Back v Allity Pty Ltd t/as Calare Aged Care

Issues to be determined

1. Ultimately, at the commencement of the hearing of the summons, Allity made a concession through its counsel to indicate that it neither consented nor opposed the orders sought by the applicant, subject to seeking to limit the range and the type of documents sought by the applicant. Allity contested the costs order sought by the applicant.
2. Therefore, the pivotal question that remains to be determined is whether in the described circumstances Allity has taken an adversarial stance in the proceedings. The answer to that question will be influential in determining the remaining issue of the costs of the application.
3. Any costs orders made pursuant to the Uniform Civil Procedure Rules must be made in accordance with the dictates of justice and the overriding purpose of the Civil Procedure Act 2005 (NSW): s 56, s 57, s 58(2) of that Act.
4. In that regard, s 98 of the Civil Procedure Act confers a wide discretion for determining costs questions. The exercise of that discretion must be appropriately reasoned: House v The King (1936) 55 CLR 499, at pp 503 and 505; [1936] HCA 40. It must also be exercised judicially, according to the justice of the case: Gray v Richards (No 2) [2014] HCA 37, at [2]; Northern Territory v Sangare [2019] HCA 25, at [25].
5. For the reasons that now follow, I have concluded that the residual costs question is to be determined in the applicant's favour.

Evidence

1. The applicant's summons was supported by an affidavit sworn on 19 May 2022 by his solicitor, Ms Christine Beshay, together with a further affidavit from another solicitor in the same firm, Ms Georgette Bechara sworn on 6 September 2022, his own affidavit of 19 August 2022, the affidavit sworn on 19 August 2022 by his wife Sandy Back, and the affidavit sworn on 19 August 2022 by his son Kieran Back, the deceased's grandson.
2. Allity's evidence was in the form of an affidavit either sworn or affirmed (it is not clear as to which) on 1 July 2022, by Ms Maria Hammond, Allity's Head of Quality and Risk.
3. Those affidavits and the respective attachments were read without objection.

Orders sought by applicant

1. The applicant's summons seeks orders for the provision of copies of the following documents: 1. All clinical notes, medical reports, file notes, letters, and any other information [Allity] may have in relation to the deceased Harley Back and any treatment provided. 2. All records pertaining to the late Harley Back. 3. Any report, document, file, and/or (sic) record relating to the investigation undertaken by the Aged Care Quality and Safety Commissioner in relation to the late Harley Back. 4. Such further or other orders as the Court thinks fit to make.
2. Initially, the applicant had sought an order for his costs of the summons to be paid on an indemnity basis. That claim was abandoned during the course of argument, the result being that the only costs in dispute are to be assessed on the ordinary basis. In contrast, Allity sought its costs from the applicant.

Applicant's clarifications as to the orders sought

1. The applicant properly conceded that for the purpose of the application the reference to "information" in Prayer (1) of the summons should be read as a reference to documents held by the respondent. The applicant also conceded for practical purposes, that the matters referred to in Prayers (2) and (3) above are within the ambit of Prayer (1) above.
2. Significantly, and of particular relevance to the relief sought by Prayer (3) of the summons, the evidence suggests that Allity's facility at Orange has been the subject of a complaint investigated by the regulator, the Aged Care Quality and Safety Commission. It appears that complaint may relate to the quality of care provided to the deceased.
3. Consequently, the applicant seeks access to Allity's copy of an investigation report issued by the regulator concerning the quality of the care that Allity provided to the deceased at its Orange facility.
4. The analysis for determining the applicant's entitlement to the orders sought, including the costs consequences, must commence with the regulatory context of the applicant's request, and a consideration of the stated basis for Allity's stance in its initial resistance to complying with the applicant's request for records.

Applicant's entitlement to preliminary discovery

1. In my opinion, on the evidence, the applicant's entitlement to the orders sought for preliminary discovery is indisputable: UCPR r 5.2 and r 5.3.
2. The applicant has been compelled to file the present application because the HRIP Act scheme does not directly or enforceably provide an avenue of relief for the circumstances in which the applicant finds himself.
3. This has occurred in circumstances where it was unfeasible for the applicant to obtain letters of administration for a valueless estate, especially where such a step was not a precursor requirement for him to commence litigation to seek compensation.

