Broadribb v Medical Council of New South Wales

The Legislation

1. Section 5 of the GIPA Act provides: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
2. Section 10 of the GIPA Act provides: "10 Disclosure and access under other laws (1) This Act is not intended to prevent or discourage the publication or giving of access to government information as permitted or required by or under any other Act or law that enables a member of the public to obtain access to government information. (2) This Act does not affect the operation of any other Act or law that requires government information to be made available to the public or that enables a member of the public to obtain access to government information."
3. Section 14(1) provides: "14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1."
4. Clause 6 of Schedule 1 provides: "6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5."
5. Clause 1 of Schedule 4 provides: "Excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency."
6. Schedule 2 specifies the excluded information of certain agencies which includes the HCC as follows (cl 2): "The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint)."
7. The Council is a "professional council" within the meaning of the HCC Act.
8. Clause 1 of Sch 1 to the GIPA Act provides: "1 Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence: … Health Care Complaints Act 1993"
9. Section 99A of the HCC Act provides: "99A Offence: improper disclosure of information (1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made: (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both. (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act. (3) Subsection (2) does not apply to the following proceedings: (a) proceedings under the Royal Commissions Act 1923, (b) proceedings before the Independent Commission Against Corruption, (c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983, (d) an inquiry under the Ombudsman Act 1974."
10. Section 9 of the HCC Act provides that a complaint may be lodged in writing with the HCCC. Section 10 provides: "10 Notifying professional councils of complaints (1) If a complaint made under this Act to the Commission is made against or directly involves a health practitioner who is or has been a registered health practitioner, the Commission must notify the appropriate professional council of the complaint. (2) The complaint is to be so notified as soon as practicable after it is made."
11. Section 11 provides: "11 Complaints made to professional councils If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission."
12. The Council is established under the Health Practitioner Regulation National Law (NSW) ("the National Law") and has certain functions under that law. Section 144C of the National Law provides that a complaint may be made about a registered medical practitioner to either the Council or the HCCC.

The evidence

1. The respondent relied upon an affidavit of Dr Annette Pantle who is the Medical Director of the Council and is responsible for the oversight of the Council's management of complaints about medical practitioners. Her evidence was not challenged by the applicant.
2. Dr Pantle stated that the applicant made a complaint to the HCCC in November 2013 concerning the Practitioner, who had supervised the preparation of the death certificate prepared on his father's cause of death. This complaint was jointly considered by the Council and the HCCC on or about 13 February 2014 and it was determined that the HCCC would discontinue dealing with the complaint. Section 27 of the HCC Act provides that the HCCC may discontinue dealing with a complaint for a number of specified reasons.
3. On or about 3 March 2015 the applicant made a further complaint ("the Second Complaint") to the Council about the Practitioner and another medical practitioner involved in the treatment of his late father.
4. The Council notified the HCCC of the Second Complaint under s144G of the National Law. The Council and the HCCC jointly considered the Second Complaint at a meeting on or about 26 March 2015. This meeting is said to have taken place in accordance with s 145A of the National Law and s 12 of the HCC Act.
5. Subsequently the HCC sought responses from the practitioners.
6. A response was received on 17 April 2015. The HCCC and the Council consulted about the complaint and determined to discontinue dealing with the Second Complaint.
7. At the applicant's request the HCCC reviewed its decision to discontinue dealing with the Second Complaint. At a meeting on 15 December 2016 the Council and the HCCC determined that the HCCC would refer the complaint to the Council under s25B of the HCC Act. Following receipt of the referred complaint, the Council invited the Practitioner to make additional submissions.
8. On 28 February 2017 the Council's Performance Committee resolved to take no further action on the Second Complaint. The applicant and the practitioner were advised of this outcome. The Council also advised the HCCC of the outcome on 30 March 2017.
9. The applicant requested that the Performance Committee's decision be reviewed. The Performance Committee considered this request on 23 May 2017 and determined that the outcome should remain the same.
10. Concerning the applicant's application under the GIPA Act, Dr Pantle states that having formed the view that a number of the records sought by the applicant were "excluded documents" within the meaning of Sch 2 clause 2, the Council wrote to the Executive Officer of the HCCC on or about 11 July 2017 and asked if the HCCC consented to the release of the information. On or about 20 July 2017 the Executive Officer communicated by email that the HCCC did not consent.
11. The Council also wrote to the Practitioner asking if he consented to the release of the information relating to him to the applicant and the Practitioner advised by email that he did not consent.

