EJE v Nepean Blue Mountains Local Area Health District

DOCUMENTS AND SUBMISSIONS OF THE PARTIES

1. The following documents and written submissions were filed and served by the parties.

Applicant

1. Documents and submissions of the applicant filed on 21 January 2021. The documents were not consecutively page numbered but were divided into 22 tabs and contained an index identifying the nature of the documents contained in each tab.
2. Documents and reply submissions of the applicant filed on 12 March 2021. The reply submissions comprised of 7 pages. There were a further 77 pages of documents contained in Tabs 1-3 to the reply submissions.

Respondent

1. Affidavit of Mr T. Allchurch, Solicitor, dated 1 March 2021.
2. Affidavit of Mr S. Capouski, Acting Team Leader Plans Access Community Mental Health Team, dated 1 March 2021.
3. Submissions of the respondent dated 2 March 2021. The respondent's written submissions comprised of 13 pages.
4. The affidavit of Mr Allchurch set out the factual background to the review application. It also contained a table summarising each of the 26 matters raised by the applicant; the date of the medical record; the source of the medical record; and the applicant's identification of the particular conduct of the respondent.
5. The affidavit of Mr Allchurch also contained a copy of the NSW Privacy Commissioner Statutory Guidelines for the Collection of Health Information from a Third Party; and the NSW Heath and NSW Police 2018 Memorandum of Understanding regarding the provisions of the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW).
6. The affidavit of Mr Capouski set out the role of the Plains Access Community Mental Health Team ('CMHT') within the respondent.
7. Mr Capouski stated he has worked for the CMHT for 7 years and was the Acting Team Leader.
8. Mr Capouski stated that when a client first presents to hospital, or are the subject of a home visit, they are ordinarily provided with a Privacy Leaflet explaining how and why personal information is obtained from the client; how personal information is used; and how medical records can be are accessed. The affidavit contained a copy of the Privacy Leaflet.
9. Mr Capouski stated that when new clients present to the CMHT for treatment if not previously seen at another health facility, they are asked whether they would like to nominate a "person to contact". That person is described as being a person to liaise with the hospital on the client's behalf.
10. Mr Capouski stated that the CMHT seeks to obtain health information directly from clients where possible, but there are circumstances where the CMHT cannot obtain the necessary information. In such circumstances, the CMHT contacts treating professionals (such as the client's treating General Practitioner) or the "person to contact" to confirm, clarify or supplement information provided by the client.
11. Mr Capouski stated that the CMHT worked with the client's treating General Practitioner with the intention of achieving the best clinical care for its clients. CMHT staff usually obtain the contact details of a client's General Practitioner direct from the client. When a client is discharged by CMHT staff, they ordinarily check that the client consents to the CMHT providing their health information to their General Practitioner.
12. Mr Capouski stated that the Privacy Leaflet also informed clients that discharge referral documents and other information may be provided to their nominated General Practitioner.
13. Mr Capouski concluded by stating that disclosing a discharge summary to the client's General Practitioner is important to ensure continuity of care when a client is no longer receiving care through the CMHT, and it is "standard practice" to provide discharge information to a client's General Practitioner. If there are other services involved in the care of a client, the CMHT may also provide discharge information to them.

CONDUCT OF THE HEARING

1. The hearing was conducted by telephone.
2. The Member disclosed that he had in the past been instructed as a Barrister in a matter by the Solicitor with carriage and conduct of these proceedings for the respondent. Both parties were given the opportunity to make an application that the Member disqualify himself. Neither party made such an application, and the hearing proceeded.
3. The applicant stated that she sought orders that: 1. The respondent refrain from using her identity in a "fraudulent" manner by reason of her health records containing "false referrals". 2. Her heath records be corrected; and 3. The respondent review its policies and procedures.
4. The applicant stated that she was not seeking any order that she be paid compensation under s 55(2)(a) of the PPIP Act as her application for review was "not about money".
5. At the hearing, the applicant sought leave to give oral evidence in circumstances where she had not filed and served any witness statement, statutory declaration, or affidavit setting out relevant factual events. Leave was granted. The applicant gave oral evidence. Her oral evidence repeated many of the factual matters she had referred to in her submissions. She was briefly cross examined by the respondent.
6. The applicant did not seek to cross examine Mr Allchurch or Mr Capouski.
7. Both parties made oral submissions in addition to their written submissions.

