BNQ v South Eastern Sydney Local Health District

Applicable legislation

1. HPP 7 provides that "An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information".
2. Also relevant is s 21 of the State Records Act 1988: 21 Protection measures (1) A person must not: (a) abandon or dispose of a State record, or (b) transfer or offer to transfer, or be a party to arrangements for the transfer of, the possession or ownership of a State record, or (c) take or send a State record out of New South Wales, or (d) damage or alter a State record, or (e) neglect a State record in a way that causes or is likely to cause damage to the State record. Maximum penalty: 50 penalty units. (2) None of the following is a contravention of this section: (a) anything done in accordance with normal administrative practice in a public office (as provided by section 22), (b) anything that is authorised or required to be done by or under this Act, or by or under a provision of any other Act that is prescribed by the regulations as being an exception to this Part, (c) anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and codes of best practice for records management formulated by the Authority), (d) anything done pursuant to an order or determination of a court or tribunal, (e) the disposal, in accordance with a resolution of a House of Parliament, of a State record for which the House is the responsible public office, (f) anything done for the purpose of placing a record under the control of a public office, (g) the transfer or disposal, in accordance with the Members of Parliament Staff Act 2013, of a record of information created or received by a political office holder (within the meaning of that Act) or the staff of such an office holder….
3. The issue in this case is thus whether the respondent holds any health records of the applicant that it has not already provided to him and, specifically, whether it has conducted reasonable searches to locate any health information about the applicant that it holds.

Respondent's evidence

1. The respondent tendered three signed statements dated 4 June 2015 (exhibit R3), the first by Dr Maggie Ibrahim, the lead dental officer at the Hurstville clinic, which stated inter alia that Claire Phelan, then operations manager of the SESLHD oral health service, requested Dr Ibrahim in early June 2014 to locate all BNQ dental records held by the District. She located BNQ's medical file in the current files cabinet at the Hurstville clinic, which does not store files for adults off site. It contains records dating back to 22 May 2008 and indicates that before June 2014, the applicant had attended the Sutherland Hospital Dental Clinic on 22 May 2008, then the Hurstville Dental Clinic on 7 September and 8 October 2012.
2. If a patient has an appointment at the Hurstville clinic after attending the Sutherland clinic, the usual procedure is for the patient's file to be transferred to Hurstville before the appointment and kept there after the appointment, if the patient is to be seen again for a follow-up appointment, as was the case with BNQ. As before June 2014 BNQ had most recently attended Hurstville, Dr Ibrahim expected that any records of his treatment at Sutherland would have been transferred to Hurstville before his appointment on 7 September 2012. Nevertheless, for the sake of completeness, she called the Sutherland clinic to ascertain whether it held a duplicate file for BNQ. Sutherland records showed that his file had been transferred to the Hurstville clinic. The Information System for Oral Health (ISOH) database indicated that Sutherland transferred BNQ's file to Hurstville on 6 September 2012, and it was received at Hurstville on 10 September 2012.
3. For completeness Dr Ibrahim also asked the receptionist at the Hurstville clinic to contact the Sydney Dental Hospital to ascertain what records it held about BNQ. Although that hospital is not part of SESLHD, Dr Ibrahim understood from Ms Phelan that BNQ had mentioned that he had received treatment there. The receptionist informed Dr Ibrahim that she had been informed by Sydney Dental Hospital that it held no documents about BNQ. Dr Ibrahim also printed out all information from ISOH about BNQ and gave it to Ms Phelan. It contained no information about BNQ attending the Sutherland clinic in or about 1997. Records also showed that there was no record of BNQ's file having been sent to Grace Storage.
4. In her written statement, Valentina Kostrevska, lead oral health therapist at Sutherland Hospital Dental Clinic, declared that Ms Phelan asked her on 7 November 2014 to verify that the Sutherland clinic held no paper records about treatment BNQ had received between 1990 and 2000, and that such records were not held at Grace Storage. On the same date she confirmed to Ms Phelan that the clinic holds no paper records about treatment BNQ received between 1990 and 2000 and that such records are not held at Grace Storage.
5. To reach that conclusion she first looked at the physical files of medical records kept at the Sutherland clinic and was unable to find any files pertaining to the applicant. She then performed a search using the name "BNQ" on the ISOH database, which indicated that he was most recently seen at the Hurstville clinic but was seen by the Sutherland clinic in 2008 and failed to attend an appointment at the Sutherland clinic in 2002. There were no entries earlier than 2002. ISOH also indicates that his file is held at the Hurstville clinic. Ms Kostreva also asked the Sutherland clinic receptionist to perform the same searches, and she informed Ms Kostreva that she also could not locate any records for BNQ. It was Ms Kostreva's understanding that any paper medical records for BNQ received at the Sutherland clinic between 1990 and 2000 would have been destroyed, as adult files are culled and destroyed according to policy after seven years of last presentation. Only child files are kept in Grace Storage.
6. Ms Margaret Phelan, director of the SESLHD oral health service, stated inter alia that the applicant was provided with his dental records (exhibit R1) in response to his formal request on 3 April 2014. On 9 May 2014 the district received his internal review application. Ms Phelan caused an investigation to be carried out to ensure that BNQ had been provided with all of the records he requested that SESLHD holds, although the investigation was not an internal review under part 5 of the Privacy and Personal Information Protection Act 1998.
7. In or about June 2014, she requested Dr Ibrahim to undertake a patient file search for BNQ. She understands that searches were performed at the Hurstville clinic, the Sutherland clinic and in the ISOH database. They confirmed that he had been provided with all of the records he requested that SESLHD holds. She also understood that a staff member on behalf of Dr Ibrahim contacted Sydney Dental Hospital at about that time and was informed that there was no file on record for BNQ.
8. Following that investigation, on 20 June 2014 Ms Narelle Panta, oral health quality improvement coordinator for the district, in response to the applicant's internal review application, wrote to him assuring him that a complete copy of his dental records, including x-rays, was posted to him on 3 April 2014 and explaining that files are only kept for seven years following treatment. There was also certain correspondence concerning the provision of vouchers for treatment with private providers which is not relevant to the present application.
9. On 7 November 2014, before the first tribunal planning meeting in the matter, she emailed a number of staff at the Hurstville and Sutherland clinics requesting them again to "locate all files related to BNQ plus any evidence of file disposal". That search resulted only in BNQ's Hurstville file, with which he had already been provided, being identified. Dr Ibrahim advised Ms Phelan on 7 November 2014 that checks showed that there was no file at Grace Storage for BNQ and that the file clinical notes went back to 2008. On 7 November 2014 Ms Phelan also asked Ms Kostrevska whether there were any paper records at Sutherland or any paper records of files that were sent to Grace Storage between 2000 and 1990, and was informed that there were none and that Grace Storage was not used for adult files, only for child files.
10. Ms Phelan explained that if a patient who has previously attended a dental clinic attends another clinic, his or her file will be transferred to that clinic. Since about 2000 or 2001, the oral health service had implemented ISOH, but it contains no information about patients who used the oral health service before ISOH was established. The oral health service destroys paper medical records in accordance with the State Records Authority General Disposal Authority No 17 (May 2004) titled Public Health Services: Patient/Client Records. That authority requires records relating to the examination, assessment and treatment of patients/clients to be retained for a minimum of 7 years after the last attendance or official contact or access by or on behalf of the patient/client, or until the patient/client attains or would have attained the age of 25 years, whichever is the longer, then destroyed.
11. Ms Phelan considered that any paper medical record of any attendance at the Sutherland clinic by BNQ in or about 1997 had most probably been destroyed, as BNQ did not attend another oral health service clinic until 22 May 2008, more than seven years after 1997. Although the oral health service now keeps an ISOH record of which paper medical records have been destroyed, that was not the case before about June 2014. That amendment to the oral health service's procedures arose as a result of the investigation into BNQ's complaint.

