BNQ v South Eastern Sydney Local Health District

Consideration

This application arises under ss 53(6) and 55(1) of the PPIP Act inasmuch as the applicant applied on 9 May 2014 for an internal review under s 53 (exhibit R2, p 7), and while the respondent did carry out an investigation of its conduct and records holding in relation to the applicant's claim of a breach of HPP 7, its investigation did not constitute an internal review under part 5 of the PPIP Act.
The obligation under HPP 7 falls on "An organisation that holds health information". Whether an agency "holds" information is dealt with by s 9 of the HRIP Act, which reads: 9 What constitutes "holding" information For the purposes of this Act, health information is held by an organisation if: (a) the organisation is in possession or control of the information (whether or not the information is contained in a document that is outside New South Wales), or (b) the information is in the possession or control of a person employed or engaged by the organisation in the course of such employment or engagement, or (c) in the case of a public sector agency - the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.
Paragraphs (a) and (b) of the definition focus on whether information is in fact in the possession or control of an organization (through its employees or directly). Paragraph (c) is broader, as the record-keeping obligations of agencies under the records legislation are quite far-reaching, for the purpose of that legislation is to ensure that a complete record of government activities is maintained. The respondent concedes that even if the services provided to the applicant at the Sutherland clinic in the 1990s were provided by the Central Sydney Area Health Service, the respondent could now be responsible for the maintenance of those records.
Under s 19(3), the HRIP Act prima facie applies only to information collected before its commencement, and the records sought by the applicant antedate that time. There are, however, a number of exceptions in s 19(3), including "(a) a history of the health or an illness of an individual", which appear to apply to the applicant's records. They are thus subject to the HRIP Act.
In presenting a case under this type of legislation, it is not enough for the applicant merely to assert non-compliance on the basis of general distrust of the agency: Cianfrano v Director General, Department of Commerce (No 2) [2006] NSWADT 195, [69]. On the other hand, the tribunal must be satisfied that an agency's determination is a fully responsive one: at [65].
The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
That decision has been affirmed in a number of later decisions of this tribunal. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, which reviews a number of the authorities on the point. In Beesley v Commissioner of Police [2002] NSWADT 52, the tribunal described its role: To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate custodians of agency documents. All that the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them: at [19].
While there do not appear to be any decided cases directly considering the kinds of searches that a health service provider is required to conduct following an application under HPP 7, the principles set out above would seem to be applicable. Thus, the tribunal must form a view as to whether or not they may be some further records relevant to the application and, if so, whether the respondent has tried sufficiently hard to find them.
The first question therefore, is whether there are reasonable grounds for believing that there are additional documents. The tribunal need not first be satisfied that the searches conducted have been inadequate, as that would not be consistent with the Shepherd approach. There is, however, "some overlap in consideration of the two limbs of Shepherd, such that the overall consideration may appear somewhat circuitous": McCabe v Workers' Compensation Commission [2012] NSWADT 30, [40].
The applicant argued that the respondent must be holding additional records because there was an error in his original treatment at the clinic and the respondent was seeking to cover it up by withholding the relevant information. That conclusion does not appear to follow. If, hypothetically, the respondent were seeking to conceal a mistake made in one of its clinics, one would think it more likely that they would be content to take advantage of the policy that adult health records are destroyed after seven years from the last presentation. Deliberately to retain potentially embarrassing or damaging documents when under no obligation to do so would seem an illogical course of action.
The applicant also submitted that the respondent could not have destroyed the relevant records, "otherwise they wouldn't be here today". Again, it is difficult to see how that conclusion follows. If the respondent had carried out reasonable searches but found no more documents, it would have every reason to present a case to that effect before the tribunal.
The applicant also argued that if the respondent had destroyed the records as was claimed, they would not "keep going too deep with the drill". That would also appear to be a non sequitur, inter alia because the treatment of which BNQ complains was given in 1997 -1998, whereas the evidence is that the records were destroyed much later.
Prima facie, therefore, there would not appear to be reasonable grounds for believing that there are additional records. Given the overlap between the two Shepherd limbs referred to in McCabe, however, it would be prudent before reaching a settled conclusion on the point to engage in the process of ascertaining whether the respondent undertook reasonable searches to find any such records is, if they existed and were held by the respondent.
For that purpose it may be useful to set out the various steps in the search process undertaken in this case in chronological order: 1. BNQ's application to access personal health information was received by SESLHD on 19 March 2014: exhibit R3, p 5. The application sought information from Hurstville clinic in 2013 and the Sutherland clinic in 1997. 2. On the basis of the applicant's request, SESLHD respondent by letter on 3 April 2014 (exhibit R3, p6), enclosing the applicant's file and x-rays (exhibit R1). None of the documents was dated before 2008. 3. On 9 May 2014 the applicant lodged an internal review application form (exhibit R3, p7) on the ground that he had not been supplied with his 1997 records. 4. In early June 2014, Ms Phelan asked Dr Ibrahim at Hurstville clinic to undertake a patient file search for BNQ (exhibit R3, p 2, para 10). 5. Pursuant to that request, Dr Ibrahim searched the file cabinet at Hurstville but located no records before 2008. She found only the documents that had been sent on 3 April (exhibit R3, p 1, para 4). She also called Sutherland clinic to check that there were no files for BNQ there. In accordance with normal record procedures, the file would have been transferred to Hurstville (id., paras 6 -7). No duplicate file was found. Dr Ibrahim also conducted a search of the ISOH database but found no records relating to Sutherland in 1997 (id., paras 8, 10). 