The applicant's submissions

1. The grounds on which the applicant relies are stated to be: 1. The respondent's refusal to provide access on the ground that there is an overriding public interest against disclosure, failed to comply with s 61(b) of the GIPA Act by failing to state a material finding of fact and the source of information on which findings are based. 2. The respondent has construed s 61(c) too narrowly in providing the general nature and format of the records held. 3. The respondent has confused "information" with "matter" in determining that there is an overriding public interest against disclosure. "Information" should not include falsehoods, errors, misconceptions or statements falling short of established knowledge. "Matter" which is not "information" may be disclosed. In addition, an argument that disclosure of medical practitioner's information could be reasonably expected to impair the future supply of full and honest response to complaints is spurious because it is an offence for them to provide false and misleading information to the HCCC. 4. The respondent has ignored sub-ss. 99A (1)(b), (c) and (d) of the HCC Act and focused on the lack of consent from the Practitioner.
2. In submissions filed on 6 July 2018 the applicant submitted further: 1. If cl 2 of Sch 2 applies this does not exclude the applicant from gaining access to information if other provisions of the GIPA Act allow disclosure. 2. Clause 1 of Sch 1 does not have the result that any exceptions or qualifications in the HCC Act to the prohibitions on disclosure of information in that Act are null and void. 3. Section 10 of the GIPA Act permits the applicant to gain access to information which is otherwise subject to s 99A. Section 99A of the HCC Act permits disclosure. 4. The applicant seeks the health information of his father and not the personal information of medical practitioners. He should not be refused access because the documents contain some personal information.
3. I will deal with each of these in turn.

The nature of the respondent's determination (Submissions (1) and (2))

1. The applicant complained that the agency's determination: 1. Failed to state a material finding of fact and the source of information on which its findings were based 2. Did not provide the general nature and format of the records held.
2. This Tribunal does not have jurisdiction to deal with any deficiencies in a notice of determination. Its role is to make the correct and preferable decision having regard to the material before it ( s 63(1) Administrative Decisions Review Act 1997 ("the ADR Act")). Accordingly these submissions do not assist the applicant.

Whether "matter" should be distinguished from "information" and alleged falsity of information (Submission 3)

1. The applicant submits that "information" under the GIPA Act should not be treated as including falsehoods, errors, misconceptions or statements falling short of established knowledge. "Matter" which is not "information" may be disclosed.
2. "Government information" is defined in the GIPA Act as "information contained in a record held by an agency." The Act sets out a scheme for the public to gain access to government information, as defined. There is no indication in the GIPA Act that the Legislature intended to distinguish between kinds of government information based on its veracity or content, or that the Tribunal should attempt to determine what information is false, erroneous or misconceived as suggested by the applicant.
3. I understand the applicant to be alleging that some of the information he seeks contains falsehoods. It is not the role of the Tribunal to determine this within its jurisdiction under the GIPA Act and ADR Act.

Whether any of the information is "excluded information" under cl 2 of Sch 2 of the GIPA Act (Submission 5)

