DTN v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-09-15|Before: Blake AM

Introduction

In the Appeal Decision at [104]-[116] the Appeal Panel identified the following sources of power which may possibly support the making of the orders sought by the applicant: 1. section 53(7)(e) of the PPIP Act; 2. section 55(2)(c) of the PPIP Act; 3. section 55(2)(d) of the PPIP Act; 4. section 55(2)(g) of the PPIP Act.
The respondent makes submissions as to each of these sources of power. While the applicant makes no submission in relation to these sources of power, he does address various documents that have been admitted into evidence.
Before considering each of these sources of power it is appropriate to set out the applicable provisions of the PPIP Act and the documents referred to in the submissions of the parties.

The applicable provisions of the PPIP Act

Section 53 deals with internal review by public sector agencies, and relevantly provides: 53 Internal review by public sector agencies … (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following - … (e) implement administrative measures to ensure that the conduct will not occur again.
Section 55 deals with administrative review of conduct by the Tribunal, and relevantly provides: 55 Administrative review of conduct by Tribunal … (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders - … (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, … (g) such ancillary orders as the Tribunal thinks appropriate.

The documents referred to in the submissions of the parties

On 6 December 2008, Dr Norm Southern (Dr Southern) sent a letter (which is dated 30 July 2009 on the second and third pages) to Dr Angus Pusic, psychiatrist, in which he requested an assessment of the applicant (the 6 December 2008 referral), and relevantly stated: "Thank you for seeing [the applicant], a 31-year-old police officer whom I believe is suffering obsessive compulsive disorder. I initially saw [the applicant] in March this year when he presented with symptoms suggestive of plantar fasciitis. … … Then, in September 2008, [the applicant] presented with his wife following events that had seen him scheduled to Cumberland Hospital. … On speaking to his wife, it became clear that [the applicant] suffered obsessive compulsive disorder. When parking the car, it had to be parked symmetrically in the garage with equal space on either side of the car. If his wife had not parked it perfectly, he would go out and move the car. All the chairs in the house were also set out symmetrically with their backs against the wall so that nobody could sit behind him. He refused to go to movies because he did not wish anybody to be sitting behind him. … At that point, I attempted to contact his case worker (Tiffany Hollings) as I felt that he required psychiatric evaluation. She was unavailable at the time but I left a message on her answering machine. In the meantime, given his mental state, I felt that it should not return to work. I believe that the symptoms of which he is now complaining are a part of his obsessive compulsive disorder. I believe this represents somatisation. … I really feel that his obsessive-compulsive disorder needs to be addressed as a priority and I would be extremely grateful, therefore, of your further assessment and management."
In the 30 July 2010 email (which is referred to in the Decision at [4]) Ms Saling relevantly stated: "I have just spoken at length with the NTD Dr Southern - he was pleased that we let him know of [the applicant's] recent behaviour when visiting to the LAC, though not surprised. He indicated that he has been trying to influence [the applicant] into accepting treatment for his psychological condition for several years now. He feels that there is no physical condition - the symptoms are somatisation of his OCD - it is all psychological, Obsessive Compulsive Disorder, not work related, and he will need a med discharge, He advised that [the applicant] is still hoping to RTW with the NSW Police, so is likely to become angry when told. [The applicant] has refused treatment and will not address the issues as policing is his life and identity. I have suggested as a psychiatrist Dr Schultz in Richmond as a treating psychiatrist- Dr Southern will make the referral once I send him the information. Dr Southern was very pleased and relieved to hear that the LAC took him to Bungarrabie House and that he is under the care of the Penrith Mental Health Team - actually said "thank god for that". So-the plan is: • I will send the NTD the details of Dr Schultz and try to convince [the applicant] to undergo treatment.- outside of Workers Comp. • Dr Southern will provide the necessary report for Med Discharge - however the timing of that should wait until he is having treatment and the support he needs to accept this just in case of any adverse reaction."
On 10 August 2010, Ms Saling sent a letter to Dr Southern in which she relevantly provided the names of three possible treating psychiatrists for the applicant as the psychiatrist she had initially mentioned had closed his books (the 10 August 2010 letter).
On 7 September 2010, Ms Saling provided a report on the applicant (the 7 September 2010 report), which I infer was sent to Dr Eoin Wilson (Dr Wilson), a psychiatrist, and in which she relevantly stated: "[The applicant] has been unfit for work now due to ongoing foot pain. In his report dated 6/12/2008 the NTD Dr Southern indicated that [the applicant] suffered from Obsessive Compulsive disorder and referred him to Dr Pusic for treatment. [The applicant] attended one treatment session with Dr Pusic and has not returned, stating that he obtained no benefit. In July this year [the applicant] presented to Blacktown Police Station in an agitated and somewhat confused state, enquiring as to his wife's whereabouts and her secret life. Out of concern for his welfare, Police Officers transported him to Bungarrabie House at Blacktown Hospital for treatment. [The applicant] was admitted overnight and then discharged home in the care of the Penrith Mental Health team. Following [the applicant's] discharge, the Injury Management staff of NSW Police made contact with the NTD Dr Southern to coordinate [the applicant's] ongoing management. The TD indicated that [the applicant] has significant Obsessive Compulsive Disorder - an example being his need to park his car at an exact interval from the side of his garage, and his inability to accept otherwise. The NTD also indicated that he has been trying to influence [the applicant] to accept treatment for his OCD for several years now. Further, the NTD indicated that in view of the negative results from the Neurologist- Dr Dowla who indicated in his report dated 23rd June 2010 "No specific cause of the peripheral neuropathy has been found", that in his opinion [the applicant's] symptoms were somatisation of his mental illness rather than pathological in nature. [The applicant] has a past history of mental health issues and a previous admission to Cumberland Hospital following a violent and irrational episode in approx 2008 where his wife sustained soft tissue injuries. The NTD will refer [the applicant] to a psychiatrist for his ongoing care."
