FCZ v Illawarra Shoalhaven Local Health District

FCZ v Illawarra Shoalhaven Local Health District - [2023] NSWCATAP 71 - NSWCATAP 2022 case summary — Zoe

[3]

Facts

For convenience, we have adopted the summary of the facts as outlined in the Tribunal's Decision at [6] - [27]. None of those facts was controversial in the appeal. Background facts 6. On 13 January 2021, FCZ completed and lodged with Port Kembla and Wollongong Hospitals, facilities of the respondent, a Health Records and Information Privacy Act 2002 (NSW) ("HRIP Act") application form requesting access to the following: "1. All Medical Records from Wollongong and Port Kembla Hospitals, including but not limited to W'gong Hospital records on 3-4 April 2015. 2. If separate from the above, I also request any documentation related to [FCZ's daughter's] attendance upon Dr Katherine Brown at Port Kembla on 10 May 2015, including but not limited to certificate under s 177 under the Evidence Act." 7. FCZ then attended the medical records department of Wollongong Hospital, providing proof of identity including a Medicare card which also listed her daughter's name. This was used by FCZ as proof of parental responsibility for release of the medical records. 8. Some documents were released to FCZ by the medico-legal officer at Wollongong Hospital, but they did not include the documents that form the Confidential Documents. 9. On 1 February 2021, FCZ lodged with the Kids & Families Division of the Domestic and Family Violence & Sexual Assault Services (a facility of the respondent) a further health records application form in respect of her daughter requesting access to the Confidential Documents. 10. On 11 March 2021, the respondent notified FCZ that she would need to obtain a subpoena in order to access the expert certificate prepared by Dr Brown. 11. FCZ responded by providing orders of the Family Court of Australia in Rilak & Tsokas [2020] FamCA 49 made on 4 February 2020 ("2020 Orders") which included the following: (1)That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother [FCZ] be and hereby are dismissed. (2)That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother [FCZ], … be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child … (3)That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother [FCZ], … be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father ..." 12. It was not known to the respondent whether FCZ and her ex-husband had sole or equal parental responsibility for their daughter. 13. Given the content of the 2020 Orders, on 9 April 2021, the respondent requested FCZ provide a copy of the final parenting orders issued by the Family Court with respect to her daughter before any requested information relating to her daughter could be released. 14. Two further requests were made (via email) for FCZ to provide a copy of the final parenting orders. FCZ did not provide a copy of the orders. 15. On 12 May 2021, the respondent refused FCZ's request for access to information relating to her daughter. In the decision, the respondent noted that in order to release the information, it required consent from the parent with parental responsibility and that to release the information otherwise might contravene a health privacy principle ("HPP") under the HRIP Act and under s 14 Government Information (Public Access) Act 2009 (NSW) ("the GIPA Act"). 16. FCZ again requested her daughter's medical records but did not provide a copy of the final parenting orders. The respondent again stated it required a copy of the final parenting orders made by the Family Court in order to reconsider its position on release of the documents. 17. On 21 June 2021, FCZ made an application for internal review of her 13 January 2021 application for medical records. 18. In July 2021, two further requests were made by the respondent for a copy of the final parenting orders. FCZ maintained that she had "disclosed all materially relevant information". FCZ also refused to provide the contact details of her ex-husband to the respondent. 19. On 17 August 2021, the respondent issued its decision with respect to the internal review under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (the "PPIP Act") in relation to the respondent's conduct under the PPIP Act and the HRIP Act. The respondent determined: "In relation to the handling of the information regarding [FCZ's daughter's] medical records, I am satisfied that the ISLHD did not breach any section of the HRIP Act in light of the steps it took to confirm the applicant's authorised representative status and there being overriding public interest considerations against disclosure. The internal review affirms ISLHD's decision not to grant the applicant access to [her daughter's] health information under HPP 7 and HPP 11 of the HRIP Act, and there being overriding public interest considerations against disclosure under Table 14 3(a), 3(b), 3(g) of the GIPA Act. I recommend that the ISLHD take no further action on the matter pursuant to section 53(7) of the PPIP Act." 20. On 10 September 2021, FCZ lodged her application for administrative review of the respondent's conduct in refusing to give her access to the Confidential Documents. FCZ's family law proceedings 21. There were over 33 Family Court proceedings between FCZ and her ex-husband. In several of these proceedings, FCZ represented herself. 