered by the deletion and the date on which it was deleted, contrary to HPP 4.3. EXW called this allegation 'Medical History Allegation 1'.
25 Secondly, EXW alleged that Dr Mulroney had breached HPP 6.5 because the entry in her health records '2003 Generalised Anxiety Disorder (GAD) 17 yrs & 21 yrs & 25 yrs and 28 yrs' was inaccurate and had not been corrected. She said that a correction should have been made pursuant to HPP 6.5. EXW called this allegation 'Medical History Allegation 2'.
26 Thirdly, EXW alleged that the words 'Depressive Anxiety Disorder', stated or included as the reason for prescribing Brintellix, were incorrect and sought correction of her health records pursuant to HPP 6.5. EXW called this allegation the 'Brintellix Allegation'.
27 Fourthly, EXW alleged that the entry for 12 June 2018 in her health records was misleading because it referred to the reason for the consultation as 'Contraception - Implant', but did not include a reference to the fact that no implant had occurred. EXW sought correction of the records pursuant to HPP 6.5. EXW called this allegation the 'Implant Allegation'. The Tribunal made orders by consent in respect of this issue requiring Dr Mulroney to amend the consultation notes.
28 Lastly, EXW alleged that the entry in her health records for 4 August 2018 was misleading and inaccurate because it recorded the reason for contact as DAD rather than ADHD. EXW called this allegation the 'Reason for Contact Allegation'.
29 Before the Tribunal, counsel for EXW gave the following description of her case:[11]
The applicant's case is about the impossibility of a diagnosis of generalised anxiety disorder. The applicant's case is not that, a diagnosis of generalised anxiety disorder was made. And that that diagnosis was incorrect. The evidence that has been led, is evidence about the fact that there was no diagnosis. And there was no basis for any diagnosis. The issue is not whether a diagnosis was made and that there's a dispute about the merits of that diagnosis. The question is, whether there was any diagnosis at all. And it's the applicant's position, that there was never any diagnosis of generalised anxiety disorder. Nor was there ever any diagnosis of depressive anxiety disorder. And it's the complete absence of any diagnosis of either of those disorders, that gives rise to the incorrectness and misleading nature of the records that are in issue in this matter.
So, with respect to my learned friend, there is of course in some other cases, a live issue about disputing the merits of a diagnosis. But that issue simply doesn't arise in this case. Because there's a more fundamental question. Which is the question of, whether there was any diagnosis at all.
30 EXW emphasised that her case was that Dr Mulroney had not made the diagnoses that he had recorded. Her case was not that she was disputing a diagnosis that he had in fact made. As her counsel stated:[12]
Similarly on p.2, there's a statement that, 'EXW has a history of generalised anxiety disorder, dating to 2003.'
Now Dr Mulroney was not EXW's treating GP in 2003. And so, he hasn't made any clinical judgment in respect of whether EXW had generalised anxiety disorder as at 2003. That's simply an error of fact, a misleading - an incorrect statement in her records which ought to be corrected under the Health Records Act.
...
So while I appreciate the point that my learned friend has made about actual medical opinion being protected from being challenged in proceedings like this. It doesn't serve to cloak the entirety of a medical record with a protection from challenge where there are inaccuracies on the face of the record. That have nothing to do with clinical judgment or medical opinion. And as I submitted earlier, to say that a disorder has been diagnosed when no investigation or consideration of such a diagnosis has been undertaken. Is not a record of clinical opinion, it's simply an error on the record and an error of fact.
...
So, as I've submitted Senior Member, I do concede that in the case of actual medical opinion, in the case of an exercise of clinical judgement, or medical opinion there are concerns to be had. But these matters don't actually involve medical opinion. They involve errors of fact that fall clearly within the protection that's afforded to patients by the Health Records Act.
...
As to the history of generalised anxiety disorder from 2003, I must submit that recording that somebody was diagnosed with a disorder some 12 years or 15 years before diagnosing that person one self. It's not simply possible in the absence of any other evidence or support to make a medical diagnosis that somebody who, you never saw at that time, had a disorder that nobody else had ever indicated that they suffered from, on no basis in fact.
31 Both parties were represented by counsel at the Tribunal hearing. EXW relied on a witness statement and gave oral evidence and was cross-examined. She also relied on a statement by Dr Reddy. Dr Mulroney did not give evidence.
32 The Senior Member found that the alleged breaches of HPPs 4.2 and 6.5, being the two Medical History Allegations, the Brintellix Allegation, and the Reason for Contact Allegation were 'not proven', but that EXW's alternative argument regarding the alleged breach of HPP 4.3 which was Medical History Allegation 1, which dealt with the information required to be noted in the health records if a deletion was made, was 'proven'.
The complainant has failed to satisfy me on the balance of probabilities that the respondent has breached HPP 4.2 and HPP 6, and those claims are dismissed.
The complainant has demonstrated that the words "Depressive Anxiety Disorder" were deleted from her Complete Health Record. The respondent will be ordered to replace those words in the Past Medical History Section of the complainant's Complete Health Record against the date "2003", and strike them out. The respondent will be ordered to annotate the correction with the words "Reinserted at the direction of the VCAT per order dated 13 April 2021 Ref H446/2019" and to attach a copy of my orders to the Complete Health Record.
