DSC v United Protestant Association

DSC v United Protestant Association - [2020] NSWCATAD 315 - NSWCATAD 2020 case summary — Zoe

[5]

Overview of facts

The respondent is an approved provider of residential aged care services under the Aged Care Act 1997 (Cth) and operates a number of aged care facilities within NSW.
The applicant's mother was a resident at one of the facilities operated by the respondent from 7 June 2018 until her death on 26 September 2019. The mother was attended to by medical and nursing staff and also received services provided by a speech pathologist and dietician, with records of those services held by the respondent.
The evidence of Ms Heard, at paragraph 7 of Exhibit R1, is that the applicant's mother was 89 years of age at the date of her death and had been diagnosed with alzheimers disease, dementia, MI, gord, detached retina, cholecystectomy, and frequent urinary tract infections. Ms Heard's further evidence is that the certificate signed by the doctor stated that the applicant's mother died of alzheimers disease and myocardial infarction.
DSC and his brother had both been appointed as executors under their mother's Will dated 20 October 2004.
DSC and his brother had also both been appointed as their mother's attorneys under an Enduring Power of Attorney executed on 16 March 2011 (EPOA).
In proceedings commenced in 2016 before the Guardianship Division of this Tribunal (Case number 2016/00393393), the two brothers were in dispute about the care and guardianship of their mother, the management of her assets and the EPOA.
The 2016 guardianship proceedings resulted in DSC's brother being appointed as guardian for the mother for a period of one year commencing on 31 October 2018 (around four and a half months after the mother started to reside in the aged care facility).
DSC's brother was also subsequently appointed as financial manager of the mother's estate on 12 September 2019, around two weeks before the mother passed away on 26 September 2019.
DSC asked for access to his mother's health information both before and after she died. In this decision, I will refer to these requests as, respectively, "the first request" and "the second request".
In requesting access to his mother's file on 3 July 2019, i.e. before her death, DSC relied upon his standing as an attorney under the EPOA. The respondent sought the consent of the applicant's brother who was also an attorney under the EPOA and the mother's appointed guardian. The applicant's brother refused to give his consent to DSC having access to their mother's file because of privacy concerns he held, that is, he was concerned about personal information about himself and the mother contained in the records and did not want DSC to have access to that personal information.
In relation to the first request, the respondent conceded that it had failed to respond in writing within the prescribed 45 days' timeframe, in compliance with s 27 of the HRIP Act. However, the respondent asserted that it had verbally advised DSC within the prescribed timeframe of the reason why it could not give him access to the information.
In relation to the second request, DSC relied upon his appointment as an executor under his mother's Will. Both the EPOA and the guardianship order had ceased to have any application upon the mother's death.
The second request is subject to technical argument as to whether the HRIP Act covers requests for health information relating to deceased persons. While that is not a matter requiring this Tribunal's decision, it is discussed under the heading "Analysis" in these Reasons.
Again, following DSC's second request, the respondent sought the consent of the applicant's brother who was also an executor under the Will and had, by that point in time, also been appointed as the financial manager of the mother's estate. The applicant's brother again refused to give his consent to DSC having access to their mother's file, because of the same privacy concerns he held.
Ultimately, in written communications on 20 November 2019 and 2 December 2019, the respondent advised DSC that it would not give him access to the information on the ground that his brother, as co-executor under the Will, did not consent because of privacy concerns.
Subsequent to these events, Mr Richard Neal of Teece Hodgson & Ward, Solicitors, was appointed the administrator of the estate of the applicant's mother, by grant of Letters of Administration by the Supreme Court of New South Wales on 18 June 2020. According to Exhibit R4: "the authority to control, possess, request access to and authorise access to records of the deceased" reposes in the administrator alone, i.e. Mr Neal.
A more detailed account of dates, events and applicable documents is provided under the heading "Analysis" in these Reasons.