22. On 13 November 2015, Loughnan J made the following findings in Rilak & Tsocas (No 8) [2015] FamCA 1235 (the names used are pseudonyms assigned by the Family Court): "174. Aside from the physical examinations of [the child] by the mother or in her care, I am unable to find that the mother has physically assaulted [the child]. Whether deliberate or not, there is no doubt that the mother has at times instilled in [the child] an unwarranted and inaccurate narrative about being assaulted by the father. The mother did that, despite advice from the authorities and in breach of Court orders. 175. Importantly, Dr [C] agreed in cross-examination that the risk to the child of psychological harm in the mother's household warranted the adjective 'grave'… 176. Counsel for the father submitted that the risk of [the child] developing false memories and experiencing psychological harm while in the mother's care has escalated since the allegations were made by the mother. The mother has continued to seek a psychological review of [the child] in respect of the alleged sexual abuse. She has made ongoing attempts to provide evidence that support her allegations. It was submitted that despite the change in the orders sought by the mother, she will continue to interrogate the child, have her medically examined, complain to authorities and have other people examine the child. I share those concerns. 177. Notwithstanding the very substantial change in the orders she seeks, there is no reason to think that the mother will change her attitude to the father, her belief that he has and will abuse [the child] or her search for evidence of abuse. The search for evidence of abuse has resulted in [the child] being repeatedly and inexpertly questioned by the mother, the maternal grandmother and maternal aunt. It has resulted, unnecessarily, in repeated JIRT interviews and [the child] being medically examined, including undergoing a vaginal swab. The advice the mother received from the police, FACS, the medical authorities, Dr [C] and through Court orders of this Court, is inconsistent with the mother's ongoing beliefs and she has steadfastly ignored that advice. 178. When put to Dr [C] that [the child] is living in an abusive environment in the mother's home, Dr [C] opined that 'in terms of allowing [the child] to have a relationship with her father and her brother, and grandmother, I would agree that that is emotionally abusive'. 179. As discussed above at paragraph 107, there is now no contention before the Court that [the child] has been abused by the father or that she is at risk, let alone grave risk, of such abuse in the future. For completeness, I should say that in any event, the evidence would not support either finding." 23. This case adopted pseudonyms for the parties to the proceedings. However, on the evidence, including the 2015 Orders, I am satisfied these findings are made in the family law proceedings between FCZ and her ex-husband. 24. FCZ's appeal from this decision was dismissed by the Full Court and the High Court. 25. Despite the 2015 Orders, FCZ continued to agitate that her ex-husband had sexually assaulted their daughter and ultimately in 2020, on the application of her ex-husband, the Family Court made the 2020 Orders preventing FCZ from commencing any further proceedings in the Family Court. 26. Shortly before the hearing of the present matter, FCZ's ex-husband provided to the Crown Solicitor's Office, a copy of the sealed 2015 Orders. These were the very orders the respondent had requested on numerous occasions. 27. Of relevance are the following orders: "(5) The father shall have sole parental responsibility for long-term decisions about [the child]… (8) Unless the parents otherwise agree in writing… the child shall spend time with [FCZ] at such times and on such dates as may be arranged with and supervised by Interrelate… (14) The father shall advise the mother in a timely manner about any long term parenting decisions, invite the mother's views about all decisions, consider such views as the mother may express, and advise the mother of the decisions he ultimately makes… (30) The father shall advise the mother immediately if [the child] suffers illness or injury requiring hospital admission."

