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[2022] VCAT 34
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2022-01-17
Original judgment source is linked above.
Health Records Act 2001, section 74, what constitutes the referred complaint - Health Records Act 2001 sections 80 and 82; Charter of Human Rights and Responsibilities Act 2006; Victorian Civil and Administrative Tribunal Act 1998 section 75
Bruce v Victorian Workcover Authority (WorkSafe) (Human Rights) [2022] VCAT 34
1 The Complainant's application to amend his complaint is dismissed.
2 VCAT's jurisdiction is limited to the complaint that was referred to it from the Health Complaints Commissioner, that is the complaint that there was a breach of the Health Records Act 2001 and specifically a breach of Health Privacy Principle 1. Those aspects of the particulars of complaint that relate to matters beyond the complaint that was referred from the Health Complaints Commissioner are struck out.
3 VCAT does not have jurisdiction to determine offences under the Health Records Act 2001. Those aspects of the particulars of complaint that relate to alleged breaches of offence provisions in the Health Records Act 2001 are struck out.
4 The claim about an alleged breach of the Charter of Human Rights and Responsibilities Act 2006 will proceed to hearing.
5 A hearing will be listed for one day, before any Member of VCAT.
1 In December 2020, Duncan Bruce complained to the Health Complaints Commissioner (the Commissioner) about his health records. The Commissioner conducted a preliminary assessment of the complaint, and declined to further entertain it, on the basis that the Commissioner did not consider that the complaint could be conciliated successfully. Mr Bruce then exercised his right to have the complaint referred to the Victorian Civil and Administrative Tribunal (VCAT).
2 At the hearing, the Victorian Workcover Authority (WorkSafe) raised issues as to the scope of the matter before VCAT, that is - raised issues about VCAT's jurisdiction to hear some aspects of the complaint as it is articulated in the particulars of complaint.
3 In summary and set out here in a limited way for the purposes of this hearing as to jurisdiction, Mr Bruce claimed in his particulars of complaint that WorkSafe had breached the Health Records Act 2001 (HR Act) and in particular Health Privacy Principles (HPP) 1.1, 1.2, 1.3, 1.4, 1.5, 2.1 and 2.2. He also asserted that WorkSafe had breached sections 80 and 82 of the HR Act, and that it had unlawfully interfered with his right to privacy under section 13 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter).
5 Mr Bruce and WorkSafe both agreed that it would be preferable for these jurisdictional questions to be resolved before the matter proceeds to a final hearing. I heard from both parties as to the jurisdictional questions and reserved my decision as to them.
6 Counsel for WorkSafe submitted that Mr Bruce's complaint to the Commissioner referred only to HPP 1, relating to collection of health information, and made no reference to HPP 2, which relates to use and disclosure of health information. The Commissioner did not consider any complaint about use or disclosure of health information, and the complaint that was referred to VCAT contained no reference to use or disclosure. Therefore, VCAT had no jurisdiction to consider whether there had been any breach of HPP 2. Counsel referred to several cases that had confirmed that VCAT did not have jurisdiction to hear a complaint that had not been referred to it by the Health Complaints Commissioner (or another Commissioner in circumstances where the process for referral to VCAT is or was the same). I will refer to these cases below.
7 Mr Bruce submitted that VCAT did have jurisdiction to consider this aspect of the claim. He said that the original complaint was about collection, use and disclosure, and that breaches of HPP 2 were squarely before VCAT, as were breaches of HPP 1. He said that in a telephone conversation with the Commissioner he had outlined the whole situation, including not only his concerns about how his health information was collected, but also about the use to which that information was put. All elements of the complaint - collection, use and disclosure, were inextricably linked. Mr Bruce referred to the case of Youd Homes v Milford Hall Pty Ltd & Anor[1], noting that Deputy President McKenzie said that there are some cases where VCAT has allowed a complaint to be amended, in circumstances where allegations can be extrapolated from the original complaint.
8 Mr Bruce submitted that his complaint about use and disclosure could be extrapolated from the original complaint, and that he had sought leave to amend his complaint.
9 It is essential, therefore, to closely consider the complaint and the referral.
10 On 15 December 2020, Mr Bruce emailed the Commissioner stating that:
On multiple occasions during my employment at the Victorian Workcover Authority the organisation requested and pressured me to sign over access to my medical records.
On all occasions I refused their requests to provide consent.