[9]

An "authorised representative" can act on behalf of an individual to request access to information

The HRIP Act contemplates that access to information may be granted in certain circumstances to an "authorised representative" acting on behalf of an individual due to incapacity. Section 7 of the Act deals with the incapacity of an individual by reason of age, injury, illness, physical or mental impairment to do something under the Act and permits an "authorised representative" of an individual to do such an act on behalf of the individual in those circumstances of incapacity.
Under s 8(1) of the HRIP Act, "authorised representative" is defined to mean: (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.
In this case, with respect to the first request, the applicant asserted that he was his mother's authorised representative as her appointed attorney. In relation to the second request, DCS asserted that he was his mother's authorised representative as her appointed executor. In both circumstances, the applicant was not the sole attorney or executor. It is to be noted that the definition of "authorised representative" in s 8(1) of the HRIP Act does not include an executor and this is discussed under "Analysis" in these Reasons.
Section 8(2) provides that a person is not an authorised representative of an individual for the purposes of the HRIP Act to the extent that acting as an authorised representative of the individual is inconsistent with an order made by a court of tribunal. This is discussed further in connection with the applicant's submissions about the application of the decision in DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111 where the Tribunal found there was no inconsistency in the applicant as attorney for his mother having standing to bring proceedings under privacy legislation even though the applicant's brother had been appointed as the mother's guardian.

[15]

First issue: Did the respondent fail to comply with HPP 7 or Part 4 of the HRIP Act and was the respondent justified in refusing access to DSC's first request?

The respondent conceded that it failed to provide a written response to DSC's first request for access to his mother's health information within the prescribed 45 day timeframe, under s 27 of the HRIP Act. Nonetheless, it is pertinent to the findings and order made in these Reasons to look at the circumstances of the first request. This includes consideration of the documents relied upon by the respondent to seek to satisfy itself about DSC's authority to request access, the grounds on which the respondent decided to refuse the request, and the conduct of the respondent.
DSC had been appointed as his mother's sole attorney under an Enduring Power of Attorney dated 8 September 2010. Subsequently however, on 16 March 2011, the applicant's mother executed a new Enduring Power of Attorney appointing both sons as her attorneys (the EPOA). Both Power of Attorney documents contained standard wording giving the attorneys the authority to buy and sell real estate, shares and other assets for the principal, to operate the principal's bank accounts, to spend the principal's money on behalf of the principal and to exercise many other powers. The standard wording also included a statement that the authority was not to be used after the principal dies. Both documents noted that a power of attorney cannot be used for health or lifestyle decisions and that the principal should appoint an enduring guardian under the Guardianship Act 1987 if the principal wants a particular person to make these decisions.
The applicant's brother had been appointed under the Guardianship Act 1987 (NSW) as the mother's guardian on 31 October 2018, for a period of 1 year. Proceedings had commenced in 2016 (case number 2016/00393393) and the guardianship order was limited to certain functions, namely:

to decide what access the applicant's mother had to others and the conditions of access;
to decide where the applicant's mother may reside;
to decide what health care the applicant's mother may receive;
to make substitute decisions about proposed minor or major medical or dental treatment, where the applicant's mother was not capable of giving a valid consent; and
to make decisions about the applicant's mother's diet and feeding practices.

At the time of the first request, the respondent was aware of the conflict between DSC and his brother (ref to paragraph 47 of Ms Heard's affidavit, Exhibit R1) and knew that legal proceedings had been on foot for a number of months which included a dispute about the EPOA (paragraph 30 of Ms Heard's affidavit). The respondent understood that the Tribunal had determined that it was in the mother's best interest for DSC's brother to make decisions about the matters specified in the guardianship order and had accordingly appointed him as guardian.
It is against that background, that DSC made his first request for access on 3 July 2019, asserting his authority as an attorney under the EPOA. DSC followed up on 5 August 2020 with a request that an internal review be undertaken of why he had not been provided with a copy of his mother's file.
The respondent contended (refer to 26 of Ms Heard's affidavit) that the sentence in DSC's request of 3 July 2019: "As there has been provided a copy of an Enduring Power of Attorney then I will not provide the same again" reflected the respondent's decision-making (either written or verbal). The respondent's argument on this point is not very clear however DSC's reference to the EPOA suggests that the parties had been in some discussion about DSC's asserted authority to request access to his mother's file even before 3 July 2019 and that the respondent may have held reservations about DSC's standing as an "authorised representative" of his mother. The respondent deferred to DSC's brother whom the staff noted to be the mother's next of kin and attorney (refer to contemporaneous note on 19 August 2019, page 69 of Exhibit R2).
The applicant's written submission (refer to the letter dated 21 August 2020 to the Tribunal, Exhibit A2) throws some light on his reasoning and legal argument as to why he believed the respondent should have provided the information he requested, ostensibly relying upon the decision in DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111 (the 2019 Case). The applicant's submission contended as follows: "The legal argument that in the case of [2019] NSW CATAD 111 the senior member determined at Point 21 "I do not consider that the applicant ('DSC' being the same person as in the current proceedings) acting as an authorised representative of his mother is inconsistent with the guardianship order … … On the basis of the above [added emphasis] it is contended that UPA should have provided the information requested by this applicant within the required time…".
Reliance upon the 2019 Case is only relevant to the applicant's standing to bring privacy proceedings. DSC's standing to bring proceedings under the HRIP Act on the basis of his appointment as an attorney for his mother is not inconsistent with the terms of the guardianship order made on 31 October 2018. However, contrary to DSC's submission, the Tribunal's decision in the 2019 Case does not provide a basis for arguing that the respondent should have provided the requested information to him in the present case.