34 EXW's questions of law and associated grounds of appeal challenge three of the Tribunal's findings. First, the finding that HPP 4.2 had not been breached when Dr Mulroney deleted the reference to DAD ('Medical History Allegations 1 and 2', 'Finding 1'). Her first question of law and associated grounds of appeal deal with the two Medical History Allegations together. Second, the finding that Dr Mulroney had not contravened HPP 6.5 in respect of the reasons he recorded for prescribing Brintellix ('the Brintellix Allegation', 'Finding 2'). Third, that Dr Mulroney had not contravened HPP 6.5 in respect of the reason EXW first had consulted him ('the Reason for Contact Allegation', 'Finding 3'). In respect of these findings, EXW raised the following questions of law:
(a) Did the Tribunal err by misunderstanding her case? (Findings 1, 2 and 3)
(b) Did the Tribunal fail to give adequate reasons? (Findings 1, 2 and 3)
(c) Did the Tribunal reach conclusions that were plainly not open to it, err by inferring or concluding that Dr Mulroney had made the challenged diagnosis in respect of EXW, when there were no facts or evidence to support this inference, or otherwise make a decision that was legally unreasonable? (Finding 1)
(d) Did the Tribunal fail to consider the evidence before it and engage in an active intellectual process? (Findings 2 and 3)
(e) Did the Tribunal have regard to irrelevant material? (Finding 2)
(f) Did the Tribunal fail to have regard to relevant material? (Findings 2 and 3)
(g) Did the Tribunal err in receiving evidence from Dr Mulroney's counsel from the bar table? (Finding 3)
35 The grounds raised were similar for each question of law, and were in effect assertions answering each of the above questions in EXW's favour. EXW's counsel described her grounds of appeal as falling into three categories: first that the Tribunal misunderstood her case, secondly that its reasons were inadequate, and thirdly grounds challenging how the Tribunal reached its conclusions, being unreasonableness, illogicality, failing to have regard to relevant evidence and having regard to irrelevant evidence.[14]
36 EXW seeks leave to appeal and orders that the appeal be allowed and:
1. That the Respondent correct the complete record of EXW as follows:
Under 'Current Medications', 'Reason' for Brintellix, cross out 'Depressive anxiety disorder' and replace with 'treatment for ADHD'.
Under 'Past Medical History:' cross out '2003 Generalised Anxiety Disorder (GAD) 17yrs & 21yrs & 25yrs & 28yrs'.
Under 'Records' - 'Date 4/8/2017', 'Reason for contact', cross out 'Depressive Anxiety Disorder' and replace with 'ADHD'.
That the Respondent correct information provided to the Insurer as follows:
ADHD only was being treated.
The Applicant does not suffer from Major Depressive Disorder.
That the Respondent correct information provided to Stud Road Medical as follows:
Provide a corrected copy of the One Point medical records.
Provide a letter stating that the previous version contains incorrect information.
37 Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act') provides that a party may appeal on a question of law from an order of the Tribunal to the Trial Division of this Court with leave of the Trial Division. An appeal may only be brought on a question of law, and the question of law must be relevant to the relief sought on appeal.[15]
38 At first instance, and in this Court, Dr Mulroney submitted that the Tribunal had no jurisdiction to consider the merits of a health diagnosis when hearing complaints under the HRA. The Senior Member agreed with this submission quoting from, and relying on, the Tribunal's decision in Kitson v Dennerstein[16] where Lambrick DP said:[17]
HPP 3 is not a vehicle through which to challenge a health diagnosis or assessment or to seek to substitute another opinion for the opinion of the author of a report. This is however, what the applicant seeks to do.
39 The Senior Member, when addressing the alleged breaches of HPPs 4.2 and 4.3, the Tribunal said:[18]
... [Deputy President] Lambrick stated that HPP 3 is not a vehicle through which to challenge a health diagnosis or assessment or seek to substitute another opinion for the opinion of the author of the report. Although this matter does not claim a breach of HPP 3, I formed the view that the same constraints apply. The Tribunal's role in this matter is to determine whether the record has suffered a deletion, and if so whether there is a failure to comply with HPP 4.3. Where the issue is one of diagnosis and opinion the Tribunal is not qualified to decide.
40 Furthermore, in dismissing EXW's complaint regarding HPP 6.5, the Senior Member said:[19]
The reason for prescribing Brintellix has been ascribed by Dr Mulroney. It is a matter of medical opinion, and one which the complainant disagrees with. As stated previously, it is not for the Tribunal in this matter to make a decision about the appropriateness of a diagnosis or prescription. The error or accuracy of the record has not been demonstrated to satisfy me that the information is inaccurate, incomplete, misleading or not up to date and requiring correction. This claim will be dismissed.
...serve to cloak the entirety of a medical record with a protection from challenge where there are inaccuracies on the face of the record.
42 It is therefore necessary to determine whether EXW's case in the Tribunal was that the medical diagnoses of DAD and GAD were incorrect, and thus on the basis of Kitson, not within the Tribunal's jurisdiction, or whether, as she contends that her case was, that Dr Mulroney never made those diagnoses. I will next deal with EXW's challenges to the Tribunal's findings, as those challenges form the basis for her application for leave to appeal the Tribunal's orders.