[4]

The Tribunal's decision

At [28] of the Tribunal's decision, the Tribunal identified the following: Issues [28] The issues for determination are: 1. Whether, in light of the respondent's conclusions that FCZ was not an authorised representative and there was an overriding public interest considerations against disclosure, the respondent breached HPP 7 by not giving FCZ access to the Confidential Documents; 2. If a breach is established, whether and if so, what action should be taken under s 55(2) of the PPIP Act.
At [35] of the Tribunal's decision, the Tribunal said: 35. There is no dispute in this proceeding that the review proceeding relates only to an alleged contravention of HPP 7 arising from the respondent's refusal to provide FCZ with access to the Confidential Documents.
The Tribunal concluded at [63]-[68] the following in respect of whether FCZ was an authorised representative within the meaning of the HRIP Act: Is FCZ an authorised representative? 63. On the evidence before me, in particular the 2015 Orders, I am satisfied that FCZ is not an authorised representative within the meaning of the HRIP Act. 64. This is for the reason that under the 2015 Orders, FCZ does not have parental responsibility for her daughter: she does not have, in respect of her daughter, "all the duties, powers, responsibility and authority which, by law, parents have in relation to their children". By reason of the 2015 Orders, FCZ was aware that her ex-husband had sole parental responsibility for her daughter and that he had the authority under the 2015 orders to make all final long-term decisions for their daughter including health decisions. 65. Further, FCZ did not file any evidence that demonstrates that FCZ had parental responsibility at the time she made her request for the Confidential Documents or that she has parental responsibility now. 66. Even if FCZ's contention that the ability to make short-term decisions about her daughter fell within the meaning of "parental responsibility" was correct, I am not satisfied that FCZ has authority to make short-term decisions about her daughter. FCZ provided no evidence that she makes short-term decisions about her daughter or that she has such authority given the totality of the 2015 Orders, including those about access to her daughter. 67. I also reject FCZ's contention that she is the individual to whom the health information relates (within the meaning of HPP 7). The "individual" referred to in the definition of "health information" in s 6 of the HRIP Act is the person to whom a health service was provided or whose physical health is the subject of the information. It is clear on the evidence that the health services provided at Wollongong and Port Kembla Hospitals and by Dr Brown (recorded in the Confidential Documents) were provided to FCZ's daughter, not to FCZ. The health information is information about FCZ's daughter and not FCZ. That same individual, being FCZ's daughter, is the person to whom the health information relates. 68. Consequently, FCZ was not entitled to request access to the Confidential Documents and the respondent did not breach HPP 7 by refusing her access. To the contrary, the respondent repeatedly requested proof that FCZ had parental responsibility for her daughter and took steps to ensure the Confidential Documents were not disclosed to FCZ without that proof. This was to ensure the respondent did not breach HPP 11. The respondent's caution was entirely warranted.
The Tribunal went on to find that even if FCZ was an authorised representative, that after considering the public interest consideration, as required by the Government Information (Public Access) Act (NSW) 2009 (the "GIPA Act"), that those factors in favour of disclosure were outweighed by those against disclosure at [69].
Based upon that determination, there was no breach by the respondent under HPP 7 and no further action was taken at [74].

[5]

Applicable legal principles

Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
Where leave to appeal is sought the applicable general principles were summarised in Collins v Urban [2014] NSWCATAP 17 at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel said that the following are specifically included: (1) whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; (2) whether the Tribunal identified the wrong issue or asked the wrong question; (3) whether it applied a wrong principle of law; (4) whether there was a failure to afford procedural fairness; (5) whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; (6) whether it took into account an irrelevant consideration; (7) whether there was no evidence to support a finding of fact; and (8) whether the decision was legally unreasonable.
The Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
The categories of errors of law that give rise to an appeal as of right, discussed in Prendergast are not all inclusive. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
When determining an internal appeal an Appeal Panel may follow any of the courses set out in s 81 of the NCAT Act: (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

[7]

Grounds of appeal

The grounds of appeal relied upon by FCZ are as follows: 1. The Senior Member erred in fact in paragraphs [2], [3] and [8] of her reasons, and selectively and prejudicially quoted from the family law judgment in para [22] of her reasons, to a degree that created ostensible bias. 2. The Senior Member denied procedural fairness by failing to consider the following of FCZ's submissions: (a) In the Applicant's Summary of Legal Argument filed 14 November 2021 - paragraphs 29-30, 34-37, 38 and 40; (b) In the Applicant's Response to the Submissions of the Respondent filed on 17 December 2021 - paragraphs 5a, 6 (with respect to the Gillick issue), 8, 11 and 13. 3. The Senior Member is not authorised to interpret the Family Court's Reasons for Judgment [21]-[27]. 4. The Senior Member erred in holding that FCZ did not have sufficient parental responsibility to count as being an 'authorised representative' (see reasons at [63]-[66]) 5. The Senior Member erred in holding that FCZ was not the 'individual to whom the information relates' (see reasons at [67]). 6. The Senior Member erred in not holding that the primary purpose was to provide FCZ with medical information about her daughter (see reasons at [71(2)(a)] and note that the statement that HPP 11 was not in issue (at [35]) was not correct). 7. The Senior Member erred in not holding that the applicant was entitled to the requested documents pursuant to HPP 11. 8. The Senior Member erred in holding that disclosure would not be in the child's best interests (see reasons at [71(3)]). 9. The Senior Member was impermissibly speculative and took into account irrelevant matters at para [71(1)] of her reasons. 10. The Senior Member materially erred in fact at para [72(2)] of her reasons. 11. The Senior Member took into account irrelevant factors at para [72(3)] of her reasons. 12. The Senior Member improperly weighed the public interest for and against disclosure (see reasons at [69] and [73]). 13. The Senior Member erred in holding that there was no breach of HPP 7 (See reasons at [74]).
On 8 July 2022, FCZ filed a miscellaneous application for leave to amend her Notice of Appeal in respect of seeking leave to appeal as concerning grounds 5, 6, 8, 10, 12 and 13. Leave was granted to amend the Notice of Appeal as sought. A second miscellaneous application was filed on that date seeking leave to rely upon a Medicare letter dated 28 June 2022. Leave was also granted in respect of the Medicare letter which was emailed to the Registry.
At the Commencement of the hearing, FCZ sought leave to anonymise the reference to X, her agent who appeared in the Tribunal proceedings. The order was not opposed. We have ordered that the reference to FCZ's agent in those proceedings and this appeal to be anonymised.
Notwithstanding that leave to appeal on grounds 5, 6, 8, 10 12 and 13 is refused, we have none the less set out our findings below.