the fact that DCS was not the sole attorney under the EPOA;
there being two attorneys appointed under the EPOA who were not in agreement on a range of issues;
DCS's brother declining to give his consent to DCS having access because of privacy concerns as noted previously (a valid ground under s 29(b) of the HRIP Act for refusing access); and
the respondent being obliged under s 31 of the HRIP Act, before giving access, to take reasonable steps to be satisfied about a person's authority to have access to the information requested.

In the circumstances, the respondent was not in a position to be satisfied about DCS's authority to have access to the information and deferred instead to DCS's brother who was also the appointed guardian. The respondent therefore accepted instructions from DSC's brother to decide to not provide the information requested because of concerns that it would impact on the privacy of the brother and mother.
Despite its concession that it failed to provide a written response within 45 days, the respondent submitted that it had consulted with DSC about his mother's care and had orally provided information to him about his mother's care from time to time: refer to paragraph 8 in Ms Heard's affidavit. The respondent's evidence in paragraph 44 of Ms Heard's affidavit is that, based upon instructions from DSC's brother, it was "entirely appropriate and reasonable" to not provide full access to the mother's records, but to consult with DSC. The respondent also submitted that it verbally communicated to DSC the reasons why access would not be provided (paragraph 52 of Ms Heard's affidavit, Exhibit R1).
However, while the patient Progress Notes (pages 66 to 73 of Exhibit R2) record the content of exchanges with DSC about the care and feeding for his mother, they do not explicitly record that staff advised DCS about the respondent's decision that it was not satisfied that DCS had authority to request access or the decision to deny access and the reason for it. Certainly, in DSC's mind, he was not aware that his brother did not agree to the release of information until around December 2019 (refer to DSC's submissions in A2). There may have been well-intentioned reasons for this which I will refer to below, however the requirement for the respondent to comply with Part 4 of the HRIP Act remained.
In oral submissions, the applicant rebutted any suggestion that he had been consulted. It was clear, from submissions made by the applicant during the hearing, that he was concerned about his mother's health and sought to be actively involved in her care. I have no doubt that the applicant was emotionally distraught over his mother's condition and sought to be actively involved in her overall care and the regime put in place in accordance with the respondent's dietitian.
It is evident from an undated note from the brother to the applicant (at page 63 of Exhibit R2) that the arrangements put in place around the care and dietary needs of the mother were clearly communicated to DSC. An email dated 19 October 2018 from the brother to the respondent's Regional Manager, demonstrates that the brother took DSC's suggestions about his mother's dietary preferences into account when providing instructions to the respondent (pages 64-65 of Exhibit R2). That email acknowledged DSC's assistance with walking his mother and expressed appreciation for DSC's involvement in some aspects of their mother's care routine. However, the email also made it clear that DSC's visits to his mother were only to occur with prior arrangement made by the guardian. It is evident that the respondent deferred to the brother as guardian for instructions on what to communicate to DSC.

[17]

Second issue: Was the respondent justified in refusing access to DSC's second request?