On 29 September 2010, Dr Wilson provided a report on the applicant (the 29 September 2010 report), in which he relevantly stated: "Diagnosis Claims Intervention Diagnosis [The applicant] is likely to have a psychotlc illness. If this is not the case he has a psychological pain disorder." Contributing Factors … My view is that [the applicant's] psychiatric symptoms are not work-related. … I suspect [the applicant] is suffering from a psychotic illness ... If my suspicions are correct and [the applicant] has a psychotic illness, this should respond to antipsychotic medication and it may yet be possible for him to return to work as a police officer ... He may be physically and cognitively capable of performing basic clerical duties for the police."
On 15 October 2010, Dr Phillip O'Rourke, a psychiatrist, provided a report on the applicant (the 15 October 2010 report), in which he relevantly stated: "His speech was of normal volume, rate and rhythm. An accent was noted, and [the applicant] explained the accent was typically 'East London'. There was no evidence of any formal thought disorder (e.g. illogical, non-goal directed thinking, flights of ideas, etc). Given his work as a Police Officer, preoccupation with personal safety in open spaces may be an appropriate response; I did not find it to be delusional intensity. No bizarre delusions were elicted, No perceptual distortions were elicited (e.g. hallucinations, dissociative episodes). … Insight into my psychological disorder Is more difficult to assess. I asked to speak to his partner regarding the obsessive compulsive symptoms. [The applicant] was keen, for me to speak to his partner to clarify the situation. Assessment 15/10/2010 In meeting with his partner, [name omitted] while l had given consideration to the possibility that [the applicant's] preoccupation with his pain syndrome in relation to obsessional thinking, her report helped discount the diagnosis of an obsessional-compulsive disorder. She reported that the comments made earlier to other doctors had been mis-interpreted, and she confirmed that there were no signs that her husband was obsessional nor compulsive beyond what is appropriate for every-day living. [The applicant] indicated he is willing to consider the possibility that his symptoms may be accounted for by a pain syndrome. If this were the case, he indicated a rehabilitative approach to pain and return to work would be appropriate. Opinion 1. Diagnosis: [The applicant's] condition falls outside the mental disorders described in DSM IV-TR (Diagnostic and Statistical Manual of Mental Disorders IV -- Text Revision 2000). Within the differential diagnosis of Pain Disorder a diagnosis of Pain Disorder Associated with a General Medical Condition is included. In my opinion [the applicant's] condition warrants this diagnosis (i.e. Pain Disorder Associated with a General Medical Condition). There is a documented history of a physical injury to both feet which has resulted in chronic pain. I do not find that there are any psychological factors contributing to his ongoing pain. He remains motivated to return to work, within his physical capabilities. His mood while somewhat low does not fulfill the criteria for a Major Depressive Disorder. On the basis of this assessment I was not unable to elicit signs nor symptoms which would permit a diagnosis of an Obsessive Compulsive Disorder as described in DSM IV-TR (Diagnostic and Statistical Manual of Mental Disorders IV -- Text Revision 2000). A diagnosis of a Somatization Disorder, in this case a Somatization Disorder, is also difficult given the absence of the necessary criteria: four pain symptoms at different sites; two gastrointestinal symptoms and one sexual symptom. There was neither any evidence of a pseudo-neurological symptom. 2. What is the mechanism of [the applicant's] psychological condition and how is it work related? Regarding pain syndromes, pain is a subjective experience, and it seems there is no documented physical precipitant to the pain in both feet (plantar fascitls). In my opinion there are no psychological conditions [the applicant] is experiencing relating to his work or physical injury. 3. Are there other contributing factors to this injury (i.e. activities outside of work)? Given the history I have obtained and my assessment, there are no other contributing factors to this injury. 4. What are [the applicant's] current psychological symptoms? [The applicant] displays some obsessive traits related to his safety and vigilance within the community. However these are not dysfunctional and are to be seen as appropriate given his life-experiences. 5. What treatment does [the applicant] require and what is the expected time-frame for completion of these treatments? In relation to the pain symptoms a review by a pain specialist could be considered. Treatment as recommended by the assessing Specialist would determine a time-frame for therapy. 6. What is [the applicant's] current work capacity in terms of his psychological condition? [The applicant's] psychological condition does not prevent him from returning to work His work capacity will be reliant on his ability to manage his pain symptoms."
On 8 April 2011, Ms Saling prepared an independent medical consultation referral for the applicant (the 8 April 2011 referral) which indicated that his nominated treating doctor was Dr Norm Southern between February 2008 and December 2010, and Dr van Niekerk from December 2010, and relevantly set out the following information under the heading "Rehabilitation Processes": "Dr Southern indicated in his report dated 6th December 2008 his concern regarding the possibility of [the applicant's] symptoms of Obsessive Compulsive Disorder and raised the possibility of somatisation as an explanation of his symptoms. In the early months of 2009 Injury Management maintained contact with the NTD Dr Southern, the officer and the insurer in an effort to address return to work, however all efforts were frustrated as the NTD failed to respond to Injury Management's attempts at contact. After several such attempts on 30th July 2009 a case conference was arranged and held by Injury Management with the NTD and the officer, whereby the NTD advised [the applicant] was unfit for work and he was in urgent need of a Psychiatric evaluation. Further, Dr Southern