[8]

Ground one - The Senior Member erred in fact in paragraphs [2], [3] and [8] of her reasons, and selectively and prejudicially quoted from the family law judgment in para [22] of her reasons, to a degree that created ostensible bias

In the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". Their Honours commented at [22] that the application of the principle in Ebner to decision-makers other than judges "must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making".
In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23].
In Isbester, Gageler J explained at [59] that the determination of an allegation of apprehended bias involves "three analytical steps": Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
The question of whether the fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3].

[10]

Ground 2 - The Senior Member denied procedural fairness by failing to consider the following of FCZ's submissions: (a) In the Applicant's Summary of Legal Argument filed 14 November 2022 - paragraphs 29-30, 34-37, 38 and 40; (b) In the Applicant's Response to the Submissions of the Respondent filed on 17 December 2021 - paragraphs 5a, 6 (with respect to the Gillick issue), 8, 11 and 13.

It is an error on a question of law for the Tribunal to fail to properly engage with a party's clearly articulated case. The error may be described as a failure to afford procedural fairness or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, per Gleeson CJ at [24], Kirby J at [87] and Callinan J at [95].
FCZ contends that the Tribunal failed to properly engage with the following submissions which constitutes an error of law.
At [29]-[30] of the written submission: 29. I submit that there are no Family Court orders currently in place, nor have there ever been, that divest me of authority to obtain [child]'s 2015 medical records. 30. If the Family Court had ever made an order that it intended to affect the performance of ISLHD's duties, either the parties would have been authorized to notify ISLHD of the same, or the Registrar of the Court would have directly notified ISLHD. But in any case, it is not possible that the Family Court would have ever made an order intended to affect the performance of ISLHD's duties, as to do so would have required the Court to extend procedural fairness to ISLHD and involve them in the proceedings.
It is important to note that the Tribunal referred to FCZ's written submissions filed on 14 November 2021 and 17 December 2021 at [46]. The Tribunal went on to refer to those relevant submissions throughout the reasons for its decision.
In respect of paragraph [29] of the submissions, we do not accept that the Tribunal failed to properly engage with FCZ's contentions, or give them proper, genuine and realistic consideration (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, at [9]. This is because, at [63]-[64] of the decision, the Tribunal referred to and applied the operation of the 2015 Family Court order as it related to the access application.
In relation to the balance paragraph [30] of FCZ's submissions, the submissions are speculative, and, as is apparent from their terms, did not require specific reference being made to in the Decision. The submission is not material to the Tribunal's determination, and could not advance any challenge FCZ makes with respect to it. We are satisfied that the way the Tribunal explained it's reasons in [63]-[64] was sufficient to deal with any relevance of paragraph [30] of FCZ's submission (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [77]). There is no error.
At [34]-[38] and [40] of the written submission FCZ asserted that: 34. A vexatious proceedings order arises in the Family Court on the question of frequency of initiating proceedings, not on the question of the best interests of the child (see s102QB of the Family Law Act 1975). Therefore, a child's best interests theory cannot be assumed from any vexatious proceedings findings. 35. I gave ISLHD the information about the vexatious proceedings orders in good faith because ISLHD had originally attempted to get out of disclosure by suggesting that I should subpoena the material. To use my good faith disclosure against me would be contrary to the policy of the law and itself against the public interest. It would amount to an abuse of the law, as I would have been placed in a lose-lose situation that was not contemplated by the Parliament in the formation of the HRIPA Act. An abuse of the law can never be said to be in the child's best interests as it is fundamentally offensive. 36. In any case, ISLHD has not made any attempt to explain its purported idea of a relationship between a child's best interests construct and the vexatious proceedings order. It is a speculative, fanciful, imaginary and contrive [sic] connection, devoid of content and having no legal, sociological, medical, or other methodological basis. 37. Any attempt to make an eleventh hour connection between a child's best interests construct and the vexatious proceedings order (which only pertain to the Family Court, not to any other Court or tribunal), could only be speculative, fanciful, imaginary or contrived as neither ISLHD nor NCAT have any assessment tools statutorily available to it by which it might attempt to populate the child's best interests construct with individuated content. 38. ISLHD has proposed that in relation to the best interests of the child, 'a factor to consider is the child's relationship with each parent'. This is not statutorily embedded. Furthermore, if the idea refers to current or future characteristics of the child's parental relationships, it would be beyond the scope on an HRIPA determination because a forensic environment in relation to this issue is lacking. 40. The requested documents were created as a result of parental relationships, notably the mother's concern about the child's paternal sexual abuse disclosure. The documents are a record of the consultations, whose findings were not inconsistent with the disclosure. Thus, the documents are an artifact of the allegedly abusive paternal relationship that existed at the time they were created, and of the maternal primary attachment and ethics of care which was consensually supported by the ISLHD doctors who performed the consultations. The connection between this artifact and the best interests of the child is, on an ethics of care model, in favour of the applicant.
We find that most of the submissions referred to are not specifically relevant to the Tribunal's enquiry about whether there had been a breach of HPP 7 by the respondent. FCZ's submissions could not have had a material effect on the Tribunal's decision. This is because they do not affect the Tribunal's finding that FCZ was not her daughter's authorised representative within the meaning of s 8 of the HRIP Act at the time she made the request.
In FCZ's reply submissions, she contends that the Tribunal did not deal with the "Gillock" issue. For the reasons set out under ground 5, the Tribunal did not have to.
The remaining paragraph [8], [11] and [13] deal with issues of parental responsibility, public interest considerations for and against disclosure of information and the respondent's submissions concerning an alleged finding by the family Court that the information obtained in the Confidential Documents has had a negative psychological impact on FCZ's daughter.
We have found no error in Tribunal determining that the health information contained in the Confidential Documents was health information of FCZ's daughter and not her. The Tribunal specifically considered but rejected FCZ's argument to the contrary at [67].
The Tribunal considered FCZ's reply submissions at [11] that the documents had not been publicly disclosed at [51] and [71(1)].
FCZ's reply submissions at [8] are adequately dealt with in the decision at [50] and [65].
Generally, the Tribunal is not required to deal with each and every allegation raised in a submission. It must properly engage with a party's clearly articulated case (Orr, at [77]). We find that the Tribunal carried out that obligation. The ground of appeal fails.

[12]

Ground 4 - The Senior Member erred in holding that FCZ did not have sufficient parental responsibility to count as being an 'authorised representative' [63]-[66]

