DSC v South Eastern Sydney Local Health District

NCAT Administrative and Equal Opportunity|2019-06-04|Before: Dr J

REASONS FOR DECISION

This decision concerns the preliminary issue of whether the applicant, DSC, has standing to bring these proceedings under the privacy legislation on behalf of his mother. I have decided that he is entitled to do so as her "authorised representative" under the Health Records and Information Privacy Act 2002.

Background

DSC's elderly mother is suffering from Alzheimer's dementia and residing in a nursing home. DSC is his mother's attorney under an enduring power of attorney.
DSC's mother received health services from the respondent ("the Health District") in 2018. The respondent provided documents to this Tribunal in the course of guardianship proceedings concerning DSC's mother in 2018. DSC contends that, in doing so, it contravened certain health privacy principles within the Health Records and Information Privacy Act.
On 24 May 2018, the Tribunal appointed DSC's brother as his mother's guardian for a period of three months, to the extent necessary to carry out certain specified functions (including deciding where DSC's mother may reside and what health care she may receive). DSC informed the Tribunal that this order was extended before being revoked in October 2018.
DSC lodged an application for internal review in July 2018 concerning the Health District's dealings with his and his mother's personal and/or health information under the Health Records and Information Privacy Act and/or the Privacy and Personal Information Protection Act 1998.

Is the relevant information personal information or health information?

There are two documents containing the information about DSC's mother which are the subject of DSC's application. According to the statements made by DSC at the preliminary hearing, it appears that the Health District collected the information in these documents to provide, or in providing, a health service to DSC's mother. If so, the information is the "health information" of DSC's mother within s 6(b) of the Health Records and Information Privacy Act.
I note that "personal information" for the purposes of the Privacy and Personal Information Protection Act excludes "health information" (Privacy and Personal Information Protection Act, s 4A).
Ms Phillips, for the Health District, submitted that the information in question was health information. DSC accepted that the information in the first document (dated February 2018) was health information, and considered that information in the second document was probably health information.
On the evidence before the Tribunal at this preliminary stage, the Tribunal considers that the information in question is health information. The Tribunal has accordingly determined whether DSC is entitled to bring these proceedings on behalf of his mother under the Health Records and Information Privacy Act. However, should it emerge, upon the giving of further evidence, that the application also concerns the personal information of DSC's mother, the Tribunal will need to consider at that stage whether DSC has standing to bring proceedings under the Privacy and Personal Information Protection Act.

Relevant law

Section 7 of the Health Records and Information Privacy Act relevantly provides: "7 Capacity (1) An individual is incapable of doing an act authorised, permitted or required by this Act if the individual is incapable (despite the provision of reasonable assistance by another person) by reason of age, injury, illness, physical or mental impairment of: (a) understanding the general nature and effect of the act, or (b) communicating the individual's intentions with respect to the act. (2) An authorised representative of an individual may do such an act on behalf of an individual who is incapable of doing that act. (3) An authorised representative may not do such an act on behalf of an individual who is capable of doing that act, unless the individual expressly authorises the authorised representative to do that act."
Section 8 of the Health Records and Information Privacy Act relevantly provides: "8 Definition of "authorised representative" (1) In this Act, authorised representative, in relation to an individual, means: (a) an attorney for the individual under an enduring power of attorney, or (b) a guardian within the meaning of the Guardianship Act 1987, or a person responsible within the meaning of Part 5 of that Act, or (c) a person having parental responsibility for the individual, if the individual is a child, or (d) a person who is otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual. (2) A person is not an authorised representative of an individual for the purposes of this Act to the extent that acting as an authorised representative of the individual is inconsistent with an order made by a court or tribunal."

Parties' submissions

There is no dispute that DSC's mother is incapable of doing acts authorised or permitted by the Health Records and Information Privacy Act, such as making an internal review application or applying to the Tribunal for external review, within s 7(1) of the Health Records and Information Privacy Act.
DSC submitted that he is an "authorised representative" of his mother under s 8(1)(a) of the Health Records and Information Privacy Act as he is her attorney under an enduring power of attorney. He said that he can bring these proceedings and act on her behalf as her authorised representative.
The Health District accepted that DSC is an attorney for his mother under an enduring power of attorney within s 8(1)(a) of the Health Records and Information Privacy Act. However, it submitted that it is inconsistent with the Tribunal's guardianship order for DSC to act as his mother's authorised representative under the Health Records and Information Privacy Act. The Health District also submitted that there would be a risk to the health and safety of DSC's mother for him to operate as the authorised representative, because he acts inconsistently with medical advice with respect to his mother. In its submission, it could not be said that the appointment of DSC as authorised representative would be consistent with the guardianship orders or the requirement under the Guardianship Act 1987 to give paramount consideration to his mother's welfare and interests (see s 4(a)).
The Health District claimed that, for these reasons, and by operation of s 8(2), DSC is not an authorised representative of his mother for the purposes of the Health Records and Information Privacy Act.
DSC submitted that the guardianship orders made in May 2018 do not affect his mother's power of attorney and that acting as authorised representative would not be inconsistent with those orders.

May DSC bring these proceedings as an authorised representative of his mother?

DSC made the internal review application when the guardianship order was in force. His entitlement to apply to the Tribunal for review of the relevant conduct under s 55 of the Privacy and Personal Information Protection Act is contingent upon his entitlement to make this application for internal review under s 53 of that Act. This is because only a person who "has made an application for internal review under section 53" is entitled to apply to the Tribunal for an administrative review under s 55. A person who was not entitled to apply for internal review could not properly be described as having made an application "under section 53."
There is no dispute that DSC applied for internal review whilst the guardianship order was in force.
I do not consider that the applicant acting as an authorised representative of his mother is inconsistent with the guardianship order of 24 May 2018. That guardianship order was for limited purposes. It did not affect the operation of the enduring power of attorney. There is nothing in that order which is, on its face, inconsistent with the applicant lodging an application for internal review under the privacy legislation, or applying to this Tribunal for administrative review, in the capacity of his mother's authorised representative.
The Health District provided no evidence to support its allegations that DSC has acted inconsistently with medical advice with respect to his mother. Even if it could establish this, however, that would not mean that DSC acting as his mother's authorised representative under the privacy legislation is inconsistent with the guardianship order. I am not satisfied, on this evidence, that this would adversely affect his mother's welfare or interests (assuming this is relevant to the question I have to decide).
For these reasons, I find that DSC was entitled, pursuant to s 7(2) of the Health Records and Information Privacy Act, to apply for internal review of the Health District's conduct in respect of his mother's health information and to apply to the Tribunal for administrative review of that conduct, in his capacity as the authorised representative of his mother.
Given my conclusion, I do not need to consider whether DSC was entitled to make the application for internal review in his own right on the separate basis that he was a "person who is aggrieved by the conduct of a public sector agency" (being conduct relating to his mother's health information) within s 53(1) of the Privacy and Personal Information Protection Act. Neither party raised this issue in submissions.

Orders

I make the following order: 1. The applicant is entitled, pursuant to s 7(2) of the Health Records and Information Privacy Act 2002 (NSW), to bring these proceedings as his mother's authorised representative, insofar as the proceedings concern her health information.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 07 June 2019

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