advised that if the Obsessive Compulsive Disorder diagnosis was addressed and treated, [the applicant] may be fit for return to work in the police force in the future. The officer's physical symptoms continued unabated therefore he remained unfit for work. During the case conference it was apparent to the Senior Injury Management Advisor (SIMA) and Injury Management Advisor (IMA) that [the applicant] was unfit for work. [The applicant] appeared to be uncomfortable at times and was agitated from time to time during the conference. [The applicant] expressed mixed feelings about seeing a psychiatrist, due to the stigma that may be attached. [The applicant] was assessed by a Psychiatrist - Dr Pusic in August 2009, however despite being advised by his NTD, he did not return to see him until January 2011 after a pre-emptive appointment had been made for him by his NTD. [The applicant] indicated he felt he obtained no benefit from Dr Pusic when he was initially seen in 2009 and expressed his opinion that there was nothing psychologically wrong with him. There are no reports from Dr Pusic despite being requested by Injury Management and the insurer. Further contact by Injury Management with the NTD was attempted on several occasions by telephone and in the form of reports, however with no response. In early 2010 Injury Management also requested the insurer to arrange psychiatric and physical Injury Management Consultation (IMC) review to determine a clear diagnosis, however this was not attended. To avoid further delay an IMEP review was arranged by Injury Management with Dr Tim Anderson Occupational Physician on 29th April 2010 to address his bilateral foot pain. Dr Anderson was unable to provide a diagnosis for the foot pain and advised the officer was not fit to resume duties until a firm diagnosis had been made. Dr Anderson recommended nerve conduction studies and a psychiatric review. [The applicant] was referred to Dr Dowla for Nerve Conduction Studies in June 2010 and again in November 2010. Dr Dowla reported that the Lumbar spine MRI of 23rd June 2010 revealed minor degenerative changes in the lower lumbar spine without any evidence of nerve root compression and that no specific cause of the peripheral neuropathy had been found. Injury Management have been advised that [the applicant] was admitted to the psychiatric unit of Blacktown Hospital - Bungarrabie House in July 2010 after presenting at the Blacktown police station in an agitated state. He was discharged into the care of the Penrith Mental Health team. [The applicant] underwent an Independent Psychiatric assessment on 29th September 2010 by Eoin Wilson - Psychiatrist that indicated a diagnosis of either a psychotic disorder or a pain syndrome and recommended ongoing psychiatric treatment. Mr Wilson further indicated [the applicant] may be physically and cognitively capable of performing basic clerical duties for the police, however did not recommend this without him being further assessed and treated as necessary by his psychiatrist. Dr Wilson recommended that [the applicant's] psychiatrist obtain the necessary paperwork from Cumberland and Biacktown hospitals, as well as from the Penrith Community Mental Health team. … … A further Independent Medical Opinion was arranged in October 2010 by the Insurer with Dr O'Rourke - Psychiatrist, who ruled out obsessive compulsive disorder and offered a diagnosis of Pain Disorder, and advised that the officer could resume duties immediately if his pain was managed appropriately. A case conference was held with Dr Southern and the officer to discuss this report, however following this, his Workers Compensation claim was declined and [the applicant] changed doctors after an apparent disagreement with Dr Southern. In addition, he has not responded to recent attempts to contact him by Injury Management and has not provided written consent to contact his new NTD or Dr Pusic. [The applicant] has continued to be certified unfit for any work since December 2008 due to burning foot pain, increasing episodes of confusion, memory loss, and bilateral lower limb pain radiating from the groin to both feet. During the course of his rehabilitation, several case conferences with the nominated treating doctor have been attended by Injury Management staff in an effort to progress treatment and return to work, however return to work has not been achieved due to continued physical and psychological symptoms of unclear aetiology. Dr Southern was of the opinion that the officer's physical condition may be somatisation. Taking this into consideration, combined with the duration of his symptoms and his agitated and unexpected presentations at various commands, and the welfare of the officer and those working with him, we ask that you please thoroughly review the information presented, contact his treating doctors and issue your report accordingly. We have been unable to confirm if [the applicant] is participating in ongoing treatment with Dr Pusic as no consent has been received from [the applicant]."
On 2 May 2011, Ms Saling sent a letter to Dr Graham George (Dr George), a psychiatrist (the 2 May 2011 letter), and relevantly stated: "It has been bought to our attention that information supplied to you in relation to the officer being admitted to Blacktown Hospital in July 2010 is not an accurate account. For further details you may wish to discuss this with the officer himself at the time of assessment."
On 9 May 2011, Dr George provided a report to Ms Saling on his assessment of the applicant (the 9 May 2011 report), and relevantly: 1. stated in the introductory section: "Thank you very much for asking me to do a psychiatric assessment on [the applicant] who came to see me in Sydney on 04/05/2011. … It must be said at the outset of this report that all the file material associated with [the applicant's] case was reviewed in full. It should also be stated that at the time of the assessment, [the applicant] brought with him a statutory declaration by his ex-partner, [name omitted], who indicated that there were significant inconsistencies in the reports submitted by Dr Southern dated 06/12/2008 and another report, dated 30/07/2009. Of significance in her statutory declaration, [name omitted] stated that Dr Southern's statement that [the applicant] "had become extremely irrational and violent towards his wife...and there appeared to be no reasonable explanation for this action" was completely erroneous. She said in her statement that at no time had he been violent towards her specifically. She also indicated that when Dr Southern put in his report "on speaking with his wife, it became clear that [the applicant] suffered obsessive compulsive disorder..." ... that this (according to her statement), again, was an