procedural. Tribunal determined to take no further action; made suppression orders under s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting disclosure of names of the applicant, his...
Key principles
A private sector health service provider breached s 27 of the HRIP Act and Health Privacy Principle 7 (HPP 7) by failing to provide a written response within the 45 day timeframe...
Refusal to provide access may be justified under s 29(b) of the HRIP Act where providing access would have an unreasonable impact on the privacy of other individuals; the...
Where an applicant seeks access to records of a deceased person, the Tribunal recognised uncertainty about whether the HRIP Act creates a stand-alone right of access for...
Issues before the court
Did the respondent contravene HPP 7 and Part 4 of the HRIP Act by failing to provide a written response within 45 days to DSC's first request for...
Was the respondent justified in refusing DSC's post-mortem (second) request for access, and does the HRIP Act apply to requests for records of...
Plain English Summary
DSC sought his deceased mother's medical records from an aged care provider. The provider did not give DSC a written response within the 45 day statutory period (a procedural breach), but it had a lawful substantive reason to refuse access because DSC's co-attorney and co-executor (his brother) refused consent on privacy grounds and the provider could not be satisfied about DSC's authority. The Tribunal found the provider breached the HRIP Act procedurally for the first request but was justified in refusing access on privacy and authority grounds for both requests; it took no further action and ordered name suppression.
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Cited legislation
12 cited instruments linked from this judgment.
Deep Dive
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What happened
DSC (self‑represented) complained under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) about the United Protestant Association's handling of his two requests for access to his mother’s health records. The mother lived in a respondent-operated aged care facility from 7 June 2018 and died 26 September 2019. Both sons were appointed as attorneys under an enduring power of attorney (EPOA). The Tribunal had previously appointed the brother as guardian (31 October 2018) and the brother was later appointed financial manager (12 September 2019). DSC made a first access request on 3 July 2019 (while the mother was alive), asserting authority as an attorney. The respondent sought consent from the brother (who was also an attorney and guardian) and the brother withheld consent on privacy grounds. The respondent failed to give DSC a written response within the 45 day period mandated by s 27 HRIP Act. DSC made a second request after the mother’s death (5 October 2019), asserting executor status under the will. The respondent asked for evidence of authority (the will); one co‑executor (the brother) again refused consent and the respondent refused access on the basis it was not satisfied under s 31 and because disclosure would unreasonably impact others’ privacy (s 29(b)). The NSW Privacy Commissioner investigated and issued a report. DSC sought a Tribunal inquiry under s 48(1) HRIP Act. At hearing, the Tribunal found a procedural contravention (failure to issue written reasons within 45 days for the first request) but concluded the respondent was substantively justified in refusing access to both requests (for the second request the Tribunal left open whether the HRIP Act applies post‑mortem). The Tribunal took no further action and made suppression orders protecting identifying information.
Key procedural milestones:
First access request: 3 July 2019 (no written decision within 45 days; oral contact and consultations recorded in progress notes).
Second access request: 5 October 2019 (after death); respondent sought Will; brother/co‑executor refused consent; respondent refused access.
Privacy Commissioner report: 28 May 2020.
Tribunal hearing: 13 October 2020; orders dated 16 December 2020.
Why the court decided this way
The Tribunal applied the statutory architecture of the HRIP Act:
HPP 7 (Access) requires organisations holding health information to provide access to the individual concerned, without excessive delay (quoted in reasons).
Section 27 prescribes the response process and a 45 day deadline; failure to respond within 45 days is deemed refusal (s 27(6)).
Section 31 requires a private sector person to take reasonable steps to be satisfied about a person's authority to access another's health information.
Section 29(b) permits refusal where providing access would have an unreasonable impact on the privacy of other individuals.