On the 9th July 2019 my employer the Victorian Workcover Authority (WorkSafe) contacted my treating practitioner directly without my knowledge or consent.
I have never made a Workcover claim or ever provided notice written or verbal for them to breach my privacy by contacting my doctor in regards to my health.
Attached is the correspondence sent to my doctor and also the unsigned consent form which they have sent me on multiple occasions.
I request that this issue be escalated and thoroughly investigated and written assessment be provided to me.
11 On 12 January 2021, the Commissioner wrote to WorkSafe, setting out the complaint and seeking a response. In that letter the Commissioner wrote as follows:
He was employed by the Victorian Workcover Authority (WorkSafe)
WorkSafe sought his consent on multiple occasions to obtain his health information, which he refused to provide.
On 9 July 2019, WorkSafe wrote to his GP, Dr Isaac, seeking health information related to his ability to perform his work duties and his fitness for an independent psychiatric examination.
He was unaware that this information had been collected by WorkSafe and did not consent to the collection.
The complaint falls within Health Privacy Principle (HPP) 1 of the HR Act.
12 The letter then provided information about HPP 1, noting that it sets out the circumstances in which health information can be collected. A copy of HPP 1 was enclosed. The letter then noted that:
Mr Bruce alleges information was collected by WorkSafe from his GP without his consent or knowledge, and that there was no legal basis for the collection of his health information.
13 The HR Act sets out a procedure for complaints about health information. A complaint is first made to the Commissioner and only if the Complainant is dissatisfied with the result at the Commissioner, can the Complainant then ask for the complaint to be referred to VCAT[2].
14 On 26 February 2021, the Commissioner issued a notice under section 56(1)(c) of the HR Act, declining to further entertain the complaint on the basis that it could not be conciliated successfully. The notice restated the description of the complaint in the same terms as the 12 January 2021 letter, and restated that it was a complaint that fell within HPP 1. The notice set out the scope of HPP 1, and concluded in summary that:
The complainant states information was collected by WorkSafe from his GP without his consent or knowledge, and that there was no legal basis for the collection of his health information.
15 VCAT's jurisdiction is set out in section 74 of the HR Act. Relevantly, the section provides:
(1) The Tribunal may hear a complaint-
(a) referred to it by the Health Services Commission under sections 51, 57, 63 or 65;
16 The referral in this matter was made under section 65 of the HR Act.
17 VCAT's jurisdiction is derived wholly from statute.[3] VCAT does not have jurisdiction unless that jurisdiction is conferred on it by an enabling enactment.[4] In this case, that is the HR Act. Other legislation contains clauses similar to section 74(1) of the HR Act, limiting VCAT's jurisdiction to matters referred to it, for example section 73 of the Privacy and Data Protection Act 2014 (PDP Act) and section 134 of the former Equal Opportunity Act 1995. The Equal Opportunity Act 1995 is now repealed, but some of the cases I will refer to relate to that Act.
18 In Kay v Bracks[5], Judge Davey said:
Section 124 of the EO Act gives the Tribunal jurisdiction to hear a complaint which is referred to it by the Commission under s108, 113, 117 or 123. It has no jurisdiction to hear a complaint unless it has already been referred to the Commission save for a complaint referred to it by the Minister under s111. Accordingly although the Tribunal has a general power of amendment under s127 of the VCAT Act because it is subordinate to the enabling legislation (s159 of the VCAT Act) it cannot amend a complaint so as to introduce a fresh complaint which has not been the subject of a complaint to the Commission.[6]
19 In Juracevic v Director, Transport Safety Victoria[7], the Tribunal considered the provision in the Information Privacy Act 2000 (which is now replaced by the PDP Act) that is the same as section 74 of the HR Act, and said at paragraph 67 that:
... it is clear that the Tribunal may only hear complaints which are referred to it in this manner, and also that the Tribunal may only hear 'a Complaint' which has already been considered by the Privacy Commissioner, and dealt with by any of the means set out in s 39 as set out above. Thus, the substance of the complaint to be considered by the Tribunal must be identical to that considered by the Privacy Commissioner.