43 As previously mentioned, the Medical History Allegations concerned the deletion from EXW's health records of the words 'Depressive Anxiety Disorder' and their replacement by '2003 Generalised Anxiety Disorder (GAD) 17 yrs & 21 yrs & 25 yrs and 28 yrs'. The Tribunal's findings at [65] and [76] were as follows:
It is possible that the respondent deleted the reference to "Depressive Anxiety Disorder" to better reflect his opinion about the complainant's history, or to assist her in her claim for insurance. It has not been demonstrated to me to the requisite standard that the respondent deleted the health information other than in compliance with HPP 3 and therefore the claim of a breach of HPP 4.2 is not proven.
...
It is not open to the Tribunal to order that the entry is struck out unless satisfied that it is inaccurate, incomplete, misleading or not up to date and requiring correction. I have been presented with information of a medical diagnosis which is not accepted by the complainant but confirmed by the respondent. There is insufficient evidence to support a finding of breach of HPP 6.5 and that part of the claim will be dismissed.
44 EXW submitted that the Tribunal fell into error by misunderstanding her case, which did not contest Dr Mulroney's diagnosis or opinion. Instead, her case was that Dr Mulroney never in fact made the diagnoses of DAD or GAD.[22] Accordingly, her case did not engage the principle in Kitson. EXW referred to the following passages in the Tribunal's reasons as evidence of its error in understanding her case:[23]
The complainant does not accept the diagnosis of GAD...
...
I have been presented with information of a medical diagnosis which is not accepted by the complainant...
45 EXW repeated the submissions of her counsel made to the Tribunal that Kitson 'doesn't serve to cloak the entirety of a medical record with a protection from challenge where there are inaccuracies on the face of the record [t]hat have nothing to do with clinical judgment or medical opinion.'[24] She distinguished Kitson contending that Dr Mulroney never made the challenged diagnoses.[25] Dr Mulroney had made an error in a letter to the insurer and filled out the form incorrectly, and when challenged, sought to correct it, 'but the hypothesis before the Tribunal was he sought to cover his tracks'.[26]
46 EXW also argued that Dr Mulroney's case before the Tribunal, in respect of the Medical History Allegations, was that on being approached by EXW about the depressive disorder diagnosis being problematic for her insurance, he took reasonable steps to help her by altering the diagnosis from a depressive disorder to GAD.[27]
47 EXW further submitted that the Tribunal failed to give adequate reasons as required by s 117(1) of the VCAT Act and therefore made an error of law.[28] The Tribunal also made errors of law by failing to adequately consider the evidence before it. It did not consider the evidence supporting her case, or how it contradicted Dr Mulroney's case. EXW submitted that the Tribunal's conclusions regarding the Medical History Allegations were not open to it given the weight of evidence discussed above, that the Tribunal failed to adequately consider the evidence adduced by the parties and that the Tribunal's findings regarding the Medical History Allegations were legally unreasonable in the sense that 'no rational or logical decision maker could arrive on the same evidence'[29] to such findings.
48 EXW advanced the following fourteen points to support her argument that Dr Mulroney's case, which was that he made current diagnoses rather than retrospective diagnoses, was not open on the evidence for the Tribunal to accept:
It would be an odd thing indeed for a doctor to take it upon himself to make a diagnosis without taking and recording a history from a patient, without recording the underlying clinical basis for a diagnosis, and without recording the making of the diagnosis in any way. The respondent did not seek to explain this oddity.
The Complete Record reveals that some months prior to the respondent's involvement, Dr Saseendran (EXW's then General Practitioner) took a detailed history from EXW on 13 January 2017. Two things are evident from that consultation record:
Firstly, it contains no reference to a diagnosis of Depressive Anxiety Disorder or Generalised Anxiety Disorder. The notes instead refer to EXW's recent diagnosis of ADHD by her psychiatrist and Dr Saseendran's assessment, after having taken a detailed history, as "ADHD- continuation of care"; and
Secondly, the consultation notes record "Past Psychiatric Hx -". The 'dash', it is contended, means 'blank'. This note does not provide support for the respondent's subsequent diagnoses of Depressive Anxiety Disorder or Generalised Anxiety Disorder. The text of the 13 January 2017 consultation is also reflected verbatim in Dr Saseendran's subsequent letters to Dr Alzenstros on 13 January 2017 and to Dr Reddy on 11 May 2017. These letters were on EXW's file held by the respondent.
There is no reference in other consultations with Dr Saseendran to diagnoses of either Generalised Anxiety Disorder or Depressive Anxiety Disorder. There was no explanation why the respondent was able to diagnose a condition when a previous practitioner did not.
The letter from Dr Reddy to the respondent on 14 August 2017 makes clear that EXW was diagnosed with ADHD by Dr Reddy. The respondent did not explain why, in the face of a diagnosis by another practitioner, notably a specialist, he would then make two further and differing diagnoses.
The contention that the respondent diagnosed EXW with Depressive Anxiety Disorder or Generalised Anxiety Disorder is inconsistent with the mental health questionnaire the respondent completed for EXW's proposed insurer. In that questionnaire, the respondent wrote that EXW had a 2017 diagnosis for "Major Depressive Disorder" and that it was made by Dr Reddy. The statement is itself inconsistent with both the Complete Record and Dr Reddy's correspondence to the respondent.