For the first request (while the mother was alive), the provider conceded it did not give a written response within 45 days, a straightforward procedural breach of s 27 and HPP 7. Nevertheless, the respondent had a substantive basis to refuse: there were competing instruments and orders (co‑attorneys; the brother was also guardian by Tribunal order) and the brother expressly refused DSC’s access on privacy grounds. Because the respondent was not in a position to be satisfied of DSC’s authority (s 31) and had a valid ground under s 29(b) (unreasonable impact on others' privacy), the Tribunal treated the substantive refusal as justified. The Tribunal balanced the procedural contravention against mitigating factors: ongoing consultation with DSC recorded in progress notes; efforts by staff to manage family conflict and preserve the mother’s care; and the respondent’s implementation of Privacy Commissioner recommendations. That balance led to the decision to take no further action despite the admitted procedural breach.
For the second request (after death), the Tribunal emphasised legal uncertainty about whether the HRIP Act confers a right to access records of deceased persons. The Tribunal relied on submissions and the Privacy Commissioner’s view that the HRIP Act’s use of 'individual' is normally read as a living person, and noted the special 30‑year privacy preservation rule (s 5(3)). While the Tribunal did not finally determine whether access rights apply post‑mortem, it held that if the HRIP Act does apply, the respondent acted reasonably by seeking proof of authority and refusing access where co‑executor consent was not given, again invoking s 31 and s 29(b).
Two practical points influenced the Tribunal’s reasoning:
The provider’s duty to take reasonable steps to verify authority (s 31) meant it could reasonably rely on the co‑executor’s objection when executorship was shared.
Procedural failings (no written decision in 45 days) are actionable breaches but do not automatically require remedial orders where the substantive decision is sustainable and the respondent has taken steps to reform its processes.
Before and after state of the law
Before this decision:
HRIP Act was clear on procedural requirements for responses (s 27) and on grounds to refuse (s 29), as well as verification obligations (s 31).
Uncertainty existed in practice about how those provisions operate where multiple attorneys/executors disagree, and whether the HRIP Act applies to deceased persons.
Effect of this decision:
Reinforces two points already present in the statute and prior authority:
A provider must give a written decision within 45 days or is deemed to have refused; failure is a contravention (the Tribunal found the breach).
A provider may be justified in refusing access if disclosure would unreasonably affect privacy of others, and providers must verify authority prior to disclosure (s 29(b) and s 31).
Clarifies tribunal practice: where there has been a procedural breach but the substantive refusal is firmly based on statutory grounds and the provider demonstrates steps taken and remedial action, the Tribunal may take no further action rather than making coercive orders.
Leaves intact the unresolved question whether HRIP Act access rights continue after death; the Tribunal expressly recorded the doubt and followed the Privacy Commissioner’s view without making a definitive determination.
Thus, the decision is more confirmatory and pragmatic than transformative: it emphasises compliance with procedural obligations but recognises legitimate limits on disclosure when authority and third‑party privacy are in dispute.
Key passages with plain-English translation
Passage: "In failing to respond to the request within the prescribed 45 day timeframe with written reasons for refusing to give access, the respondent breached s 27 of the HRIP Act and HPP 7."
Translation: The provider did not comply with the law's rule that it must give a written answer within 45 days; that failure was unlawful.
Passage: "Since the applicant's second request was not expressed to be made for compassionate reasons pursuant to HPP 11 clause (1)(g), the Privacy Commissioner did not consider the respondent failed to comply with its obligations under the HRIP Act in relation to DSC's second request."
Translation: The applicant did not ask for the records on compassionate grounds (an express exception that can allow disclosure of a deceased person's records). Because of that, the Commissioner did not find the provider had wrongly withheld records after death.
Passage: "In circumstances where ... one of the executors refused to consent on the grounds set out in s 29(b) ... the respondent's decision to not release the information sought by DCS was, in my view, justified."
Translation: When co‑executors (or co‑attorneys) disagree, and one refuses on legitimate privacy grounds, a provider can reasonably refuse to hand over records to the other.
Passage: "The Tribunal determines to take no further action on the matter."
Translation: Although the provider broke a procedural rule, the Tribunal decided not to impose any further orders or remedies after weighing the facts.
