CNC v NSW Police Force

NCAT Administrative and Equal Opportunity|2017-02-15|Before: Dr J

Background

The applicant is a longstanding civilian employee of the NSW Police Force. She lodged a claim with the Anti-Discrimination Board in relation to the conduct of the NSW Police Force in 2013. The NSW Police Force engaged a firm of solicitors to assist it with the matter.
In 2014, the applicant had leave from work due to depression. The applicant was provided with workers' compensation.
In 2015, there were negotiations between the applicant and the NSW Police Force about her return to work. In July 2015, the applicant's workers' compensation payments ceased because she reached retirement age. Her treating psychiatrist certified her as fit to return to work.
On 3 September 2015, an Assistant Commissioner wrote to the applicant's union representative stating that the Assistant Commissioner had concerns about the applicant's "recent inconsistent medical documentation regarding her current capacity to return to work". The letter continued: "I deem it prudent in the interests of [the applicant] and her colleagues in the workplace to refer her for an Independent Medical Examination".
Officers within the NSW Police Force sought advice of the Office of General Counsel (within the NSW Police Force) about the applicant's return to work. The Office of General Counsel engaged external solicitors to handle this issue, being the same solicitors it had engaged in relation to the discrimination matter.
The firm of solicitors, on behalf of the NSW Police Force, arranged for the applicant to attend an independent medical examination with a psychiatrist in October 2015 and sent the psychiatrist a letter of instructions. It then requested a further report from the psychiatrist in November 2015.
The applicant later discovered that the solicitors had access to the psychiatrist's reports and to health information which she regarded as very private. She requested access to this information and to the letters of instruction to the psychiatrist. The NSW Police Force provided her with copies of the psychiatrist's reports, but refused to provide her with the letters of instruction, saying they were subject to legal professional privilege.

Issues

At the hearing, the parties agreed that the scope of the applicant's application for review extended to the following conduct: 1. The NSW Police Force allowing its solicitors to access medical reports about the applicant, for the purposes of arranging an independent medical examination with a psychiatrist; and 2. The NSW Police Force failing to provide the applicant with copies of all information provided to the psychiatrist for the purposes of the independent medical examination and a report.
There is no dispute that the applicant applied for internal review of this conduct within time, and that her application to the Tribunal was also within time.
It was conceded that the information in question is health information within s 6 of the Health Records and Information Privacy Act 2002 (NSW) ("HRIP Act"). The conduct of which the applicant seeks review is alleged contraventions of the health privacy principles in Sch 1 to the HRIP Act. The Tribunal has jurisdiction to review this conduct pursuant to s 21 of the HRIP Act, s 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) ("PPIP Act"), s 9(1) of the Administrative Decisions Review Act 1997 (NSW) and s 30(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

Provision of medical reports concerning the applicant to external solicitors

The NSW Police Force submitted, initially, that the provision of the applicant's health information to its solicitors was a disclosure of information (which, it said, was lawful). However, after the Tribunal had alerted the parties to the case law discussed below, the respondent's counsel accepted that this might properly be characterised as a use of information. In either case, however, the NSW Police Force submitted that the provision of the applicant's health information to its solicitors did not contravene any health privacy principle.
The NSW Police Force submitted that the provision of the applicant's health information to its solicitors was for the purpose of assisting the NSW Police Force to prepare briefing documents for an independent medical examination to assess the applicant's return to work. It said that this was consistent with the primary purpose for which the health information was collected, being to assess the applicant's fitness for work and return to work.
Alternatively, the NSW Police Force submitted that the purpose of providing the information to its solicitors was "directly related" to the primary purpose for which the health information was collected, and that an individual would reasonably expect it to disclose the information for the secondary purpose.
HPP 10 ("Limits on use of health information") relevantly provides: "(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: … (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."
HPP 11 ("Limits on disclosure of health information") relevantly provides: "11 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: … (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."

Was the agency's provision of information to external solicitors a use or a disclosure?