The Tribunal found that FCZ did not have any parental responsibility for her daughter because of the terms of the 2015 Family Court order, which reads "(5) The father shall have sole parental responsibility for long-term decisions about [the child]... (8) Unless the parents otherwise agree in writing... the child shall spend time with [FCZ] at such times and on such dates as may be arranged with and supervised by Interrelate. (14) The father shall advise the mother in a timely manner about any long term parenting decisions, invite the mother's views about all decisions, consider such views as the mother may express, and advise the mother of the decisions he ultimately makes. (30) The father shall advise the mother immediately if [the child] suffers illness or injury requiring hospital admission." [bold our emphasis]
Section 7 of the HRIP Act provides that, where an individual lacks capacity to make a request for or consent to the disclosure of their health information by reason of their age, an "authorised representative" may do wither act on behalf of the individual. The authorised person includes a person who has parental responsibility for the child.
FCZ contends that "any" amount of parental responsibility is sufficient and she had a degree of such responsibility. Therefore, the Tribunal was incorrect to find that she did not.
There is no doubt the terms of the Family Court's order was to grant 'sole parental responsibility' to the father. Notwithstanding FCZ's contention that the child was named on her Medicare card and correspondence from Medicare, or that the father did not have decision-making power of vaccinations, or that the father was to consult with FCZ about long-term decisions relating to her daughter, and FCZ was not excluded from having access to her daughter, the order set out above is in our view unequivocal. That is particularly so in view of the statutory presumption of "equal shared parental responsibility" created by the Family Law Act 1975 (Cth), which was rebutted in FCZ's Family Court proceedings, and an order for sole parental responsibility was made. The Senior Member went to great lengths to explain her reasoning for finding that FCZ did not have parental responsibility to be an 'authorised representative' for the purposes of s8(1)(c) of the HRIP Act at [64] - [66]: 64. This is for the reason that under the 2015 Orders, FCZ does not have parental responsibility for her daughter: she does not have, in respect of her daughter, "all the duties, powers, responsibility and authority which, by law, parents have in relation to their children". By reason of the 2015 Orders, FCZ was aware that her ex-husband had sole parental responsibility for her daughter and that he had the authority under the 2015 orders to make all final long-term decisions for their daughter including health decisions. 65. Further, FCZ did not file any evidence that demonstrates that FCZ had parental responsibility at the time she made her request for the Confidential Documents or that she has parental responsibility now. 66. Even if FCZ's contention that the ability to make short-term decisions about her daughter fell within the meaning of "parental responsibility" was correct, I am not satisfied that FCZ has authority to make short-term decisions about her daughter. FCZ provided no evidence that she makes short-term decisions about her daughter or that she has such authority given the totality of the 2015 Orders, including those about access to her daughter.
Section 8 defines parental responsibility as: parental responsibility, in relation to a child, means all the duties, powers, responsibility and authority which, by law, parents have in relation to their children.
Even if FCZ's submissions are taken at their highest, those considerations do not meet the statutory definition of parental responsibility in s 8 of the HRIP Act. The words "all the duties, powers and responsibilities and authority which, by law, parents have in relation to their children" can not be read down to mean, as contended by FCZ, some amount of, not all of or any amount of responsibility for the child.
The Senior Member appropriately considered FCZ's argument on this issue at [48]-[50] and rejected those submissions. The Tribunal correctly found at [64]-[65] that FCZ did not have parental responsibility of her daughter within the meaning of the HRIP Act. We find no error in the Senior Member's findings. This ground fails.

[13]

Ground 5 - The Senior Member erred in holding that FCZ was not the 'individual to whom the information relates' (see reasons at [67])

The ground of appeal fails. This is because, there is no demonstrated error in the way the Senior Member found that the health services provided were for FCZ's daughter, not FCZ. It is, therefore, health information of FCZ's daughter. We reject FCZ's argument that the principles in Gillick v West Norfolk and Wisbech AHA [1986] AC 112, apply as to the competency of a child. FCZ's submission that the child could not have been examined, or undergone medical treatment for that matter, without the consent of an adult is misconceived. For example, s 174 of the Children and Young Person's (Care and Protection) Act 1998 allows a medical practitioner to treat a child in an emergency without consent of the child's parent or person responsible.
It is a nonsense to argue that because FCZ gave the information to the hospital on behalf of her daughter, as the child was not Gillick competent, that she would be considered as the 'individual to whom the information relates' (Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356).
HPP 7 requires an organisation to provide individuals with access to their health information held by an organisation without excessive delay for expense. 7 Access to health information (1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. Note - Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause. Access to health information held by public sector agencies may also be available under the Government Information (Public Access) Act 2009 or the State Records Act 1998. (2) An organisation is not required to comply with a provision of this clause if - (a) the organisation is lawfully authorised or required not to comply with the provision concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
In EOK v Northern Beaches Council [2021] NSWCATAD 297 at [99 ]the Tribunal examined s 14 of the PPIP Act, which is identical to HPP 7, and said: The information was information about the Child, and EOK was not "the individual to whom the information relates". The Tribunal accepts that EOK, as the Child's father, and as a parent who was regularly responsible for her care, had an interest in knowing about how his child was progressing at the Child Care Centre. However there could be no breach of s 14 of the PPIP Act if access to that information was not provided to EOK.
Given the information in the Confidential Documents is not relating to FCZ, it can not be said that FCZ is "the individual to whom the information relates". Therefore, it is not information "relating to" FCZ.

[14]

Ground 6 - The Senior Member erred in not holding that the primary purpose was to provide FCZ with medical information about her daughter (see reasons at [71(2)(a)] and not that the statement that HPP 11 was not in issue (at [35]) was not correct).

