DVH v South Eastern Sydney Local Health District

The Respondent's case

1. The Respondent accepts that on 21 August 2015, Ms Madunic signed a Complaint Notification Form. The form annexed a letter dated 2 September 2015 signed by Mr Gerry Marr, the Chief Executive of Royal Hospital for Women. That letter was addressed to the Australian Health Practitioner Regulation Agency ("AHPRA").
2. It is not in dispute that AHPRA co-regulates the nursing and midwifery profession with the NMC.
3. In the Complaint Notification Form that she signed Ms Madunic checked the boxes which stated: "[x] I have formed the reasonable belief that the practitioner has behaved in a way that constitutes notifiable conduct as she/he has: [x] placed the public at risk of harm because the practitioner has practiced the profession in a way that constitutes a significant departure from accepted professional standards."
4. Mr Marr's letter notified AHPRA of concerns in relation to the Applicant's clinical practice as a Registered Nurse. The letter did not disclose that the Applicant suffered from any "health condition" that constituted notifiable conduct under the Law.
5. The Respondent contends that the notification was mandatory. It submits that information included in Mr Marr's letter was consistent with the type of notifiable conduct identified in the Complaint Notification Form dated 21 August 2015.
6. Section 117A of the Health Services Act 1997 provides: 117A Duty of chief executive to report certain conduct (1) The chief executive of a public health organisation is to report the conduct of a member of staff of the organisation to a Council established (under section 41B of the Health Practitioner Regulation National Law (NSW)) for a health profession if - (a) the member of staff is a health practitioner in that health profession, and (b) the chief executive suspects on reasonable grounds that the conduct may constitute professional misconduct or unsatisfactory professional conduct under that Law. (2) For the purposes of this section, the Ambulance Service of NSW is taken to be a public health organisation. (3) If a chief executive is required to report the same conduct under this section and under section 142 of the Health Practitioner Regulation National Law (NSW), compliance with either section, or with alternative reporting requirements approved by the Health Secretary, satisfies the requirements of both sections. (4) A report made because of a requirement under this section is taken to be a complaint both for the purposes of Part 8 of the Health Practitioner Regulation National Law (NSW) and for the purposes of the Health Care Complaints Act 1993 (including sections 96 and 98 of that Act).
7. The Respondent also points to other legislation which provides for mandatory reporting of conduct. Health, performance and conduct of registered health practitioners is governed by Part 8 of the Health Practitioner Regulation National Law (NSW) ("the National Law"). Part 8 Division 2 of the National Law provides for mandatory notifications. Section 142 of the National Law provides: 142 Mandatory notifications by employers (1) If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the National Agency of the notifiable conduct. Note - See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred. (2) If the National Agency becomes aware that an employer of a registered health practitioner has failed to notify the Agency of notifiable conduct as required by subsection (1), the Agency must give a written report about the failure to the responsible Minister for the participating jurisdiction in which the notifiable conduct occurred. (3) As soon as practicable after receiving a report under subsection (2), the responsible Minister must report the employer's failure to notify the Agency of the notifiable conduct to a health complaints entity, the employer's licensing authority or another appropriate entity in that participating jurisdiction. (4) In this section - employer, of a registered health practitioner, means an entity that employs the health practitioner under a contract of employment or a contract for services. licensing authority, of an employer, means an entity that under a law of a participating jurisdiction is responsible for licensing, registering or authorising the employer to conduct the employer's business.
8. Section 237 of the National Law provides: 237 Protection from liability for persons making notification or otherwise providing information (1) This section applies to a person who, in good faith - (a) makes a notification under this Law; or (b) gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law. (2) The person is not liable, civilly, criminally or under an administrative process, for giving the information. …