After his mother had passed away, DSC made a second request on Saturday, 5 October 2019, for access to the file. If this were to be treated as a formal request under s 26(2) of the HRIP Act, it would be on the proviso that the Act permits access to records of deceased persons. The law is not clear on this point as referred to below.
Upon the mother's death, the EPOA and guardianship order had no application. Under s 6A of the Guardianship Act 1987 (NSW), an appointment of an enduring guardian has effect "only during such period of time as the appointer is a person in need of a guardian".
As noted previously, the applicant's mother had executed her Will on 20 October 2004, appointing both the applicant and the applicant's brother as executors. An executor does not appear in the defined meaning of "authorised representative" under s 8(1) of the HRIP Act. In noting this point, the Privacy Commissioner submitted that the definition of an "authorised representative" under s 8(1)(d) of the HRIP Act, i.e. "a person who is otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual" does not accurately describe the role of an executor on the death of a person.
The applicant's brother had been appointed on 12 September 2019 to be the financial manager of the estate of the deceased under the Guardianship Act 1987 (NSW). A note to the financial management order confirmed the suspension of any power of attorney while the financial management order was in force (s 50(3) of the Powers of Attorney Act 2003 (NSW)).
The respondent advised DSC on 8 October 2019 that they were waiting for the outcome of the complaint to the Commission. This is similar to the 'holding response' given by the respondent to DSC with respect to the first request for access.
On 14 November 2019, DSC refined his request to one seeking access to digital records only.
The following day, on 15 November 2019, Ms Heard on behalf of the respondent sent an email to DSC expressing condolences on the death of his mother.
Ms Heard also advised on 15 November 2019 that the executor could authorise the release of the file and asked DSC for a copy of the Will. Despite the absence of a reference to an executor in the definition of "authorised representative" in s 8(1) of the HRIP Act, the respondent apparently placed reliance on the appointment of executors under the Will in seeking to satisfy itself about DSC's authority to have access. In the circumstances, this was not an unreasonable consideration on the part of the respondent. The applicant provided a copy of the Will, appointing him as co-executor with his brother.
On 20 November 2019 the respondent advised that DSC's brother as co-executor declined to consent to providing the information to DSC. In the absence of agreement between the executors, the respondent was not satisfied that DSC was an "authorised representative" and refused to provide access to DSC.
On 21 November 2019, DSC then asked the respondent to consider HPP 7, the HRIP Act and the PPIP Act and asked for all records where a reference was made to himself.
While DSC's request for access to information about himself is out of scope in these proceedings, the respondent's reply on 2 December 2010 demonstrates its consideration of the privacy concerns held by DSC's brother. The respondent advised DSC that he was entitled to his own personal information except where it impacted upon the privacy of others. The respondent denied access to the mother's records on the ground that providing access would unreasonably impact on the privacy of DSC's mother and brother and that his brother had declined to give his consent.
The respondent sought in its submissions to distinguish the circumstances around the second request from those in the 2019 Case on the following grounds:

the mother was by that time deceased;
on and from 31 August 2018, DSC's brother was sole guardian for the mother;
the respondent had reason to doubt the authority of DSC because legal proceedings had been on foot for a number of months and the EPOA was under dispute (refer to paragraph 30 of Ms Heard's affidavit, Exhibit R1);
on and from 12 September 2019, DSC's brother was appointed as financial manager and this appointment suspended the EPOA;
as the mother was now deceased, the EPOA had no effect.

If, indeed, the HRIP Act has application to requests for access to the records of a deceased person (which is not an issue for the Tribunal's decision in these proceedings), the respondent's request for evidence of authority was in accordance with s 31 of the HRIP Act which makes it mandatory for a private sector person to take reasonable steps, before providing access, to be satisfied about a person's authority to have access.
In the hearing, it was submitted on behalf of the respondent that it would have provided access to DCS had there been agreement between the brothers. This submission highlighted the crux of the issue. Faced with the situation where the brothers were in disagreement, the respondent was not in a position to be satisfied about DCS's authority to have access to the information as required under s 31 of the HRIP Act, and DCS's brother refused to give his consent to DCS having access to the information because of privacy concerns.
In circumstances where, although s 8 of the HRIP Act does not include "executor" in the definition of "authorised representative", the respondent's decision to rely upon the appointment of an executor under the Will of the deceased as being indicative of authority to access records of the deceased, was a reasonable course of action. In circumstances where the Will appointed two executors and one of the executors refused to consent on the grounds set out in s 29(b) of the HRIP Act (that providing access would have an unreasonable impact on the privacy of other individuals), the respondent's decision to not release the information sought by DCS was, in my view, justified.
An even bigger issue for the applicant in relation to the second request is whether the HRIP Act applies in relation to requests to access the records of deceased persons. On this aspect, I am aided by submissions made on behalf of the Privacy Commissioner, and I now turn to her finding and discussion about the application of the HRIP Act to deceased persons.

