CEU v Australian Health Practitioner Regulation Agency

NCAT Administrative and Equal Opportunity|2019-05-24

REASONS FOR DECISION

On 4 January 2019 the applicant CEU lodged an application for review of a decision by the FOI Officer, National Information Release Unit of the Australian Health Practitioner Regulation Agency (AHPRA) advising that AHPRA was unable to carry out an internal review under s 53 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) of AHPRA's management of a notification made by CEU in 2015. The email advised that the PPIP Act does not apply to AHPRA.
The background is as follows. On 9 September 2015 CEU made an anonymous complaint to AHPRA against the Nursing Faculty of the University of Technology Sydney (UTS) as a health education provider raising serious allegations against a student nurse at UTS (who was CEU). CEU asserts that, contrary to her request not to do so, AHPRA forwarded the complaint to UTS, and that UTS disclosed that unlawful disclosure to the Tribunal on 19 June 2018. CEU lodged a privacy internal review application to AHPRA on 14 November 2018. On 20 November 2018 AHPRA refused to investigate, and gave her details of the Nursing and Midwifery Council of NSW and the Health Care Complaints Commission (HCCC) as her review rights.
AHPRA asserts that it did not forward the complaint to UTS, and that in any event it is not required to carry out any internal privacy review under the PPIP Act as that Act does not apply to it.
At the first listing in the Tribunal at a case conference at which CEU appeared by telephone and AHPRA was represented, directions were made for AHPRA to provide by 19 February 2019 all material on which it relies in regard to the question of whether the Tribunal has jurisdiction, and for CEU to provide by 5 March 2019 all material on which she relies on the question of jurisdiction. The direction included the notation that the question of whether the Tribunal has jurisdiction to deal with the application would be decided on the basis of the material filed.
On 19 February 2019 AHPRA filed submissions and an affidavit of Ms Lorraine Tze Hui Yii sworn on 19 February 2019. CEU filed her submissions on 5 March 2019. On 5 March 2019 AHPRA requested leave to file submissions in reply to CEU's submissions. CEU opposed leave being granted. Leave was granted and reply submissions were filed on 18 March 2019. Leave was granted for CEU to provide any submissions in response by 25 March 2019. No further submissions have been received from CEU.

Whether a hearing should be dispensed with

The terms of the directions made at the case conference on 12 February 2019 indicate that the question of whether the issue of jurisdiction should be decided on the papers was discussed. The Tribunal is satisfied that as required by s 50(3) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) the parties have had an opportunity to make submissions, and, having regard to the material filed, that the issues for determination can be adequately determined in the absence of the parties by considering the written material. Pursuant to s 50(2) of the NCAT Act, the Tribunal dispenses with a hearing.

Whether the Tribunal has jurisdiction

AHPRA contends that the Tribunal lacks jurisdiction to determine CEU's application, and it seeks an order pursuant to s 55(1)(b) of the NCAT Act that the proceedings be dismissed for want of jurisdiction. Section 55(1)(b) of the NCAT Act provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …

AHPRA's submissions

AHPRA is the national agency established under s 23 of the Health Practitioner Regulation National Law (NSW) (the National Law) to provide administrative assistance and support to 15 National Health Practitioner Boards that are responsible for regulating the health professions, including the Nursing and Midwifery Board of Australia. In all states except for NSW and Queensland, AHPRA is also responsible for the registration and handling of notifications or complaints in relation to health practitioners and students within those regulated health professions. Section 6 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (the Adoption Act) declares that NSW is not participating in the health, performance and conduct process provided by Divs 3-12 of Part 8 of the National Law. As a consequence, NSW is a "co-regulatory jurisdiction", and different regulatory bodies carry out certain functions in respect of complaints made against health practitioners. In NSW, under Part 8 of the National Law, it is the relevant health council, assisted by the Health Professional Councils Authority (HPCA) and in conjunction with the HCCC which assesses and manages the complaints process relating to concerns about a registered health practitioner or student's health, conduct or performance in New South Wales.
AHPRA relies on s 7(1)(h) of the Adoption Act, which includes the PPIP Act in a list of NSW legislation that does not apply to the National Law or instruments made under that law. Subsection 7(1) is subject to s 7(2), which provides that the PPIP Act applies to "…the NSW provisions of the Health Practitioner Regulation National Law (NSW) and to the instruments made under the NSW provisions". That relevantly includes in Schedule 1- Modification of Health Practitioner Regulation National Law to the Adoption Act the provisions that establish the co-regulatory jurisdiction in NSW.
The consequence is, AHPRA submits, that in NSW under the NSW provisions of the National Law, it is the relevant health council in conjunction with the HCCC which is responsible for dealing with and managing complaints against health practitioners and students under Part 8 of the National Law; and those bodies are subject to the PPIP Act when they are carrying out their functions in respect to complaints under the National Law in NSW. Section 7(1) otherwise applies.
Ms Yii is the Legal Advisor for AHPRA. In her affidavit she outlines the history of CEU's complaint to AHPRA and its responses. When AHPRA received CEU's complaint about UTS the officer offered to assist by forwarding the email to the Nursing and Midwifery Council. CEU consented to the complaint being forwarded to the Council and HPCA. On 14 September 2015 the complaint was forwarded to the HCCC, the Nursing and Midwifery Council and the HPCA. AHPRA was subsequently notified by the Nursing and Midwifery Council of conditions imposed under s 150 of the National Law.
CEU applied under the Freedom of Information Act 1982 (Cth) (the FOI Act) to the Department of Education and Training seeking documents in relation to AHPRA's communications with UTS about her. Parts of that FOI Act request were transferred to AHPRA under s 16 of the FOI Act. There was a part release of documents. CEU applied for internal review and the internal review decision was notified on 23 February 2018. On 20 June 2018 CEU sought access under the Government Information (Public Access) Act 2009 (the GIPA Act) to files and records maintained by AHPRA regarding her. AHPRA responded advising that it was not subject to the GIPA Act.
CEU requested an internal review under the PPIP Act of the conduct in referring the complaint to UTS by email dated 14 November 2018.