Conclusion on Item 1

1. The Applicant has asserted that Ms Madunic did not disclose the information to AHPRA in good faith. The Applicant says that she was not employed by the LHD at the time and the notification was not necessary. Accordingly, she says that section 237(2) of the National Law is not applicable.
2. Any lack of good faith would have to be inferred from the assumption that Ms Madunic had been aware that there were reasons to be concerned about the Applicants clinical practice well before the date of the notification. I have no basis on which I could make that inference or to conclude that Ms Madunic did not act in good faith.
3. I am satisfied that that section 237(2) of the National Law is applicable.
4. I am not aware of any material before me from which I am able to ascertain what health information Ms Madunic is alleged to have disclosed or how the disclosure is said to be in breach of the Applicant's privacy.
5. In any event, I agree with the LHD's submission that even if the Complaint Notification Form signed by Ms Madunic on 21 August 2015 did disclose the Applicant's health information to AHPRA, it has not breached section 11(2) of the HRIP Act by reason of the exclusions in HPP 11(1)(i)(i)(B) and 11(1)(k)(2) (a) and (b); and section 237(2) of the National Law.
6. Section 25 of the PPIP Act provides exemptions where non-compliance is lawfully authorised or required. I am satisfied that section 25 is applicable to this item.
7. Similarly, the LHD could not have breached section 18 of the PPIP Act by reason of section 25(a) and (b) of PPIP Act; and section 237(2) of the National Law.
8. This aspect of the Applicant's application must therefore fail.
9. The Tribunal decides to take no action in respect of the alleged conduct concerning any communication from Ms Madunic dated 21 August 2015.

Item 2 - the collection of the Applicant's personal information from sources other than the Applicant

1. This item appears to concern the allegation that the LHD collected the Applicant's personal information from sources other than the Applicant in the preparation of risk assessments dated 30 December 2013 and 22 July 2014 and that the risk assessments were disseminated to agencies without her knowledge. The Applicant appears to allege that the conduct contravened section 9 and section 18 of the PPIP Act.
2. Section 18 of the PPIP Act is set out above. Section 9 of the PPIP Act provides: 9 Collection of personal information directly from individual A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless- (a) the individual has authorised collection of the information from someone else, or (b) in the case of information relating to a person who is under the age of 16 years - the information has been provided by a parent or guardian of the person.
3. The two risk assessments were prepared by Ms Maria Fenn, Co-Director Gynaecology Services, on 30 December 2013 and 22 July 2014 and were counter-signed by the Acting Director of Operations on 30 December 2013 and by the Director of Operations on 22 July 2014.

