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[2014] NSWCATAD 109
NCAT Administrative and Equal Opportunity
2014-07-30
Original judgment source is linked above.
Introduction 1The applicant seeks review of conduct by the respondent which she asserts to be a breach of the accuracy health privacy principles, under the Health Records Information Privacy Act 2002 (HRIP Act), in regard to her health information. 2The information that is of concern to the applicant is her health information as recorded in the Mental Health Access Line Handover Report (MHAL Report), which was created, on 13 July 2010 at about 9.38 am. The Report forms part of the applicant's mental health file that is held by the respondent. 3In these reasons for decision, the name of the applicant has been anonymised, as ARC, so as to preserve the privacy of her health and personal information. 4The MHL Handover Report is a record made by Mr Peter Mamouzelos, a clinician, of a telephone call he received from Mr Michael Grace, a psychologist, who had seen the applicant that morning. The applicant does not dispute that she had an appointment Mr Grace that day. However, she asserts that what is recorded in the MHAL Report about her mental health that morning was a fabrication and not reflective of what she told Mr Grace and why she had made an appointment with him. That is, it was her contention that the information concerning her mental health was 'false, misleading, exaggerated and /or out of date.' On this basis, the applicant sought the removal of the Report from her mental health file. 5In April 2013, the applicant made a formal complaint/internal review application, to the respondent, under s 21 of the HRIP Act. By reason of s 21 of the HRIP Act, the applicant's complaint/internal review is determined in accordance with the provisions in Part 5 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). 6In that complaint, the applicant identified the 'accuracy' of her personal/health information as being the essence of her complaint. The respondent determined the complaint on 9 May 2013. It considered the applicant's complaint in the context of the security, non-excessive and accuracy Health Privacy Principles (HPPs) in clauses 5, 2 and 9 of Schedule 1 of the HRIP Act. It found that its conduct did not breach any of these HPPs. It noted that, in accordance with its policies and procedures for all heath records, the applicant's health records were maintained securely and confidentially and access was restricted to her treating clinicians. However, to assist the applicant, the respondent said it had made a notation in her Community Mental Health - health record which explained her account of events as well as placing a copy of the applicant's letters with the record in issue. 7The applicant's application came before me, at planning meetings and directions, on 30 July, 20 August, 25 September and 20 November 2013. During these meetings, the applicant only pressed her claim in regard to the accuracy of her health information in the MHAL Report and the removal of that record from her health files. 8On 20 November, the parties agreed to endeavour to resolve the matter and in the event they were not able to resolve the matter, by 16 December 2013, the Tribunal was to determine the matter under s 76 of the Administrative Decisions Tribunal Act 1997 (as it applied at that time). 9Further material was filed by the applicant on 14 January 2014. 10On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of HRIP Act and PPIP Act continuing to apply. 11In the absence of being informed by the parties that the matter had been resolved, I have determined the matter on the material that has been filed and served, including the most recent amendments proposed by the applicant in the event the Tribunal does not accept her claim that the record be deleted.
Issue for determination 12There is no dispute that the Tribunal has jurisdiction to hear and determine this application. Nor is it disputed that the information for which the applicant seeks amendment is both 'personal information' and 'health information' about the applicant: see ss 5 & 6 of the HRIP Ac and s 4 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). 13The respondent does not dispute that it is required to comply with this HPP and the other HPPs in Schedule 1 of the HRIP Act: see s 11 of the HRIP Act. 14For the purpose of this application, the relevant HPP is that contained in cl 8 of Schedule 1 of the HRIP Act. That cl relevantly provides: 8 Amendment of health information (1) An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation. Note. ... (4) An organisation is not required to comply with a provision of this clause if: (a) the organisation is lawfully authorised or required not to comply with the provision concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). 15S 15 of the PPIP Act contains a similar requirement in regard to 'personal information' of an individual. 16The respondent contends that it has not breached the cl 8 HPP, as the information recorded on the MHAL Report is an accurate record of what Mr Grace had said. The respondent also contended that it had at all times invited the applicant to provide a statement of her account of events to be attached to that Report and placed in her mental health file. 17The applicant, as I have indicated has at all times asserted that the information about her is inaccurate as it does not reflect how she presented to Mr Grace and should be deleted.