CEU's submissions

CEU submits that when in September 2015 the officer of AHPRA referred her complaint to the HPCA and the Nursing and Midwifery Council of New South Wales, she was working for the State government body, the NSW office of AHPRA, and the PPIP Act covers her conduct. The Tribunal has jurisdiction to deal with the privacy complaint under PPIP Act because: 1. AHPRA is the NSW office of the AHPRA, a State government body, and the Privacy Act 1988 (Cth) does not cover the handling of personal information by the NSW office of AHPRA; 2. The privacy law applicable to the NSW government is the PPIP Act; and 3. The national agency AHPRA has a statutory obligation to represent the NSW office of AHPRA at the Tribunal.
CEU relies on the decision in CEU v Ombudsman [2017] NSWCATAD 267, in which the Tribunal found that the NSW Ombudsman had breached s 18 of the PPIP Act in forwarding an anonymous complaint made on 21 September 2015 by her about UTS, to UTS. The copy of the email sent to UTS disclosed CEU's name and email address. CEU submits that just as the Tribunal in that case considered the conduct of the NSW Ombudsman under the PPIP Act, the PPIP Act covers AHPRA's conduct.
CEU submits that AHPRA's website refers to "Australia's Privacy Act". It does not identify whether it is the Privacy Act 1988 (Cth) or the PPIP Act that applies. The Privacy Act 1988 excludes State and Territory bodies from the definition of "agency" and "organisation" in s 6, and so the privacy law applicable to the NSW Office of AHPRA must be the PPIP Act. CEU submits that AHPRA's reliance on s 7(1) of the Adoption Act is misplaced, as s 7(2) applies.