When the insurer rejected EXW's application and the apparent error in the respondent's statement about "Major Depressive Disorder" was pointed out to him by EXW, the respondent then resiled from the statement in his subsequent letter to the insurer dated 24 August 2018; it was "not in fact true". The respondent said EXW was "suffering Generalised Anxiety Disorder as a complication of her Adult ADHA. There was no documented evidence of Depression". That final sentence undermines the contention the respondent diagnosed EXW with Depressive Anxiety Disorder. The contention is also undermined by the fact that Depressive Anxiety Disorder does not exist as a recognised medical condition.
When EXW queried by email why the respondent referred to Generalised Anxiety Disorder in the subsequent letter to the insurer, the respondent's clinic responded, "Dr Mulroney has let us know that you were originally diagnosed with anxiety by Dr Saseendran". This statement is inconsistent with the respondent's assertion that he diagnosed EXW with Generalised Anxiety Disorder. It is also itself incorrect. The Complete Records reveal no such diagnosis by Dr Saseendran. EXW's unchallenged evidence confirmed she had never been told this by Dr Saseendran.
The respondent responded to the complaint to the Health Complaints Commission by letter on 30 October 2019. That letter raises a number of inconsistencies or misleading statements:
On page 2 of that letter, the respondent said, "On 24 August 2018, [EXW] reported to me that the insurance company had refused to cover her on the basis of her mental health issues. We discussed this and I reassessed her at that time and confirmed that her depression had resolved (as I had originally written in the [Unified Healthcare Group] form) but that she had ongoing ADHD and GAD, both of which she was being treated for. I wrote a new letter to the insurance company to that effect." The statement is not accurate as:
The letter does not reflect the true content of the letter to the insurer dated 24 August 2018. It does not reflect the admission of the respondent's initial error. The omission of this issue suggests the respondent was trying to paint himself in a favourable light before the Commission and puts his credibility in issue.
The words "confirmed that her depression had resolved" implies the previous existence of depression and its abatement. The respondent's letter to the insurer instead represented that his statement that EXW was suffering from a depressive/anxiety disorder was "not in fact true" and that "there was no documented evidence of Depression". The two propositions are very different.
It refers to a re-assessment occurring on 24 August 2018. The consultation record for 24 August 2018 is short. It does not refer to a re-assessment, a diagnosis or the like.
The letter also refers to a discussion between the respondent and EXW. Not only does the Complete Record contain no record of the purported discussion, but EXW's unchallenged evidence contradicted that statement.
The respondent then said, "[EXW] then contacted the practice again later on 24 August 2018 seeking confirmation when she was diagnosed with GAD...[EXW] was advised by our practice receptionists that she needed to attend for a consultation so that I could reassess her to consider if an amended diagnosis was appropriate". Again, this statement is not quite accurate. It does not mention the email from the clinic, as addressed above at paragraph 23(j), to the effect that EXW was "originally diagnosed with anxiety by Dr Saseendran". The omission of this issue suggests the respondent was trying to paint himself in a favourable light and reduce inconsistencies before the Commission. It puts his credibility in issue.
The letter continues, "After another review of the available medical information on [EXW's] file, it is my medical opinion that she suffered from lifelong Attention Deficit Hyperactivity Disorder (ADHD), complicated by a history of Major Depressive Disorder (MDD) that had resolved and Generalised Anxiety Disorder (GAD)." This statement also contains inconsistencies and misleading matters:
The reference to MDD in this statement is inconsistent with the respondent's 24 August 2018 letter to the insurer in which the respondent resiled from his previous error and made clear that there "was no documented evidence of Depression".
The reference to MDD is inconsistent with [the respondent's] case before the Tribunal. The respondent did not contend in his Defence or Response that he did in fact ever diagnose EXW with MDD.
The reference to the words, "after another review of the available medical information" suggests the 'review' was performed around the same time of writing the letter and that the result of the review was the diagnosis of three conditions, ADHD, MDD and GAD. A diagnosis in 2019 is entirely inconsistent with the respondent's case before the Tribunal of diagnoses in 2017. The absence of a reference to GAD in the letter is inconsistent with his case before the Tribunal of a 2017 diagnosis of GAD.
The diagnosis of GAD is at odds with Dr Reddy's unchallenged evidence before the Tribunal: "I assessed patient EXW for all possible psychiatric disorder, including Attention Deficit Hyperactivity Disorder ('ADHD'), Major Depressive Disorder ('MDD') and Generalised Anxiety Disorder ('GAD')" and "I have never observed her showing symptoms which fulfil DSM-V criteria of MDD or GAD, nor diagnosed or treated patient EXW for such". Whilst it is conceivable that medical practitioners might have differing views, there was no evidence of why the respondent might reach a different conclusion to Dr Reddy, particularly in circumstances of where the respondent was aware of Dr Reddy's conclusions. There was no explanation why Dr Reddy might not pick up symptoms warranting a diagnosis of GAD whereas the respondent did in fact pick up those symptoms. Notably, there are no records of such symptoms in any event.
EXW tendered a document entitled "Diagnosis Criteria for Generalized Anxiety Disorder" which contains a list of six criteria which, presumably, are required in totality or partially for a practitioner to make a diagnosis. The respondent did not adduce any evidence to demonstrate the application of the criteria to his purported diagnosis of GAD.