The evidence and claims of the parties 18In support of its contention, the respondent filed and served a small bundle of documents and a statement of Richard Buss, Director of Mental Health and Drug & Alcohol Services of the respondent. The statement is dated 21 October 2013. 19In that statement Mr Buss explained that Medibank Health Solutions is the provider and operator of the Mental Health Access Line which any person who has concerns about their mental health or that of another person can call. Such calls are answered by an on duty mental health clinician, who enters details of that call in the Medibank Solutions System (the System) at the time of the call, or immediately thereafter. For every call the mental health clinician conducts a triage based on the operational guidelines and what he/she is told by the caller. The System supports this process with a tick box and free text fields. He said the mental health clinician taking the call will make a decision on the urgency of any response to the call and 'in the event that a referral is required, a handover report can be generated' from the System. Information recorded by the mental health clinician on the System during the call automatically transfers that information onto the handover report so that it can be sent to the Local Health District/Local Health District Acute Care Service (local ACS) promptly. 20Mr Buss said that on receipt of the handover report the local ACS will review the report and determine a clinical response 'based upon the identified clinical symptoms and urgency of the response time frames.' Where further clinical assessment is indicated, the local ACS will utilise the MHAL Report to inform this process. 21Mr Buss also confirmed that the MHAL Report in issue in this application was generated in this manner. 22In the bundle of documents filed and served by the respondent is a copy of a facsimile Mr Grace sent to the local ACS of the respondent, during the afternoon of the day in question. I note it was received by the local ACS about two and a half hours after Mr Green had made his call to the Mental Health Access Line. In that facsimile, Mr Grace requested that a follow-up with the applicant be undertaken as a matter of urgency. 23During the course of these proceedings, the respondent also provided the Tribunal and the applicant with a CD copy of the recording of the call Mr Grace made to the mental Health Access Line. It is the contention of the respondent that the information on the MHAL Report is consistent with what is recorded on the CD. 24The applicant provided a number of documents setting out her concerns, including her reasons for seeing Mr Grace, what she said to him and the aspects in which her health information in the MHAL Report is inaccurate. In support of her contentions the applicant relied on the Mental Health Assessment Report made by A Brown, of the local ACS. A Brown contacted the applicant during the afternoon of the same day that Mr Grace made his call to the Mental Health Access Line and sent his facsimile. In the Assessment Report, A Brown said that the applicant was of 'nil' risk to herself or her daughter. The applicant explained that the visit of A Brown caused her considerable anxiety and stress as at no time had she indicated to Mr Grace that she needed to see someone urgently. I note, some four days after her appointment with Mr Grace, the applicant appears to have raised her concerns about this visit and Mr Grace's role in it. 25The applicant also relied on a number of reports concerning her mental health at the time of her appointment with Mr Grace. These, together with the Mental Health Assessment Report, the applicant asserts establishes that she did not present at her appointment with Mr Grace in the manner he reported to the Mental Health Access Line.