No enforceable duty of candour or disclosure

1. The applicant's predicament in this instance has come into more prominent focus because there is no statutory code requiring candid disclosure of the circumstances in which adverse health care events have occurred in the aged care setting.
2. In this State, unlike in some other jurisdictions, at present, there is no enforceable regulatory obligation placed on the providers of health care services, including the providers of aged care services, to abide by a duty of candour that requires mandatory disclosure of information to patients or their immediate family members thereby identifying adverse events that have caused harm in the course of the provision of health care services.
3. In this context, a comparative review of a relevant Commonwealth publication that incorporates an Open Disclosure Code in relation to adverse events occurring in health care is informative. What now follows is not intended to be an exhaustively comprehensive summary of that Code.
4. In the health care setting, an adverse event or a harmful incident may be regarded as being an incident in which harm has resulted to a person: Glossary to the Open Disclosure Code published in Australian Open Disclosure Framework in Better Communication - A better way to care; Australian Commission on Safety and Quality in Health Care; Commonwealth of Australia, 2013.
5. That Code defines a health service organisation as including any location or setting in which health care is provided to patients. It relevantly defines treatment as an intervention to affect (sic) an improvement in, or cure of, a patient's condition.
6. Part 4 of that Code provides for communication of adverse events, including the provision of information, to the family of a patient about an adverse event.
7. In the case of indigenous people, Pt 4A of that Code provides that every effort needs to be made to ensure that the appropriate persons (including family) are included in discussions in a culturally appropriate manner regarding adverse events and the investigation and management of those events.
8. Part 4A of that Code suggests that health service organisations should provide information to families and identify issues of concern, including contact details of a staff member who can maintain an ongoing relationship with family members (preferably in face-to-face meetings) including, inter alia, the provision of information on how to make a complaint to a health complaints agency.
9. The Code states that in instances where an adverse event has resulted in a person's death, it is crucial that communication about such an event take place in a sensitive, open and empathetic manner with people who were close to the deceased patient: Code; Pt 4.4.1.
10. The framework of that Code variously contains statements to the effect that it has been officially endorsed, supported or recognised, by a number of Australian health profession Colleges, including the Australian College of Nursing.
11. However, notwithstanding the multidisciplinary professional endorsements that appear on the face of the Code, it seems that it has not been recognised, supported or endorsed by any organisations that provide aged care health services of the kind provided by Allity.
12. In those circumstances, in the absence of an enforceable duty of candour and disclosure, it is unsurprising that the applicant has seen fit to engage solicitors in an attempt to obtain the information he seeks.
13. As Allity has withheld supplying that information, the applicant's solicitors have invoked UCPR r 5.2 and r 5.3 in the present summons in order to seek access to relevant documents that touch upon the adverse event which preceded and led to the death of the deceased.

