The facts of this matter are set out in some detail in the Tribunal decision regarding the issue of liability to be found at [2019] NSWCATAD 12. The question of any damages award was agreed to be dealt with as a separate matter after the question of liability was determined.
The respondent conceded that it had breached Healthcare Privacy Principle (HPP) 11 (about the use of healthcare information) and HPP 4 (about collection of healthcare information) set out in Schedule 1 of the Health Records and Information Privacy Act 2002 (HRIP Act). The Tribunal found that the respondent had not breached HPPs 2 and 9.
The applicant's appeal from the Tribunal decision was dismissed [2019] NSWCATAP189.
Thus the question of damages now falls to be considered.
To summarise, the material facts are as follows:
1. The applicant attended an appointment with a specialist psychiatrist at her local health facility located in a small regional city.
2. The specialist prepared a report and a referral letter to a general practitioner, which was regrettably provided to the wrong general practitioner.
3. The applicant discovered this mistake via a family member. She was already in a fragile state having a disability and mental health issues. The evidence shows she suffered psychological harm including anxiety and depression and the inability for a period to care for herself. She also suffered adverse reactions to drugs prescribed for her.
4. The applicant complained to the local health facility. The Tribunal found that those complaints were properly handled. The applicant sought review of the handling of the complaint and claimed compensation. The respondent appropriately conceded that it had breached certain HPPs.
5. Experts recommend that the applicant receive treatment from a psychologist to assist in her rehabilitation.
Section 21 HRIP Act provides in relevant part as follows:
21 Complaints against public sector agencies.
(1) The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies:
(a) the contravention of a Health Privacy Principle that applies to the agency,
(b) the contravention of a health privacy code of practice that applies to the agency.
(2) For that purpose, a reference in that Part:
(a) to personal information is taken to include health information, and
(b) to an information protection principle is taken to include a Health Privacy Principle, and
(c) to a privacy code of practice is taken to include a health privacy code of practice.
(3) This section applies only to conduct engaged in after the commencement of this section.
The respondent is a 'public sector agency' and 'PPIP Act' means the Privacy and Personal Information Protection Act 1998 (see s 4 HRIP Act).
This brings s 55 of the PPIP Act into consideration. It provides in relevant part:
55 Administrative review of conduct by Tribunal
(1) …
(1A) ...
(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c) an order requiring the performance of an information protection principle or a privacy code of practice,
(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f) an order requiring the public sector agency not to disclose personal information contained in a public register,
(g) such ancillary orders as the Tribunal thinks appropriate.
(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.
(4) The Tribunal may make an order under subsection (2) (a) only if:
(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.
(4A) The Tribunal may not make an order under subsection (2) (a) if:
(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(5) ...
(6) …
(7) …
The applicant has sought the maximum amount ($40,000) by way of an award of compensation.
Section 55 (4A) HRIP Act is not applicable.
The applicant says she is entitled to the maximum amount by reason of the psychological damage that she has suffered, and the cost of treatment to rehabilitate her.
The applicant has given evidence in a statement and has confirmed various matters at the hearing. Also in evidence is a letter of support from her treating psychologist and letters from her treating general practitioner.
The applicant has filed a report by an expert forensic psychologist (Dr Morris) who diagnosed the applicant as having three psychological injuries being a major depressive disorder; social anxiety disorder; and post-traumatic stress disorder, aggravated. Dr Morris says that the applicant may be assisted by "up to 30 sessions" with her chosen treating psychologist to aid her recovery. Dr Morris calculates the cost of that treatment as $251 per visit.
The respondent submitted its expert report from Associate Prof Robertson. He stated the applicant had a complex history and it had possibly been exacerbated by the incident. In his view the applicant experienced adjustment disorder with anxiety and a possible exacerbation of her OCD symptoms. He notes her vulnerabilities but comments that this may have influenced her seemingly disproportionate response to the breach of her privacy. Associate Prof Robertson stated that he considered 12 to 15 visits to a treating psychologist would be "adequate" at a cost of $232- $270 per visit.