1. The onus is upon the respondent to establish that any information it holds is "excluded information". The combined effect of clause 1 of Sch 4 to the GIPA Act and clause 2 of Sch 2 is that information that relates to any complaint handling, investigative, complaints resolution and reporting functions of the HCCC (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint) is excluded information.
2. The words "relates to" should be interpreted broadly to give effect to the purpose of the GIPA Act (Yee v Medical Council of NSW [2017] NSWCATAD 370 at [67-68]).
3. In Sinclair v Psychology Council of NSW [2017] NSWCATAD 8, Perrignon SM held that a direct causal connection between the referral of a complaint by the HCCC under s 25B of the HCC Act to the relevant Council and the request for the document in which the information was contained, meant that the information related to the exercise by the Health Care Complaints Commission of a "function concerning the provision of information to … a professional council … relating to a particular complaint", and therefore, the information was excluded information.
4. Document 3 is an Internal Medical Advice for the Pre-Assessment Committee of the HCCC. The Internal Medical Adviser was requested to review the records and provide a view on the treatment. It is clearly information which relates to the complaint handling and investigative functions of the HCCC.
5. Document 4 is a record relating to the review carried out of the decision of the HCCC to take no further action in relation to the applicant's complaints. Appended to this document is a copy of Documents 2 and 3, another Internal Medical Advice and an email chain. These are in my view all information which relates to the complaint handling and investigative functions of the HCCC.
6. Document 5 is a letter from the Medical Council to the practitioner, advising the practitioner that the HCCC had referred the applicant's complaint to it, outlining the complaint process and inviting a further response. On the authority of the decision in Sinclair, this is information relating to the exercise by the HCCC of a "function concerning the provision of information to … a professional council … relating to a particular complaint", as the referral of the complaint by the HCCC directly led to the letter being created.
7. Document 6 is the response of the practitioner to the Medical Council. For the same reasons as set out for Document 5, this is information relating to the exercise by the HCCC of a "function concerning the provision of information to … a professional council … relating to a particular complaint".
8. Document 8 was the Medical Council Performance Committee meeting minutes of 28 February 2017, with attachments. The Medical Council Performance Committee meeting on that date followed receipt of the Second Complaint from the HCCC and resolved to take no further action on the Second Complaint. Accordingly its minutes and attachments were information relating to the exercise by the HCCC of a "function concerning the provision of information to … a professional council … relating to a particular complaint". Nevertheless I will also consider each attachment individually.
9. Attachment 1 to Document 8 is the s 28 Review of Assessment Decision dated 8 December 2016. Under s 28(9) the HCCC may review a decision made after assessing a complaint if requested to do so by the complainant, and must do so if the request is made within 28 days after the complainant is notified of the decision. This is clearly information which relates to the complaint handling and investigative functions of the HCCC.
10. Attachment 3 is a file note of a Council staff member. As described in the respondent's submissions, it "concerns whether certain documents were to be provided to the practitioner for the purpose of providing his response and to the Performance Committee of the Council for considering the complaint. The referral of the complaint by the HCCC directly led to the file note being created for the administration of the complaint, and therefore, for the same reasons as set out for Document 5, this is information relating to the exercise by the HCCC of a "function concerning the provision of information to … a professional council … relating to a particular complaint".
11. Attachment 4 is the response to the HCCC from the Practitioner via his legal representatives dated 17 April 2015. This is information which relates to the complaint handling, investigative, and complaints resolution functions of the HCCC.
12. Attachment 5 is the HCCC internal medical advice dated 11 May 2015. For the same reasons as applied to Document 3, this is information which relates to the complaint handling and investigative functions of the HCCC.
13. Attachment 6 is a response from the Practitioner to the Medical Council of NSW via his legal representatives dated 8 February 2017. For the same reasons as set out for Documents 5 and 6, this is information relating to the exercise following a referral from the HCCC of a "function concerning the provision of information to … a professional council … relating to a particular complaint".
14. Attachment 7 is comprised of medical records of the applicant's late father. The respondent states that these were obtained by the HCCC and provided to the Council when the complaint was referred. As the attachment was provided to the Council by the HCC because it referred the complaint, it relates to a function concerning the provision of information to a professional council (within the meaning of the HCC Act) relating to a particular complaint and is therefore excluded information.
15. Attachment 10 is the applicant's own document, being his letter to the Medical Council dated 21 February 2017. This document does relate to a function concerning the provision of information to a professional council (within the meaning of the HCC Act) relating to a particular complaint and is therefore excluded information
16. Document 14 is the Medical Council Performance meeting Minutes dated 23 May 2017 with attachments. The attachments in issue are 4, 6, 7 , 8 and 10-14.
17. The following attachments to Document 14 are the same as documents referred to above which are attached to Document 8 and therefore I apply the same findings to the following documents : 1. Attachment 4 is the same as attachment 1 to Document 8; 2. Attachment 6 is the same as Attachment 4 to Document 8; 3. Attachment 7 is the same as Attachment 5 to document 8; 4. Attachment 10 is the same as Attachment 6 to Document 8; 5. Attachment 11 is the same as Attachment 3 to Document 8; 6. Attachment 12 is the same as Attachment 10 to Document 8; and 7. Attachment 13 is the same as Attachment 7 to Document 8.
18. Attachment 8 is the response from the Practitioner to the HCCC dated 16 November 2016. This is information which relates to the complaint handling, investigative, and complaints resolution functions of the HCCC.
19. Attachment 14 is a letter to the applicant on the outcome from the Medical Council dated 24 March 2017. This is information which relates to the complaint handling, investigative, and complaints resolution functions of the HCCC.
20. Accordingly I am satisfied that there are sufficient grounds for finding that the information which remains in issue is "excluded information" and there is a conclusive presumption that there is an overriding public interest against its disclosure. The applicant submits that this does not prevent disclosure under other provisions of the GIPA Act. This is not correct. If an overriding public interest against disclosure of certain government information is established on any ground, no other provisions of the GIPA Act facilitate disclosure of that information. Having made this finding, strictly it is unnecessary for me to determine the remaining issues, but I have decided that it may be beneficial in this case to make some comments on them.