erroneous conclusion to draw. She indicated that when she was speaking to Dr Southern about her husband parking his car in a particular spot in the garage, she said that there was a completely plausible explanation for this. She said that she had no idea why Dr Southern made his particular comment, "all the chairs in the house were also set out symmetrically with their backs against the wall so nobody can sit behind him..." She stated that this was completely untrue and she had no idea from where this information came. Again, she indicated that when Dr Southern put in his particular letter that he "refused to go to movies because he did not wish anybody sitting behind him" that this again was untrue. She also indicated that Dr Southern drew incorrect conclusions with respect to her relationship with [the applicant] and gave different explanations to some of Dr Southern's conclusions. She disputed the fact that [the applicant] had ever said that [the applicant] "cannot bear the pain." She said that she had never known him to say this. At the same time, she stated that she had never known him to exaggerate or forcibly state an experience. [The applicant] also gave an explanation for his presentation at Blacktown Police Station when in "an agitated and somewhat a confused state" in July 2010. At that time, he explained that his wife was expressing suicidal ideation and had indicated to him that she had driven on the F3 Freeway against oncoming traffic. He did not know her whereabouts subsequently and she had expressed suicidal ideation to him. This is the reason he was so agitated and at the time, he was referred to Bungarribee House (psychiatric unit) at Blacktown HospilaL He was not admitted to the hospital He explained the situation to nursing staff and the matter was, apparently, referred to the mental health team. In the end, [the applicant] said that no action was ever taken He assumed that once he had communicated the information to health authorities that there would be intervention for his partner. In addition to this, he provided a report of his admission to Nepean Hospital on 23/08/2008 when it was stated that he presented in an agitated state. The provisional diagnosis was that he had a drug reaction and a brief reactive psychosis. It was noted at that time that he has suffered from pain in both feet. It was noted that his doctor had put him on Amitriptyline 20 mg daily (a very small dose). He had been on this for two to three weeks and then ceased it. He had ceased it because of side effects. It did appear that he was getting anticholinergic side effects. When he ceased the medication, he then developed insomnia and at the time when he was admitted to be assessed in the Nepean Hospital, he had been deprived of sleep for 48 hours. It was in this context that he appeared agitated and as well as desponded and depressed. The above diagnosis was made and it is possible that a delirium may have contributed to his circustances at the time. It did appear that whatever occurred was rapidly resolving. The Nepean Hospital reference number related to the letter sent to [the applicant] with respect to this admission was 795371. It did appear, therefore, that some of the medical information may have been misleading with respect to circumstances related to [the applicant's] life." 1. stated under the heading "presenting complaints": "He was asked about the circumstances in 2008 when he was admitted to Nepean Hospital He said that at that time, he was sleep deprived for 48 hours. He had come off Amitriptyline from which he believed he was reacting. He said that he became agitated when his wife was using bleach on the bathroom floor and because his clothes were nearby, he believed that the bleach may have been damaging his clothes. He said he was agitated at that time and could not really remember what happened but it was noted in the Nepean Hospital notes that there was evidence of persecutory ideation. Apparently, he had a delusional belief that his wife was "purposely antagonising him" according to the hospital notes. It did not appear that he had insight into the nature of his actions at that time. To some degree he had presented as somewhat "agitated and uncontrollable." It was noted that, premorbidly, it was thought that he was probably "obsessional and controlling". These were notes made by the doctor who saw him at that time. It was also noted that he had a form of neuropathic pain in both feet or lower legs. It was also noted that a diagnosis of bilateral fasciitis had been made. It did appear that whatever occurred at that time, settled very rapidly and he was only hospitalised for a day or two. Whilst he may have been diagnosed with a brief reactive psychosis, it is quite likely that he may have had a delirium secondary to a drug reaction as well." 1. provided the following answers to specific questions: "1. In your clinical opinion, what is the officer's diagnosis? I have not made a psychiatric diagnosis. It does appear that in the past [the applicant] did suffer a paranoid psychosis described at the time as a brief reactive psychosis. It does appear that there has been a medical diagnosis made previously in this case. Whatever may be his condition is outside the area of my expertise. In cases where objective findings do not match subjective complaints, a somatoform disorder, a factitious disorder or malingering is suspected. 2. How is this diagnosis related to the officers' physical symptoms of bilateral foot pain since 2007? I have not diagnosed a psychiatric disorder. 3. In your clinical opinion, what are the symptoms that affect the officer's ability to return to work associated with this diagnosis? It does appear that his medical condition, whatever it may be, does prevent him from returning to work. I did not necessarily agree that he suffers from any form of somatoform disorder, although at various times it has been a consideration I do not believe he suffers obsessive compulsive disorder. He does not appear to suffer any psychotic process, although he has in the past."
On 11 May 2011, the applicant sent a letter to Ms Saling in which he relevantly complained about the suggestion that he was suffering from an obsessive compulsive disorder which was made by Dr Southern and communicated to other doctors he had seen, but made no complaint in relation to any past diagnosis of a psychosis or a psychotic illness.
On 29 June 2016, Dr Southern prepared a letter addressed to "to whom it may concern (the 29 June 2016 letter), in which he relevantly stated but does not otherwise explain: "There were other complicating circumstances at that time which clouded the entire situation. As it happens, erroneous information given by a third party contributed significantly to this confusion."