The Applicant's case

1. In reference to the 30 December 2013 risk assessment the Applicant stated at paragraph [25] of her affidavit dated 2 March 2020: a. Risk Assessment Form is not in compliance with NSW Health Risk Assessment Forms. b. Risk Factors entries are empty; Risk assessment form entries are in non-compliance to policy requirement. c. I was unaware and on annual leave when this risk assessment was generated; d. I was not provided any risk assessment until the Nurses and Midwives' Association intervened with industrial action, and 8 months later the said risk assessments appeared. e. I deny the statement made referring to me "SN working in a different speciality of recovery only (previously worked as scrub/scout RN)" because I am a highly accomplished Theatre Trained Registered Nurse, with efficiencies and competencies based on evidence based practices in roles of Instrument Nurse, Anaesthetic Nurse, Reception Nurse, Recovery Room Nurse. I have exceptional skill in leadership and management roles and worked for the SESLHD from 2003-2008 and from 2011-2015. f. I practice the profession in an independent capacity. I was employed from October 2011 by the Royal Hospital for Women, and team led in the capacity of a Nurse Manager role after hours and on night shifts. g. I was rostered the following shifts from 17 October 2011 until 9 May 2013. h. I worked Sunday, Monday and Tuesday nights night shift commenced at 9:30 PM and finished at 7:00 AM the following morning. These were 10-hour shifts. i. I worked a further split shift on Fridays and Saturdays to cover the department either a 6 hour on Friday and or a 6 hour on the Saturday morning, a 4 hour on the Friday and or a 4 hour on the Saturday either way my make-up for hours was to be 40 hours in total in a week. j. I was the only Registered Nurse trained in Recovery and covered the Recovery Department overnight and after hours. I was also employed to be in charge of the running of the theatres overnight. k. I am well experienced and have a sound clinical knowledge base in the area of my specialities.
2. The Applicant denies that she was provided any clinical support and or training; questions what was constructive feedback and advice she was given; questions what part of her Personal Professional Learning Plan was incomplete; denies that completion of any clinical competencies was unachievable and denies alleged breaches of professional confidence.
3. The Applicant stated that, in many instances, the 22 July 2014 risk assessment is a duplicate of the 30 December 2013 risk assessment form. She says that "statements are made with no evidences of clinical errors identified. no risks and or poor judgements within clinical capacities are revealed".
4. In reference to the 22 July 2014 risk assessment she stated: "no indication is made in the 22 July 2014 risk assessment that I allegedly failed 3 assessments, 2 internal assessments and 1 external assessment, neither is there any indication in any of the respondents' materials prior to being stood down for 11 months that I was being suspended for allegedly being a "highly incompetent registered nurse who allegedly posed a huge safety risk to patient care"". The Framework for Management of Nursing and Midwifery Staff with Identified Practice Issues was non-existent and had no predecessor tool to have been relied on but is reflected in the 30 December 2013 risk assessment form indicating that I was being managed under this Framework, an argument is to be mounted from my submissions filed 3 March 2020. I deny as an independent practitioner that at any given time I was under any supervision directly and or indirectly and is willing to exercise the question to be put to the respondents and Maria Fenn "What are the performance issues that were considered serious?" Surely by generating a second Risk Assessment Form at least the Risks should be named, and or otherwise if my performance issues were 'so serious' I should have been subject to a number of risk assessments at least one per month. I deny any teamwork was evident in this department. I worked under the management of Julie Herrick, the staff gossiped about each other and made stories, when a staff member was not on duty and spoke very loudly with profanity and vulgarity, assaults of pushing, shoving, shoulder charging and elbowing was what I was told to get used to ... Collaboration of cares were relied upon interactions … such that, I was incited to do the wrong action on my patients and the result would have been catastrophic, therefore, I maintain there was at no time any constructive feedback was received from the bullies in question ...
5. The Applicant alleged numerous incidents of other staff members engaging in unprofessional conduct. She alleged that she was incited "to practice the profession from a departure of the competency standards for nurses in Australia". She said that she was subjected to assaults, racist slurs and isolation, rejection and harm. She alleged that there was "serious prejudice and bias actioned against" her. She stated that when she raised complaints about this alleged conduct: "This effectively was not seen as I being the victim of the actions from the bullying clique in the department, but was actioned against me similar to the entries in the Risk Assessment Forms. There was no support from the managements end to eliminate the toxicities I complained about."
6. It appears that the Applicant alleges that the risk assessments were undertaken as a punitive action taken against her in response to the allegations that she raised against other staff members.
7. In her submissions dated 5 May 2020 she submitted: • The information collected by Maria Fenn and inserted in the risk assessments … demonstrates complaints made repeatedly about the applicant's alleged behaviour, notwithstanding the requirements of the risk assessment policy was not complied to • … both risk assessments were fraudulently and deceptively actioned by Ms Fenn, in the absence of the applicant, furthermore, falsified statements in the risk assessments based on allegations are questionable • The collection of personal information on the applicant inserted in the risk assessments was not directly related to the agency's function, activities and necessary for that purpose, because the risk assessments are unable to prove meeting any of the requirements of the risk assessment policy • None of the information inserted in the risk assessments were collected directly from the applicant • The applicant was unaware of the risk assessment that may have been generated on 30 December 2013, from being on annual leave, and when returned was not informed of a risk assessment that was generated in her absences • The applicant was on duty on 22 July 2014, the applicant was not invited to attend the office of Maria Fenn at any given time on the day for the purposes of generating any risk assessments, neither did the applicant attend Ms Fenn's office on 22 July 2014 for any other purpose • The relevance of materials inserted in the risk assessments are not in compliance to the reasons why a risk assessment is to be generated … • The applicant was denied transparency of the risk assessments and without the risk assessments being accessible to the applicant the applicant was failed by the agency to correct the personal information carried in the risk assessments • … Ms Fenn failed the applicant by not seeking consent and denied generating and using the risk assessments for its intended purposes that the applicant would expect, in contrary caused the applicant multiple emotional barriers and diagnoses, by further disclosing personal information other than for the related purpose.