6. Dr Ibrahim then extended the search beyond the SESLHD records by making enquiries at the Sydney Dental Hospital, as the applicant had mentioned that he had received treatment there. Dr Ibrahim was informed that Sydney Dental Hospital held no records about BNQ. 7. By letter dated 20 June 2014, Ms Panta of SESLHD confirmed to the applicant that a complete copy of his dental records had been posted to him on 3 April 2014. She also stated inter alia that files are only kept for seven years after treatment (exhibit R3, p 9). 8. The applicant lodged an internal review application on 31 October 2014, which led to further searches being conducted to confirm that no other documents were held. On 7 November 2014, Ms Phelan emailed staff at Hurstville clinic asking them to again locate all the applicant's files, together with any evidence of file disposal. Again, this resulted in BNQ's Hurstville file, with which he had already been provided, being the only information found (exhibit R3, pp 2-3, paras 14-15). 9. On or after 7 November 2014, Ms Kostreva conducted further searches of Sutherland physical files and performed a search using the applicant's name in ISOH. There were no files, nor were there any ISOH entries before 2002. She asked a staff member to repeat those searches, which produced the same result. 10. Dr Ibrahim also enquired whether any files might be held at Grace Storage, although Grace Storage is not used to store adult files. There were no files for BNQ there, and the record of files sent there had been checked for his name and it had been found that there was no reference to his file (para 11).
In her statement of Ms Phelan described the oral health service's record-keeping practices. As was noted above, the physical files on all adult patients are held at the various clinics, and if a patient who has previously attended a clinic attends a different oral health service clinic, the file will be transferred to that clinic. Since 2000 or 2001, the ISOH system has been implemented, but contains no information about patients who used the oral health service before ISOH was implemented.
The oral health service destroys paper medical records in accordance with its general disposal authority. An extract of the disposal authority for patient/client records is attached to Ms Phelan's statement (exhibit R3, pp 13 - 20). In section 1.3.1, which relates to oral health care, it states that records should be retained for a "minimum of 7 years after the last attendance or official contact or access…., then destroy".
Ms Phelan concludes that any paper medical record of any attendance at the Sutherland clinic by BNQ in or about 1997 has probably been destroyed, as he did not attend another dental clinic until 22 May 2008, which is more than 7 years after 1997. Before June 2014, the oral health service did not keep an ISOH record of which paper medical records had been destroyed.
The only issue is whether the respondent "holds" health information relating to the applicant within the meaning of HPP 7(1). That turns on whether the respondent has conducted reasonable searches directed to locating any relevant health information. In Miriani v Commissioner of Police, New South Wales Police Force [2005] NSWADT 187, [30], the President considered the key factors in assessing whether a sufficient search had been carried out. There he said that those factors included, relevantly, the manner in which the agency's record-keeping system is organized and the ability to locate any documents that are the subject of the request by reference to the identifiers supplied by the applicant or those that can reasonably be inferred by the agency from any other information supplied by the applicant. What constitutes a sufficient search will vary with the circumstances of the case.
In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213, [63], the President said that the standard of search that an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its record-keeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate. As Montgomery SM said in Pedestrian Council of Australia v North Sydney Council [2014] NSWCATAD 80, [51], the question is whether other searches would locate other documents. In that case there was no evidence that the documents sought could not be located by the searches that had been undertaken. The onus of showing that the search efforts made were reasonable in all the circumstances of the case is on the respondent.
In the present case the respondent has searched for 1997 Sutherland records at Hurstville and at Sutherland, although in the normal course of events the file would have been transferred from Hurstville to Sutherland, as indeed seems to have been the case. The searches were repeated to ensure that nothing had been overlooked. The searches were pursued beyond the district records, with enquiries being made at the Sydney Dental Hospital. ISOH database searches under the applicant's name were conducted and enquiries were made as to whether any information was held off-site at Grace Storage, although adult files are not sent to that location. Nothing was found other than the file that had already been sent to the applicant on 3 April 2014. The applicant did not suggest that the search should have used some other identifier or should have looked in some other place or in some other manner.
Ms Phelan described the respondent's record practices and concluded that as BNQ did not attend an oral health service dental clinic until 22 May 2008, more than seven years after 1997, the 1997 records had probably been destroyed in accordance with the State Records Act.
Section 21(2)(c) of the State Records Act 1998 provides that anything done by or with the permission of the State Records Authority or in accordance with any practice or procedure approved by the Authority is not a contravention of the obligation to preserve state records set out in s 21(1). The Authority may give permission for the destruction of records only with the approval of the Board of the Authority: s 21(3). The General Retention and Disposal Authority Public Health Services: Patient/Client Records, published by the State Records Authority in May 2004, gives the respondent the necessary permission.
BNQ firmly maintained that there are probably records held at Hurstville, but the evidence provides no support for that hypothesis. He also submits that the respondent's witnesses must be lying and trying to cover up a mistake made in treatment. The claim that three officers of the respondent, including the director of the SESLHD oral health service, Ms Phelan, engaged in what would presumably constitute a criminal conspiracy to suppress health information that the applicant was entitled to receive, is an extremely serious allegation. Under the principles in Briginshaw v Briginshaw (1938) 60 CLR 336), substantial and cogent evidence would be required to discharge the burden of proving it. In this case there is no evidence whatever to support the allegation, and all the evidence leads to the conclusion that the respondent holds no health information relating to the applicant.
After considering all the evidence and the submissions of both parties, I find that all reasonable searches have been made and that no further health information relating to the applicant is held by the respondent.
The tribunal's decision is to take no further action on this 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

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