SCOPE AND NATURE OF REVIEW

1. By reason of s 21(1) of the HRIP Act, contravention of a Health Privacy Principle that applies to the agency; or contravention of a health privacy code of practice that applies to the agency, is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies.
2. 'Personal Information' is defined by s 5 of the HRIP Act and s 4 of the PPIP Act as: (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
3. The definition of "Health Information" is found at section 6 of the HRIP Act: "health information" means - (a) personal information that is information or an opinion about - (i) the physical or mental health or a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service, or (c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or (d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or (e) healthcare identifiers, but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.
4. The respondent is an organisation that falls within the definition of 'health service provider' and "public sector agency" (see ss 4 and 11 HRIP Act).
5. The HRIP Act regulates 'health information' through fifteen Principles which are set out in schedule 1 of that Act (HPPs). A "health service provider" must comply with, and not do anything, or engage in any practice, that contravenes those principles; or a "health industry code of practice"; or a provision of Part 4 that is applicable to the respondent (s 11 of the HRIP Act).
6. Section 53(1) of the PPIP Act states that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. The review is to be undertaken by the public sector agency concerned (s 53(2) of the PPIP Act). The application for review is to be in writing (s 53(3)(a) of the PPIP Act). The application for review is to be made within 6 months of the applicant first becoming aware of the conduct the subject of the application, or any such later date as the agency may allow (s 53(3)(d) of the PPIP Act).
7. In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by the applicant; and the Privacy Commissioner (s 53(5) of the PPIP Act). In this matter, the Privacy Commissioner submitted no material.
8. Under s 53(6) of the PPIP Act, the review is to be completed as soon as reasonably practicable. If the review is not completed within 60 days from the date on which the application was received, the applicant is entitled to make an application to NCAT for review of the conduct under s 55 of the PPIP Act.
9. The powers of the public sector agency upon completion of the review are set out in s 53(7) of the PPIP Act as follows: 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 - (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (e.g. the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again
10. Under s 53(8) of the PPIP Act, as soon as practicable (or in any event within 14 days) after completion of the review, the public sector agency must notify the applicant in writing of (a) the findings of the review and reasons for those findings; (b) the actions proposed to be taken by the agency (and reasons for those actions); and (c) the right of the applicant to have those findings and the agency's proposed action, administratively reviewed by NCAT.
11. NCAT's powers of review are set out in s 55 of the PPIP Act, which states as follows: 55 Administrative review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with - (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53. (1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct. (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 - (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (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, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. (3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (4) The Tribunal may make an order under subsection (2) (a) only if - (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. (4A) The Tribunal may not make an order under subsection (2)(a) if - (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (5) If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an member of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or member by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency. (6) The Privacy Commissioner is to be notified by the Tribunal of any application for an administrative review. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to an administrative review. (7) The Information Commissioner is to be notified by the Tribunal of any application for a review under this section that concerns the provision of government information by an agency (within the meaning of the Government Information (Public Access) Act 2009). The Information Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to such a review.
12. An application for review of an internal review decision of a public sector agency under the PPIP Act is an "administratively reviewable decision" capable of administrative review by the Tribunal under ss 7 and 55 of the Administrative Decisions Review Act 1997 (NSW) ('the ADR Act').
13. When reviewing conduct that is the subject of internal review under the PPIP Act, the Tribunal is exercising its administrative review jurisdiction under ss 28(2)(b) and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').
14. However, an application for internal review under s 53 of the PPIP Act is a precondition to an administrative review by the Tribunal under s 55 of the PPIP Act.
15. Accordingly, the scope of the Tribunal's review is limited to the conduct put in issue in the internal review process and is not a review of additional conduct that was not the subject of the application for internal review to the public sector agency (CWS v NSW Department of Education [2017] NSWCATAD 287 at [14]-[16]). The Tribunal is not reviewing the decision but reviewing the "conduct" that was the subject of the application for internal review.
16. When applying for internal review, an applicant does not have to identify which information privacy principle (or health privacy principle) that has been breached (GL v Department of Education and Training [2003] NSWADT 166 at [26]; JD v Department of Health [2004] NSWADT 7 at [38]; CBL v Southern Cross University [2018] NSWCATAP 236 at [25]).
17. In GA v Commissioner of Police, NSW Police [2004] NSWADT 254 ('GA') at [4], the Tribunal identified three preconditions for the Tribunal's jurisdiction for review as: 1. The applicant must have made an application for internal review under s 53; 2. The applicant must be dissatisfied with the findings of the review, or the action taken by the public sector agency in relation to the application; and 3. The person must be asking the Tribunal to review the conduct that was the subject of the application.
18. At paragraphs [5] to [7] of GA Deputy President Hennessy summarised the requirements for an internal review application as follows: 5 Section 53. Under s53(1) "a person ... who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct." The person does not need to identify the information protection principles or privacy code of practice on which he or she relies. (GL v Director-General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 (revised).) But the person does need to identify the conduct about which he or she is aggrieved. The first question is the extent to which an applicant must identify the conduct that he or she is asking to be reviewed for the request to be regarded as an application under s53. 6 The long title of the PPIP Act includes the following purpose: "to provide for the protection of personal information, and for the protection of the privacy of individuals generally". In view of that broad purpose and the beneficial nature of the legislation, s53(1) should be interpreted widely to ensure that applicants are not unnecessarily denied the right to have conduct about which they are aggrieved internally or externally reviewed. Nevertheless, the consequences of a broad interpretation need to be considered. The broadest possible interpretation of s53(1) is that it would be sufficient for an applicant to advise an agency that he or she was aggrieved by some unidentified conduct in order to be entitled to a review of that conduct. That interpretation would lead to the absurd situation that an agency would have to identify and investigate every transaction or communication relating to the personal information of the applicant which could possibly constitute a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register: s52. 7 In my view, an applicant's entitlement to an internal review (and ultimately an external review) depends on that person identifying the conduct about which they are aggrieved in sufficient detail to allow the agency to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. If the application does not identify the conduct with that level of particularity, then the agency should initially request further information from the Applicant. If an Applicant does not provide that information within a reasonable time, then the agency will be justified in declining to review the conduct.
19. The orders that can be made by the Tribunal are the orders set out in s 55 of the PPIP Act. Such orders do not include the power to "affirm" a decision of the public sector agency (AEC v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 30 at [34]; AIL v Department of Premier and Cabinet (NSW) [2013] NSWADTAP 26 at [3]; DSG v Department of Education [2019] NSWCATAD 182 at [149]).
20. However, in addition to the orders that the Tribunal may make by reason of s 55(2) of the PPIP Act, the Tribunal may also exercise the functions conferred or imposed on the public sector agency under s 53(7) of the PPIP Act (DTN v Commissioner of Police [2020] NSWCATAP 73 at [94]).
21. Pursuant to s 63(1) of the ADR Act, the Tribunal is to decide what is the correct and preferrable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. Such consideration will include relevant provisions of the PPIP Act and HRIP Act (DTN v Commissioner of Police [2020] NSWCATAP 73 at [118]).

What Conduct Is Being Reviewed?

1. As discussed previously, the respondent submits that a number of the HRIP Act Principles are not within the scope of the conduct raised by the applicant in the application for internal review.
2. In essence, the respondent submits that conduct invoking a number of HRIP Act principles in submissions was not the subject of conduct identified in the internal review application.
3. The applicant's internal review application was dated 9 September 2020. In Section 2 of the document in response to the question "What is the specific conduct you are complaining about (see footnotes for explanation of 'conduct') the applicant stated: Section 16 PIPPA Act (sic) in relation to accuracy, disclosure, use, recording, misleading content of my personal information
4. In Section 3 of the internal review application the applicant ticked the following boxes describing her "complaint": 1. Collection of my personal health information 2. Security or storage of my personal or health information 3. Accuracy of my personal or heath information 4. Disclosure of my personal or health information.
5. The applicant then identified the dates of the conduct in respect of which she sought internal review and set in writing what conduct in respect of the records identified that she asserted was in contravention of the HRIP principles.
6. As discussed previously, on 20 October 2020 and 26 October 2020 the applicant sent emails identifying further conduct that formed part of the conduct that was considered by the respondent as part of the internal review.
7. The Tribunal is satisfied that there is conduct referred to in the applicant's NCAT review submissions that were not the subject of the application for internal review, and accordingly falls outside the scope of the Tribunal's review.
8. The Tribunal will deal with this issue in the context of consideration of each of the items of conduct raised.
9. In respect of the CMHT records pertaining to the applicant that were the subject of the conduct of the respondent considered in the NCAT review, the records identified the person who made the record; the time and date of the record; and the time and date that the records were printed.