The Respondent's case

1. The Respondent contends that the Applicant has not identified: 1. the breaches under section 9 or section 18 of the PPIP Act; 2. the "personal information" that allegedly was collected or disclosed; 3. the agencies to which the information is said to have been disclosed; or 4. the remedies sought.
2. The Respondent submits that as an employee of the LHD the Applicant was subject to a Code of Conduct which set out requirements of, inter alia, competence and professionalism, occupational health and safety and reporting obligations. The LHD's primary purposes are set out in section 9 of the Health Services Act 1997 which relevantly provides: 9 Primary purposes of local health districts The primary purposes of a local health district in its area are as follows - (a) to provide relief to sick and injured persons through the provision of care and treatment, (b) to promote, protect and maintain the health of the community.
3. The Applicant was employed pursuant to section 116 of the Health Services Act 1997. Section 116(2) states: (2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff.
4. In her employment the Applicant was subject to formal competency assessments. She was managed within the Framework for Managing Nursing and Midwifery Staff with Identified Practice Issues. This Policy requires risk assessments to be conducted when the requirement to implement the Framework is identified and if the employee's practice is identified as high risk. The Applicant participated in the competency assessments as a condition of her continued employment and she was informed of the outcomes of the assessments.
5. The Respondent also submits that the LHD was obliged to comply with the Work Health and Safety Act 2011 (the WHS Act).
6. Section 17 of the WHS Act provides: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person- (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
7. Section 19 of the WHS Act provides: 19 Primary duty of care … (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
8. The Respondent contends that the Applicant was the subject of the two risk assessments. It submits that, in order to comply with the WHS Act, the LHD obtained such information from other persons who observed and assessed her performance.

Conclusion on Item 2

1. As noted above, section 25 of the PPIP Act provides exemptions where non-compliance is lawfully authorised or required. For present purposes, I am satisfied that the Respondent was not required to comply with section 9 or section 18 of the PPIP Act because non-compliance was permitted, necessarily implied or reasonably contemplated under the WHS Act.
2. I am satisfied that the Respondent did not breach section 9 or section 18 of PPIP Act by reason of section 25(a) and (b) of PPIP Act.
3. This aspect of the Applicant's application must therefore fail.
4. The Tribunal decides to take no action in respect of the alleged conduct concerning the preparation or dissemination of the risk assessments dated 30 December 2013 and 22 July 2014.

Item 3 - the disclosure of personal information about the applicant by a communication from Ms Fenn to the Nursery & Midwifery Council of NSW in a telephone conversation on 17 September 2015

1. It seems that the information to which the Applicant is referring in this item was recorded in a file note made by Ms Letetia Gibbs, an employee of the Nursing and Midwifery Council NSW ("the NMC"), on 17 September 2015. That file note was discussed by Gibson DCJ in the decision in Clarke v Fenn [2018] NSWDC 336.
2. At paragraph 11 of the decision Her Honour stated: "The information provided by the defendant during the telephone conversation on 17 September 2015 referred to in the file note was provided to the Council in the course of the Council's investigation of the notification, exercising the powers and functions invoked under the National Law. This is not disputed by the plaintiff."