20 Youd Homes v Milford Hall Pty Ltd & Anor[8] was a case brought under the Equal Opportunity Act 1995 where the Applicant sought leave to amend her particulars of complaint. Under that (now repealed) Act, complaints were referred to VCAT in a similar way to referrals under the HR Act. Deputy President McKenzie refused the application to amend, stating that:
The power to amend documents given to VCAT must be read in the light of the enabling enactment which confers jurisdiction on the Tribunal in the anti-discrimination area. That enactment is the Equal Opportunity Act. The implication of the scheme of that Act on that power of amendment of documents, is that a fresh series of allegations which are not in the original complaint, and cannot in some way be extrapolated from it, ought not to be brought in by amendment at the VCAT stage, but ought properly to be the subject of a fresh complaint.
There are some cases where the Tribunal has allowed a complaint to be amended and further particulars to be filed, where it is simply a question of re-characterising in some legal way, facts that are already in the original complaint, or where the original complaint contains an allegation of a continuing pattern of contravention... and all that is being done is to add to that pattern.
21 From a close examination of the documents sent to and from the Commissioner, I conclude that the complaint was one about a breach of HPP 1, about collection of health information. I do so giving the broadest possible interpretation to the words in the documents and to section 74 of the HR Act, understanding that most people who make complaints to the Commissioner are not legally trained or represented. In this case, it is clear on the face of the documents that what the Commissioner considered was a complaint about the collection of health records, and that is what was referred.
22 Mr Bruce submitted that his concerns about the use to which the health information may have been put could have been extrapolated from the documented complaint, and while I understand what Mr Bruce is saying, I do not accept that this is the case. All of the documentation, including Mr Bruce's email to the Commissioner, refers to the collection of the health information, that is the contact by WorkSafe with Mr Bruce's doctor and the request for health information, in circumstances where Mr Bruce says he did not give consent. There is no reference to the use or disclosure of this material.
23 Mr Bruce also said that he had told the Commissioner the whole story in a telephone discussion. He submitted that the Commissioner had therefore heard his concerns about use and disclosure of the material, and if they did not include it in the documents that was their mistake. I refer to ZPG v Monash Health[9] in which the Tribunal said:
In summary, this Tribunal has no jurisdiction to consider whether the HSC responded correctly to ZGP's complaint or whether its understanding of it was not in accord with the complainant's own view of it. The result of the legislation and the numerous cases on the point is that this Tribunal can only entertain the complaint referred to it and that the only permissible amendment to that complaint needs to fall within the exception characterised by Deputy President McKenzie in Youd.
24 I do not consider that it is open to me to go behind the documents that comprise the complaint and the referral, and attempt to read into them a different or additional complaint.
Sections 80 and 82 of the HR Act - offence provisions
25 VCAT does not have jurisdiction with respect to these provisions. The jurisdiction of VCAT is set out in Division 6 of Part 6 of the HR Act, and in section 74 in particular. VCAT has no power to make orders under section 80 or 82.
26 Mr Bruce accepted that VCAT could not make orders under section 80 or 82, but submitted that it was still open to VCAT to make findings about whether or not the conduct of WorkSafe amounted to a breach of these sections. I do not agree. There is no legislative basis for VCAT to be making findings about alleged breaches of these offence provisions, and to do so would be beyond jurisdiction.
27 The particulars of complaint referred to the Charter at paragraphs 23, alleging that WorkSafe breached Mr Bruce's right to privacy under the Charter.
If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
29 In Goode v Common Equity Housing[10], Justice Bell made it clear that, in respect of an act or decision of a public authority such as the Commissioner, where an Applicant or Complainant may seek relief or remedy for unlawfulness under one statute (such as the HR Act) then a claim for relief or remedy for unlawfulness may also be made under the Charter.
30 At this stage, the claim under the Charter remains before VCAT. This will be a matter to be determined at the hearing.
31 To the extent set out above, I have found that VCAT does not have jurisdiction to deal with some of allegations set out in the particulars of complaint. Those particulars of the complaint that go beyond the jurisdiction of VCAT are misconceived and therefore must be struck out under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.
32 Otherwise, the matter will now proceed to a hearing, before any Member of VCAT.
[2] This procedure is set out in Divisions 2, 3 and 4 of Part 6 of the Health Records Act 2001.
[3] Director of Housing v Sudi (2011) 3 VR 559.
[4] Hamilton v Russell Kennedy Pty Ltd (No 3) [2012] VSC 189 [36].
[6] [2000] VCAT 2304 [18].
[9] [2015] VCAT 1103 [28].
[10] [2014] VSC 585 [39].
Bruce
Victorian Workcover Authority
(2011) 3 VR 559