FCZ's contention that HPP 11 conferred on her a separate right that she could access her daughter's health information is misconceived for the reasons set out in ground 7.
Section 5 of the Health Records and Information Privacy Act 2002 provides: 5 Definition of "personal information" (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. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a generally available publication, (c) information about an individual that is contained in a document kept in a library, art gallery or museum for the purposes of reference, study or exhibition, (d) information about an individual that is contained in a State record under the control of the State Records Authority that is available for public inspection in accordance with the State Records Act 1998, (e) information about an individual that is contained in archives within the meaning of the Copyright Act 1968 of the Commonwealth, (f) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (g) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (h) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure, (i) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997, (j) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (k) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990, (l) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009, (m) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (n) information about an individual that forms part of an employee record (within the meaning of the Privacy Act 1988 of the Commonwealth) about the individual held by a private sector person, (o) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.
Section 6 of the HRIP Act provides: 6 Definition of "health information" In this 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.
The Senior Member made a positive finding that the purpose of collecting the personal health information of FCZ's daughter was for the respondent to provide the child with health services at [71(2)(a)] in accordance with s 6(b) of the HRIP Act. FCZ's contention is that because she facilitated her daughter's attendance at the hospital to investigate the allegations, the hospital should provide FCZ with information about whether the child's disclosure may have had any substance in fact, and it was for that the purpose the hospital was to gather and disclose the information. We reject the submission that the Primary purpose was for FCZ's purpose of obtaining information. We also reject FCZ's contention that because she gave consent for her daughter providing the information, then the information relates to FCZ.
We find no error in the Senior Member's conclusions. This ground fails.

[15]

Ground 7 - The Senior Member erred in not holding that the applicant was entitled to the requested documents pursuant to HPP 11

For the same reasons set out in grounds 3 - 6, we find there is no error in the Senior members findings.
Further, the approach implied by this ground is that HPP 11 authorises the respondent to disclose information where a request is made and one of the exceptions apply. The respondent submits this an incorrect approach. We agree.
HPP 11 provides: 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. (b1) Emergency the disclosure of the information for the secondary purpose meets the following conditions - (i) the secondary purpose is to assist in a stage of an emergency, (ii) the disclosure of the information is reasonably necessary to assist in the stage of the emergency, (iii) it is impracticable or unreasonable for the organisation to seek the consent of the individual to whom the information relates to the disclosure of the information for the secondary purpose, or (c) Serious threat to health or welfare the disclosure of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent - (i) a serious and imminent threat to the life, health or safety of the individual or another person, or (ii) a serious threat to public health or public safety, or (c1) Genetic information the information is genetic information and the disclosure of the information for the secondary purpose - (i) is to a genetic relative of the individual to whom the genetic information relates, and (ii) is reasonably believed by the organisation to be necessary to lessen or prevent a serious threat to the life, health or safety (whether or not the threat is imminent) of a genetic relative of the individual to whom the genetic information relates, and (iii) is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (d) Management of health services the disclosure of the information for the secondary purpose is reasonably necessary for the funding, management, planning or evaluation of health services and - (i) either - (A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or (B) reasonable steps are taken to de-identify the information, and (ii) if the information could reasonably be expected to identify individuals, the information is not published in a generally available publication, and (iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (e) Training the disclosure of the information for the secondary purpose is reasonably necessary for the training of employees of the organisation or persons working with the organisation and - (i) either - (A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or (B) reasonable steps are taken to de-identify the information, and (ii) if the information could reasonably be expected to identify the individual, the information is not made publicly available, and (iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (f) Research the disclosure of the information for the secondary purpose is reasonably necessary for research, or the compilation or analysis of statistics, in the public interest and - (i) either - (A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual's identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or (B) reasonable steps are taken to de-identify the information, and (ii) the information will not be published in a form that identifies particular individuals or from which an individual's identity can reasonably be ascertained, and (iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (g) Compassionate reasons the disclosure of the information for the secondary purpose is to provide the information to an immediate family member of the individual for compassionate reasons and - (i) the disclosure is limited to the extent reasonable for those compassionate reasons, and (ii) the individual is incapable of giving consent to the disclosure of the information, and (iii) the disclosure is not contrary to any wish expressed by the individual (and not withdrawn) of which the organisation was aware or could make itself aware by taking reasonable steps, and (iv) if the immediate family member is under the age of 18 years, the organisation reasonably believes that the family member has sufficient maturity in the circumstances to receive the information, or (h) Find missing person the disclosure of the information for the secondary purpose is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or (i) Suspected unlawful activity, unsatisfactory professional conduct or breach of discipline the organisation - (i) has reasonable grounds to suspect that - (A) unlawful activity has been or may be engaged in, or (B) a person has or may have engaged in conduct that may be unsatisfactory professional conduct or professional misconduct under the Health Practitioner Regulation National Law (NSW), or (C) an employee of the organisation has or may have engaged in conduct that may be grounds for disciplinary action, and (ii) discloses the health information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities, or (j) Law enforcement the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or (k) Investigative agencies the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of complaint handling functions or investigative functions by investigative agencies, or (l) Prescribed circumstances the disclosure of the information for the secondary purpose is in the circumstances prescribed by the regulations for the purposes of this paragraph. (2) An organisation is not required to comply with a provision of this clause if - (a) the organisation is lawfully authorised or required not to comply with the provision concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998), or (c) the organisation is an investigative agency disclosing information to another investigative agency. (3) The Ombudsman's Office, Health Care Complaints Commission, Anti-Discrimination Board and Community Services Commission are not required to comply with a provision of this clause in relation to their complaint handling functions and their investigative, review and reporting functions. (4) Nothing in this clause prevents or restricts the disclosure of health information by a public sector agency - (a) to another public sector agency under the administration of the same Minister if the disclosure is for the purposes of informing that Minister about any matter within that administration, or (b) to any public sector agency under the administration of the Premier, if the disclosure is for the purposes of informing the Premier about any matter. (5) If health information is disclosed in accordance with subclause (1), the person, body or organisation to whom it was disclosed must not use or disclose the information for a purpose other than the purpose for which the information was given to it. (5A) If health information is disclosed under subclause (1)(b1), the organisation - (a) must not hold the information for longer than 18 months, unless extenuating circumstances apply or consent has been obtained, and (b) if the organisation is a law enforcement agency - must not use the information for the purpose of prosecuting an offence. (6) The exemptions provided by subclauses (1) (k) and (2) extend to any public sector agency, or public sector official, who is investigating or otherwise handling a complaint or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.
HPP 11 operates to restrict an organisation holding health information from disclosing information for a purpose (secondary purpose) other than the (primary purpose) for which it is was collected. That is, unless, inter alia, the person whose information it is consents to such a disclosure for a secondary purpose. The entitlement for an individual to obtain their information is dealt with under HPP 7, not HPP 11. The organisation is not authorised under HPP 11 to disclose the information it holds.
The ground of appeal fails.