Whether an order should be made under s 53(7)(e) of the PPIP Act

The Appeal Decision

In the Appeal Decision at [105]-[106] the Appeal Panel stated: "105 Under s53(7)(e) of the PPIP Act, following the completion of the review, the public sector agency whose conduct was the subject of the application may "implement administrative measures to ensure that the conduct will not occur again". As discussed above, by s63(2) of the Administrative Decisions Review Act 1997 and s30(2)(b) of the CAT Act, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision in connection with the conduct or resolution of the proceedings. This would include the making of a decision as to whether or not the public sector agency should implement administrative measures to ensure that the conduct will not occur again. Orders of that kind have been made by the Tribunal, including for example in BVS v Sydney Local Health District [2015] NSWCATAD 171. 106 In our opinion, the orders sought by the appellant may fairly be described as the implementation of administrative measures to ensure that the conduct the subject of the internal review application will not occur again. The internal review application requested both that an amended Employer Statement be provided, and also "…that my NSWPF medical record be re-visited and whatever action necessary be taken to ensure such as this cannot occur again". In our view, given the way in which the internal review application was framed, the conduct the subject of the internal review application could properly be described as the recording of the appellant as suffering from a "psychotic illness" rather than merely the inclusion of that statement in the 2014 Employer Statement. If the conduct was to be too narrowly construed, there would be no or little role for any decision to put in place administrative measures to ensure that the "conduct" will not occur again. Any such decision is of course a discretionary remedy depending on all of the circumstances and the submissions of the parties."

The respondent's submissions

The respondent makes the following submissions: 1. the applicant made no submissions to the Appeal Panel in relation to the scope of the conduct, for example, that the conduct was broader than the 2014 Conduct as the Tribunal had articulated it; 2. the Tribunal's construction of the scope of the 2014 Conduct was not an issue raised by the applicant before the Appeal Panel; 3. the Tribunal has properly constructed the scope of the 2014 Conduct and, on that basis, there would be no utility in the Tribunal making an order under s 53(7)(e) of the PPIP Act that the respondent put administrative measures in place, in circumstances where the respondent has already corrected the content of the 2014 Metlife Form.

Consideration

In the Decision at [61], I found: "61 … that the conduct of the respondent in 2014 that was the subject of the internal review application was its conduct in completing and providing the 2014 Employer Statement to MetLife."
As this finding which was not overturned by the Appeal Panel, I must approach the question of whether an order should be made under s 53(7)(e) of the PPIP Act on the basis of this construction of the 2014 Conduct of the respondent in 2014 that was the subject of the internal review application.
In circumstances where the respondent has already corrected the content of the 2014 Metlife Form, I cannot envisage what administrative measures might be implemented to ensure that the 2014 Conduct the subject of the internal review application will not occur again. Accordingly, I accept the respondent's submissions that there would be no utility in the Tribunal making an order under s 53(7)(e) of the PPIP Act that the respondent put administrative measures in place to ensure that the 2014 Conduct will not occur again.

Whether an order should be made under one or more of s 55(2)(c), (d) and (g) of the PPIP Act

The Appeal Decision

In the Appeal Decision at [111]-[116], the Appeal Panel relevantly stated: "111 We are of the opinion, that in the case of a contravention of an HPP, the effect of s21 of the HRIP Act is that s55(2)(d) of the PPIP Act applies and will include or incorporate any relevant information protection principle. The result then is that where any such information protection principle uses the term "personal information", such term is taken to include health information. We think this is the better construction, even though the actual information protection principle which uses the term "personal information" does not appear in Part 5 of that Act. Otherwise, s55(2)(c) would have no work to do in the case of an alleged contravention of an HPP which appears to be contrary to the statutory intent as revealed by s 21 of the HRIP Act. 112 We are also inclined to the view that in the current case, whilst the HPP which was contravened was the Accuracy HPP, s55(2)(c) of the PPIP Act empowers the Tribunal to order the performance of the information protection principle provided for in s15 of the PPIP Act in so far as any amendment or correction is in respect of removing any reference to the appellant having a psychotic illness from NSWPF's records. This is because such a course of conduct is clearly related to the found contravention and could be regarded as a measure to ensure such contravention is amended or corrected in the case of other documents held by the NSWPF. We note that in 2011 the NSWPF agreed to such an amendment or correction of its records. 113 Next, s55(2)(d) of the PPIP Act empowers the Tribunal to order the correction of the 2014 Employer Statement. This has already occurred. In our view, this provision of the Act would also empower the Tribunal to make an order that any other documents or information that has been disclosed by the respondent which may describe the appellant as having a "psychotic illness" also be corrected. … 115 In our opinion, the Tribunal pursuant to s55(2)(g) of the PPIP Act could make the orders sought by the appellant if it thought this was appropriate. In our view, such orders could be described as being "supplemental or incidental to" the power to make an order for the correction to the 2014 Employer Statement or any other documents or information disclosed or held by the respondent which may describe the appellant as having a "psychotic illness". 116 This is the case because the incorrect information in the 2014 Employer Statement appears to have been uncorrected despite the amendment agreement reached previously. This could give rise to a suspicion, as expressed by the appellant, that there may be other documents held or disclosed by the respondent that similarly contain incorrect information about the appellant having a "psychotic illness" about which the appellant is currently unaware. An order requiring reasonable searches to be made of its records to ensure compliance with both the relevant information protection principle and the amendment agreement could be described as being reasonably necessary and directly flowing from the finding of a contravention of the Accuracy HPP in the present circumstances. Accordingly, an order as sought by the appellant can fairly be described as being an "ancillary order" that flows from the finding of breach of the Accuracy HPP and the other primary sources of power as described above."