What fact patterns trigger this precedent
This decision is directly relevant where:
Two or more persons hold concurrent authority (co‑attorneys, co‑executors) and they disagree about access to a principal's or deceased person's health records.
A provider has contemporaneous evidence of family conflict and is uncertain about an applicant’s authority to access another’s health information.
A provider fails to respond in the statutory timeframe but has substantive statutory grounds for refusing access.
Applicants request access to records of deceased persons and the provider seeks direction on whether to treat that as within HRIP Act rights.
If the facts include a guardian or financial manager appointed by tribunal or court who has made decisions about access, this decision supports a provider taking care to verify authority and treating a co‑party's objection as material when deciding under s 31 and s 29(b).
How later courts have treated it
As this is an NSW Civil and Administrative Tribunal decision (principal judgment), it is persuasive in tribunals and on administrative review rather than binding on courts. The decision expressly references and distinguishes earlier Tribunal authority (DSC v South Eastern Sydney Local Health District [2019]) and refers to CWF v Arndt [2017] for evidentiary standards when refusal is pleaded on s 29(a) grounds. Practitioners should monitor subsequent Tribunal or court decisions for a closer treatment of the post‑mortem access question, but at least until higher authority says otherwise, this decision is a practical precedent for providers and tribunals weighing procedural breach against substantive justification.
Still-open questions
Does the HRIP Act give a freestanding right of access to health records of deceased persons, or does its concept of 'individual' confine access rights to living persons? The Tribunal noted the uncertainty and adopted the Privacy Commissioner's view that 'individual' ordinarily means a living person, but declined to make a final ruling. The question remains ripe for appellate consideration.
If the HRIP Act applies post‑mortem, what exactly is the legal status of an executor in relation to 'authorised representative' under s 8(1)? The Tribunal regarded treating an executor as an authorised representative as arguable but noted executors are not enumerated in s 8(1)'s categories.
When co‑executors disagree, what procedural steps must a provider take before refusing access that courts will regard as 'reasonable steps' under s 31? The decision accepted reliance on a co‑executor's objection where authority was shared, but that leaves open how much further inquiry a provider must make (for example, insistence on a court order resolving the dispute).
Remedies for procedural breaches: the decision shows a Tribunal may refrain from coercive orders where remedial action and substantive justification exist; however, the threshold for imposing orders (such as requiring disclosure or imposing administrative penalties) was not exhaustively explored.
Interaction with aged care and other regulatory complaint processes: the respondent relied at times on an Aged Care Complaints Commission complaint being under way as a reason to delay or to give a holding response. How that interacts with strict statutory timelines under HRIP Act in other fact patterns remains a point for operational guidance.
Practitioners advising providers should (a) ensure a written response within 45 days (s 27), (b) document verification steps when authority is disputed (s 31), (c) record reasons for any refusal referencing s 29(b) where third‑party privacy is engaged, and (d) consider involving executors/administrators or seeking court directions where co‑authority prevents safe disclosure.
Judgment (23 paragraphs)
[1]
Introduction - Application for administrative inquiry
The applicant applied to the Tribunal for an inquiry into a complaint concerning his requests for a copy of his mother's medical file held by the respondent. The applicant's request for an inquiry into the complaint is exercised under s 48(1) of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act).
The applicant's requests for a copy of his mother's medical file were made both before and after his mother's death.
The complaint was the subject of a preliminary assessment by the NSW Privacy Commissioner (Privacy Commissioner) who then investigated the complaint and provided a report dated 28 May 2020 (PC's Report) under s.47 of the HRIP Act.
[2]
Scope of application and jurisdictional points to note
In the hearing held on 13 October 2020, the applicant confirmed that his complaint was confined to one concerning his mother's medical file and that it did not extend to a request for access to his own health information, if any, held by the respondent.
Both the applicant and the respondent acknowledged in the hearing that the Tribunal does not have jurisdiction to review the report of the Privacy Commissioner (refer to the Note in s 48(1) of the HRIP Act) and that the Tribunal's jurisdiction as set out in s 49 of the HRIP Act is to inquire into the complaint against the respondent.