[19]

Application of the HRIP Act to deceased persons

The HRIP Act does not explicitly state whether the access provisions apply to an individual seeking access to information on behalf of a deceased person. On the question whether the access provisions in HPP 7 and Part 4 of the Act apply, the Tribunal was aided by the PC's Report and submissions made on behalf of the Privacy Commissioner.
In paragraph 59 of the PC's Report, the view was that the right to request access to health information under HPP 7 and Part 4 applies to a request for access to the health information of a living, natural person. On that basis, the Privacy Commissioner thought that after the mother passed away on 26 September 2019, the applicant's right to seek access on behalf of, or as an "authorised representative" of his mother under sections 8 and 26 of the HRIP Act ended. In expressing that view, the Privacy Commissioner did not consider whether the respondent's reasons for refusing to provide access following the second request were consistent with Division 3 of Part 4 of the HRIP Act.
Both the HRIP Act and the PPIP Act provide the same statutory definition of "personal information". Section 5(3) of the HRIP Act and s 4(3) of the PPIP Act provide for an exemption from the definition of personal information where "the information relates to a person who has been dead for more than thirty years". This means the protections provided for health information survive the death of the person for 30 years. This exemption, however, does not imply a right to access the health information of a deceased person.
In her submission, even though the definition of personal information under s 5(3) of the HRIP Act modifies its presumption of 'living persons' by including information of persons who have been dead for up to 30 years, the words 'individual' generally mean a living person (paragraph 51 of Exhibit PC1). Section 21 of the Interpretation Act 1987 (NSW) defines "individual" as a "natural person". Some privacy laws in other Australian jurisdictions are more explicit. For example, the Commonwealth Privacy Act 1988 (s 6 definitions) interprets 'natural person' to include only living individuals. The Information Privacy Act 2009 (Qld) (IP Act) limits the definition of personal information to information about an individual (s 12 of the IP Act) and s 36 of the Acts Interpretation Act 1954 (Qld) defines 'individual' to mean 'a natural person'. The Queensland Office of the Information Commissioner Guidelines note that a natural person can only be a living person.
In QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48 at [22]-[23], the Appeal Panel of the Administrative Decisions Tribunal examined the meaning of the word 'person' in the context of the Anti-Discrimination Act 1977: "The Tribunal adopted the submission that the word 'person' must be given the meaning of 'living person' wherever it appears in the AD Act. In that regard it referred to the Interpretation Act's definition of 'person' as an 'individual …' (Interpretation Act 1987, s 21(1) as referring to a presently-living person. The dictionary gives 'person' as the meaning or 'individual', and the main definitions of 'person' include 'human being', 'a self conscious or rational being' (in Philosophy), see Macquarie Dictionary, 4th ed. 2005. The Interpretation Act 'applies to all Acts and instruments … except in so far as the contrary intention appears in this Act or in the Act or instrument concerned': s 5(1) and (2). It is also the case that NSW's legislation often actively distinguishes between living persons and deceased persons. That drafting practice supports the ordinary interpretation of the word 'person' as referring to a living person as referring to a presently-living person."
The Privacy Commissioner noted that a private sector person may be permitted to disclose information to a close relative according to an exemption under HPP 11 (such as for compassionate reasons as provided for in s 1(g)). However, the Privacy Commissioner pointed out that HPP 11 does not operate to provide an alternative entitlement to access a deceased person's health information. Instead, HPP 11 provides for lawful reasons when information may be disclosed for a "secondary purpose". The disclosure of information for compassionate reasons is qualified by the requirements under clause (1)(g)(i) to (iv) of HPP 11, which includes a qualification that a disclosure is not to be contrary to any wish expressed by the individual of which the organisation was aware or could make itself aware by taking reasonable steps.
Paragraph 72 of submissions made on behalf of the Privacy Commissioner (Exhibit PC1) referred the Tribunal's attention to the published Fact Sheet - Access to Health Information for Health Care Providers, July 2018 which states: "Privacy laws continue to apply to the records of patients for 30 years after the date of death. However, access can be provided if consent is given by the executor of the estate for compassionate or other grounds. A decision to provide access should also consider any wishes expressed by the individual prior to their death (for example, through an Advanced Care Directive, or documented in the health record). You should keep a record of who requested access to the medical record, the grounds for allowing access, the information that was provided and the date this occurred."

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (2)

Cited By (2)