Consideration 26As I explained to the applicant during a number of planning meetings, the role of the Tribunal is limited to reviewing the conduct of the respondent that is the subject of her internal review application under s 21 of the HRIP Act and not a general inquiry as to her mental health at the relevant time. 27As I have already noted, the conduct in issue in this application is the respondent's failure, contrary to the cl 8 HPP, to delete the MHAL Report from her health records on the basis that the information in it was not accurate. 28It is accepted that the cl 8 HPP is a beneficial provision (see TB v South Eastern Sydney Illawarra Area Heath Services [2011] NSWADT 165 at [70]). 29I note s 20 of the HRIP Act provides that the cl 8 HPP applies to a public sector agency, despite 'HPP 8(4) and section 21 of the State Records Act 1998.' As noted above, cl 8(4) of the HPP provides that an organisation (which is widely defined in s 4 to include a public sector agency and a private sector person) is not required to comply with the amendment provision in that clause, where non-compliance is permitted under the State Records Act 1998. The effect of s 20 of the HRIP Act is that it overrides the damage and amendment prohibitions, in s 21 of the State Records Act 1998, where a public sector agency (which includes the respondent) finds that the 'health information' of an individual in a state record is inaccurate in the relevant sense under the HRIP Act. 30It is also well established that the question as to whether 'health information' of an individual is 'inaccurate' must be considered in the context in which the record containing that information came into existence. That is, the amendment provision in this HPP, as well as that contained in s 15 of the PPIP Act, have been construed to exclude amendments that seek to 'rewrite history': see Crewdson v Sydney Area Health Service [2002] NSWCA 345 at [35]. 31In Crewdson, the appellant, an employee of the respondent in those proceedings, had made an application for amendment of information in a medical report, commissioned by the respondent, in regard to his fitness to work. The appellant asserted that the information in the medical report was incorrect, out-of-date, or misleading and sought amendment under s 39 of the Freedom of Information Act 1989 (as it applied at that time). While that Act has been repealed, s 15 of the PPIP Act and cl 8 of Schedule 1 of the HRIP Act are in similar terms. 32At [24], in Crewdson, the Court of Appeal held that the relevant provision of the Freedom of Information Act 1989 was 'concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them.' The appellant had asserted that the opinion of the doctor who had assessed him was based on incorrect information and hence the doctor's opinion that he was not fit for work was incorrect. At [34], the Court of Appeal held that even if another doctor formed a different opinion this would not mean that the medical report was incorrect for the purpose of s 39, as the report contained an accurate statement of the opinion of the doctor who made the report. The Court of Appeal went on to say: [35] The position might be different if an expert whose opinion had been accurately recorded recognised later that it was incorrect at the time and withdrew it. However the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. See Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 (Todd DP). An amendment in the latter form would falsify the records and attempt to rewrite history. See Botany Council v The Ombudsman (1995) 37 NSWLR 357, 369 and Re Close (1993) 31 ALD 597, 609. Without the original opinion the records would not tell the whole story, and would be misleading. 33This reasoning in Crewdson was been followed by the Tribunal in matters brought under the repealed Freedom of information Act 1989 and in matters brought under the amendment provisions in cl 8 of Schedule 1 of the HRIP Act and s 15 of the PPIP Act: see for example GA v University of Sydney [2010] NSWADTAP 31 at [19]. 34I have listened to the CD recording of the call made by Mr Grace on the day in question and I am satisfied that Mr Mamouzelos's record of what Mr Grace said is an accurate record of that call. Having regard to the terms of the call, Mr Grace provided a summary of his assessment of the applicant and the basis on which he made that assessment. 35I accept that the assessment made by A Brown later that afternoon differs to that of Mr Grace. This assessment I note also forms part of the applicant's mental health records held by the respondent. However, for the purpose of the information the subject of this application, as pointed out in Crewdsen, the fact that a subsequent assessment differs to that of Mr Grace does not mean that Mr Grace's assessment, as recorded in the MHAL Report is inaccurate in the relevant sense. 36Accordingly, I find that the respondent's conduct in refusing to destroy/remove the MHAL Report of Mr Grace's call, as requested by the applicant, is not a breach of cl 8 of Schedule 1 of the HRIP Act. For the same reason set out above, I would make a similar finding in regard to the amendments proposed by the applicant in her letter of 14 January 2014. 37In all other respects, I also find that the respondent's conduct is not a breach of cl 8 of Schedule 1 of the HRIP Act as the respondent has clearly indicated its willingness to attach a statement of the applicant as to her account of events. 38On the basis of my findings, the appropriate order is to decide, pursuant to subs 55(2) of the PPIP Act, not to take any action on the matter. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2014
ARC
Northern NSW Local Health District
(1995) 37 NSWLR 357