The respondent's submissions

The respondent makes the following submissions as to the remedies under s 55(2) of the PPIP Act: 1. he agrees with the Appeal Decision at [111]; 2. the remedies in s 55(2) of the PPIP Act which refer to IPPs and "personal information" include health information, being, in this case, a reference to the applicant having a "psychotic illness"; 3. when considering the remedies under s 55(2) of the PPIP Act, the Tribunal may consider broader or systemic issues in its decision to make orders and may, in some cases, make orders of a more general nature, and he relies on MH v NSW Maritime [2011] NSWADT 248 at [25] and BKM v Sydney Local Health District [2015] NSWCATAD 87 at [44]-[45], [48]; 4. while there does not have to be a "causal link" between the conduct the subject of the internal review and the orders made, the orders must flow from the Tribunal's consideration of the conduct.
The respondent makes the following submissions as to the making of an order under s 55(2)(c) of the PPIP Act: 1. the IPP that applies in this case is the Accuracy IPP: s 16 of the PPIP Act; 2. IPP 16 requires an agency to take reasonable steps to ensure the information held, being in this case the applicant having a "psychotic illness" in the 2014 Metlife Form, is accurate before use, and not generally which is captured by IPP 11(a) of the PPIP Act; 3. he does not accept that s 55(2)(c) of the PPIP Act goes so far as to require him to remove all references to a "psychotic illness" from the applicant's file; 4. as he has already amended the content of the 2014 Metlife Form, there would be no utility in the Tribunal making an order for amendment under s 55(2)(c) of the PPIP Act for him to comply with the Accuracy IPP; 5. to the extent s 55(2)(c) of the PPIP Act enables the Tribunal to order him to comply with another IPP, he relies on its submissions in relation to s 55(2)(d) of the PPIP Act.
The respondent makes the following submissions as to the making of an order under s 55(2)(d) of the PPIP Act: 1. this provision relates specifically to the correction of personal information "that has been disclosed", and he has made that correction to the 2014 MetLife Form; 2. the scope of s 55(2)(d) of the PPIP Act is not so broad as to encapsulate any disclosure made by him of the applicant having had a "psychotic illness", but is limited to the disclosure that is subject to the internal review application, and he relies on JD v Director General, NSW Department of Health (No 2) [2007] NSWADT 256 (JD No 2) at [31].
The respondent makes the following submissions as to the making of an order under s 55(2)(g) of the PPIP Act: 1. this provision is broader in its scope and may include such ancillary orders the Tribunal thinks appropriate; 2. ancillary orders may include: 1. an order for the deletion of personal information held by the agency, beyond the personal information the subject of the internal review application, and he relies on JD v Director General, NSW Department of Health [2007] NSWADT 219 (JD) and JD No 2; 2. an order that the agency take certain steps under another IPP, for example IPP 16 (Amendment).
The respondent makes the following submissions as to the exercise by the Tribunal of its discretion to make an order under one or more of s 55(2)(c), (d) and (g) of the PPIP Act: 1. the Tribunal may have regard to the following matters: 1. the objects of the PPIP Act and HRIP Act; 2. the facts and circumstances which led to the reference to a "psychotic illness" being on the applicant's file; 3. the correspondence between the parties in 2010 and 2011 in relation to an amendment the applicant requested to specific documents held by him referred to in the Decision at [4] and [5]. This amendment request related specifically to information which states that the applicant attended Bungarrabie House at Blacktown Hospital on 21 July 2010 and was discharged into the care of the Penrith Mental Health Team. The amendment requested and agreed to by him was not an amendment to every occasion where the applicant's file refers to a "psychotic illness"; 4. he has amended the 2014 Metlife Form; 5. the reference to the applicant having a "psychotic illness" on the 2014 Metlife Form, while inaccurate insofar as it was not the basis for the applicant's medical discharge, did not result in any financial loss to the applicant, and he relies on the Decision at [70]; 6. the other orders made under s 55(2) of the PPIP Act which require an apology be made and compensation be paid; 1. the reference to the applicant having a "psychotic illness" comes from the 29 September 2010 report; 2. the reference to the applicant having a diagnosis of a psychological component to his illness originally came from the 6 December 2008 referral, and then appears in: 1. the 29 September 2010 report; 2. the 8 April 2011 referral; 3. the 9 May 2011 report; 1. it is not appropriate for Tribunal to find that every reference to the "psychotic illness" diagnosis should be deleted or amended. He was entitled to have regard to that diagnosis when assessing the basis for the applicant's medical discharge and retain a record of that diagnosis as part of the applicant's medical file. Accordingly, no orders should be made.