The Applicant's case

1. In her affidavit sworn on 3 March 2020 the Applicant stated: Maria Fenn, Julie Hernck's supervisor on 17 September 2015 provided a file note to the Nursing and Midwifery Council NSW, notwithstanding I was no longer in employment under SESLHD and Julie Herrick at the time the incident occurred. The information generated in that file note was hurtful, painful and shocking. ... Maria Fenn does not know me on a personal level and neither know of me and or anything about me other than the allegations made about me, from a professional perspective. I was at no time examined from a clinical and or a theoretical perspective by Maria Fenn and reiterate making statements inconsistent of facts was to conceal her own inability to comply to policies, procedure, legislations, business rules and guidelines …
2. In her submissions dated 5 May 2020 she submitted: Maria Fenn further had obligations not to act in bad faith and failed to honour in such; the circumstances of the implied duty was to act honestly; the Code of Conduct imposes an obligation under the relevant law; Privacy and Personal Information Protection Act 1998 (PPIP Act). This matter is relevant to 17 September 2015; Maria Fenn provided false material and slander by telephone to the Third Defendant which is documented as a File Note; the plaintiff was in full-time employment in the capacity of an Assistant Director of Nursing at the given time, this caused major loss professionally as well as personally.
3. The Applicant further submitted: The file note generated by Maria Fenn's verbal communication with the Council on 17 September 2015, caused the applicant a serious emotional trauma, because the applicant was employed in an Assistant Director of Nursing Position, and was in a full-time position, the applicant was terminated from her position and became unemployable thereafter and to date • The applicant views the actions of Maria Fenn to be of a personal attack • The applicant has not worked with Maria Fenn on a day to day basis • The applicant has no social contact with Maria Fenn and or any other contact, including from a supervisory position • The applicant cannot fathom as to why a file note was generated and followed up after a mandatory notification had previously been provided by Vanessa Madunic which carried the 2 risk assessments amongst other attachments, signed by Maria Fenn • The personal information inconsistent with facts refer to and extracted by the applicant relates to the entire file note because this similar to labile, slander and gossip about the applicant in the applicant's absence • The dishonesty and vicious deceptive actions from Ms Fenn in her statements is underlined with malice because a timeline of events show by 17 September 2015, 3 practitioners Julie Herrick, Susan Dale and Virginia King were reported to AHPRA, HCCC and the Council in respect to misconduct, inappropriate behaviours and unsatisfactory conduct the applicant witnessed, questioned and reported on her safety, and the public safety. In line with the aforementioned paragraph, Ms Fenn was directly responsible for the supervision of Julie Herrick and Julie Herrick was directly responsible for the supervision of Susan Dale and Virginia King Ms Fenn used her power to communicate with the Council on 17 September 2015 by smearing the applicant's identity on performance and conduct issues, notwithstanding, prior on 21 August 2015 Ms Vanessa Madunic smeared the applicant's identity to be one of an alleged "dependent practitioner, requiring direct and indirect supervision and allegedly had health information to oppress the applicant's current status of employment then, by saying the applicant's health impacted on her abilities to execute her cares in the capacity of a registered nurse"
4. The Applicant appears to allege that in the making and disseminating of the file note the Respondent has breached various IPP's. She submitted that: 1. the collection was unlawful and unnecessary for the purpose and was bound to cause harm to the applicant; 2. the information was collected in the applicant's absence; 3. the applicant was not informed on the action of collection, why it was being collected and who will be storing it; 4. the personal information generated in the file note was irrelevant, inaccurate, excessive, unreasonable; 5. The file note and/or the making of the file note of such information were not transparent to the Applicant. The Applicant was neither able to access the file note to have the statements rectified or corrected, notwithstanding the information in the file note was used without clarification of the accuracy. 6. The file note was generated and used without the consent of the Applicant and was directly not related for the purposes of the activity. In the alternate this has caused the Applicant a serious emotional trauma, economic losses and left the Applicant unemployable.
5. She further submitted that: Ms Fenn operated with a lack of consideration, dishonesty and malicious intent to have provided a file note to a co-regulatory body holding the applicant's nursing registration licence to practise the profession of Nursing, knowing the applicant will be subject to some serious investigation/s from the allegation brought against her. Ms Fenn acted with total disregard of the applicant's rights by denying any safeguard mechanism of providing in her File Note without sound evidences and brazenly informs, "Conduct issues include, Fabricating patient observations, habitually denying and lying about clinical incidents to colleagues and under current employment- Ms Fenn believes that Ms Naicker may be working for a Nursing Agency, but was unable to tell me which one and under Health ....but does consider her to be a very difficult personality'
6. The Applicant requests an order made in her favour requiring the Respondent to pay damages by way of compensation for any loss or damage suffered because of the conduct. She also seeks: A further order that the applicant is not prejudiced to continue her claims on foot against the organisation and its employees before other jurisdictions and, a. the order be granted to the applicant that the Service Check Register be expunged. b. the order be granted to the applicant that AHPRA and the Council be written to in a transparent communication via the applicant that the Agency and its employees had acted in a manner which provided conduct displaying misinformation about the applicant, her health, professional conduct, skill acquisition and merit.