Had the respondent actually made diagnoses of Depressive Anxiety Disorder and GAD in 2017, not only would one expect him to make a record of it, but one would expect him to tell EXW about it. EXW's unchallenged and clear evidence (both written and oral) was that the respondent had never discussed either Depressive Anxiety Disorder or GAD with her.
49 These fourteen points need to be considered against Dr Mulroney's letter to the HCC in response to EXW's complaint, which I have set out previously.
50 EXW addressed the onus of proof that applied in the Tribunal proceeding and accepted that she had to persuade it of her case that the Principles had been breached.[30] But she submitted that Dr Mulroney had to prove his defences and he had not adduced any evidence and, instead, relied on assertions contained in his defence and his response to the HCC.
51 Dr Mulroney submitted that EXW had not identified any statutory test that the Tribunal had misconstrued or misunderstood in making the findings that she challenged. Rather, EXW's questions of law and proposed grounds concerned the Tribunal's treatment of the facts and evidence before it. The HRA, and the jurisdiction granted to the Tribunal, concerned the privacy of health information, not the clinical content of health information.
52 The Senior Member's reasons contained a clear and intelligible logic that revealed her reasoning. It was open to the Tribunal on the material before it not to be satisfied that EXW's complaints were proved. There was no basis for this Court to interfere with the Tribunal's assessment of the factual material. The Tribunal was right to state that, where the issues were of diagnosis and opinion, it was not qualified to decide them. EXW had not demonstrated any legal error in the Tribunal's reasoning. Even if error were demonstrated, the same outcome would be reached, or ought to be reached, if leave to appeal were granted, and accordingly justice did not warrant the exercise of the Court's discretion to grant leave to appeal.
53 Dr Mulroney submitted that, in order to demonstrate an error of law based on a paucity of reasons or failure to articulate a chain of reasoning, or that the Tribunal reached an unreasonable decision on the material before it, EXW would have to demonstrate that the Tribunal's reasons or reasoning were so unclear as to be unintelligible.[31] That threshold was not met in this case as the reasons were logical, thorough and complete, and satisfied the requirements of s 117 of the VCAT Act. The Court could not embark on a detailed examination and weighing of the evidence to determine whether the Tribunal should have reached the findings and conclusions that it did.
54 The recording of incorrect or misleading health information constitutes an interference with the privacy of an individual, which in turn entitles the individual to claim remedies under s 78 of the HCA. Incorrect or misleading health information may have adverse effects on the individual concerned.
55 The principal argument on which EXW relied is that the Tribunal did not consider whether Dr Mulroney had made, or had not made, a diagnosis of Depressive Anxiety Disorder or Generalised Anxiety Disorder. If the Tribunal did not, it did not perform its statutory duty and made an error of law, and a rehearing by the Tribunal would then be required. As Basten JA said:[32]
The term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked.
56 A statutory tribunal fails to exercise its jurisdiction if it does not address central or critical elements of the case or claim, or if it fails to address a substantial and clearly articulated argument relying on established facts.[33] A misunderstanding of the question that a statutory tribunal is required to answer amounts to a failure to perform its duty,[34] gives rise to a question of law and is an error of law.
57 In the case of EXW's Medical History allegation, if Dr Mulroney did not make a diagnosis of Generalised Anxiety Disorder, then the deletion of the words 'Depressive Anxiety Disorder' and the replacement and insertion of the words '2003 Generalised Anxiety Disorder (GAD) 17 yrs & 21 yrs & 25 yrs and 28 yrs' on her health records were not validly made. In addition the replacement words were inaccurate or misleading within HPP 6.5. The replacement and insertion of words appears to have occurred after the rejection of EXW's insurance application.
58 Kitson does not stand in the way of such a conclusion as it concerns challenges to the merits of a medical diagnosis, whereas EXW's principal argument was instead about whether as a matter of fact, Dr Mulroney had ever diagnosed EXW with Generalised Anxiety Disorder or Depressive Anxiety Disorder.
59 Dr Mulroney's submissions emphasised that, where claims extend into diagnosis or clinical judgments, it was not appropriate for the Tribunal to 'second guess or reassess, or indeed delve' into them.[35] So much may be accepted at least for the purposes of deciding this case, but it does not provide an answer to EXW's claim that her health records incorrectly recorded that Dr Mulroney diagnosed her with DAD and GAD.
60 Before the Tribunal, EXW's counsel expressed her case as follows:[36]
The applicant's case is about the impossibility of a diagnosis of generalised anxiety disorder. The applicant's case is not that, a diagnosis of generalised anxiety disorder was made. And that that diagnosis was incorrect. The evidence that has been led, is evidence about the fact that there was no diagnosis. And there was no basis for any diagnosis. The issue is not whether a diagnosis was made and that there's a dispute about the merits of that diagnosis. The question is, whether there was any diagnosis at all. And it's the applicant's position, that there was never any diagnosis of generalised anxiety disorder. Nor was there ever any diagnosis of depressive anxiety disorder. And it's the complete absence of any diagnosis of either of those disorders, that gives rise to the incorrectness and misleading nature of the records that are in issue in this matter.