The respondent accepted that there was sufficient evidence for the Tribunal to be satisfied that the applicant suffered psychological or physical harm by reason of the conduct of the respondent agency. The respondent effectively conceded a liability and made submissions concerning the dollar amount of the award that should be made by the Tribunal. The dollar amounts were calculated by reference to the recommendations of Associate Prof Robertson.
The respondent also conceded at the hearing that it would be appropriate to make an allowance for the applicant's travelling costs to attend her psychologist, as the applicant needs to drive more than 100 km each way from home in the regional centre to a capital city where her treating psychologist's practice is located.
The Tribunal found in its first decision in this matter cited earlier (at paragraph 37), that the agency acted correctly, promptly, compassionately and insightfully.
Principles regarding the assessment of damages in privacy cases were discussed by reference to previous cases by the NCAT Appeal Panel in AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 at [27]-[29], which concerned a breach of HPP 4.The case concerned a workers compensation claim and the employer had obtained historical medical records from the employee's general practitioners which were not relevant to her claim. The Appeal Panel found that the consent form signed by the applicant did not extend to the obtaining of this information. An award of $4000 was made.
It is not necessary to engage in a detailed discussion of the other cases mentioned in AOZ (No.2), except to reference the case of Re Rummery and Federal Privacy Commissioner [2004] AATA 1221 and to the 'restrained' approach that a tribunal should take towards awards of damages in privacy matters.
The respondent further submitted that an award of the maximum amount of damages would be out of step with the tenor of the decision-making in cases of this kind. The maximum award is reserved for the most serious breaches of the privacy legislation. (ALZ v SafeWork NSW (No.4) [2017] NSWCATAD 1 at [23].
The Tribunal is satisfied that the applicant has suffered psychological harm. But this is not a case which would be regarded in the "serious breach" class of case where there has been an egregious breach of responsibility. In the earlier proceedings it was found that the respondent had accepted responsibility for its error and tried to alleviate the consequences for the applicant as best it could. There is no place for any sort of exemplary damages against the respondent.
As to the appropriate number of visits to the treating psychologist, the respondent's expert says that 12 to 15 visits would be "adequate". The applicant's expert says that "up to 30" visits may be necessary. Neither expert gave oral evidence.
In his selection of the world "adequate" the respondent's expert's approach seems to risk undertreating the applicant. The applicant's expert's "up to 30 visits" seems only to put an outer limit on the ambit of treatment regime. The Tribunal must try to decide what is appropriate in the circumstances.
It seems to me that somewhere between the numbers of consultations proposed by the experts would be an appropriate point and therefore I consider that the cost of 18 visits at $251 per visit (the dollar figure used by Dr Morris and which is approximately in the middle of the range of fees ($232-270) used by Associate Prof Robertson) would be suitable, being the amount of $4518.
In addition I award the amount of $1800 to compensate the applicant for the cost of car travel on 18 occasions from her home to the treating psychologist's practice and back. I did not receive any submissions on the appropriate level of car expenses or of precise distances involved.
In my view is also appropriate for the applicant to receive a further amount to recognise her pain and suffering and the loss of enjoyment of life that she suffered as a result of the respondent's breach of its responsibilities. She did not argue that she had suffered an economic or financial loss. She gave evidence that she had been confined to her house and had been unable to care for herself. She also lost a lot of weight. It seems to me that an award of $2000 for pain and suffering is appropriate in this case. I take into account this breach of privacy was an exacerbation of her existing condition.
The total award is therefore $8318.
The applicant has applied for reimbursement of part of her costs, being the cost of obtaining Dr Morris's report. This is in my view part of the costs of the proceedings. Costs of proceedings in the Tribunal are not awarded except in special circumstances (section 60 Civil and Administrative Tribunal Act 2013). The matters to which the Tribunal may have regard are set out in subs. (3) of that provision. The applicant has not demonstrated that there are special circumstances in this case. The application is refused and no order made.
[2]
Order
1. The respondent to pay the applicant the sum of $8318.
[3]
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
[4]
Amendments
04 December 2019 - Case title amended. "(No 2)" added.
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Decision last updated: 04 December 2019