Factual sequence of applicant's attempts to obtain information from Allity

1. On 26 November 2021, the applicant's solicitors wrote to Allity seeking copies of clinical notes, medical records and other records relating to the deceased.
2. Allity's initial refusal to comply with that request was stated to have been based on its privacy policy. Allity's stated understanding of that policy was that it "may" not be required to provide personal information to family members or friends of a deceased person unless they have a legal right of access. That stated view implied that the position might have been flexible to some degree, but there was no evidence of any flexibility shown in Allity's further responses to the applicant's requests.
3. Allity's response to the applicant's request for copies of relevant records was to state that before it could provide access to a person's health information it must confirm the identity of the requesting party and confirm that the requesting party is authorised to access the information sought.
4. Allity's policy approach was to require documentary proof of the right to access and compliance with the requirements of the relevant privacy legislation, in this instance, the HRIP Act, as that legislation related to requests by family members for access to the personal health information of deceased persons.
5. On 31 January 2022, and again on 17 February 2022, Allity declined the request by the applicant's solicitors on the basis that the applicant "did not provide any evidence capable of establishing he was [the deceased's] the authorised representative" as defined in s 8 of the HRIP Act.
6. Specifically, Allity's stance was based on the rather narrowly defined proposition that [the applicant] "did not provide any evidence that he is an executor or administrator of [the deceased's] estate": Paragraph 13 of the 1 July 2022 affidavit of Maria Hammond, Allity's Head of Quality and Risk.
7. That stance did not reflect or identify the fact that the HRIP Act scheme permitted a less formal and a less burdensome approach, as will shortly be identified in the paragraphs that follow.
8. This was in the context that the applicant or his solicitors had plainly taken the view that it would be impracticable to obtain letters of administration for a valueless estate.
9. On 26 November 2021, when the applicant's solicitors wrote to Allity, they provided a relevantly framed written authority from the applicant, identifying him as the next of kin to the deceased.
10. On 31 January 2022, Allity's legal counsel, Ms Eva Berryman, wrote to the applicant's solicitors acknowledging the request for documents in terms which confirmed that Allity was required to comply with all applicable Australian privacy laws, citing the HRIP Act. In that regard, specifically, Ms Berryman wrote: "Under the HRIP Act, a deceased person's health information can only be disclosed to an 'authorised representative'. Section 31 of the HRIP Act requires Allity to ensure any person seeking to access health information has the required authority to do so". [Emphasis added]
11. In my opinion, the emphasised portion of the above extract of Ms Berryman's correspondence was not an entirely correct statement of the basis upon which the deceased's health information could be disclosed, as there were other relevant mechanisms within the scheme of the HRIP Act that could have been invoked and followed in the circumstances as disclosed by the applicant.
12. For example, as Allity ultimately conceded in its final submissions, s 62 of the HRIP Act provides a statutory power of exemption from compliance with the requirements of the HRIP Act on an application to the Privacy Commissioner for a direction to that effect.
13. However, Allity went on to submit that it was not under an obligation to pursue any such application for exemption in the circumstances. It maintained this was so notwithstanding the existence of an available basis for such a consideration as identified within the HPP schedule, namely, "Compassionate reasons": Sch 1, cl 11(1)(g) of the HRIP Act.
14. There is no evidence of what if any steps were taken by Allity to explore the possibility of providing the applicant with a disclosure along those lines. I infer from the terms of Allity's correspondence which rejected the applicant's request, in which it was stated that disclosure would "only" be to an "authorised representative", that there was no further examination of any other possibilities that could have been pursued under the HRIP Act for providing the information requested.
15. Ms Berryman's letter dated 31 January 2022 advised the applicant's solicitor that to discharge its obligations under the HRIP Act, Allity required a certified copy of a grant of probate or letter of administration evidencing the executor or administrator of the deceased's estate. The letter went on to state that Allity also required photo identification of the applicant, written evidence of the applicant's consent to his solicitor's request, and evidence of the applicant's role as executor or administrator of the deceased's estate.
16. It is clear that at this point in the chronology of events, the conversation between the applicant's solicitors and Allity had become circular and unsatisfactory.
17. The terms of Allity's letter dated 31 January 2022 indicated that Allity had looked no further than the provisions of s 31 of the HRIP Act in dealing with the applicant's request for documents. In my opinion, in light of the facilitative legislative provisions outlined above, that course represented an unduly narrow view of Allity's obligations.
18. On 2 February 2022, the applicant's solicitor again wrote to Allity enclosing a further authority appropriately signed by the applicant on 2 February 2022, also enclosing photo identification in the form of a copy of the applicant's heavy vehicle driver's licence.
19. That letter also advised Allity that the deceased died without leaving a will. This again provided Allity with an opportunity to reconsider how it would deal with the applicant's repeated request for records.
20. On 17 February 2022, Ms Berryman replied to that letter simply reiterating Allity's previous stance. Omitting formal parts, that letter was in the following terms: "I refer to your letter dated 2 February 2022. As indicated in my previous letter, under the HRIP Act, a deceased person's health information can only be disclosed to an 'authorised representative'. As you would be aware, your client's signed authority is insufficient in this regard. I also note that Health Privacy Principle 11 does not create a right of access to a deceased person's health information for close relatives or other interested parties. Unless and until Allity is provided with clear evidence that your client is authorised to receive the requested records we are unfortunately unable to disclose the requested records" [Emphasis added]