The Respondent's case

1. The Respondent contends that the Applicant has not identified: 1. the "personal information" that was disclosed by Ms Fenn; 2. any breaches of the PPIP Act or the HRIP Act; or 3. the evidence that identifies the breach by reference to the legislation..
2. Further, the Respondent relies on the view expressed by Her Honour Gibson DCJ and submits that the information contained in the file note was provided to the NMC in the course of the NMC's "investigation of the notification, exercising the powers and functions invoked under the National Law". That being the case, section 237(2) of the National Law applies.
3. Further, the Respondent submits that the exemptions provided for by section 25(a) and (b) of PPIP Act are applicable.

Conclusion on Item 3

1. I agree with these submissions. I am satisfied that the Respondent did not breach section 18 of the PPIP Act by reason of section 25(a) and (b) of PPIP Act; and section 237(2) of the National Law.
2. This aspect of the Applicant's application must therefore fail.
3. The Tribunal decides to take no action in respect of the alleged conduct concerning a communication from Ms Fenn to the Nursery & Midwifery Council of NSW in a telephone conversation on 17 September 2015.

Item 4 - the disclosure of personal information about the applicant by a reference from Ms Herrick provided to the Prince of Wales Private Hospital on or about 20 August 2013 and by a communication from Ms Herrick to a financial company on or about 28 August 2013.

The Applicant's case

1. In her affidavit sworn on 2 March 2020 the Applicant stated: Julie Herrick on or about 23 August 2013 provided an unsupportive reference for a prospective employment in the capacity of a Clinical Nurse Specialist to the interviewee of the Prince of Wales Private Hospital. Maria Fenn was informed about this act closest to the time and asked me "why did you not tell your manager to provide a supporting reference" ... Julie Herrick provided inaccurate information to Cash Converters Finance Company on or about 28 August 2013 as identified on materials filed 9 July 2019 response in submissions 3 March 2020.
2. The Applicant submitted that Ms Herrick contravened the use and disclosure provisions in relation to the Applicant's personal information by: Providing undisclosed information to the Prince of Wales Private Hospital interviewee after the applicant attended an interview process for a position advertised as a Clinical Nurse Specialist in Urology Theatres. Furthermore, Julie Herrick provided wilfully incorrect and inaccurate personal information about the applicant's employment status under her management to a financial company … … Julie Herrick was the main instigator of all falsities disclosed and entered into databases about the applicant in response to skill acquisition, health, conduct and performance, Julie Herrick placed the applicant in an insistent non-existent process "the framework" and was not required in accordance to the clinical competencies for the RHW Recovery Department, suffice to say targeted the applicant's inherent nursing registration qualifications,
3. In her reply submissions of 5 May 2020 she submitted: In the matter of Julie Herrick, on 28 August 2013 a job verification request was made in writing from an external Cash Converters Personal Finance Company from Queensland to Julie Herrick, and by that conversation Julie Herrick confirmed and disclosed false information about the applicant, such that Ms Herrick confirmed "the applicant commenced employment on 22/06/2013, position: Casual and Pay cycle: Weekly" Furthermore, Julie Herrick provided an unsupportive reference to Prince of Wales Private Hospital in the wake of the applicant being successful in a Clinical Nurse Specialist position in Urology theatres on or about 20 August 2013. The applicant is unable to confirm what was the exact spoken words from Julie Herrick to the POW Private Hospital … The action of dishonesty and misleading information was executed from the actions of Julie Herrick, notwithstanding were false and prevented a prospective path of employment established by the applicant. 12 IPP's have been potentially breached, namely Lawful under Collection in respect to both actions are questioned, for the purposes of the activity. Information supplied to the prospective employer and the financial company in the matter complained about is determined for the purposes of this Act to be concealed and non-transparent, inaccurate, irrelevant, incorrect and under Disclosure restricted, such that Ms Herrick has not disclosed to date what was informed to the POWPH. The applicant has not provided any consent for her personal information based on allegations and hearsay to be accessed and disseminated without her consent, and in the alternate, Ms Herrick had no right to disclose the applicant's sensitive and personal information without the applicant's consent The circumstances surrounding the collection and disclosure of the applicant's personal information by Julie Herrick in this matter complained about is unknown to the applicant and furthermore, the mindset of Julie Herrick providing information on behalf of the applicant becomes questionable relevant to false instruments made about the applicant's personal and professional status.