As the Tribunal and the former Administrative Decisions Tribunal have recognised, the distinction between the "use" of information and the "disclosure" of information depends primarily upon whether the handling of the information is internal to the agency (that is, a use) or the provision of information to a party external to it (a disclosure): see Director General, Department of Education and Training v MT [2005] NSWADTAP 77 at [25] and [39]-[40]; NZ v Department of Housing (NSW) [2005] NSWADT 58 at [69]; Department of Education and Communities v VK [2011] NSWADTAP 61 at [20]-[21]; Bevege v Commissioner of Police (NSW) [2014] NSWCATAD 22 at [25]).
It is questionable whether the provision of information to an agency's solicitors in the course of an engagement of those solicitors is the provision of "information to a third party external to the agency": see Department of Education and Communities v VK [2011] NSWADTAP 61 at [21]. The solicitors are acting on behalf of the agency and representing it so are not, to that extent, "external" to it. Providing information to solicitors so that they may act on the agency's behalf is more in the nature of an internal use of information because the information is being given to the solicitors for the agency's own purposes: see Department of Education and Communities v VK [2011] NSWADTAP 61 at [20].
The question of whether the provision of personal or health information to a solicitor or agent is a "use" or "disclosure" of information has arisen in several tribunal decisions. There is, in this respect, no relevant difference between the scheme under the PPIP Act and that under the HRIP Act. In WH v Internal Audit Bureau of NSW [2011] NSWADT 237 at [55]-[66] and [123], Judicial Member Montgomery (as he then was) indicated that he had formed a preliminary view that an agency could not disclose information to a person engaged by it.
In APV and APW v Department of Family and Community Services [2015] NSWCATAD 140 at [75], Senior Member Isenberg found that a "disclosure" of personal information to an agency's legal representative was "lawfully authorised" under the Solicitor's Rules. The Senior Member appears not to have considered whether this was properly characterised as a use of information, as the respondent in that case appears to have accepted the applicant's contention that it was a disclosure.
In ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121, Senior Member Montgomery accepted an argument that there can be no disclosure to an agency's lawyers, saying at [76]: "I also agree that insofar as the information was provided to the Respondent's legal representatives, there was no relevant 'disclosure'. The legal representatives acted as an agent on behalf the Respondent. Therefore, there could not be a 'disclosure' on account of the information being passed on to the Respondent's legal representatives."
I agree with Senior Member Montgomery's conclusion that the provision of information to an agency's legal representatives is not a disclosure of information, at least where the information is provided to those representatives in the course of their engagement.
The proposition that the provision of health information to a person engaged by an agency is not a disclosure by the agency is supported by other provisions of the HRIP Act. Information is "held" by an organisation for the purposes of the HRIP Act if "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" (HRIP Act, s 9(b)). Many of the health privacy principles, including the use and disclosure principles (HPP 10 and HPP 11), apply to "an organisation that holds health information". The deeming provision in s 9(b) of the HRIP Act supports the proposition that, once an agency has engaged a person (such as a solicitor), the person's conduct is attributable to the agency for the purposes of the health privacy principles, at least insofar as the person is acting in the course of the person's engagement. The legislative recognition, in s 9(b), that an agency has responsibility for information in the possession or control of persons it has engaged, is a strong indication that the provision of information to such a person is not a disclosure.
There has been no suggestion that the NSW Police Force provided its solicitors with the applicant's health information otherwise than for the purposes of their engagement. Accordingly, I find that the provision of the applicant's health information to them was a use of information. This means that the health privacy principle which is engaged is HPP 10.

Was the provision of the applicant's health information to the agency's solicitors a use of the information for the purpose for which it was collected?