61 Of EXW's fourteen points, the most relevant on EXW's case appear to be the following. Dr Mulroney did not record making any diagnoses of EXW. Dr Saseendran's complete record of 13 January 2017 made no reference to DAD or GAD. Dr Reddy's letter of 14 August 2017 made clear that she had diagnosed EXW with ADHD. That the questionnaire Dr Mulroney completed noted that EXW had a 2017 diagnosis for 'Major Depressive Disorder' by Dr Reddy and not GAD or DAD. That when Dr Mulroney in his letter to the insurer corrected his earlier answer in the insurer's questionnaire, that EXW was suffering from a depressive/anxiety disorder, by informing the insurer that that answer 'was not in fact true' and that 'there was no documented evidence of Depression', he said EXW was suffering GAD as a complication of her ADHD, with no documented evidence of depression. That in response to EXW's query, the Clinic said that EXW had been originally diagnosed with anxiety by Dr Saseendran. That Dr Mulroney's letter to the HCC stated that EXW had a lifelong ADHD, complicated by a history of Major Depressive Disorder that had resolved and Generalised Anxiety Disorder.
62 EXW's fourteen points flow from her claim that Dr Mulroney did not diagnose her with GAD or DAD. They provide her narrative of why that was so and what may have caused the entries she challenges to be included in her records. The facts summarised in the fourteen points were facts that were before the Tribunal and were relevant to whether Dr Mulroney did diagnose EXW with GAD and whether he breached HPPs 4.2 and 6.5. Dr Mulroney in his letter to the HCC maintained strongly that he did make the diagnosis of GAD. In view of EXW's case to the contrary, the Tribunal's duty was to determine whether he did so. It may be that the Tribunal assumed that he did, but its task was to consider EXW's case that, in fact, he did not.
63 The closest that the Tribunal came to considering the central point of EXW's case, beyond its description of the parties' submissions, was in the following passage:[37]
It is not open to the Tribunal to order that the entry is struck out unless satisfied that it is inaccurate, incomplete, misleading or not up to date and requiring correction. I have been presented with information of a medical diagnosis which is not accepted by the complainant but confirmed by the respondent. There is insufficient evidence to support a finding of breach of HPP 6.5 and that part of the claim will be dismissed.
64 But this passage, if taken as referring to the diagnosis that Dr Mulroney made, did not address the substance of EXW's principal argument.
65 Dr Mulroney referred to passages in the Senior Member's reasons where EXW's argument that she had not been diagnosed with GAD was mentioned. For example, in the following passages:[38]
After reading the relevant information she formed the view that she did not meet the diagnostic criteria and to her knowledge had never been diagnosed with GAD or told that she was suffering from GAD.
...
The complainant does not accept the diagnosis of GAD, and indeed says that she has never had or been treated for depression.
66 But, these statements presume that Dr Mulroney had made a medical diagnosis of GAD. However, the Senior Member's reasons did not consider EXW's principal argument, but rather focused on Dr Mulroney's contention that EXW was challenging his diagnosis, which Kitson said could not occur. In my opinion, the Tribunal did not consider EXW's case.
67 It is not the Court's role to decide whether Dr Mulroney did make diagnosis of DAD or GAD, that was the Tribunal's task, but, in my respectful opinion, it did not perform that task. If the Tribunal had found that Dr Mulroney did not make either of the diagnoses, it may have made some of the orders that EXW seeks.[39]
68 So far as the onus of proof was concerned, EXW had to prove that Dr Mulroney had breached the Principles. Dr Mulroney did not give evidence, whereas EXW did and was cross-examined and provided a witness statement from Dr Reddy, who was not called for cross-examination. In determining whether to accept EXW's case that the challenged diagnoses had not been made, the Tribunal was entitled to take into account that EXW's evidence was the only oral evidence in the proceeding. It could take into account the explanations suggested as to why Dr Mulroney did not give oral evidence. The Tribunal could also consider the documents Dr Mulroney relied on in his case, including his letter of response to the HCC, as its procedural powers are wide. But equally, it was entitled, if it so chose, to place weight on the fact that those documents were not sworn evidence and EXW did not have the opportunity to cross-examine Dr Mulroney.
69 For the above reasons, I consider that EXW has established her primary grounds which, expressed in legal terms, were that the Tribunal failed to exercise its jurisdiction by misunderstanding and not considering her case and did not consider the evidence that she presented. In respect of the Medical History Allegations these grounds are raised by question of law one and the associated grounds of appeal.
70 The ground of inadequate reasons is not established as the Tribunal's reasoning is clear and reveals that it did not consider EXW's primary case. Nor do the Tribunal's reasons fit into the category of reaching a conclusion that on the evidence was not open to it or was legally unreasonable.
71 This claim concerns the Complete Record pages of EXW's records, which are described 'as at 18/5/2019'. The Complete Record contains details of EXW, her family and social history, her current medications, her medical history and progress notes. The first medication recorded is listed as Brintellix 20mg and the reason given for EXW's use of it is 'Depressive Anxiety Disorder'. This appears to have been written on 4 August 2017, the date of EXW's first consultation with Dr Mulroney and the date of his letter to Dr Reddy seeking to take over EXW's stimulant permit. This letter described Brintellix as for 'depression anxiety disorder', which Dr Mulroney later told the insurer he had incorrectly attributed to EXW.