The Respondent's case

1. The Respondent contends that the Applicant has not identified: 1. any breaches of the PPIP Act or the HRIP Act or information protection principles concerning disclosure of personal information; 2. the "personal information" that is alleged to have been disclosed by Ms Herrick; 3. the circumstances in which the information was collected and disclosed; or 4. the remedies sought.

Conclusion on Item 4

1. I agree with the Respondent that the Applicant's position is unclear. It appears that Ms Herrick provided some information to the Prince of Wales Private Hospital in relation to the interview process for an advertised position. I have been unable to locate any documentation that indicates what information Ms Herrick provided. At its highest it may be possible to infer that the information that Ms Herrick provided included information about the Applicant.
2. The Applicant has referred to a discussion with Ms Fenn in which Ms Fenn is said to have asked "why did you not tell your manager to provide a supporting reference". I am unable to infer from that question that Ms Herrick disclosed any of the Applicant's personal information. It is by no means clear that she provided any information that was unsupportive. If Ms Herrick did disclose the Applicant's personal information I cannot infer what information was disclosed.
3. I am unable to ascertain the circumstances in which Ms Herrick collected and disclosed the information. Indeed, I am unable to ascertain the circumstances which the Applicant asserts existed at the time. I am unable to determine whether Ms Herrick acted in a private capacity or on behalf of the agency. In the circumstances the Applicant has not established any breach by the LHD in relation to Ms Herrick's provision of information to the Prince of Wales Private Hospital.
4. The Applicant also alleged that Ms Herrick disclosed false information about her to Cash Converters Personal Finance Company ("Cash Converters"). It appears that by email dated on 28 August 2013, addressed to the attention of Ms Herrick, Cash Converters sought verification of information about the Applicant. The Applicant alleges that Ms Herrick provided false information in a subsequent conversation.
5. It appears that the Applicant authorised Cash Converters to seek verification from the Respondent. The Applicant alleged that Ms Herrick confirmed that the Applicant commenced employment with the agency on 22/06/2013; that the position was casual and the pay cycle was weekly. The Applicant submitted that this information was incorrect as she had commenced employment in October 2011 on a full time basis and that payment was fortnightly.
6. I am unable to ascertain any other details in regard to the circumstances in which Ms Herrick is said to have disclosed the information. I am unable to ascertain whether or not Ms Herrick in fact provided the information which is said to have been incorrect. In the circumstances the Applicant has not established any breach by the LHD in relation to Ms Herrick's provision of information to Cash Converters.
7. On the available evidence the allegations are not established. This aspect of the Applicant's application must therefore fail.
8. The Tribunal decides to take no action in respect of the alleged conduct concerning communications from Ms Herrick to the Prince of Wales Private Hospital on or about 20 August 2013 and by a communication from Ms Herrick to Cash Converters Personal Finance Company on or about 28 August 2013.

Item 5 - use and disclosure of personal information in relation to the entry of the Applicant's name and "details" on a Service Check Register on 8 August 2014

1. NSW Health utilises a Service Check Register for dealing with misconduct matters against NSW Health staff members and to manage employment of applicants for positions within NSW Health. This process is in accordance with a NSW Health policy and applicants are checked against the Service Check Register before any offer of employment is made.
2. The policy provides that for a staff member's name to be placed on the Service Check Register one of the following criteria must be met: 1. There is alleged misconduct and a decision has been made to take administrative action to mitigate any immediate or ongoing risks relating to the alleged misconduct while any investigation or other action is ongoing; or 2. There is alleged misconduct and the staff member has resigned or left the position prior to the completion of any investigation or action, but had they not, administrative action would have been required to mitigate identified risks arising from the alleged misconduct in relation to the role they were in at the time; or 3. There is alleged misconduct or misconduct and the staff member is a locum doctor/casual/agency staff member and a decision has been made not to use their services or not to renew their contract due to risks arising from the alleged misconduct; or 4. Following a finding of misconduct, disciplinary or remedial action is being taken against the staff member to mitigate risks arising from the misconduct; or 5. Following a finding of misconduct, a decision has been made that disciplinary or remedial action would have been taken against the staff member to mitigate risks arising from the misconduct had they still been in their role at the time of the finding.
3. Employees of the LHD are subject to the policy relating to the Service Check Register.
4. The Applicant was suspended with pay on 23 July 2014 following the completion of a risk assessment on 22 July 2014. By letter dated 6 August 2014 Mr Gerry Marr wrote to the Applicant informing her of the outcome of a performance process and advising her that her name was to be placed on the Service Check Register.
5. The Applicant's details were entered on the Service Check Register on 6 August 2014.