Item 1

1. This record is a "Progress Note" of the CMHT dated 24 October 2019.
2. The "progress note" relevantly states: Progress Note DWT-nil acute issues identified F/B provided to police. Team have liaised with FACs NFA by Plains Access
3. In her application for internal review, the applicant stated: Never had contact with mental health facility or worker. Forms state time 9.28 & 3.58 Printed by (name) on 13 August 2020.
4. The applicant states in her submissions filed on 21 January 2021 that: 1. She had not contact with CMHT after July 2019 and had been discharged from the care of CMHT on 2 August 2019. 2. There was no reason for CMHT to use her personal information in October 2019 or share it with NSW Family and Community Services. 3. The applicant was not informed CMHT was sharing her personal information with NSW Family and Community Services, which breached Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 4. The CMHT "exchanged my personal information and that of my children" with NSW Family and Community Services due to information provided by a NSW Police officer that the applicant had sent 60-70 emails and the police officer was concerned about the applicant's mental health. Such information was "false and misleading", and the respondent had "failed to identify whether the information was accurate, not false or misleading. 5. The reference in the record to "FACS" was "not valid as it is not a government department. Child protection falls under the umbrella of Department of Communities and Justice".
5. The applicant's submissions identified the conduct of the respondent as being breach of HPP 2, 9, 10, and 11; as well as breaching Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
6. The respondent submitted that only HPP 9 (Accuracy) was conduct identified by the applicant in the application for internal review and that the other HRIP Act principles referred to in the applicant's submissions fell outside the scope of the review. Additionally, the respondent submits that HPP 5 (Retention and Security of Health Information) was clearly not breached by the respondent, and there was nothing in the conduct identified in the application for internal review (or the NCAT review) that constituted any breach of HPP 5.
7. The respondent further submitted that whether there is any breach of Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is not within the jurisdiction of the Tribunal in a PPIP Act review.
8. The Tribunal is satisfied that the conduct of the respondent that falls with the scope of the review is HPP 9 (Accuracy), rather that the further matters raised by the applicant in her submissions.
9. Further, it is clear that any breach of Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is not conduct that the Tribunal has the power to review under the HRIP Act or PPIP Act. The PPIP Act is not a vehicle for the collateral review of the merits or validity of official action. It is concerned with the accuracy of official records, not the merits or legality of the official action recorded therein (Crewdson at [24]; GA v The University of Sydney [2010] NSWADTAP 31 at [24]-[25]).
10. Item 1 is a record of a discussion within the CMHT about the applicant. The inference to be drawn from the record is that health information of the applicant was passed to NSW Police (who had made a referred the applicant to the CMHT) and NSW Family and Community Services. The record does not indicate what health information of the applicant was disclosed to NSW Police and NSW Family and Community Services. The record states that CMHT had decided to take no further action.
11. HPP 9 states: 9 Accuracy An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
12. IPP 9 entrenches the principle that agencies will take reasonable steps to ensure that before information held by them about individuals is used for an administrative purpose it is checked to ensure that it is appropriate to rely upon it. The agency is expected to satisfy itself that the information is relevant, accurate, up to date, complete and not misleading (PN v Department of Education and Training [2010] NSWADTAP 59 at [30]).
13. If personal information held by an agency is to be used for a purpose that is adverse to the interests of the person concerned, IPP 9 places a higher threshold on the agency to take reasonable steps to ensure that the information is relevant, accurate, up to date, complete and not misleading before being used (JD v Director General, NSW Department of Health (No 2) [2004] NSWADT 227 at [66]).
14. In respect of HPP 9, the issue is not merely whether information is inaccurate, irrelevant, not up to date, or misleading. It is whether the agency took "reasonable steps" in the circumstances to ensure the information was accurate, up to date, complete and not misleading having regard to the purpose for which the information is proposed to be used.
15. What are "reasonable steps" will depend upon the circumstances of the case. There is no universal rule that "reasonable steps" involve consulting the person the subject of the health information prior to it being collected or used (ALZ v SafeWork NSW [2017] NSWCATAP 51 ('ALZ') at [110]).
16. It is generally not appropriate to find that information is inaccurate if it consists of opinions expressed by medical practitioners who saw a person or saw prior medical records of that person, because such opinions are the product of the application of medical skill and knowledge. A mere difference of opinion is not sufficient to conclude that a medical record is inaccurate. There are limited circumstances where an opinion of a medical practitioner may be inaccurate, incomplete, or misleading, such as where the medical practitioner recognised later that it was incorrect at the time and withdrew it; or it was shown to be based solely or perhaps substantially on information shown to be incorrect (Crewdson v Central Sydney AHS [2002] NSWCA 345 at [31]-[36] 'Crewdson').
17. The conduct does not contravene IPP 9. The record sets out that the CMHT had an internal discussion; and provided information to NSW Police and NSW Family and Community Services in regard to the applicant. The applicant's assertion in her submissions that the record is inaccurate arise from her subjective beliefs about what was discussed and what information was provided to other authorities. However, the record does not disclose such information. It is not inaccurate, incomplete, misleading, or not relevant. There is nothing to indicate the information is not up to date.
18. The reference in the record to "FACS" rather than the Department of Communities and Justice is not information that is inaccurate. NSW Family and Community Services is part of the Department of Communities and Justice. It is a distinction without a difference.

Item 2

1. Item 2 is a "MH Discharge/Summary" record dated 23 October 2019. The person who "verified" the information, being a Registered Nurse, is identified and the same person is identified as the "author" of the record.
2. The record makes notes of the CMHT making a "visit" to the applicant, which the Tribunal infers was a welfare check. The record sets out that on 16 October 2019 the applicant was referred to CMHT from police as she had contacted the police station and emailed "60-70 emails in the last 3 days", that expressed certain thoughts that caused concern. The record notes that the "referrer" (i.e. NSW Police) stated that a "notification" had also been made to NSW Family and Community Services.
3. The record states that the applicant was seen on a home visit by CMHT on 18 October 2019. The record sets out what the applicant said and expressed opinions about the applicant's presentation. The record states what the applicant said about her children and that the applicant and her immediate family would soon be moving to a different location in NSW.
4. The record stated that the applicant declined any further mental health intervention, and that she was "not detainable under the Mental Health Act".
5. The record stated that on 18 October 2019, CMHT spoke to the applicant's mother. The record states that the applicant's mother expressed a "main concern" about the applicant's children not socialising or attending school. The records stated that "Nil immediate risk issues identified".
6. The record stated that "Access to provide feedback to FACs, GP and referrer".
7. In the application for internal review, the applicant identified the conduct of the respondent as follows: Referred on 16/10/2019 as allegedly sent 60-70 emails to police. I never sent 60-70 emails to police and no content in paragraph one is factual.
8. In respect of Item 2, the submissions of the applicant repeat her submissions in respect of Item 1.
9. As with Item 1, the applicant in her submissions to the Tribunal raises conduct which is outside the scope of review. The conduct that is identified in Item 2 in the application for internal review to the respondent engages only HPP 9.
10. In respect of the applicant's submission that she had not sent "60-70" emails to Police and that the information contained in the record was "false", the CMHT member who created the record was detailing what that person had been told by NSW Police in respect of why NSW Police were making contact with CMHT by way of a "referral".
11. In the circumstances, "reasonable steps" under HPP 9 does not require the respondent to take measures to independently verify what they were told by NSW Police or the applicant's mother when acting upon the referral. "Reasonable steps" do not involve contacting the applicant for her comments upon whether or not she believed the information was accurate before recording it or using it.
12. The conduct of the applicant in Item 2 does not breach HPP 9.

