BQO v Western NSW Local Health District

The alleged conduct

1. The Internal Review application of 21 May 2014 stated the following conduct subject of the review: 'Misleading False Information Placed in File'.
2. As a description of the conduct the applicant nominated: the possible concerns with the collection of her personal or health information, actual concerns with the security and storage of her personal and health information, the possible use of her personal or health information, as well as specific concerns about the accuracy of her personal or health information.
3. Paragraphs 5 and 6 above provide a summary of the actual conduct whereas paragraph 18 provides the relevant privacy provisions that the applicant says the respondent breached. Based on the history of when the conduct occurred, when the conduct became known to the applicant, and finally when she became aware that the conduct was arguably a breach of her privacy rights, the internal review was accepted by the respondent. As a result there is no argument as to jurisdiction or the matter being out of time.

The relevant legislation

1. The HRIP Act provides the following relevant HPP's: No's 1, 2, 5, 8, 10 and 11.
2. HPP 1 is titled Purposes of collection of health information: (1) An organisation must not collect health information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the organisation, and (b) the collection of the information is reasonably necessary for that purpose. (2) An organisation must not collect health information by any unlawful means.
3. HPP 2 is titled Information must be relevant, not excessive, accurate and not intrusive. An organisation that collects health information from an individual must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that: (a) the information collected is relevant to that purpose, is not excessive and is accurate, up to date and complete, and (b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.
4. HPP 5 is titled Retention and security (1) An organisation that holds health information must ensure that: (a) the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and (b) the information is disposed of securely and in accordance with any requirements for the retention and disposal of health information, and (c) the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and (d) if it is necessary for the information to be given to a person in connection with the provision of a service to the organisation, everything reasonably within the power of the organisation is done to prevent unauthorised use or disclosure of the information. Note. Division 2 (Retention of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause. (2) An organisation is not required to comply with a requirement of this clause if: (a) the organisation is lawfully authorised or required not to comply with it, 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). (3) An investigative agency is not required to comply with subclause (1) (a).
5. HPP 10 is titled Limits on use of health information (1) An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless: (a) Consent the individual to whom the information relates has consented to the use of the information for that secondary purpose, or (b) Direct relation the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to use the information for the secondary purpose, or Note. For example, if information is collected in order to provide a health service to the individual, the use of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose. (c) Serious threat to health or welfare the use of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent: (i) a serious and imminent threat to the life, health or safety of the individual or another person, or (ii) a serious threat to public health or public safety, or (c1) Genetic information the information is genetic information and the use of the information for the secondary purpose: (i) is reasonably believed by the organisation to be necessary to lessen or prevent a serious threat to the life, health or safety (whether or not the threat is imminent) of a genetic relative of the individual to whom the genetic information relates, and (ii) is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (d) Management of health services the use of the information for the secondary purpose is reasonably necessary for the funding, management, planning or evaluation of health services and: (i) either: (A) that purpose cannot be served by the use of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the use, or (B) reasonable steps are taken to de-identify the information, and (ii) if the information is in a form that could reasonably be expected to identify individuals, the information is not published in a generally available publication, and (iii) the use of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or ( (1) (e) - (5) of HPP 10 not reproduced)
6. HPP 11 is titled Limits on disclosure of health information (1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless: (a) Consent the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or (b) Direct relation the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or Note. For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose. (c) Serious threat to health or welfare the disclosure of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent: (i) a serious and imminent threat to the life, health or safety of the individual or another person, or (ii) a serious threat to public health or public safety, or (c1) Genetic information the information is genetic information and the disclosure of the information for the secondary purpose: (i) is to a genetic relative of the individual to whom the genetic information relates, and (ii) is reasonably believed by the organisation to be necessary to lessen or prevent a serious threat to the life, health or safety (whether or not the threat is imminent) of a genetic relative of the individual to whom the genetic information relates, and (iii) is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (d) Management of health services the disclosure of the information for the secondary purpose is reasonably necessary for the funding, management, planning or evaluation of health services and: (i) either: (A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or (B) reasonable steps are taken to de-identify the information, and (ii) if the information could reasonably be expected to identify individuals, the information is not published in a generally available publication, and (iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or ( (1) (e) - (6) of HPP 11 not reproduced)
7. It is important to note that the HPP's provide for use of health information for the primary purpose, and not for a secondary purpose, unless the specific secondary context as set out in the relevant HPP's are met.