Also in the hearing, both the applicant and the respondent acknowledged that, as a "private sector person" defined in s 4 of the HRIP Act, the respondent is not subject to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and therefore the PIPP Act has no application in this matter.
[3]
Parties to the proceedings
As previously noted, the applicant's complaint is against the respondent and not against the Privacy Commissioner. The applicant and the respondent are therefore the only parties to these proceedings.
The Privacy Commissioner is not a party to the proceedings but has a right to appear and be heard in proceedings before the Tribunal in relation to any inquiry under Part 6 of the HRIP Act. Accordingly, the Privacy Commissioner was duly notified under s. 50(1), made submissions and appeared in the hearing on 13 October 2020.
For completeness, I note that the applicant's brother asked to attend the hearing and listen to the proceedings and provide input if requested by the Tribunal. The parties and the Privacy Commissioner had no objection to this request and the applicant's brother attended the hearing on 13 October 2020.
In these reasons the name of the applicant has been anonymised to 'DSC'. Additionally, the names of the applicant's mother and brother, and the name of the aged care facility operated by the respondent where the applicant's mother resided prior to her death, have not been disclosed so as to preserve the privacy of the personal affairs of those individuals.
[4]
Material before the Tribunal
The applicant provided the following material to the Tribunal:
1. Administrative review application form filed on 22 June 2020 together with a copy of the PC's Report (marked Exhibit "A1"); and
2. a two-page submission filed on 21 August 2020 attaching copies of various correspondence from the applicant to the respondent and the Privacy Commissioner together with copies of email correspondence between the applicant and the respondent (marked Exhibit "A2").
The respondent provided the following material to the Tribunal:
1. Affidavit of Ms Bronwyn Joy Heard, Regional Manager of the respondent's Sydney North region, sworn on 25 September 2020 and filed on 1 October 2020 (marked Exhibit "R1");
2. Exhibit "BJH-1" comprising various documents referred to in Ms Heard's Affidavit, also filed on 1 October 2020 (marked Exhibit "R2");
3. Outline of Submissions on behalf of the respondent filed on 1 October 2020 (marked Exhibit "R3"); and
4. a letter dated 13 October 2020 from Mr Richard Neal of Teece Hodgson & Ward, Solicitors, who was appointed the administrator of the estate of the applicant's mother, filed during the course of the proceedings on that date (marked Exhibit "R4").
The Tribunal was also aided by submissions from the Privacy Commissioner filed on 30 September 2020 (marked Exhibit "PC1").
[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.
[6]
Issues for determination
The first issue for the Tribunal is to decide whether, in relation to the first request, the respondent failed to comply with HPP 7 or Part 4 of the HRIP Act. In considering this, it is relevant for the Tribunal to decide whether the respondent was justified in not releasing the information sought by the applicant. Despite the respondent's concession that a written response could not be found in its records, the respondent submitted that it had consulted with DCS about the care of his mother and had verbally advised DCS within the prescribed 45 day timeframe of the reasons why it could not provide access to the records to him.
The second issue for the Tribunal is to decide whether, in relation to the second request, the respondent was justified in not releasing the information sought by the applicant. In considering this issue, an additional complexity arises because the law is not clear on the application of the HRIP Act to requests for access to the records of deceased persons.
[7]
Applicable legislation
The Tribunal's jurisdiction to hold an inquiry into a complaint and make an order is found in Division 2, Part 6 of the HRIP Act.
The Tribunal's jurisdiction is only enlivened if the complaint is the subject of a report of the Privacy Commissioner under s 47 of the HRIP Act. The Privacy Commissioner's jurisdiction to investigate a complaint and provide a report is found in Division 1, Part 6 of the HRIP Act. As previously noted, in this matter the PC's Report was provided to the applicant.
After holding an inquiry, the Tribunal's powers are set out in ss 52, 53 and 54 of the HRIP Act. Under s 52, the Tribunal may dismiss a complaint if satisfied the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be dealt with. Under s 54, the Tribunal may decide not to take any action on the matter or it may make any one or more of the orders as set out in that section of the HRIP Act.