Items 3 and 4

1. Item 3 is a "progress note" of a conversation by a CHMT Registered Nurse with the applicant's mother on 18 October 2019. The record identifies the person who made the record (who is the same person who made the record of Item 2); the date the record was made; who performed "completed action list" in respect of the record (and when such actions were performed) and the time, date and person who printed the record.
2. The content of the record sets out what the applicant's mother said to the CMHT. As discussed previously, the contact by CMHT with the applicant's mother occurred in the context where NSW Police had made a referral to CMHT due to concerns about the welfare of the applicant, and potentially her children.
3. In the application for internal review, the applicant identified the conduct of the respondent regarding Item 3 as follows: Alleged contact with mother on 18/10/2020 "she knows the system and how to work it". My mother did not say this (paragraph 1). My mother did not consent for the communication she had to be disclosed".
4. In the application for internal review, the applicant identified the conduct of the respondent regarding Item 4 as follows: Son (Name) has Asperger's-false information and my mother never said this. My son (Name) lives on the Autism Spectrum.
5. The applicant submits in the NCAT review that the respondent contacting her mother was in breach of the following principles: 1. HPP 1-The information was not collected for a lawful purpose. 2. HPP 2-The information was irrelevant, excessive, inaccurate or excessive. 3. HPP 3-The information about the applicant was not collected from the applicant and it was not unreasonable or impracticable to collect it from the applicant. 4. HPP 4-The applicant was not made aware of unidentified "certain matters" before collection of the information. 5. HPP 9-The respondent used the information without taking reasonable steps to ensure it was relevant, accurate, up to date, and not misleading. 6. HPP 10 and 11-The respondent used or disclosed the information without the consent of the applicant. The applicant did not consent to CMHT speaking to her mother or disclosing any of the applicant's health information to her mother.
6. The respondent submits that on a fair reading of the conduct identified in Items 3 and 4, the relevant principles being raised are: 1. HPP 9-Accuracy (in respect of Items 3 and 4) 2. HPP 3-Collection (in respect of Item 3) 3. HPP 11-Disclosure (in respect of Item 3).
7. The Tribunal is satisfied that the conduct of the respondent which falls within the scope of the review involves HPP 3, 9, and 11 rather than the broader scope submitted by the applicant.
8. In respect of HPP 9, the conduct of the respondent is not in breach of HPP 9. The member of the respondent was making a note of information provided by the applicant's mother after the CMHT contacted the applicant's mother to enquire about the applicant's welfare by reason of the "referral" by NSW Police.
9. There was no evidence or statement from the applicant's mother in either the application for internal review or the NCAT review that she did not state what was recorded. The purported inaccuracy is based upon the evidence of the applicant that she believes her mother did not say the things recorded because they are not accurate.
10. The Tribunal is not satisfied that under these circumstances the taking of "reasonable steps" involved speaking to the applicant to obtain the applicant's views about the accuracy of what her mother was recorded to have said before such information was used. Further, the record was made contemporaneously, from which it can be inferred it is more likely to be an accurate record of what the CMHT member was told rather than a record created at a more distant time.
11. HPP 3 states: 3 Collection to be from individual concerned (1) An organisation must collect health information about an individual only from that individual unless it is unreasonable or impracticable to do so. (2) Health information is to be collected in accordance with any guidelines issued by the Privacy Commissioner for the purposes of this clause.
12. From the records of the respondent, the applicant's mother was contacted following a home visit to the applicant by the CMHT on 18 October 2019. As discussed previously, that visit occurred by reason of a referral to CMHT by NSW Police. The applicant had previously been treated at Nepean Hospital on 21 July 2019 and was then treated as an outpatient by CMHT until 2 August 2019.
13. The Tribunal is satisfied that the information provided by applicant's mother included health information of the applicant. However, that information was obtained in the context where the CMHT had genuine reason to be concerned for the applicant's health and welfare due to the referral from NSW Police and the applicant's past history of medical treatment involving mental health.
14. Whether it was "unreasonable" or "impractical" under HPP 3 (1) to collect health information from the applicant is a question of fact to be assessed in the particular circumstances. Relevant circumstances include whether there is an emergency; whether a person is unable to communicate or their ability to communicate is impaired; or there is information to suggest the person is a danger to themselves or others (QB v Greater Southern Area Health Service [2011] NSWADT 90 ('QB') at [70]-[71]).
15. However, the circumstances set out in QB at [70]-[71] are not the only circumstances in which it is unreasonable or impracticable to obtain heath information about an individual from that individual. Each matter depends upon its own facts.
16. The Tribunal accepts the respondent's submission that it is appropriate standard practice in the mental health setting where there are concerns regarding the safety and wellbeing of a patient (or former patient) and their family and/or children to make contact with the patient (or former patient's) identified contact persons and immediate network to ascertain the mental state of the patient (or former patient) and level of involvement required by CMHT.
17. The information CMHT was obtaining from the applicant's mother was information relevant to the applicant's current mental health state and welfare. In such a context, the opinion of the applicant's mother and information provided by her pertaining to the mental health state and welfare of the applicant and children in the care of the applicant was reasonably necessary form CMHT to form a view as to what, if any further treatment or action was appropriate.
18. The respondent had collected health information from the applicant when conducting the site visit. In contacting the applicant's mother, the respondent was seeking further information to form a clinical assessment as to whether further treatment or action was required.
19. Accordingly, it would have been unreasonable (but not impracticable) to obtain the heath information about the applicant provided by the applicant's mother from the applicant. If HPP 3 was interpreted to mean that only information about the mental state of a person who may (or may not) be experiencing significant mental health issues could only be obtained from the person, and no information could be obtained from close family members, the CMHT would be significantly restricted in their ability to form a clinical opinion as to whether or not the person required mental health treatment or other action.
20. HPP 3 has not been contravened by the conduct of the respondent in Item 3.
21. HPP 11 states: 11 Limits on disclosure of health information (1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless - (a) Consent the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or (b) Direct relation the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or Note - For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose. …
22. HPP 11 then sets out at HPP 11 (1)(b)-(l) other exemptions where the organisation can disclose health information for a secondary purpose.
23. There is no dispute that the respondent did not obtain the explicit prior consent from the applicant for her health information to be disclosed to her mother on 18 October 2019. The applicant submits that although her mother was identified by her to the respondent previously as an "emergency contact", there was no emergency on 18 October 2019.
24. The respondent accepts that even if there was no explicit prior consent, there was "at least implicit consent" (respondent's written submissions pp 9-10).
25. However, as the Tribunal is satisfied that the health information was disclosed for the "primary purpose" for which it was collected, it is unnecessary to make findings as to whether or not there was consent.
26. HPP 11 involves the "disclosure" of health information. Distinguishing between internal "use" of health information and "disclosure" of health information may involve a degree of complexity if the agency is a large public sector agency comprising of specialised units and information is disseminated between such units, "disclosure" to persons outside the agency falls within HPP 11 (KJ v Wentworth Area Health Service [2004] NSWADT 84 at [50]).
27. The Tribunal accepts that health information of the applicant was disclosed to the applicant's mother when CMHT spoke to her on 18 October 2019.
28. The Tribunal accepts that the "primary purpose" for the disclosure of the applicant's health information to her mother was to provide mental health care services to the applicant, in the context of obtaining information from the applicant's mother that was reasonably necessary to form a clinical assessment of what, if any, mental health treatment the applicant required.
29. HPP 11 has not been contravened by the respondent.