Applicant's Evidence

1. The applicant's evidence consisted of two sworn written statements in the form of statutory declarations, one by the applicant and one by a witness 'N.M.' The applicant gave oral evidence during the hearing. In addition there were detailed written submissions prepared and tendered (without objection) by the applicant. The written material accompanying the submissions was by way of medical records, including clinical documentation as well as reproductions of medical images.
2. The applicant's written evidence was that she started developing severe physical symptoms whilst driving in Orange NSW on 22 June 2009. As the health facility 'Bloomfield' was nearby the applicant decided that she would call in there to ensure that she was fit to drive back to her own town. When she arrived she was asked to wait in reception as they were busy. At 11:00am a Doctor spoke to the applicant briefly, took a brief history and excused himself and had a nurse check on the applicant. This evidence is contained in the statutory declaration of 23 June 2015. However in the written material lodged with the application for administrative review on 14 December 2014, the applicant does not refer to any matters on 22 June 2009, but commences with the contact on 14 July 2009, 15 July 2009 and the assessment on 31 July 2009. In addition there are references to a further clinical profile dated 4 August 2009.
3. In respect of the 13 July 2009 contact, the applicant's evidence was that she attended on the Canowindra Community Health Centre to apply for transport assistance and home help. The applicant's evidence was that she attended the health centre after an earlier visit to her General Practitioner (GP) who suggested that she obtain some transport and domestic assistance as a result of her debilitating back condition. Specifically assistance for transport to the location where an x-ray referral could be performed.
4. Importantly her evidence was that the witness, 'N.M.' drove the applicant to the GP and the Community Health Centre on 13 July 2009. 'N.M.'s evidence in his statutory declaration dated 13 March 2015 is that the attendance on the GP was around midday. A short time later the applicant left the GP's room and the witness drove her to the Community Health Centre in Ryall Street Canowindra. After the applicant was at the Centre for a short time, the witness drove her to her residence. The witness then states that he discussed the need for the applicant to make the appointment with the Health Centre and insisted that she call 'A.B.' (the respondent's employee) from his own mobile phone, which she did.
5. The applicant stated in her oral evidence that anyone reading her medical file will think that she needs mental health services, not physiotherapy and orthopaedic treatment.

The Witness 'N.M.'s evidence

1. N.M.'s Statutory Declaration of 13 March 2015 provides evidence consistent with that set out in the paragraph above in respect of 13 July 2009. The evidence concerning 31 July 2009 is that he escorted the applicant inside the Gumbuya Centre and waited for the applicant's appointment with 'A.B.' at 1:30pm. 'N.M.' provides evidence that 'A.B.' advised the applicant that she had an appointment with Dr Lumley, and this was queried by the applicant because she was only attending in respect of her transport and home help needs. 'A.B.' advised that she would not help the applicant unless she was first assessed and as a result they went into Dr Lumley's office. The witness waited outside at the Doctor's request.
2. 'N.M.'s' evidence is that a short time later the applicant left the Doctor's office and he drove the applicant home.

Respondent's Evidence

1. The respondent's evidence consisted of an affidavit of 'A.B.' sworn 20 April 2015, in addition to oral evidence given at the hearing by 'A.B.'. The respondent also filed section 58 documents which amongst other records relating to the review, contained the actual clinical documents at the centre of the dispute ventilated in these proceedings.
2. In addition there were detailed written submissions filed in addition to further written submissions in reply.
3. 'A.B.'s evidence in her affidavit sets out her qualifications and relevant occupational experience. Her evidence is that in 2009 she was the Mental Health Nurse based in Cowra. As such she has knowledge of other mental health facilities and services based in the region. 'A.B.' provides evidence about the Mental Health Line, how it operates including the questions and information concerning mental health, drug and alcohol use that are sought and answers recorded.
4. 'A.B.'s evidence also included an overview of the "Mental Health Outcomes and Assessment Tool", which to an extent dictates the types of questions the clinician will ask of the individual.
5. 'A.B.'s evidence continued that following the call on 22 June 2009, as no action had been taken (as the call was from Orange but the applicant resides in Canowindra), that the matter was sent to 'A.B.' for follow up and an appointment was made for the applicant to see the Cowra Community Mental Health Services. The reason given for a Cowra rather than Candowindra appointment was that 'A.B.'s evidence was that the applicant needed to see a psychiatrist, and the local psychiatrist did not travel to Candowindra.
6. 'A.B.'s evidence continues with the mental health assessment and provision of mental health services to the patient (the applicant).
7. In oral evidence 'A.B.' recounted consistently her view that she had involvement with the applicant for the purpose of providing medical services in the nature of mental health services. The witness rebutted various aspects of the applicant's case, and was asked in cross examination by the applicant's Agent, a number of questions concerning her role in the events in dispute.
8. 'A.B.' advised that she would have obtained information directly from a client or from another clinician or another service referral. Her evidence was that she does not make appointments without some type of prior consultation regarding an appointment. 'A.B.'s evidence was that she received a 'Triage' from the Curran Centre which had received it because of a call by the applicant to the 1800 telephone number.
9. 'A.B.' denied under cross examination that she had stated that she would not help the applicant in any way until such time as the applicant was assessed. As she was a medical person dealing with mental state examinations, she would not focus on any physical issues, and would only note relevant physical issues such as the presence of scars, piercings, general appearance / demeanour as it would relate to mental well-being. 'A.B.'s evidence was that she had no recollection of observing any physical disability of the applicant.