Discussion and findings

The affidavit of Ms Li annexes the relevant correspondence, and on the basis of those documents the Tribunal finds that: 1. on 9 September 2015 "Ms Anonymous" requested assistance to lodge a complaint against UTS as a health education provider; 2. on 10 September 2015 the Notification Coordinator of AHPRA advised that under the National Law the complaint would be handled by the HPCA (Nursing and Midwifery Council) and she could forward it as this is what her role with AHPRA entails; 3. on 11 September 2015 "Anonymous" requested that it be forwarded; 4. on 14 September 2015 the Notification Coordinator referred the complaint to the HCCC and HPCA; 5. on 14 September 2015 "Ms Anonymous" was advised that under the National Law notifications about conduct and health occurring in NSW are managed by the HCCC and the relevant Health Profession Council, and her notification had been forwarded to the HCCC and the Nursing and Midwifery Council of New South Wales for further action; and 6. on 22 September 2015 AHPRA was advised by the Nursing and Midwifery Council of New South Wales of conditions imposed on the Student Register for CEU.
The privacy internal review application dated 14 November 2018 seeks review of (1) the refusal by AHPRA to provide access to information held by AHPRA about her; (2) the conduct of the Notification Coordinator in forwarding the whole complaint, which included details of her email account, to UTS; (3) the failure of AHPRA to allow her to correct her information; and (4) collection by AHPRA of her incorrect information. The issue as identified in the application for review concerns the alleged forwarding of the complaint email to UTS.
The Tribunal has jurisdiction under s 55 of the PPIP Act to review conduct the subject of an application for internal review under s 53, at the application of a person who has earlier applied for internal review of that conduct. The "conduct" that is the subject of a review sought by an applicant under s 53, and thus the conduct the subject of the external review by the Tribunal under s 55 of the PPIP Act, is the action or circumstances involving the agency that might amount to a possible contravention of an information protection principle.
AHPRA has refused to conduct an internal review as requested on 14 November 2018, on the basis that the PPIP Act does not apply to it. If that is correct, then the Tribunal has no jurisdiction to conduct an administrative review of that conduct under the Administrative Decisions Review Act 1997.
Part 5 of the PPIP Act provides for review, both internal and external, of conduct of a "public sector agency" in contravention of an information protection principle or privacy code of conduct or disclosure of personal information kept in a public register: s 52 PPIP Act. A "public sector agency" is defined in s 3(1). AHPRA is not included in that list. In the absence of a contrary expression of intention, the references in that provision to officers, agencies and statutory bodies is a reference to New South Wales officers and agencies: s 12 Interpretation Act 1987.
The national scheme for regulation of health professionals is complex. AHPRA is established under s 23 of the National Law. Its functions include: 25 Functions of National Agency The functions of the National Agency are as follows - (a) to provide administrative assistance and support to the National Boards, and the Boards' committees, in exercising their functions; … (i) to establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners and persons who are students, including by establishing a national process for receiving notifications about registered health practitioners in all professions;
New South Wales applies the Health Practitioner Regulation National Law as a law of NSW, with the modifications set out in Schedule 1: s 4 Adoption Act.
Section 6 of the Adoption Act provides: 6 Health, performance and conduct process not to apply: co-regulatory jurisdiction It is declared that this jurisdiction is not participating in the health, performance and conduct process provided by Divisions 3-12 of Part 8 of the Health Practitioner Regulation National Law.
The provisions applicable to health, performance and conduct processes, which includes complaints, in New South Wales are Divisions 3 - 14B of Part 8 of the National Law. Those provisions are included in the definition of "NSW provision" in s 5 of the National Law: NSW provision means - (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note. This definition is an additional New South Wales provision.
Under Part 8 of the National Law the Nursing and Midwifery Council of New South Wales, in conjunction with the HCCC, has the role of dealing with and resolving a complaint against a registered nurse or student nurse in New South Wales.
Section 7 of the Adoption Act provides: 7 Application of legislation of this jurisdiction (1) Subject to subsection (2), the following Acts of this jurisdiction do not apply to the Health Practitioner Regulation National Law (NSW) or to the instruments made under that Law: … (h) the Privacy and Personal Information Protection Act 1998, … … (2) The following Acts of this jurisdiction apply to the NSW provisions of the Health Practitioner Regulation National Law (NSW) and to the instruments made under the NSW provisions: … (g) the Privacy and Personal Information Protection Act 1998, …
CEU relies on s 7(2) to support her argument that the PPIP Act does apply. However, the reference in s 7(2) to "the NSW provisions" of the National Law means that in the context of complaint handling, the PPIP Act applies only when functions are exercised under those provisions of Part 8 of the National Law that apply only in NSW - relevantly the complaint handling functions of the Nursing and Midwifery Council of New South Wales and the HCCC. The application of the PPIP Act is otherwise excluded by s 7(1) of the Adoption Act.
In forwarding CEU's complaint to the relevant NSW complaint handling bodies with the consent of CEU, AHPRA was carrying out its function under s 25(a) of the National Law. It was not exercising any function under the NSW provisions of the National Law. The only bodies relevantly subject to the PPIP Act when exercising functions under Part 8 of the National Law in NSW are the HCCC and the Nursing and Midwifery Council of New South Wales. Section 7(1) of the Adoption Act applies, and the PPIP Act does not apply to AHPRA.
AHPRA, as the National Agency established under s 23 of the National Law, is, by virtue of s 7(1) of the National Law, is "one single national entity". The fact that AHPRA maintains offices and staff in New South Wales in accordance with its obligation under s 28 of the National Law to "…establish at least one local office in each participating jurisdiction" does not make it an agency subject to the PPIP Act.
Even if AHPRA could be said to fall within the definition of a "public sector agency" in s 3 of the PPIP Act, the specific provisions in the National Law and the Adoption Act relating to the national registration and accreditation scheme apply. Section 7(1) of the Adoption Act excludes the operation of the PPIP Act, and it would only be in the limited circumstances of s 7(2) of the Adoption Act that the PPIP Act would apply.
The decision in CEU v Ombudsman [2017] NSWCATAD 267 does not assist CEU. The NSW Ombudsman is clearly a "public sector agency" as defined in the PPIP Act, and the PPIP Act applies. CEU's complaint about UTS was sent to the NSW Ombudsman for investigation. As part of that investigation the complaint was disclosed to UTS. The Tribunal found that in doing so in a form that included CEU's name and email address the NSW Ombudsman had breached s 18 of the PPIP Act. However, the present application relates to AHPRA: and for the purposes of the health practitioner national registration and accreditation scheme, other than in circumstances where s 7(2) of the Adoption Law applies, the relevant privacy regime is that under the Privacy Act 1988 (Cth): s 213 National Law.

Conclusion

The present application concerns alleged conduct of AHPRA in forwarding an anonymous complaint about health or performance of a student nurse enrolled in New South Wales. The Tribunal is satisfied that the PPIP Act does not apply to AHPRA in the context of the complaint handling and resolution processes established under Part 8 of the National Law for health practitioners and students in New South Wales. The decision of AHPRA that it was not required to conduct an internal review into that conduct under s 53 of the PPIP Act was correct. The Tribunal has no jurisdiction to review the conduct, and the application for review should be dismissed.
The Tribunal orders:
Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with.
Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, the application for review is dismissed. 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 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: 24 May 2019

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