Item 5

1. Item 5 is a "Progress Note" made by CMHT member of what occurred when the CMHT attended the applicant's residence on 18 October 2019. The name of the person who created the record; their position at CMHT; the time of the record; and the details of who printed the record and when it was printed are set out in the record.
2. Included in the record is the following: MSE: Casually dressed tidy appearance. Looking older than stated age. …
3. In her application for internal review, the applicant identified the conduct in breach of the HRIP Act Principles as follows: "Notes state "looking older than stated age" this is an assumption and misuse of my personal information. Delusional-assumption not fact".
4. In her submissions in the NCAT review application, the applicant states: I saw no clinician on this date and the information was not obtained off the clinician from my persons (sic).
5. The applicant submits in the NCAT review application that the heath information contained in Item 5 contravenes HPP 1, 2, 3, 9 and 10.
6. The respondent submits that only HPP 9 (Accuracy) was conduct of the respondent that falls within the scope of the NCAT review. The Tribunal accepts that submission, as the conduct identified in the application for internal review in respect of Item 5 only raises that the information recorded is inaccurate.
7. The conduct does not contravene HPP 9. The opinion expressed was a genuine opinion by a health professional in the context of an assessment of the applicant to determine whether the applicant required medical treatment (or any other action taken). The applicant's physical appearance is relevant to the clinical assessment by the health professional. The conduct of the respondent in obtaining and recording this information does not contravene HPP 9 (DTN v Commissioner of Police (No 2) [2020] NSWCATAD 227 at [46] and [49]).

Item 6 and 7

1. Item 6 involves the 'Progress Note' of the visit by CMHT to the applicant's residence on 18 October 2019.
2. Item 7 is a 'Progress Note' of the CMHT from the day before that relevantly states: Progress Note Dw team/team leader. Plan liaise with Police re joint h/v with Access team to review
3. In her application for internal review, the applicant identified the conduct of the respondent in respect of Items 6 and 7 as follows: 18/102019: re: contact with police without my knowledge or consent. I was not a patient at Nepean mental health clinic or any other mental health facility so sharing my personal information with police was a clear breach of my privacy. 17/10/2019: lease (sic) with police. I did not consent for any mental health facility or worker to share my personal information with police.
4. In her submission in the NCAT review, the applicant submits that the respondent "…was discussing my personal information with police without valid legal reason. All the below breached have occurred in this instance". The applicant the identifies HPP 2, 3, 4, 5, 9, 10 and 11.
5. The respondent submits that the conduct of the respondent that falls within the scope of the NCAT review is HPP 11 (Disclosure).
6. The Tribunal accepts that the conduct identified in the internal review application involved the disclosure of the applicant's health information to police without her consent, which invokes HPP 11. The other purported breaches of HRIP Act Principles are outside the scope of the NCAT review.
7. As discussed previously, the context in which the conduct occurred was that NSW Police had contacted CMHT by way of a "referral" because of the content and number of emails the applicant had sent NSW Police. Ultimately, NSW Police did not attend the visit to the applicant's residence on 18 October 2019.
8. The records in Items 6 and 7 do not clearly indicate what health information of the applicant the respondent disclosed to NSW Police. The respondent submits that communications did not involve disclosure of any health information of the applicant that was not known to NSW Police (Nasr v State of New South Wales [2007] NSWCA 1010 at [127], and thus does not contravene HPP 11.
9. In the alternative, the respondent submits that health information of the applicant that was disclosed to NSW Police for the primary purpose of providing mental health services to the applicant.
10. It is unnecessary to make findings as to whether the health information of the applicant disclosed by the respondent to NSW Police was information already known by NSW Police. The health information of the applicant was collected by the respondent for the primary purpose of providing mental health medical treatment to her.
11. The disclosure to NSW Police was for the same primary purpose, which included determining whether it was appropriate to attend the applicant's residence and, if so, what mental health medical treatment (if any) should be provided to her.
12. In the alternative, even if the disclosure was not for the primary purpose of providing mental health medical treatment to the applicant, it was for a secondary purpose directly related to the primary purpose, being to determine what, if any further action should be taken by the CMHT to assess whether there were any mental health welfare concerns regarding the applicant in the context of the referral by NSW Police.
13. The Tribunal is satisfied that that the applicant would reasonably expect the respondent to disclose the information for the secondary purpose (CEU v University of Technology Sydney [2017] NSWCATAD 79 at [136]-[138]; DKV v Southern NSW Local Area Health District [2019] NSWCATAD 12 at [30]).
14. The conduct of the respondent identified in Items 6 and 7 does not contravene HPP 11.

Item 8

1. Item 8 involves the spelling of the name of the police officer who contacted the CMHT, as set out in a record dated 16 October 2019. In the internal review application, the applicant stated the spelling was incorrect and accordingly the conduct contravened HPP 9.
2. The internal review decision of the respondent was that the conduct did not involve health information or personal information of the applicant.
3. In her submissions in the NCAT review, the applicant accepts that the conduct does not fall within the HRIP Act principles. Accordingly, this is not an issue in dispute.