Consideration

1. In taking its stance of resistance to the applicant's requests, Allity appears not to have recognised the subtle distinction between the need for an "authorised representative", as contemplated by s 31(2)(b) of the HRIP Act, and the applicant's written "authority" or personal standing to have access to the information requested, as contemplated by s 31(1) of the HRIP Act.
2. Consequently, as the deceased had left no will and left no appreciable estate, the applicant was left in a quandary as it was obviously apparent that there was no practical utility in him incurring the expense of applying for letters of administration of an estate without distributable assets. This resulted in an impasse between the parties, which continued to be unresolved from that point.
3. That impasse arose because Allity continued to maintain its narrowly defined stance that the applicant was not an "authorised representative". On that basis it appears that Allity considered its hands were tied.
4. There is no evidence of any subsequent action taken by Allity along the lines of taking the "reasonable steps" referred to in s 31(1) of the Act to satisfy itself of the nature of the applicant's "authority", which in my view, was not dependent on the existence of letters of administration as explained at paragraphs [51] to [53] above: s 31(1) and s 31(2)(a) of the HRIP Act.
5. In my view, Allity's conclusion as cited at paragraph [67] above, was not the inevitable conclusion to be drawn from the correspondence and from the terms of the HRIP Act. This is because s 58(e) and s 62 of the HRIP Act enabled Allity to approach the Privacy Commissioner for advice on matters relating to the protection of the health information of individuals.
6. Section 62(1)(a) and s 62(2) empowered the Privacy Commissioner, after taking specified steps, to make a written direction to the effect that an organisation (such as Allity) would not be required to comply with a Health Privacy Principle or its Code of Practice despite any other provision in the Act.
7. Schedule 1 of the HRIP Act sets out the Health Privacy Principles. Whilst HPP 10 sets out limits on the use of health information, including for "secondary purposes", as is the case here, there are a range of specified regulatory exemptions set out in HPP 11.
8. In that regard, HPP cl 11(c) is relevant to the circumstances under present consideration. That provision identifies the possibility that the existence of compassionate reasons might enable disclosure of health information for the secondary purpose of providing such information to immediate family members of the individual concerned. In that context, the question of "authority", or the existence of an "authorised representative", does not feature as a relevant consideration.
9. Although the applicant provided Allity with what ought, in the circumstances, to have been regarded as sufficient evidence of his status as an "immediate family member" of the deceased, Allity nevertheless remained unmoved with regard to its stated position. It did not pursue other avenues of disclosure and it continued to declined access to the records sought.
10. In this State, absent resort to litigation of the present kind, a right to obtain access to records held by an aged care facility such as Allity is dependent upon the applicable provisions of the HRIP Act and consent from the holder of the records.
11. In contrast, in the context of litigation, such access is variously and readily obtainable by invoking a range of provisions within the Uniform Civil Procedure Rules relating to preliminary discovery, discovery, and the issue of subpoenas. The applicant has been forced to go down that path.
12. Allity had been made aware that the deceased left no will, and there were no letters of administration. It was also made aware that there was no nominated person responsible for the deceased within the meaning of Pt 5 of the Guardianship Act 1987 (NSW).
13. There was no other person otherwise empowered by law to exercise any functions as an agent of, or in the interests of the deceased: s 4 and s 8 of the HRIP Act. Therefore, since the deceased had not given anyone an authority, s 26 of the HRIP Act was not engaged as an alternative means of obtaining access to the records by consent.
14. Section 31 of the HRIP Act provides: 31 Private sector person may require evidence of identity or authority (1) Before a private sector person provides access to health information to a person, the private sector person must take reasonable steps to be satisfied about that person's authority to have access to the information. (2) For this purpose, the private sector person may require evidence of - (a) the person's identity, and (b) if person seeking access claims to be authorised to have access to the information under section 26 (2), the authority of that person, and (c) if the person seeking access claims to be an authorised representative of the individual to whom the information relates, the authority of that person.
15. The statutory obligation resting on Allity to take reasonable steps to be satisfied about the applicant's authority is a mandatory requirement: s 31(1) of the HRIP Act. There was no evidence of what, if any, steps Allity took in that regard.
16. The term "authority" is not defined in the HRIP Act. Section 8 of that Act gives "authorised representative", a materially different term to "authority", which has a series of meanings.
17. Relevant to this case, s 8(1)(a) of the HRIP Act provides that an "authorised representative" means a person who is otherwise empowered under law to exercise any functions as an agent of, or in the best interests of the individual. There was no "authorised representative" in this case.
18. The process by which an entity such as Allity reaches a state of satisfaction or dissatisfaction as to a person's "authority", is not defined in the legislation. The legislative provision to the effect that an entity "may" require evidence of the applicant's identity suggests that particular part of the process is not one requiring mandatory compliance: s 31(2)(a) of the HRIP Act.
19. The end result of the correspondence was that despite the applicant's identity having been satisfactorily provided to Allity, Allity remained unmoved in the circumstances.