The Applicant's case

1. The Applicant's allegation concerns her placement on the Service Check Register. She contends that the effect of this placement has been to bar her from prospective employment in the NSW public sector.
2. In her written submissions dated 3 March 2020 the Applicant submitted: Gerry Marr used his authority to disclose the applicant's personal information on a national Service Check Register and to date the applicant has not been made aware of what information was disseminated on the Service Check Register on or about 6-8 August 2014 ... The longevity of the applicant's personal and professional status including her credibility remaining on the national Service Check Register caused irreversible harm from a psychological and physical perspective and the applicant was forced to compartmentalize the serious breaches made from allegations of the employees in middle and senior managements. The applicant was fully aware of every action each organisation (AHPRA and NMC) had undertaken from the abuse of power Mr Gerry Marr demonstrated as early as 6-8 August 2014 … The applicant was not at any given time subject to any disciplinary proceedings … The action of the SESLHD to prevent the applicant from working in any public health facility in the entire NSW confirms a race to conceal public concerns and breaches in legislation occurred and Gerry Marr used his power to prevent a level of transparency achieved under his managements of the SESLHD The Service Check Register was created other than for its intended purposes …
3. The Applicant submitted that she was not the "subject of any misconduct, underperformance and or any inherent psychiatric disease" and that there was no requirement that she be placed on the Service Check Register.
4. It appears that the Applicant alleges that the entry of her details on the Service Check Register was contrary to sections 62(1) and 63 of the PPIP Act which provide: 62 Corrupt disclosure and use of personal information by public sector officials (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions. 63 Offering to supply personal information that has been disclosed unlawfully (1) A person who offers to supply (whether to a particular person or otherwise), or holds himself or herself out as being able to supply (whether to a particular person or otherwise), personal information that the person knows, or ought reasonably to know, has been or is proposed to be disclosed in contravention of section 62 is guilty of an offence.
5. It also appears that the Applicant alleges that these provisions apply to the conduct of Mr Gerry Marr and Georgia Van der Meer in entering of her details on the Service Check Register. Those potential breaches were not included in Item 5 as identified by Senior Member Durack in DVH v South Eastern Sydney Local Health District [2019] NSWCATAD 221. For that reason I do not propose to deal with them.
6. It also appears that the Applicant alleges breaches of the IPPs concerning use of personal information and disclosure of personal information. That is, sections 17 and 18 of the PPIP Act. The Applicant has also referred to potential breaches of the HRIP Act. Potential breaches of the HRIP Act were not included in Item 5 as identified by Senior Member Durack. For that reason I do not propose to deal with those potential breaches. However, I note that there is no material before me that establishes that any of the Applicant's health information was placed on the Service Check Register.
7. Section 17 of the PPIP Act provides: 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless - (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.
8. Section 18 of the PPIP Act is set out above.

The Respondent's case

1. The Respondent submitted that the Applicant's name and registration number were publicly available on the AHPRA website. Therefore, there was no disclosure of that information by including it in the Service Check Register.
2. The LHD submits that the Applicant has not demonstrated any breach of sections 17 and 18 of the PPIP Act by reason of her consent to being subject to the LHD's Policies as a condition of her employment. She has also failed to demonstrate that any purpose for which the information was used was not directly related to the purpose for which the information was collected.

Conclusion on Item 5

1. On the evidence before me I am not satisfied that the information which has been included in the Service Check Register was used for any purpose other than that for which it was collected. In any event, I am satisfied that any use of the information is captured by the section 17(c) exception.
2. Similarly, any disclosure of the information would be captured by the section 18(1)(c) exception.
3. On the available evidence the allegations are not established. This aspect of the Applicant's application must therefore fail.
4. The Tribunal decides to take no action in respect of the alleged conduct concerning the entry of the Applicant's name and details on a Service Check Register on 8 August 2014.

Order 1. The Tribunal decides not to take any action on the matter.

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: 23 July 2021