Items 9 and 10

1. Items 9 and 10 involve two records created on 2 August 2019. The author was a psychologist. Item 9 is a "Progress Note" which relevantly states as follows: Progress Note Discharge summary faxed to GP. Confirmed receipt. Plan: NFA
2. Item 10 is a "Discharge/Transfer Summary" that refers to the applicant presenting to Nepean Hospital on 21 July 2019 expressing "delusional thoughts"; a home visit by CMHT to the applicant on 25 July 2019 where there was an "impression" of "delusional thoughts"; phone contact being made with the applicant's mother; and phone contact being made with the applicant on 29 July 2019 where the applicant: Expressed she does not believe she has a delusional disorder so will not take medication. Discharge information GP
3. The "Discharge Summary" states that the applicant was referred to the CMHT for "community follow up" after being treated at Nepean Hospital on 21 July 2019. The notation regarding the applicant's belief as to whether or not she had a "delusional disorder" and that she was not taking medication occurred in the context of recording phone contact between the CMHT and the applicant on 29 July 2019.
4. In her application for internal review, the applicant identifies the relevant conduct as: 02/08/2019-discharge summary. I was never admitted as a patient with my knowledge nor did I consent. Discharge summary faxed to GP. I did not authorise my information to be shared with any GP. 02/08/2019 referral to my GP. I never gave permission for my information to be shared with my G.P to Make an Mental Health CClinic (sic) page 2 states I did not believe I had delusional thoughts or want medication which is correct therefore all assumptions saying I was delusional are assumptions and not based on fact.
5. In her submissions in the NCAT review the applicant states that she was treated at Nepean Hospital Mental Health Clinic on 21 July 2019 but attended "of my own free will" and did not consent to being admitted as a patient of the CMHT, nor consent to the CMHT subsequently attending her premises. The applicant identifies HPP 1, 2, 3, and 4 as the HRIP Act principles contravened.
6. The respondent submits that the conduct identified in the internal review application in respect of Item 9 and 10 involves only HPP 3 (Collection); HPP 9 (Accuracy) and HPP 11 (Disclosure) in circumstances where the applicant's complaint about the conduct of the respondent is that health information was obtained from her GP and health information was provided to her GP without her consent, in addition to the accuracy of the record in respect of reference to "delusional thoughts" and "medication".
7. The Tribunal accepts the respondent's submission that HPP 3; 9; and 11 are the HRIP Act principles raised by the conduct identified in the internal review application, and the reference in the applicant's submissions to other HRIP Act principles fall outside the scope of the NCAT review.
8. In respect of the applicant's assertion that she was "never admitted as a patient with my knowledge nor did I consent" it is clear from the medical records and the applicant's submission in the NCAT review that she was treated at Nepean Hospital Mental Health Clinic on 21 July 2019. It is also clear that a CMHT member contacted the applicant on 27 July 2019 by telephone and a conversation with her. Health information obtained from the applicant on 21 and 27 July 2019 was provided by her and does not contravene HPP 3.
9. The application for internal review does not identify any conduct of the respondent in Items 9 and 10 involving any collection of information from anyone other than the applicant.
10. In respect of HPP 9 (Accuracy) the applicant accepts that she told the CMHT on 29 July 2019 that she was not delusional and was not taking medication. Her complaint about the conduct of the respondent in the context of HPP 9 is the recording of an opinion by a medical professional that she was experiencing "delusional thoughts". She was clearly contacted by CMHT and gave her view that she was not suffering from "delusional thoughts".
11. The Tribunal is satisfied that the recording of an opinion by a medical professional about the state of the applicant's metal health was a genuine opinion by a health professional in the context of an assessment of the applicant to determine whether the applicant required medical treatment the information was not inaccurate, nor used in a manner that contravened HPP 9.
12. In respect of HPP 11 (Disclosure), the affidavit of Mr Capouski at [13]-[16] states that it is the standard clinical practice of the CMHT to provide information about the treatment of patients by CMHT to that person's General Practitioner for the purpose of determining what, if any, further medical treatment was appropriate and to ensure "continuity of care".
13. The Tribunal is satisfied that the disclosure to the applicant's General Practitioner was for the primary purpose for which it was collected.
14. Accordingly, it is unnecessary to make findings about whether or not the applicant gave implied consent to disclosure, as was referred to in the respondent's submissions.

Item 11

1. Item 11 is a "Progress Note" dated 29 July 2019. The author was a registered nurse. The record relevantly states as follows: Progress Note DWT-F/B and NFA GP (name)
2. In her application for internal review to the respondent, the applicant identified the conduct in contravention of the HRIP principles as: 29/7/2019. I did not consent for my GP to be contacted nor informed he had been co-texted. Invalid reason to make contact.
3. In her submissions in the NCAT review, the applicant identified the respondent's conduct as breaching HPP 1 ,2, 3, 4, 5, 9, 10 and 11.
4. The respondent submits that the only HPP that falls within the scope of the NCAT review are HPP 3 (Collection) and HPP 11 (Disclosure). The Tribunal accepts that submission.
5. The disclosure of health information of the applicant to the applicant's General Practitioner as set out in the record of 29 July 2019 does not contravene HPP 3 or HPP 11, for the same reasons as set out previously in respect of Items 9 and 10.

Item 12

1. Item 12 involves a "Progress Note", being a record of a telephone conversation between a CMHT Registered Nurse and the applicant on 29 July 2019.
2. Relevantly, the record states: She is happy to engage with us as she states we are assisting her with the stress of dealing with so many gov depts (sic) and finding out the truth.
3. In her application for internal review, the applicant identifies the conduct of the respondent in breach of HRIP Act principles as follows: 29/07/2020 (sic) I did not say anyone was assisting me with my stress of dealing with so many gov departments and finding out the truth.
4. In her NCAT review submissions, the applicant submits that she did not say the words attributed to her, and that the CMHT conducted a "home visit" on 25 July 2019. The applicant submits that the conduct of the respondent contravenes HPP 1, 2, 3 and 10.
5. The respondent submits that the only HRIP principle engaged by the applicant in her application for internal review in respect of Item 12 is HPP 9 (Accuracy). The Tribunal accepts the respondent's submission that the conduct identified in the application for internal review is HPP 9, and the other HRIP principles identified in the applicant's submissions in the NCAT review fall outside the scope of the review.
6. The Tribunal is satisfied that a contemporaneous record of what a treating health professional identifies they have been told by the patient and which is information that is relevant to assessing what, if any, medical treatment is appropriate is not conduct that contravenes HPP 9, for the same reasons that have been expressed previously.
7. Further, the Tribunal notes that in respect of Item 12 (as in respect of other items where the applicant asserts that her opinion about what was said or recorded is inaccurate) the respondent has offered pursuant HPP 8 (2) to attach a statement by the applicant of the amendments sought (i.e. a statement of the applicant setting out what she identifies as the inaccuracies) but the applicant has not requested the respondent do so.

Item 13

1. Item 13 is a "Progress Note" of CMHT dated 28 July 2019. That "Progress Note" arises from the home visit of CMHT to the applicant's residence in July 2019.
2. The Progress Note relevantly states: She believes that her family have been subject to generations of tracking and interference due to this (sic) "they did it to my father as well" … Has no insight to her delusional beliefs however appears to be functioning well. … Uncle who is the postman dropped in while we were there …
3. In her application for internal review, the applicant identified the conduct of the respondent in breach of the HRIP Act principles as follows: In never said I had been subject to generations of tracking and interference. Page 2-I never said my uncle was a postman. I said my stepfather was a postman. Assumption-no insight into my delusional beliefs, they (sic) weren't delusions they were factual beliefs.
4. In the internal review decision, the respondent accepted that the information in Item 13 was inaccurate in respect of (a) the date of the home visit (which should have been recorded as 25 July 2019) and (b) "Uncle" should have read "Stepfather". The respondent amended the record accordingly.
5. The respondent did not accept that there was any other breach of HPP 9 (Accuracy).
6. In her NCAT review submissions, the applicant stated: At no time stated my uncle was a postman. At no time said anything to imply I was delusional.
7. The applicants NCAT review submissions identify the HRIP Act principles breached by the conduct of the respondent as HPP 1, 2, 3, 9 and 10.
8. The Tribunal is satisfied that the only conduct of the respondent identified in the application for internal review in respect of Item 13 is HPP 9 (Accuracy).
9. The respondent has amended the record in respect of the reference to "Uncle". No further action is warranted.
10. The only other inaccuracy identified is that the applicant asserts she did not say anything to imply she was delusional.
11. The reference to "delusional" is a genuine opinion expressed by a health care professional in the context of providing treatment to the applicant. The conduct does not contravene HPP 9.