The prohibition in HPP 10(1) is against using health information for a purpose other than the purpose for which it was collected. As indicated above, the primary submission of the NSW Police Force is that, in providing the applicant's health information to its solicitors, it was using the information for a purpose for which that information was collected. Ms Sharp submitted that the health information was collected for the purpose of assessing the applicant's fitness to return to work and that the provision of the information to the NSW Police Force's solicitors was for the same purpose. She also submitted that the purpose of collection (being assessing the applicant's fitness to return to work) could be inferred. Ms Sharp said that the agency got documents relevant to the applicant's WorkCover claim for that purpose.
In order to determine whether the NSW Police Force has contravened HPP 10, it is necessary to determine both its purpose of collecting the applicant's health information and its purpose of using it. I will consider the purpose for which the agency used the applicant's health information first and then I will consider the purpose of collection.
The evidence relevant to the purpose for which the NSW Police Force gave the applicant's health information to its solicitors was as follows. William Crooks, a solicitor employed in the Office of the General Counsel in the NSW Police Force, gave evidence that he had engaged the external solicitors to provide legal advice about the applicant's proposed return to work. His evidence was that the solicitors took instructions from the Injury Management Unit within NSW Police Force as to the issues for which legal advice was sought and that they prepared the letter of instruction to the psychiatrist. It may be inferred from his evidence that the applicant's health information was provided to the external solicitors for the purpose of providing legal advice about the applicant's proposed return to work and preparing a letter of instruction to a psychiatrist to assess the applicant's fitness to return to work.
Jasmine Wilcox, Acting Senior Injury Management Advisor within the NSW Police Force's Workforce Safety Command, gave evidence that, having reviewed the applicant's return to work file, she understood that advice had been sought from the Office of General Counsel about the applicant's return to work. Her evidence was that the Office of General Counsel was requested to assist with preparation of the applicant's "referral to an independent medical assessment, specifically, to assist with the paperwork and appropriate wording of questions to be asked of the assessor." She also stated that the external solicitors were instructed as to the issues for which legal advice was sought and prepared the letter of instruction and relevant documents for the psychiatrist. Again, it may be inferred from this that the purpose of providing the applicant's health information to the solicitors was to prepare the referral to a psychiatrist, and to provide legal advice.
The applicant disputes that the NSW Police Force sought legal advice from the firm of solicitors. She says that all those solicitors did was to organise an appointment with a psychiatrist and to write a letter of instructions. She relies upon email correspondence between the solicitors and the NSW Police Force in which the solicitors are corresponding without the solicitors providing advice.
The existence of email correspondence between the solicitors and the NSW Police Force of a general nature (concerning, among other things, the appointment with the psychiatrist), does not mean that the solicitors were not engaged to provide legal advice. The respondent has not provided me with the request for advice so I cannot independently assess whether the engagement was to provide "legal advice" or to provide assistance of a different character. However, Mr Crooks, a solicitor, has given evidence that he requested legal advice. I am satisfied, from the evidence, that the NSW Police Force engaged the firm of solicitors for the purpose of those solicitors providing the NSW Police Force with legal advice about the applicant's return to work and for them preparing a letter of instructions to a psychiatrist to assess the applicant's fitness to return to work.
I find that the respondent's purpose of using the applicant's health information, by providing it to external solicitors, was to obtain advice about her return to work and to obtain a medical opinion about her return to work.
The next matter I need to determine is the purpose for which the NSW Police Force collected the applicant's health information. As mentioned above, it was submitted, for the respondent, that it could be inferred, from the material before the Tribunal, that the applicant's health information was collected for the purpose of assessing her fitness to return to work.
It is not entirely clear, from the materials, what health information the NSW Police Force provided to the external solicitors. The NSW Police Force has provided the Tribunal, in confidence, with the letters sent to the psychiatrist engaged by the law firm, and annexed documents which are the applicant's health records. It may be that this does not comprise all of the applicant's health information which the NSW Police Force provided to the solicitors. There is nothing in the affidavits provided to the Tribunal which identifies the health information which was provided to those solicitors. There is an obvious difficulty in inferring the purpose of collection from documents when the Tribunal cannot be confident that it has all of the relevant documents, particularly noting that the NSW Police Force may have had different purposes for the collection of different pieces of health information.
Even assuming that the totality of the applicant's health information which was provided to the solicitors is annexed to the letter of instructions to the psychiatrist, the circumstances appearing in the evidence do not, in my view, give rise to a reasonable and definite inference that the purpose of collection was assessing the applicant's fitness to return to work. As the Appeal Panel said in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [55]: "The High Court has observed that, to ground an inference where direct proof is not available, 'it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture' (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; see also TB v New South Wales [2015] NSWSC 575 at [85] and [86]; Marshall v Prescott [2015] NSWCA 110 at [83]). An inference cannot be drawn in the absence of evidence (Marshall v Prescott [2015] NSWCA 110 at [83])."
I have examined both the open evidence and the confidential evidence, including the letters of instruction which annex the applicant's health information. There is very little evidence as to how this information came into the possession of the NSW Police Force or as to why the NSW Police Force obtained it. There are various conflicting inferences which can be drawn. Some of the material could have come into the possession of the NSW Police Force in connection with the applicant's discrimination claim, it could have been provided to the NSW Police Force by the applicant to support a claim for sick leave, or it could have been provided in support of a claim for workers' compensation. The date of some of the information indicates that it was not collected in connection with the applicant's return to work, at least in relation to the period of leave which immediately preceded the engagement of the solicitors. The circumstances appearing in evidence do not give rise to a reasonable and definite inference as to the purpose of collection.
It is impossible for the Tribunal to make a finding as to whether the applicant's health information was used for a purpose other than the purpose of collection when it has insufficient material before it to determine the purpose of collection. In addition, the Tribunal needs to be satisfied that it has all of the applicant's health information before it in order to make a determination.
The Tribunal has a duty, pursuant to s 38(6) of the Civil and Administrative Tribunal Act, to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. The Tribunal has powers under the Administrative Decisions Review Act to require an administrator to lodge documents relevant to the determination of a merits review application (s 58(4)). The Tribunal may also call witnesses of its own motion and has a power to summons them (Civil and Administrative Tribunal Act, s 46).
It is rarely necessary to use these powers to obtain evidence in merits review proceedings, because a respondent agency has a duty to assist the Tribunal, and agencies and their legal representatives generally comply with the State's Model Litigant Policy. There is no question in these proceedings but that the NSW Police Force and its legal representatives recognised these responsibilities and endeavoured to abide by them. However, it has become apparent following the hearing that the Tribunal does not have all of the evidence which it needs to make a decision concerning the alleged contravention of HPP 10.
In these circumstances, the most appropriate course is to relist the proceedings for further directions insofar as they concern a review of the NSW Police Force's conduct in using the applicant's health information. This will enable a timetable to be made for the filing of more evidence as to the purpose of the NSW Police Force in collecting the applicant's health information, and for the lodgement with the Tribunal of any additional health information of the applicant which the NSW Police Force provided to its solicitors.