[20]

Ground 12 - The Senior Member improperly weighed the public interest for and against disclosure (see reasons at [69] and [73]).

Section 13 of the GIPA Act sets out the public interest test which is used to determine whether there is an overriding public interest against disclosure of government information. It provides: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 13 of the GIPA Act is to be read in the light of s 12 which establishes a general public interest in favour of disclosure and provides that public interests in favour of disclosure are not limited. It provides: (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note - The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
It is clear, therefore, that a decision maker may identify public interest considerations in favour of disclosure: Destination NSW v Taylor [2019] NSWCATAP 123 at [9]. In contrast, the public interest considerations against disclosure are limited to those set out in the Table to s 14. When describing its role in this regard the Tribunal said that it undertook a two-step approach (at [38]), which it explained at [39]: The agency in refusing to disclose information must rely on one or more of the s 14 table considerations. The Tribunal is then tasked to weigh the Respondent's case against the factors favouring disclosure, being mindful of the injunctions that appear in both ss 12 and 15 of the GIPA Act. (See Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]‑[26].)
The Tribunal followed that approach when making its determination. In doing so the Tribunal identified what public interest in favour of disclosure might apply, assigned them weight, and balanced them against the public interest considerations against disclosure. It found that there were relevant public interests in favour of disclosure at [70]. It concluded that the factors against disclosure outweighed those in favour of disclosure and identified what those factors were at [71]. At [70] there is reference to the general public interest in favour of disclosure, which must be considered as part of the balancing exercise.
The Tribunal correctly considered FCZ's Personal factors under s 55 of the GIPA Act which may coincide with or highlight a public interest in favour of disclosure, but do not of themselves constitute a public interest: see JY v Commissioner of Police, NSW Police [2008] NSWADT 306 at [55].
There is no error by the tribunal in carrying out the balancing exercise required by s 13 of the GIPA Act.

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