It is useful to look at the comprehensive regime under the HRIP Act that facilitates access for individuals to their health information. The stated purpose of the HRIP Act is found in s 3:
3 Purpose and objects of Act
(1) The purpose of this Act is to promote fair and responsible handling of health information by -
(a) protecting the privacy of an individual's health information that is held in the public and private sectors, and
(b) enabling individuals to gain access to their health Information, and
(c) providing an accessible framework for the resolution of complaints regarding the handling of health information.
Section 11 of the HRIP Act requires a private sector person that is a health service provider or that collects, holds or uses health information (in this case the respondent) to comply with the Health Privacy Principles set out in Schedule 1 to the Act and the provisions of Part 4 of the Act.
[8]
Health Privacy Principles 7 and 11
The HRIP Act sets out 15 Health Privacy Principles in Schedule 1. Access to health information is a distinct health privacy principle (HPP 7), as set out below:
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.
Health Privacy Principle 11 (Limits on disclosure of health information) (HPP 11) operates to restrain disclosure of a person's health information, except in the circumstances specified, such as "for compassionate reasons": clause 1(g) of HPP 11. An organisation that holds health information must not disclose the information for a secondary purpose other than the primary purpose for which it was collected, unless one of the exemptions in HPP 11 applies.
[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.
[10]
Seeking access to health information
The HRIP Act facilitates access to health information under s 26. An "authorised representative" of an individual may request access to the information in the place of the individual and in that circumstance, s 26(2) provides:
(2) An individual who requests access to health information relating to the individual may authorise another person to have access to the information in the place of the individual. Such an authority must -
(a) be in writing, and
(b) name the person who is authorised to have access to the information.
A private sector person is to provide access under this Act in accordance with any such written authority.
[11]
Situations where access need not be granted
HPP 7 does not give an immediate right of access to health information in all circumstances. Section 29 sets out situations where access need not be granted. In particular, under ss 29 (a) and 29(b) a private sector person is not required to provide an individual with access to health information relating to the individual if:
(a) providing access would pose a serious threat to the life or health of the individual or any other person and refusing access is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or
(b) providing access would have an unreasonable impact on the privacy of other individuals and refusing access is in accordance with guidelines, if any, issued by the Privacy Commissioner, or
Section 30 then prescribes the process to be followed where access is refused on the ground in s 29(a) that providing access would pose a serious threat to the life or health of the individual. In CWF v Arndt [2017] NSWCATAD 251 the Tribunal considered that the respondent was required to establish to the civil standard of proof that providing access would pose a serious threat to the life or health of the individual or any other person. Ultimately, in the case to hand, while the respondent held concerns that providing the information might increase the conflict between DCS and his brother and impact upon the care for their mother (refer to paragraph 48 of Ms Heard's affidavit, Exhibit R1), the respondent did not rely upon s 29(a) as a reason for refusing to provide access.
[12]
Requirement to take reasonable steps to be satisfied about a person's asserted authority to access information
Under s 31, a private sector person must take reasonable steps to be satisfied about a person's asserted authority to have access to the information of an individual before granting access. Section 31 refers to the definition of "authorised representative" in s 8 of the Act.
[13]
Processes for responding to requests for information
Section 27 prescribes the way that private sector persons are to respond to requests for health information. This includes mandating a time frame of 45 days for responding to requests: s 27(1). Importantly, the requirement to respond within the stipulated time frame applies regardless of whether the private sector person decides not to provide access.
A private sector person responds by either providing or refusing access to the information: s 27(2).
Where refused, the private sector person must give a written reason for refusal of access, being a reason for refusal provided for by the Act: s 27(3).
If a private sector person fails to respond to the request as required, and within 45 days of the request, it is deemed to have refused access: s 27(6).