Consideration

1. There is a clear dispute between the evidence of the parties. The respondent has characterised this in their submissions as a factual dispute. The respondent submits that the Tribunal should be satisfied on the evidence and material before it that the services were provided by the health staff as an appropriate response to the contact that the applicant made with the agency in 2009.
2. The applicant maintains that she was seeking services in the nature of transport and care needs allied with ongoing medical treatment for a chronic debilitating physical (spinal) condition. The collection of information and the management of services related to a mental health assessment and potential treatment are in the applicant's view both unwarranted and inappropriate.
3. Whilst both parties have provided documentary material in evidence, due to the nature of the respondent's material (including clinical records, medical notes and forms), their written material in part corroborates the version of events given in evidence by 'A.B.'.
4. Whilst the applicant has provided a witness, that witness ('N.M.') was not required for examination and as such has only provided a sworn statement. That statement does no go to the essence of the factual dispute in these proceedings, that is, what was the nature of services being sought and therefore the basis of the services being provided and information collected. It may be that even if the witness was available he may not have been privy to the matters that transpired between the parties during the attendances for which he had some involvement. However his evidence goes some way to establishing that the parties may have been at 'cross purposes' early in the interchanges.
5. The witness 'N.M.' states in his statutory declaration of 13 March 2015 that: 'A woman who introduced herself as 'A' then approached (the applicant) and I and told (the applicant) that she had an appointment with Dr 'L'. (The applicant) questioned the need for this since she was there only for transport and Home Help.'
6. As the evidence above relates to matters on 31 July 2009, it would appear that the respondent was already someway down or through a process relating to a mental health assessment of the applicant, and this was therefore their paramount consideration in their dealings with the applicant including in respect of the provision of any services or assistance.
7. The respondent's evidence is consistent with their understanding of the nature of the engagement and interaction with the applicant. The contentious medical records by their nature and content (whilst of concern to the applicant), confirm the respondent's current 2015 evidence in a 2009 context, being when they were created some six years prior.
8. Whilst the applicant's documentary evidence (including phone and other records) assists some technical issues raised by the applicant, in my view they do little to disassemble what the respondent has maintained was both the conduct that the respondent engaged in, and the basis for that conduct.
9. Privacy reviews essentially go to allegations of conduct, and whether such conduct amounts to a breach of an IPP, or a HPP in the absence of any lawful exemption. This is further outlined at paragraph 16 (above).
10. I have considered all of the evidence and submission filed by the parties even if I have not referred to it specifically in these reasons. In my view the evidence before the Tribunal, in its totality, does not establish conduct which can be shown to the requisite standard, was against the express wishes of the applicant, and therefore amount to a collection and use of personal and health information without her consent.
11. On the contrary, in my view the evidence of both parties indicates that there was a clear misunderstanding as to what type of service or assistance was being sought, and as a result the nature of the service / assistance that was provided. This is an unfortunate state of affairs on the whole, but in particular for the applicant.
12. It is clear that the ensuing creation of significant medical records in the nature of mental health assessment and treatment, is a matter which in the relevant context has caused the applicant great distress. In that regard I note that in the course of the internal review and these proceedings the respondent has offered for the applicant to place her own document(s) on her file by way of an addendum to, in effect, show the context that these records were created, and her view on the facts and circumstances of that context.
13. The applicant has requested that contentious records be removed and replaced with her addendum documents. The case of TB v South Eastern Sydney Illawarra Health Service [2011] NSWADT 165 dealt in part with the issue of when addendum and deletion was appropriate. In that case the inclusion of an administrative piece of information (contact details and name of next of kin) were sought to be removed by the applicant from the medical record of her mother, as on her evidence they were erroneous. That argument was resisted by the respondent as health policy deemed that medical records could not be deleted as to do so would compromise the continuing record of care (however erroneous). In that case NSW Health policy was in part relied upon for the respondent's refusal to delete the record. That policy did not seem to contemplate the full import of HPP 8 in that the relevant HPP provided that health records could be deleted.