The applicant's submissions

The applicant makes the following submissions: 1. he asks for the two additional remedies set out at [2(1)] above; 2. no qualified medical practitioner has ever provided a diagnosis that he suffers from a "psychotic illness"; 3. an employee of the respondent made a mistake, and the mistake went uncorrected, false information relating to involvement of "psychotic illness" was passed around from person to person, reproduced on numerous documents, disseminated internally and to other external agencies until it became so accepted as factual information its bona fides were no longer questioned; 4. he provides a "quick timeline" of what has occurred between August 2007 and June 2016 and relevantly states: 1. as to "Aug 2008": "I suffered a reaction to withdrawal from Dr Southerns prescribed medication Amitriptyline. I took myself to Nepean hospital because of how sick I was feeling. I spent three days in Cumberland hospital then released with no further treatment. Hospital notes refer to my condition as being a 'brief reactive psychosis' with stressors noted as sleep deprivation (caused by withdrawal from the Amitriptyline), with other stressors mentioned as, relationship breakdown, and neuropathic pain in feet and legs." 1. as to "09.09.2009", he quotes part of Dr Pusic's report findings: ""Certainly [the applicant] wanted to deny the presence of any significant psychological symptomology. He did not wish to be seen to have a psychiatric diagnosis. I could not elicit any symptoms or history suggestive of a delusional disorder. Certainly [the applicant] does display overvalued ideas relating to his experience of pain in both feet. He has become obsessed that he has some form of physical disability in both feet which has yet to be diagnosed. The best form of diagnosis would be pain Disorder…." 1. as to "15.10.2010", he quotes part of the 15 October 2010 report; 2. as to "09.05.2011", he quotes part of the 9 May 2011 report; 1. he makes the following criticisms of the documents referred to in the referred to in the submissions of the parties: 1. as to the 6 December 2008 referral: " … (the 6 December 2008 referral) contains false information, inaccuracies, belief in an Obsessive Compulsive Disorder involvement, fantastical nonsense about placement of chairs around the house, fear of going to the cinema because of who might sit behind me, parking my car symmetrically in the garage and more. It was a referral containing as much fantasy as fact …" 1. as to the 30 July 2010 email: "The text includes detail of M/s Saling advising Dr Southern of an incident which NSWPF now acknowledge as being false. The fact that M/s Saling told Dr Southern something false about me was something later conceded by NSWPF and for which I received an apology. The fact that 'erroneous information' is proven to have passed from M/s Saling to Dr Southern is of significance …" 1. as to the 7 September 2010 report: "Dr Wilson was the only psychiatrist, out of the four that examined me, who was exposed to the (unchallenged) false referral information provided him by Ms Saling)" 1. as to the 29 September 2010 report, he does not consider the words "suspect", "likely" and "suspicion" equate to a medical diagnosis being made, and he believes the respondent's misinterpretation of the doctor's words became the genesis of its spurious recording of "psychotic illness" as a component of his condition in its later dated documents and internal systems; 2. as to the 29 June 2016 letter, this presents as a complete turn about of Dr Southern's original medical opinion, and he believes that the "third party" to whom Dr Southern refers is Ms Saling: "I take from the doctor's words an admission that the symptoms I reported to him in 2008 were mis-diagnosed by him, and his belief in a psychological / OCD / somatisation causation were incorrect brought on in part by 'complicating circumstances' and 'erroneous information'." 1. any reliance by the respondent upon Dr Southern's reporting of "psychological/OCD/somatisation as having involvement in my condition have no validity and should be discounted"; 2. the conflict between what Dr Wilson actually said in the 29 September 2010 report compared to what an employee of the respondent actually took from his words should be evident. The respondent's case has always relied upon Dr Wilson diagnosing "psychotic Illness" as justification for its inclusion in his health record and numerous other internal documents; 3. asking for the respondent to remove association of his name with "psychotic illness" from their documents and electronic systems appears completely reasonable under the circumstances, most notably because he does not suffer from the condition.

Whether an order should be made under one or more of s 55(2)(c) and (d) of the PPIP Act

I consider that it is inappropriate to make a decision as to whether the power in one or both of s 55(2)(c) and (d) of the PPIP Act in the circumstances would permit the making of the orders sought by the applicant for the following reasons: 1. the respondent makes submissions that each of these power on their proper construction and in the circumstances have a narrower operation then suggested in the Appeal Decision; 2. there is no contradictor as the applicant makes no submissions on these questions; 3. in view of my finding that the power in s 55(2)(g) of the PPIP Act is in the circumstances wide enough to permit the making of the orders sought by the applicant, it is unnecessary to decide this question.

Whether an order should be made under s 55(2)(g) of the PPIP Act

I accept that the power in s 55(2)(g) of the PPIP Act is in the circumstances wide enough to permit the making of the orders sought by the applicant having regard to the following considerations: 1. the Appeal Decision at [115]-[116]; 2. the respondent's concession; 3. the authority in JD where a predecessor of the Tribunal relevantly made an order under s 55(2)(g) of the PPIP Act that the applicable public sector agency was to delete all references to personal information concerning JD that was irrelevant, inaccurate, out of date or misleading contained in copies of a specified report in its possession or under its control.
The orders sought by the applicant are of a wide scope as they encompass the following four circumstances: 1. any reference to the applicant having a "psychotic illness"; 2. any reference to the applicant having had a "psychotic illness"; 3. any reference to the applicant possibly having a "psychotic illness"; 4. any reference to the applicant possibly having had a "psychotic illness".
As to the circumstance in [40(1)], there is no evidence of the respondent as to whether the reference to the applicant having had a "psychotic illness" occurs in any physical document since the 2014 Employer Statement has been corrected or in any electronic record. The applicant asserts that there is, and the respondent makes no submission as to the existence of any such document or record.
As expressed in the Appeal Decision at [116] the existence of incorrect information in the 2014 Employer Statement could give rise to a suspicion that there may be other documents held or accessible by the respondent that similarly contain incorrect information about the appellant having a "psychotic illness".
The statement by Ms Saling in the 8 April 2011 referral that Dr Wilson "indicated a diagnosis of either a psychotic disorder or a pain syndrome" is inaccurate as Dr Wilson's diagnosis was that the applicant "is likely to have a psychotlc illness. If this is not the case he has a psychological pain disorder." This inaccurate statement of Dr Wilson's diagnosis should be corrected.
I have decided to make an order that the respondent undertake reasonable searches and correct any reference to the applicant having a "psychotic illness".
As to the circumstances in [40(2)], [40(3)] and [40(4)], the documents referred to in the submissions of the parties contain the following statements: 1. the suspicion of Dr Wilson recorded the 29 September 2010 report that the applicant "is suffering from a psychotic illness"; 2. the statements by Dr George in the 9 May 2011 report recording from the Nepean Hospital notes in relation to his admission on 23 August 2008 that there was evidence of persecutory ideation and he was diagnosed as having "a brief reactive psychosis".
I am not satisfied that to the extent that any document or electronic record of the respondent accurately records any such statement that any order should be made. These were opinions expressed by medical practitioners who saw the applicant or who saw prior medical records of the applicant. It is inappropriate for the respondent to amend these opinions expressed by medical practitioners who saw the applicant or who saw prior medical records of the applicant in the light of any later diagnosis of the applicant.
The applicant has complained about the belief and opinion of Dr Southern recorded in the 6 December 2008 referral that the applicant has an "obsessive compulsive disorder" which represents "somatisation". This belief and opinion of Dr Southern was repeated by Ms Saling in the following documents: 1. the 30 July 2010 email; 2. the 7 September 2010 report; 3. the 8 April 2011 referral.
I am not satisfied that this belief and opinion of Dr Southern refers to a "psychotic illness", and could not be encompassed by the orders sought by the applicant.
If, contrary to my finding, this belief and opinion of Dr Southern does refer to a "psychotic illness", then I am not satisfied that to the extent that any document or electronic record of the respondent accurately records any such belief and opinion that any order should be made. This belief and opinion was expressed by a medical practitioner who saw the applicant. It is inappropriate for the respondent to amend this belief and opinion of Dr Southern who saw the applicant in the light of any later diagnosis of the applicant.