Whether s99A permits disclosure of the information (Submissions 4 and 6)

1. The effect of cl 1 of Sch 1 to the GIPA Act is that it is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by the HCC Act. That is the case whether or not any exceptions or qualifications apply to the prohibition and whether or not a breach of the prohibition constitutes an offence.
2. Section 99A makes it an offence to disclose information obtained in exercising a function under this Act if the disclosure is not made: 1. with the consent of the person to whom the information relates, or 2. in connection with the execution and administration of the Act, or 3. for the purposes of any legal proceedings arising out of the Act or of any report of any such proceedings, or 4. with other lawful excuse.
3. In Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130, at [59] the Tribunal held that the words "the person to whom the information relates" in s 99A(1)(a) are to be given the widest import and should not be read down: see also DF v Director General, Attorney Generals Department [2002] NSWADT 164. In that case, it included persons who had given information to an investigation.
4. The applicant submits: "….it is the view of Senior Member Montgomery that 99A(1)(a) permits disclosure if consent is given. This gives further support to the Applicant's interpretation that Schedule 1 clause 1 of the GIPA Act does not negate the exemptions of s99A(1) that permit access to information."
5. It is true that s 99A(1) (a) on its own permits disclosure in certain circumstances which are outside of the GIPA Act. However when being considered in relation to cl 1 of Sch 1 of the GIPA Act, the exceptions in s 99A are not relevant. As noted by Senior Member Higgins in Whyte v Medical Council of NSW [2014] NSWCATAD 190 at [40], the mechanisms for disclosure of information under sections 99A and 99B of the HCCC are entirely within the discretion of the HCCC and the manner in which it exercises that discretion is not reviewable by the Tribunal.
6. The respondent submits that the information is subject to a conclusive presumption that there is an overriding public interest against disclosure because of the combined effect of cl 1 of Sch 1, and s 99A of the HCC Act.
7. Section 99A applies to information obtained in exercising a function under the HCC Act. The qualifications and exceptions in s 99A are not relevant in this situation (cl 1 of Sch 1). The Macquarie Dictionary defines "obtain" as: "1. To come into possession of, get or acquire; procure, as by effort or request."
8. In my view, information which was created by the HCC or the Medical Council is not the same as information obtained by it. The documents listed above, in my view, can be divided into documents obtained by the HCCC or Medical Council in exercising a function under the HCC Act and those which were created by those bodies. Those documents which were created by the HCC or Medical Council contain numerous instances of information which was obtained by either body in exercising a function under the HCC Act, and accordingly they are also subject to a conclusive presumption that there is an overriding public interest against disclosure because of the combined effect of cl 1 of Sch 1, and s 99A of the HCC Act.

Section 10 of the GIPA Act (Submission (7))

1. Section 10 permits the disclosure of documents under other laws, where those laws so provide. It is not relevant to an application for access to information under the GIPA Act.

"Health information" should be disclosed (Submission (8))

1. The respondent submits that the Tribunal should examine whether some of the information in the records is "health information" rather than "personal information." This is not part of the Tribunal's function. The GIPA Act does not distinguish between "health information" and "personal information". The definitions he relies upon are drawn from separate legislation and are not relevant to review of his application under the GIPA Act.

Conclusions

1. On the basis of my findings above, I am satisfied that the respondent's decision was the correct and preferable decision and should be affirmed.

Orders 1. The decision under review is affirmed.

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 13 September 2018 - case name corrected representation corrected 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: 13 September 2018