Whether Allity took a non-adversarial position in response to the summons?

1. Allity submitted that it should not bear any costs of the present application because it had not taken an adversarial stance in response to the summons. It supported that submission by reference to decided cases: Equiti Capital Limited v Hewson [2015] NSWSC 1388, at [14]-[16], following Proctor v Kalvis (No 2) [2010] FCA 1194, at [17].
2. Whilst the above principle so stated and cited is indisputable, I do not accept as apt the submission which relies on those identified decisions. This is because although Allity ultimately neither consented nor opposed the application, it took what I find to have been a plainly evident and positively adversarial position in seeking to limit the range of documents which the applicant was seeking.
3. It was clear from the tenor and content of Allity's submissions that it was seeking to prevent the applicant gaining access to the report by the Aged Care Quality and Safety Commissioner. It also sought to narrowly limit the date range of the documents to be provided to the applicant pursuant to UCPR r 5.2 and r 5.3.
4. Those proposed limitations were not justified in the circumstances. I find that in taking that stance Allity took an adversarial position in the process and in proceedings rather than simply making a submitting appearance.
5. This was not a case where Allity just stood back, as was submitted, to see if the applicant could meet the criteria for the making of an order for preliminary discovery. As a result of the stance taken by Allity, the applicant has been put to considerable trouble and expense.
6. I consider the foregoing facts distinguish the present circumstances from those which produced the results obtained in the decided cases that were cited by Allity in opposing an order for costs. In my view that stance should have the consequence of a compensatory costs order in favour of the applicant.
7. In my view the justice of the case requires that Allity pay the applicant's costs of the present application on the ordinary basis: s 98 of the Civil Procedure Act 2005 (NSW); Gray v Richards (No 2) [2014] HCA 37, at [2]; Northern Territory v Sangare [2019] HCA 25, at [25].

Disposition

1. As the applicant has established his entitlement to obtain the orders he has sought in his summons, the respondent should pay the applicant's costs of the summons on the ordinary basis.
2. In the course of argument the parties agreed that the categories of documents sought by the summons ought to be available by 5 October 2022. The parties have also agreed to the Court's suggestion that since any potential damages arising out of the legal dispute, that might foreseeably arise from a review of the documents held by Allity, would most probably be within a relatively modest range, an early mediation of the compensation issues between them should be ordered pursuant to s 26 of the Civil Procedure Act as an appropriate time and costs saving step.
3. Accordingly, facilitative orders were made on 7 September 2022 for the appointment of a mediator and for a mediation to be conducted within a defined timeframe.

Orders

1. I make the following orders: 1. Pursuant to UCPR r 5.2 and r 5.3, by 5 October 2022, the respondent is ordered to provide the applicant with discovery of: 1. All clinical notes, medical reports, file notes, letters, and any other information the respondent may have in relation to the deceased Harley Back and any treatment provided; 2. All records pertaining to the late Harley Back; 3. Any report, document, file, and record relating to the investigation undertaken by the Aged Care Quality and Safety Commissioner in relation to the late Harley Back; 1. The respondent is to pay the applicant's costs of and incidental to the summons and requests for discovery as agreed or assessed; 2. If advised to do so, the applicant has leave to file a statement of claim in the present proceedings within 120 days of being provided with the material which is the subject of Order (1) above; 3. Liberty to apply on 7 days' notice if further or other orders are required.

Amendments 06 October 2022 - s 65 replaced with s 62 on coversheet and at paragraphs [56] and [69] 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: 06 October 2022