Order

I make the following order: 1. Order pursuant to s 55(2)(g) of the PPIP Act that the respondent: 1. correct in the manner specified therein the document referred to in paragraph 43 of this decision, and provide the applicant with a copy of the corrected document within seven days; 2. undertake reasonable searches of all documents in his possession and all electronic systems accessible to him that relate to the applicant, and correct any reference to the applicant having a "psychotic illness" within the period of four weeks; 3. inform the applicant in writing within seven days of his completion of the searches referred to in order (1)(b), and provide the applicant with a copy of any corrected documents or electronic record.

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

Amendments 24 November 2020 - Order (1)(c) corrected in coversheet and [50]. "(1)(a)" replaced with "(1)(b)". 08 October 2021 - Case name disambiguation 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: 08 October 2021

Introduction

On 10 January 2020, I made the following orders in my decision in these proceedings DTN v Commissioner of Police [2020] NSWCATAD 16 (the Decision): "(1) Order pursuant to s 55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) that the respondent pay to the applicant $1,000.00 by way of compensation for the loss or damage he has suffered because of the 2014 Conduct that was the subject of the application for internal review of the applicant made on 18 February 2019 under s 53 of that Act. (2) Otherwise decide pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) that no action be taken on the matter."
On 30 April 2020, the Appeal Panel in DTN v Commissioner of Police [2020] NSWCATAP 73 (the Appeal Decision): 1. at [96] noted the following additional remedies sought by the applicant: "96 As set out in his statutory declaration made on 11 October 2019, the appellant sought the following additional remedies: (a) That the NSW PF take whatever steps necessary to locate any and all documentation in their possession that contain a reference to, or suggestion of my having, or had, a sufferance or suggestion of "psychotic illness" and to permanently remove from that documentation any such reference; (b) That the NSW PF take whatever steps necessary to locate any and all electronic systems accessible to NSW PF any reference to, or suggestions of my having, or had, a sufferance or suggestion of "psychotic illness" and to permanently remove from that electronic system any such reference." 1. made the following orders in an appeal from the Decision: "(1) Vary the decision of the Tribunal of 10 January 2020 to the following: (a) Pursuant to s63(2) of the Administrative Decisions Review Act 1997 (NSW) the Tribunal affirms that part of the respondent's internal review decision of 24 September 2019 to make a formal apology to the applicant because of the conduct that was the subject of the application for internal review of the applicant made on 18 February 2019. (b) Order pursuant to s 55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) that the respondent pay to the applicant $1,000.00 by way of compensation for the loss or damage he has suffered because of the conduct that was the subject of the application for internal review of the applicant made on 18 February 2019. (2) Remit the question of whether or not the Tribunal should make the other orders sought by the Appellant in his statutory declaration made on 11 October 2019 to the Senior Member for reconsideration in accordance with these reasons and otherwise according to law. (3) Otherwise dismiss the Appeal."
On 22 May 2020, I made the following directions in these proceedings: "1 The respondent is to provide to the Tribunal and the applicant submissions on the additional remedies sought by the applicant referred to in DTN v Commissioner of Police [2020] NSWCATAP 73 at [96] including whether a hearing may be dispended with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) by 19 June 2020. 2 The applicant is to provide to the Tribunal and the respondent submissions on the additional remedies sought by the applicant referred to in DTN v Commissioner of Police [2020] NSWCATAP 73 at [96] including whether a hearing may be dispended with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) by 17 July 2020."
The parties provided the following submissions: 1. the respondent's submissions dated 22 June 2020 which include additional documents which I have admitted into evidence (Ex R6); 2. the applicant's submissions dated 16 July 2020 which include additional documents which I had previously admitted into evidence.
In his submissions the applicant seeks clarification as to whether the respondent is contesting that an apology need be given or is simply unaware that none has been provided to date. As this matter falls outside of the remitter in order (2) of the Appeal Decision, I have not dealt with it.
These reasons for decision should be read with, and use the same abbreviations as in, the Decision.
These reasons for decision address the following issues: 1. whether an order should be made dispensing with a hearing; 2. whether the additional remedies sought by the applicant should be provided.

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)

Cited By (2)