Item 14

1. Item 14 is a "Progress Note" of CMHT dated 27 July 2019 in respect of a telephone call a CMHT member made to the applicant's mother.
2. The record states that the applicant's mother made a comment about the intelligence of the applicant's partner.
3. In her application for internal review, the applicant stated her mother "never made" the comment about her partner.
4. In her NCAT review submission, the applicant states that she did not consent to CMHT speaking to her mother and asserts the conduct of the respondent contravenes HPP 11.
5. The respondent submits that the application for internal review did not raise the issue of Disclosure (HPP 11) and that any such conduct falls outside the scope of the review. The Tribunal accepts that submission and is satisfied that HPP 11 falls outside the scope of the NCAT review. The respondent only dealt with HPP 9 (Accuracy) in the internal review decision.
6. The comment about the applicant's partner, irrespective of the applicant's belief that it was not said, is not health information of the applicant within s 6 of the HRIP Act. No contravention of HPP 9 has occurred.

Item 15

1. Item 15 involves 2 "Progress Notes" of CMHT in respect of the home visit to the applicant on 25 July 2019.
2. One of the "Progress Note" records contains the following: …casually dressed with reasonable hygiene.
3. In her application for internal review, the applicant identifies the conduct of the respondent in breach of HRIP Act principles as: I had one home visit…either on 25/07/2019 or 28/07/2019 Not on both occasions. "reasonable hygiene" this is an assumption based on personal belief and unethical recording of information
4. In her NCAT review submissions, the applicant states that the medical professionals who attended her residence did not have the power to determine what "reasonable hygiene" is; and continued to assert that there was only one home visit, not two.
5. The applicant submitted that HPP 1, 5, 9, 10 were contravened by the respondent.
6. The respondent submitted that it had agreed to amend the Progress Note records to make clear the date of the home visit was 25 July 2019 and the reference to 28 July 2019 was a typographical error.
7. The respondent submitted that HPP 9 (Accuracy) was the only HRIP Act principle that falls within the scope of the NCAT review. The Tribunal accepts that submission, and the conduct of the respondent raised by the applicant in the internal review application invokes only HPP 9.
8. As the date of the record has been amended by the respondent, no further action is warranted in respect of this inaccuracy.
9. The reference to "reasonably hygiene" is a genuine opinion of a medical professional who had attended the applicant on 25 July 2019 for the purpose of determining what, if any, medical treatment was appropriate. The making of such a record does not contravene HPP 9, for the same reasons as discussed previously in the context of the applicant's submissions that opinions expressed by the CMHT are in breach of HPP 9.

Item 16

1. Item 16 is the "Progress Note" of CMHT arising from the telephone conversation between a CMHT member and the applicant's mother. The Progress Note relevantly included the following: PLAN: P/C monitor 29/07 as per previous plan Requires MRG by clinician who attended H/V
2. In her application for internal review, the applicant identified the conduct of the respondent in breach of the HRIP Act principles as follows: 27/07/2019 duplicated copy of communications made with my mother with different content to the 1st documented communication conducted on 27/07/2019. My mother was only contacted on one occasion on this date. P/C monitor? I did not consent to be monitored nor was there a valid reason to be monitored.
3. In her NCAT review submissions, the applicant states that she was "discharged" by the CMHT on 2 August 2019; the information was "not accurate" because CMHT was acting upon information provided by NSW Police without taking reasonable steps to ensure it was accurate; she did not consent to being "monitored"; and she did not consent to information being shared with her mother. The applicant identifies breaches of HPP 5 and 11. The applicant also refers to "discriminatory conduct" and s 16 of the PPIP Act.
4. The respondent submits that the application for internal review raised HPP 9 (Accuracy) as the relevant conduct of the respondent.
5. Further, the respondent correctly submitted that s 16 of the PPIP Act did not apply to this application, and in any event was in materially similar terms to HPP 9.
6. The Tribunal is satisfied that the conduct of the respondent identified that falls within the scope of the NCAT review is HPP 9.
7. The evidence does not establish any inaccuracy in respect of the CMHT's telephone contact with the applicant's mother and the conduct of the respondent does not breach HPP 9.

Items 17, 18, and 19

1. Items 17, 18, and 19 involve a "Progress Note" of the home visit conducted by a Doctor (psychiatric registrar) and a CMHT member on 25 July 2019. The "Progress Note" was authored by the Doctor who attended the home visit.
2. In her application for internal review, the applicant identifies the conduct of the respondent in respect of Items 17, 18 and 19 as follows:
3. In her application for internal review, the applicant identified the conduct of the respondent in breach of HRIP Act principles as: 1. She only had a home visit contact on one occasion in July 2019. 2. The reference to "evidence of persecution delusional thoughts" was "an assumption, not fact". 3. The applicant never said she wanted referral to psychologist.
4. In her NCAT review submissions, the applicant did not identify any HRIP Act Principles other than HPP 9. In any event, the Tribunal is satisfied that the conduct within the scope of the review is in respect of HPP 9 only.
5. As with Item 15 the respondent found in the internal review that the date of the home visit was 25 July 2019 and that had been the only home visit in July 2019. The records were amended accordingly.
6. As the inaccuracy concerning the date of the home visit has been corrected, no further action is appropriate regarding this issue.
7. The other purported inaccuracies identified by the applicant involve the applicant's disagreement with the content of the notes made by the Doctor who conducted the home visit as to his clinical opinion about her presentation and condition; and her disagreement with his reference to what was said by her.
8. As with the other Items where the applicant has raised such conduct as being in contravention of HPP 9, the Tribunal is satisfied that the conduct was not in breach of HPP 9, for the same reasons as expressed previously.

Item 20

1. Item 20 is a "Progress Note" of CMHT dated 24 July 2019 that relevantly states as follows: Progress Note DWT-Organise hv with doctor PLAN: HV with Dr (Name) 25/7 @ 9.30
2. In her application for internal review, the applicant identifies the conduct of the respondent in breach of HRIP Act Principles as: 24/7/2019 plans access. I had no contact with the plains access team but with nepean mental health clinic (sic). Organised HP with doctor-I never saw any doctor for mental health related issues. At any stage in my life.
3. In her NCAT review submissions, the applicant submitted that the respondent had breached s 16 of the PPIP Act as she did not give prior consent to any internal CMHT discussion about her health; and she did not give prior consent to the home visit.
4. The respondent submits that the only HRIP Act Principle that falls within the scope of the NCAT review is HPP 9. The Tribunal accepts that submission, and the only HRIP Act principle that falls within the scope of the review is HPP 9.
5. The conduct of the respondent is a contemporaneous record of an internal discussion of the CMHT as to what, if any, medical treatment of the applicant is appropriate. The reference to "plains access" is not inaccurate, as the "Plains Access Team" is the CMHT that was providing clinical services and medical treatment to the applicant (paragraph [1] of the affidavit of Mr Capouski setting out that references to Plains Access Community Mental Health Team are references to "CMHT" within the Nepean Blue Mountains Local Health District.
6. It is also clear from the records that the CMHT did arrange a home visit of the applicant's residence on 25 July 2019.
7. The conduct of the respondent identified in Item 20 does not contravene HPP 9.