Access to health information - HPP 7

The applicant also sought access to the health information which the NSW Police Force, through its external solicitors, provided to the psychiatrist.
Health privacy principle 7 in Sch 1 to the HRIP Act provides as follows: "7 Access to health information (1) 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. Note. Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause. Access to health information held by public sector agencies may also be available under the Government Information (Public Access) Act 2009 or the State Records Act 1998. (2) An organisation is not required to comply with a provision of this clause if: (a) the organisation is lawfully authorised or required not to comply with the provision concerned, 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)."
The NSW Police Force provided the psychiatrist's reports to the applicant but did not provide her with the letters of instruction to the psychiatrist. It submits that it is not required to comply with HPP 7(1) in respect of those letters because non-compliance is permitted under a law, being the law of legal professional privilege, within HPP 7(2). It says that the psychiatrist was retained to provide an independent medical report for the purpose of deciding whether the applicant was fit to return to work.
The evidence supporting the claim of the NSW Police Force that the letters of instructions to the psychiatrist are protected by "advice privilege" includes the affidavits of William Crooks and Jasmine Wilcox referred to above. The NSW Police Force has also provided the Tribunal with the documents in question and with another confidential document.
It does not appear to be contested that, if the documents are privileged, non-compliance with HPP 7(1), which would otherwise require provision of the information in the documents to the applicant, is permitted or reasonably contemplated under the law of privilege. There was no suggestion that any privilege which subsisted in the documents at the time of the summons hearing has subsequently been waived.