14. At paragraphs 66 to 76 Judicial Member Montgomery stated that: 66.I accept TB's argument that in its present form the information in TB's ASET Form implies that TB consents to the Respondent contacting any of her children in relation to her future health care if TB's daughter is unavailable. That is not the case. It is clear from the totality of the material before me that TB's intention is that the Respondent should contact TB's daughter in relation to TB's future health care. If TB's daughter is unavailable, the Respondent should not contact TB's other children. 67.I do not understand the Respondent to be disputing that that is TB's intention. As I understand it, the Respondent contends that it is prohibited from destroying TB's ASET Form. For the reasons argued by TB, I do not agree with that view. 68.Section 20 of the HRIPA provides that the Respondent is required to comply with HPP 8. HPP 8(1) applies to the Respondent despite the provisions of the SRA and MPR. 69.I accept that it is important for the Respondent to retain 'Records' and that 'Records' are not deleted so that there will be an historical account of events. That may be important in a number of situations, for example to show if mistakes have been made. However, for the reason argued on behalf of TB I do not agree that the information that is in dispute is a 'Record' as defined in section 3 of the MPR. In my view, the information is administrative in nature. Accordingly, clause 4 of Schedule 1 does not prohibit the Respondent from deleting details of TB's family members from its records. 70.HPP 8 is a beneficial provision. The legislative intent is that it be construed for the benefit of individuals. Pursuant to HPP 8(1) the Respondent must make appropriate amendments to ensure that TB's health information is accurate, relevant, complete and not misleading. In my view there is no overriding legislation that prevents the Respondent taking steps to do so by deleting details of TB's family members from its records. Where the Respondent's internal policies conflict with the applicable legislation, the policies cannot override the legislation. 71.It follows, in my view, that the legislation permits the amendment of TB's health information by the destruction of TB's ASET Form. 72.I accept that the Respondent did attempt to make appropriate amendments in compliance with HPP 8(1) in answer to TB's request. However, in the circumstances it is my view that the amendments were not adequate. The Respondent breached HPP 8 by refusing to make appropriate amendments. 73.I agree that the inclusion of TB's son's details on TB's ASET Form could result in the Respondent contacting TB's son in relation to TB's future health care. It is possibly that, in an emergency, the Respondent's staff would remove the staples attaching TB's ASET Form to TB's second ASET Form to access the contact details. This is clearly contrary to TB's wishes and should not be permitted. It can be prevented by either deleting details of TB's family members from TB's ASET Form or the destruction of TB's ASET Form. In my view, the destruction of TB's ASET Form would remove any possibility of contacting TB's son or TB's other children in relation to her future health care. 74.The retention of TB's second ASET Form should adequately address the Respondent's need for the information to which the form is directed. 75.I accept that the Respondent's argument that TB's Clinical Form accurately records that an employed doctor of the hospital had a conversation with TB's son. I also accept that there is no evidence in regard to whether or not TB's son instigated that conversation. 76.However, I accept that the inclusion of TB's son's details on TB's Clinical Form could possibly result in the Respondent's staff contacting TB's son in relation to TB's future health care. For that reason, it is appropriate that those details be deleted. This can be achieved by obliterating those details so that they cannot be read.
15. The current case is in my view significantly different on the facts to the case of 'TB'. In my view there is no provision for the deletion of the relevant medical records on the basis of any finding as to whether there was or was not a breach of an IPP of HPP. This is a matter where the contentious records relate not to administrative material which has been shown to be erroneous, but to records which fall within the scope of continuing record of care documents. For that reason in my view the deletion provision of HPP 8 is in the current case inappropriate, and the records should (subject to the applicant's agreement) contain the proposed addendum. This finding persists irrespective of any breach of the IPP's or HPP's on these facts.
16. In respect of whether there has been any breach of an IPP or HPP on the evidence and material before me, for the reasons outlined above and considered in paragraphs 49, 51 and 52 (above), a breach of an IPP or HPP has not been established.
17. I note that the oral evidence which was before the Tribunal was predominantly in relation to matters that occurred over 5 years prior. This is not a criticism of the parties but indicates that the recollection of matters can become less clear and reliable with the passage of time, let alone matters were the parties (at the time) were apparently acting at cross purposes.

Conclusion

1. As there has been no breach of a IPP or HPP established after considering the evidence and submissions, the appropriate order to make will be in the nature of section 55 (2) of the PPIP Act. That is to take no further action on the matter.
2. However, I would encourage the parties to work together to facilitate the placing of the addendum material on the applicant's file, if she so desires, having regard to these reasons.

Orders 1. Pursuant to section 55 (2) of the Privacy and Personal Information Protection Act 1998, the correct and preferable decision is for the Tribunal to not 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

Amendments 20 January 2016 - Typographical 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 January 2016