Applicant's case

1. The applicant chose not to give oral evidence and did not file a witness statement. He tendered a handwritten letter dated 11 June 2015 (exhibit A1) setting out his position. It is not easy to read, but it states that in about September 1998 he consulted a dentist at Sydney Dental Hospital for treatment to two of his teeth. He believes the dentist penetrated too deeply into one of the teeth and that the dental hospital x-rayed the wrong teeth. Consequently he had to consult a private dentist.
2. There follows a description of his treatment at Sutherland and Sydney Hospital, a reference to visiting Hurstville clinic and a reference to excessively deep penetration of the tooth. The letter then states that there must be a document recording these matters.
3. At the hearing the applicant said he had left his documents at home, but submitted that because the dentist had penetrated too deeply with the burr, the respondent was unwilling to produce the treatment records and was seeking to cover up the matter. He argued that if the respondent had destroyed the old records as they claimed, he would not have had to keep going to private dentists. They could not have destroyed the documents, otherwise they would not be here today. He also argued that if they had destroyed the documents, they would not have kept going too deeply with the drill. Just as Sydney Dental Hospital had x-rayed the wrong teeth, the respondent was probably lying. He intended to take the matter to the District Court. His records would be in the files at Hurstville, because that was the last place he went to.

Consideration

1. 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.
2. 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.
3. 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.
4. 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.
5. 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].
6. 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.
7. 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].
8. 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.
9. 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].
10. 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.
11. 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.
12. 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.
13. 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.
14. 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).
15. 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.
16. 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".
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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

Amendments 28 July 2015 - Cover page - typo error updated. 20 August 2015 - Typo error 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: 20 August 2015