[14]
Analysis
In the course of its provision of aged care services, the respondent collects, holds and uses health information and is therefore subject to obligations under the HRIP Act. The respondent, as a private sector person (as defined in s 4), is required under s 11 of the HRIP Act to comply with the Health Privacy Principles and with any health privacy code of practice or provision of Part 4 that applies to it.
[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
[16]
Privacy Commissioner's finding and recommendations
The Privacy Commissioner found that the respondent contravened a provision of Part 4 of the HRIP Act (s 27) and HPP7 because it did not provide a written response within 45 days to explain why it had decided to refuse DCS's first request for access to his mother's health information.
The Privacy Commissioner recommended that the respondent:
1. reviews its process for responding to requests for access to health information to ensure that a response is provided in accordance with HPP7 and Division 3 of Part 4 of the HRIP Act in future; and ensure that this process includes providing a written response to each request to explain whether the request will be processed as a request for access to health information under the HRIP Act and if not, reasons why;
2. ensures that in responding to future requests for access to health information on behalf of another individual, it communicates to the requestor whether it considers the requestor to have appropriate authority to seek access on the individual's behalf, and keep a record of any internal decisions made in this regard.
Paragraph 71 of the PC's Report notes that the respondent was "reviewing its process for responding formally to requests for access to health information including providing a response to each request to explain whether the request will be processed as a request for access to health information under the HRIP Act and if not, reasons why."
The respondent's implementation of the Privacy Commissioner's recommendations, its exchanges with the applicant about the care and feeding regime for his mother as recorded in the patient Progress Notes and its conduct in managing the conflict between the two brothers, have bearing on my findings and order.
[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.
[18]
Privacy Commissioner's finding
The PC's Report (at paragraph 63) noted that, under HPP 11 clause (1)(g), an organisation may disclose the health information of a deceased person to an immediate family member for compassionate reasons. However, since the applicant's second request was not expressed to be made for compassionate reasons pursuant to HPP 11 clause (1)(g), the Privacy Commissioner did not consider the respondent failed to comply with its obligations under the HRIP Act in relation to DSC's second request.
[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.
[20]
Appointment of administrator of the estate of the deceased
Mr Richard Neal of Teece Hodgson & Ward, Solicitors, was appointed as administrator of the estate of the deceased, by the Supreme Court of New South Wales under Grant of Letters of Administration 2020/00048887 dated 21 August 2020. Mr Neal's letter dated 13 October 2020 to this Tribunal (Exhibit R4) asserts that he has authority to control, possess, request access to and authorise access to records of the deceased.
Mr Neal's evidence (Exhibit R4) was that no party to these proceedings had asked him to authorise access to records of the deceased and that until a request is made for his consideration, including consideration of the utility and purpose of authorising access, he was not in a position to comment further. The applicant confirmed in the hearing that he had not yet requested access to his mother's file through the administrator of the estate. However, I note that that is an option for the applicant to explore.
[21]
Findings
On the first issue, I find that the respondent was justified in not releasing the information sought by the applicant on the ground set out in s 29(b) of the HRIP Act but contravened HPP 7 and Part 4 of the Act in failing to provide a written response within the prescribed time frame. In deciding that the Tribunal should take no action in respect of conduct which the respondent has itself conceded involved a breach of HPP 7 and Part 4 of the HRIP Act, I have taken into consideration the following:
1. the consultation and communications between the respondent and DCS as disclosed in the patient Progress Notes (Exhibit R2) about the treatment and care for the mother;
2. the conduct of the respondent which indicates that its staff acted with compassion and insight, seeking to balance the requirement to provide care to the mother in accordance with medical advice and at the same time negotiate a pathway for communication between itself and the two brothers who were in conflict over the care and treatment for their mother;
3. the respondent's argument that giving access to DSC to the mother's file could have increased the conflict between the two brothers about the care and management of their mother, making it even more difficult to administer care to their mother in accordance with the medical and dietary recommendations; and
4. the respondent's implementation of the recommendations made by the Privacy Commissioner.