72 The Tribunal's reasoning and findings on this issue at [67]-[70] were as follows:
The complainant seeks the deletion on page 1 of the "Complete Record" of the words "Depressive Anxiety Disorder" where they are ascribed as the reason for the prescription of Brintellix. Her reason is that she has never been diagnosed with Depressive Anxiety Disorder. This is consistent with the respondent's statement in his letter to the insurer where he states that "There was no documented evidence of Depression".
In his letter to the HCC dated 30 October 2019 in response to the complainant's claim, the respondent wrote that -
[EXW] incorrectly believes that the antidepressant medication she was on was being used to counteract the side effects of stimulant medication that was for her ADHD. This was definitely not the case. As stated above, Dr Saseendran noted clear evidence of MDD on her initial consultation. As a medical professional, I have reviewed the detailed consultation notes taken by Dr Saseendran on that occasion, and the GMS completed, and from my own knowledge of [EXW] after having myself treated her for a year, I consider Dr Saseendran made a clinical decision to initially treat the primary medical issue -[EXW's] ADHD, to see if the [depressive] symptoms settled. The reverse occurred and they were amplified by the stimulant medication, leading to antidepressant medication which continued to be used.
The statement made by Dr Mulroney in his letter dated 24 August 2018 to the insurance company to correct his report is somewhat at odds with the Global Mind Screen Assessment but appears consistent with the clinic notes made by Dr Mulroney after 4 August 2017. There are regular references to anxiety, but no obvious references to depression.
The reason for prescribing Brintellix has been ascribed by Dr Mulroney. It is a matter of medical opinion, and one which the complainant disagrees with. As stated previously, it is not for the Tribunal in this matter to make a decision about the appropriateness of a diagnosis or prescription. The error or accuracy of the record has not been demonstrated to satisfy me that the information is inaccurate, incomplete, misleading or not up to date and requiring correction. This claim will be dismissed.
73 EXW submitted that the Brintellix Allegation referred to her Complete Medical Record and specifically the 'reason' for the prescription of Brintellix. The text of the complete record says the reason is 'Depressive Anxiety Disorder'. EXW submitted that she was never diagnosed with this disorder, and therefore, that it could not have been a reason for prescribing the drug.
74 EXW submitted that there were a number of errors in the Tribunal's reasoning at [67]-[69]:
(a) That the Tribunal did not explain how it reached its conclusion at [70] in light of the considerations supporting EXW, as outlined in [67]-[69];
(b) That the Tribunal misunderstood EXW's case by treating it as a contest of the underlying clinical bases of the diagnosis, when it was in fact contesting the fact of a diagnosis having occurred;
(c) That the Tribunal erred by considering consultation records after 4 August 2017 and reaching its finding of 'regular references to anxiety' at [69];
(d) Even if the Tribunal was permitted to have regard to consultation records after 4 August 2017, it erred in its finding of 'regular references to anxiety', as the consultation notes following 4 August 2017 did not regularly refer to anxiety. Instead, some consultation notes refer to anxiety and others refer to it not being a problem;
(e) That the Tribunal failed to consider EXW's evidence on the issue, noting that she said regarding the consultation on 4 August 2017 that '[Dr Mulroney] recommended changing to Brintellix as a new type of anti-depressant that was not on the Pharmaceutical Benefits Scheme...yet have been found to improve ADHD symptoms with less adverse side effects like weight gain and sexual dysfunction';
(f) That the Tribunal failed to have regard to evidence contradicting the diagnosis of 'Depressive Anxiety Disorder'; and
(g) By failing to have regard to relevant evidence and failing to consider the submission advanced by EXW on the issue, the Tribunal's consideration of it did not properly engage with, or consider the issues, by engaging in an active intellectual process.
75 As was Dr Mulroney's response to the Medical History Allegations, he submitted that EXW had not identified a statutory test that the Tribunal had misconstrued or misunderstood. Therefore, EXW had not identified any question of law on which she could base an application for leave to appeal. There was no basis for this Court to interfere with the Tribunal's conclusion that was based on its assessment of the facts. Even if error were demonstrated, the same outcome would be reached, or ought to be reached, and accordingly justice did not warrant the exercise of the Court's discretion to grant leave to appeal.
76 As I have concluded previously, the Tribunal erred in misunderstanding, or not considering, EXW's case that Dr Mulroney never diagnosed her with 'Depressive Anxiety Disorder' and 'Generalised Anxiety Disorder'. It did not consider her evidence or the explanations she suggested for Dr Mulroney's conduct. It therefore failed to adequately consider the evidence, and failed to have regard to relevant considerations. EXW has therefore established question of law two and associated grounds of appeal. For reasons given previously I do not consider that the Tribunal's reasons were inadequate.
77 For the sake of completeness, I note that the Senior Member did not err in considering EXW's health records for consultations occurring after 4 August 2017, or in noting that anxiety was regularly recorded. The Senior Member was entitled to consider all EXW's health records available to determine the trajectory of her medical history and to see if they assisted the determination of the issues.
78 This issue is similar to the second issue and concerns the reason for EXW's first contact with Dr Mulroney on 4 August 2017, which he recorded as 'Depressive Anxiety Disorder'.
79 The Tribunal's reasoning and findings about this issue were at [77]-[79] as follows:
The entry on 4 August 2017 in the Complete Record which was the first consultation with Dr Mulroney - is "Depressive Anxiety Disorder". The complainant submits that this is an error based on an assumption about the reason for prescribing Brintellix. She says that her reason for attending was ADHD and that should be correctly recorded.