Item 21

1. Item 21 is a "Progress Note" of CMHT dated 23 July 2019. The "Progress Note" states that CMHT received a telephone call from the NSW Police Welfare Team stating that NSW Police were concerned about the welfare of the applicant arising from her attending NSW Police the previous day.
2. The "Progress Note" then sets out what the CMHT were told by NSW Police regarding why they had concerns for the applicant's welfare. The "Progress Note" concludes by stating: Plan: P/C to review possible H/V required.
3. The applicant's internal review submissions stated she "only had contact" with NSW Police on 21 July 2019, and the submissions then asserted that the content of what NSW Police told the respondent was inaccurate and irrelevant.
4. In her NCAT review submissions, the applicant submits that NSW Police contacted CMHT with "malicious intent" because she criticised NSW Police in a statement she gave to NSW Police. In her NCAT review submissions, the applicant identifies HPP 1, 2, 3, and 4 as the conduct of the respondent has contravened.
5. The respondent submits that only HPP 9 falls within the scope of the NCAT review.
6. The respondent submits that any complaints by the applicant about the conduct of NSW Police are outside the scope of the NCAT review, and the use of the information by CMHT to consider what, if any, further treatment of the applicant was not conduct in contravention of HPP 9.
7. Further, the respondent submitted that even if HPP 3 (Collection) fell within the scope of the NCAT review, the health information was not "collected" by the respondent because receipt of the information was unsolicited (s 10 of the HRIP Act).
8. The Tribunal is satisfied that only HPP 9 falls within the scope of the NCAT review.
9. Any health information recorded by the respondent based upon contract from NSW Police due to NSW Police having concerns for the welfare of the applicant was contemporaneous notes of what CMHT was told by NSW Police. The applicant's subjective belief that it was inaccurate or that the referral by NSW Police was motivated by matters other than a genuine concern for the welfare of the applicant does not mean the information was inaccurate.
10. Further, the "use" of the information involved consideration of what steps, if any, CMHT should take to ascertain whether treatment of the applicant was appropriate, and what measures should be taken in that regard in circumstances where NSW Police held concerns for the applicant's welfare. In that context, it was not a "reasonable step" to confer with the applicant about whether or not she believed the information provided by NSW Police was accurate before the respondent used the health information.
11. The conduct of the respondent in respect of Item 21 does not contravene HPP 9. It is unnecessary to consider HPP 3, although there is force to the submission of the respondent that health information of the applicant provided by NSW Police in these circumstances was unsolicited and not in contravention of HPP 3.

Items 22 and 23

1. Item 22 is a "Progress Note" of CMHT dated 21 July 2019 from treatment provided on that date. The "Progress Note" sets out the salient medical history provided by the applicant including her background and symptoms.
2. In her application for internal review, the applicant submits that the information set out in the "Progress Note" is inaccurate.
3. In her NCAT review application, the applicant again, as with other items, raises contravention of numerous HRIP Act principles.
4. The Tribunal is satisfied that only HPP 9 falls within the scope of the NCAT review.
5. The respondent, in its internal review decision, found that a breach of HPP 9 had occurred in respect of the reference to where the applicant lived; where she was born and raised; and that she was Indigenous. The respondent amended the record accordingly.
6. The Tribunal is satisfied that the only breach of HPP 9 involves the matters which have been corrected by the respondent, and no further action is appropriate.
7. The other conduct identified by the applicant in her application for internal review in respect of Item 22 involves genuine opinions of a medical practitioner who saw the applicant or saw prior medical records of the applicant and the conduct does not contravene HPP 9 (Crewdson at [30] and [35]).
8. Item 23 is a "Progress Note" of treatment by the respondent on 21 July 2019, but such treatment occurred at "MH Triage". Included in the record is reference to contemporaneous comments of the applicant when she was being treated.
9. In her application for internal review, the applicant asserts that information identified she was noted to have said regarding "government agencies" she did not state. The applicant also submits that it should not be "implied" she had a mental health issue and was referred by NSW Police as she attended voluntarily.
10. The Tribunal is satisfied that the conduct identified in Item 23 invokes HPP 9 as falling within the scope of the NCAT review. As with other Items previously discussed the applicant's NCAT review submissions refer to numerous other HRIP Act Principles in addition to HPP 9. However, for the same reasons as discussed previously, the Tribunal is satisfied that only HPP 9 falls within the scope of the review.
11. The Tribunal is satisfied that the conduct of the respondent in Item 22 again involves genuine opinions of a medical practitioner who saw the applicant or saw prior medical records of the applicant and the conduct does not contravene HPP 9 (Crewdson at [30] and [35]).

Item 24

1. Item 24 involves reference to the applicant's marital status and the spelling of her partner's name in a "Progress Note" dated 17 October 2019.
2. In its internal review decision, the respondent found the information was inaccurate in contravention of HPP 9 and amended the record accordingly.
3. The applicant's NCAT review submissions did not identify any other contravention of HRIP Act Principles. The Tribunal is satisfied that the breach of HPP 9 has been corrected by the respondent, and no further action is appropriate.

Item 25

1. Item 25 involves an assertion by the applicant that there is an inconsistency between records of her General Practitioner and records of the respondent regarding the dates of her admission and discharge.
2. As with other Items previously discussed the applicant's NCAT review submissions refer to numerous other HRIP Act Principles in addition to HPP 9. However, for the same reasons as discussed previously, the Tribunal is satisfied that only HPP 9 falls within the scope of the review.
3. The respondent submits that there is no inaccuracy, as the admission and discharge dates refer to admission and discharge from the CMHT (MH Plains Access Community Service) not admission to Nepean Hospital.
4. The Tribunal is satisfied that there is no conduct of the respondent in Item 25 that contravenes HPP 9.

Item 26

1. Item 26 involves the assertion by the applicant that her identify was used "fraudulently" by a private medical clinic and a pathology service, and that clinical test results purported of the applicant were not her results but results that had been "exchanged" with a person using a similar identity to hers. The applicant sought in the internal review application, that this be "investigated".
2. In her NCAT review submissions, the applicant refers to breaches of HPP 1, 2, 3, 4, 5, 9, 10 and 11. However, the submissions do not identify how such conduct was conduct of the respondent. The respondent's submissions also refer to "medical misconduct" and "negligence".
3. The respondent submits that the conduct identified in Item 26 is not conduct of the respondent, and further than any complaints about professional misconduct or negligence are not matters the subject of review under the HRIP Act.
4. The Tribunal accepts the submissions of the respondent on this issue, and the conduct identified by the applicant in Item 26 is not conduct of the respondent capable of review under the HRIP Act.

CONCLUSION

1. The Tribunal is satisfied that the conduct of the respondent that falls within the scope of the NCAT review does not contravene HRIP Act Principles, other than in respect of the conduct that has been accepted by the respondent in the internal review as being in breach of HPP 9. Other than the actions taken by the respondent in its internal review decision, no further action is warranted.
2. The Tribunal notes the respondent has offered to provide a statement attached to the applicant's medical records to reflect her views that certain information is inaccurate, in accordance with HPP 8 (2).

ORDERS 1. Pursuant to s 55 (2) of the Privacy and Personal Information Protection Act 1998 (NSW) no further action is taken 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: 06 October 2021