On the second issue, if the correct interpretation is that the HRIP Act does have application to requests for access to records of a deceased person (which remains in doubt), I find that the respondent was justified in not releasing the information sought by the applicant. In seeking to be satisfied as to the authority of the applicant to have access (s 31) and refusing access on the ground set out in s 29(b) of the Act, the respondent did so in compliance with Part 4 of the HRIP Act as if the legislation was applicable in the circumstances.
[22]
Orders
The Tribunal determines to take no further action on the matter.
Under s 64(1) of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of the applicant, the applicant's brother and the applicant's mother, or of material that identifies any of those individuals or is likely to lead to the identification of any of those individuals is prohibited.
Under s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the aged care facility the subject of these proceedings is prohibited.
[23]
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: 16 December 2020
Tribunal determined to take no further action; made suppression orders under s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting disclosure of names of the applicant, his brother, his mother and the name of the aged care facility.
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.
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 2019 Case does not ease for the applicant the obvious difficulties caused by:
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.
A contemporaneous note dated 15 August 2019 made in the patient Progress Notes by a registered nurse (page 71 of Exhibit R2) recorded that DSC was advised about his mother's diet and feeding regime, as well as the limitations and restrictions that applied to his visits and attempts to feed his mother. A further note dated 19 August 2019 (page 60 of Exhibit R2) recorded that DSC was again reminded about how his mother was to be fed. Then, on 20 August 2019, another note (page 69 of Exhibit R2) recorded that DSC was further reminded of the feeding regime to be followed. The same information was provided to DSC on 23 August 2019 (page 67 of Exhibit R2). The contemporaneous notes of the respondent demonstrate that UPA staff did consult with the applicant about the care and feeding procedure for his mother to be followed. Yet it appears that staff may have been guarded in the amount of information they gave to DCS. For instance, the note dated 23 August 2019 specifically recorded that no information was given in response to DCS's queries about the speech pathologist, as per instructions from DSC's brother.
The respondent submitted in the hearing that the friction between the two brothers about the care of their mother caused difficulties for the respondent. Paragraph 21 of Ms Heard's affidavit stated that DSC constantly disagreed with the directions of the guardian and medical advice. In paragraphs 28 and 43 of Ms Heard's affidavit, the evidence given was that DSC was disruptive to the care of the mother and the decision making of his brother. Indeed, the respondent held the view, prior to the mother's death, that giving access to DSC to the medical records would have "intensified the conflict" between the two brothers and between the respondent and DSC, and that this was not in the best interests of the mother's health (refer paragraph 48 of Ms Heard's affidavit, Exhibit R1). This argument may have some bearing on the respondent's internal decision-making and apparent well-intentioned conduct to try to "keep the peace" between the brothers in the interests of administering care to their mother. It is clear that the respondent walked a 'fine line', not wishing to escalate the conflict between the two brothers in case it impacted upon the care to be given to their mother. It is conceivable that staff were aware of the decision to not give DCS access to the mother's file and the reasons for that decision, but sought to avoid discussing this directly with DCS in the interests of preventing further argument between the brothers and opposition to the care being given to the mother.
Despite the asserted ongoing consultation between the respondent and DSC, the first request for access made on 3 July 2019 remained unaddressed. The respondent provided what can only be regarded as a 'holding response' to DSC on 11 September 2019, advising that they were awaiting the outcome of a complaint made to the Aged Care Complaints Commission (the Commission), and directed DSC to raise his concerns with his brother as guardian. This 'holding response' was already outside the 45 days prescribed in s 27(1) of the HRIP Act. It was not an adequate response in terms of s 27(2) and s 27 (3) of the Act, and did not constitute a decision on DSC's request for access.
Since the respondent was well aware of dispute between the attorneys and one attorney refused to give his consent to the other having access to the mother's records on the grounds set out in s 29(b), it was open to the respondent to refuse access to DSC and give those reasons. Those grounds existed notwithstanding the then extant complaint to the Commission.
Accordingly, in failing to respond to the request within the prescribed 45 day timeframe with written reasons for refusing to give access, the respondent breached s 27 of the HRIP Act and HPP 7.
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.
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."