The respondent through his Counsel said that the patient notes are written by the practitioner essentially for their own, or other medical practitioner's information. They are not dictated or determined by the patient. The record stands as the opinion and assessment of Dr Mulroney at the time of the consultation and is not an error or misrepresentation of fact which requires correction.
I accept the respondent's submissions on [the claim regarding the reasons for contact] and find that the record does not require correction and will dismiss this part of the claim.
80 EXW's submissions regarding the Reason for Contact Allegation were substantially the same as her submissions for the Brintellix Allegation. EXW submitted that the Tribunal's reasoning at [77]-[79] contained a number of errors:
(a) That the Tribunal did not adequately explain why it preferred Dr Mulroney's contentions over EXW's evidence and submissions, contrary to its obligation to provide adequate reasons under s 117(1) of the VCAT Act;
(b) That the Tribunal misunderstood EXW's case;
(c) That the Tribunal failed to have regard to evidence contradicting the diagnosis of 'Depressive Anxiety Disorder';
(d) That the Tribunal accepted evidence from Dr Mulroney's counsel; and
(e) That the Tribunal did not properly engage with, or consider, the issues in the sense of engaging in an active intellectual process, because it failed to have regard to relevant evidence and failed to consider the submissions advanced by EXW on this issue.
81 Dr Mulroney again submitted that EXW had not identified a statutory test that the Tribunal misconstrued or misunderstood. There was no basis for this Court to interfere with the state of satisfaction of the Tribunal based on its assessment of the factual material. The decision of the Tribunal was not attended by sufficient doubt to justify granting leave to appeal, and leave should not be granted. Even if error were demonstrated, the same outcome would be reached, or ought to be reached, and accordingly justice did not warrant the exercise of the Court's discretion to grant leave to appeal.
82 As concluded above, the Tribunal erred in misunderstanding, or not considering, EXW's case that Dr Mulroney never diagnosed her with 'Depressive Anxiety Disorder' or 'Generalised Anxiety Disorder'. I also consider that the Tribunal failed to have regard to relevant evidence and to consider the evidence presented by EXW. For reasons given previously I do not consider that the Tribunal's reasons were inadequate.
83 I also do not consider that the Tribunal erred in its approach to receiving evidence. It was entitled to consider that the statements Dr Mulroney's counsel made in submissions about the purpose of medical records were made not as evidence, but as comments on documents, and to give those statements such weight as it considered appropriate. Where counsel's comments are contested, it may be that little weight can be given to them in the absence of sworn evidence. However, the Tribunal was entitled to describe the patient notes as being a record for the practitioner's purposes, rather than a record for the patient's purposes.
84 With those exceptions, EXW has established question of law three and associated grounds of appeal that I have identified in [82].
85 EXW has established that the Senior Member failed to consider her principal argument and thereby failed to exercise its jurisdiction and made an error of law. She has also established the other grounds to which I have referred in [76] and [82].
86 I will grant leave to appeal and allow the appeal. I will hear the parties about the appropriate form of other orders, including which orders of the Tribunal should be set aside and about costs. I will then remit the proceeding to a differently constituted Tribunal for rehearing.
[1] EXW v Mulroney (Human Rights) [2021] VCAT 322 ('Tribunal Reasons').
[3] Exhibit EXW14 to the Affidavit of EXW dated 17 May 2021.
[11] Transcript of Proceedings (Unrevised), EXW v Mulroney (Human Rights) (Victorian Civil and Administrative Tribunal, H446/2019, 1 March 2021) 27.5-27 ('VCAT Transcript').
[12] Ibid 37.16-23, 38.12-23, 39.13-19 and 42.6-17.
[15] VCAT Act s 148(1); Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [9].
[16] (Human Rights) [2015] VCAT 138 ('Kitson')
[18] Tribunal Reasons, [64] (emphasis added).
[20] Transcript of Proceedings, EXW v Mulroney (Supreme Court of Victoria, S CI 2021 01558, Ginnane J, 26 November 2021) 9-10 ('T').
[22] Counsel for EXW submitted that Depressive Anxiety Disorder was not a recognized psychiatric condition.
[23] Reasons, [62] and [76], cited in EXW's submissions filed 14 September 2021, [18].
[27] EXW's submissions filed 14 September 2021, [19].
[28] Citing Secretary to the Department of Treasury & Finance v Dalla-Riva [2007] VSCA 11; (2007) 26 VAR 96, [23].
[29] Citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [130].
[31] Citing Commissioner of State Revenue v Anderson [2004] VSC 152; (2004) 22 VAR 181.
[32] Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, [9], Beazley JA agreeing, Macfarlan JA dissenting on grounds not presently material. See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136, [7] (Merkel J).
[33] Day v SAS Trustee Corporation [2021] NSWCA 71, [34], [37].
[34] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, 483 (Gibbs J).
[39] In respect of EXW's claims for remedies, Dr Mulroney also argued that EXW had not established that she had been refused insurance based on the events the subject of the proceeding.
EXW
Mulroney [2022] VSC 524
(2010) 240 CLR 611
(2001) 233 FCR 136
(1975) 132 CLR 473