Issue estoppel

The question of whether the letters of instruction and attachments are privileged under s 118 of the Evidence Act has already been determined by Deputy President Hennessy LCM in an interlocutory hearing in these proceedings concerning an application to set aside a summons: see CNC v NSW Police Force [2017] NSWCATAD 43 ("the summons decision"). Deputy President Hennessy found, for the purposes of that application, that the NSW Police Force was entitled to the benefit of "advice privilege" under s 118 of the Evidence Act in relation to each of the documents.
Ms Sharp, for the NSW Police Force, submitted that an issue estoppel arose and that, the issue of privilege having already been decided, I was bound by the summons decision. This submission depended upon three propositions: the first was that the Tribunal was exercising judicial power in these proceedings (including when determining the application to set aside the summons); the second was that the determination was capable of giving rise to an issue estoppel, notwithstanding that it was made in an interlocutory hearing; and the third was that the issue in the substantive proceedings was the same as that determined in the summons decision.
It has not been necessary for me to consider the first two propositions because I have found that the issue which was determined in the summons decision is not the same as the issue to be determined in the substantive proceedings. That issue, at its broadest level, is whether non-compliance with HPP 7(1) is permitted (or is necessarily implied or reasonably contemplated) under the law of legal professional privilege (see HPP 7(2)). As Ms Sharp accepted at the hearing, it is the common law of legal professional privilege which must be considered as the relevant "law" under HPP 7(2), not "advice privilege" within s 118 of the Evidence Act 1995.
Deputy President Hennessy did not consider the application of common law principles of legal professional privilege in the summons decision. Contrary to the respondent's submission, in their application to the facts in issue, the principles are relevantly different and lead to a different result.
The question of whether advice privilege extends at common law to communications with third parties, who are not agents, is somewhat unsettled. The traditional position, articulated in Wheeler v Le Marchant (1881) 17 Ch D 675, is that, in the absence of contemplated or actual litigation, legal professional privilege does not subsist in a communication between solicitor or client with a third party, unless the third party is an agent of the client or solicitor for the purpose of the communication. I am not of the view that the expert in this case is properly regarded as the "agent" of the NSW Police Force. The expert was engaged to provide an independent opinion.
In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 336 [9], Batt JA (with whom Charles and Callaway JJA agreed) expressed the traditional view that advice privilege "is not available where one of the parties to the communication is a third party who is not the agent of the client for the purpose of the communication". His Honour added (at 336 [9]): "That aspect of the privilege was relied on by the appellant below and in its outline of argument, but, rightly in my view, was not pursued in oral argument."
The Full Court of the Federal Court of Australia considered an appeal from a primary judge's decision that an accountant's report, said to be prepared for the purpose of obtaining legal advice, was not privileged, in Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 136 FCR 357. All members of the court held that the question of whether the accountant was the client's agent was not relevant, but that legal advice privilege was capable of applying to communications with a third party. Finn J (with whom Merkel J agreed) said at 367-368 [41]: "The important consideration in my view is not the nature of the third party's legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege."
Stone J (with whom Merkel J also agreed) commented (at 381 [86]) that "the dominant purpose criterion must be applied recognising that the situations in which people need legal advice are increasingly complex and that the client may need the assistance of third party experts if he or she is to be able to instruct the legal adviser appropriately". Stone J observed further (at 386 [103]) that "[t]he complexity of present day commerce means that it is increasingly necessary for a client to have the assistance of experts, including financial experts such as accountants, in formulating a request for legal advice and in providing legal advisers with sufficient understanding of the facts to enable that advice to be given". Her Honour emphasised that, if the dominant purpose test were met, the document would be privileged (at 386-387 [105]-[106]).
There does not appear to be any decision of a New South Wales court in which this issue has been determined conclusively, as part of the ratio decidendi. However, in Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904, SG Campbell J considered the conflicting authorities of Pratt Holdings and Mitsubishi Electric and made obiter comments about which decision should be followed (at [28]-[41]). His Honour had regard to comments of the Court of Appeal in Meteyard v Love (2005) 65 NSWLR 36 and Westpac Banking Corp v 789TEN Pty Ltd (2005) 55 ACSR 519 (cases concerning privilege under the Evidence Act), and noted that both "treat Wheeler v Le Marchant as forming part of Australian common law" (at [40]). In these circumstances, his Honour then said (at [41]) that he would follow the traditional view.
For the reasons given by SG Campbell J in Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904, I consider that I should also follow the decision in Wheeler v Le Marchant (1881) 17 Ch D 675. It follows that the letters of instruction to the psychiatrist are not protected by advice privilege at common law. Accordingly, non-compliance with HPP 7 is not permitted or reasonably contemplated under the law of legal professional privilege, unless litigation is contemplated. The parties agreed that litigation was not contemplated in the circumstances of this case.
For these reasons, I find that HPP 7(2) does not apply.
The respondent has conceded that the documents in question contain the applicant's health information. The applicant is therefore entitled to be provided with access to the information in the documents under HPP 7(1).

Orders

I make the following orders: 1. The respondent is to provide the applicant with access to the letters of instructions to a psychiatrist and the attached documents containing her health information, which have been filed confidentially in these proceedings, within 30 days of the date of this decision. 2. The proceedings are to be relisted for further directions on 11 April 2017 at 9.30am in respect of the review of the alleged contravention by the respondent of health privacy principle 10. 3. The non-disclosure orders made in these proceedings are varied to the extent necessary to allow the respondent to comply with order 1 above. 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: 30 March 2017

WH v Internal Audit Bureau of NSW [2011] NSWADT 237 Wheeler v Le Marchant (1881) 17 Ch D 675 Category: Principal judgment Parties: CNC (Applicant) NSW Police Force (Respondent) Representation: Counsel: N Sharp (Respondent)

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