FHP v Arys Health Pty Ltd

NCAT Administrative and Equal Opportunity|2023-05-31|Before: Ms J

ifies the person or is likely to lead to the identification of the person.

Introduction

This is an application by FHP (the applicant) under s 48 of the Health Records and Information Privacy Act 2002 (the HRIP Act) for an inquiry into complaints the applicant made to the Privacy Commissioner (Commissioner), which have been the subject of a report by the Commissioner under s 47 of that Act. This application was made to the Tribunal on 10 February 2023 (the application).
The applicant's complaints to the Commissioner related to the failure of "Arys Health" to provide him with access to his health records which he contended were held by an entity of that description. The delegate of the Commissioner found that "Arys Health" had breached ss 27(1) and 27(2)(a) of the HRIP Act and Health Privacy Principle 7(1) by failing to respond to the applicant's request for copies of his primary health records with 45 days of those requests being made. She also found that "Arys Health" had breached s 59(1) of that Act because of its' lack of response to her direction that it provide her with copies of those records. She made four recommendations to "Arys Health" to remedy the breaches found.
My inquiry into the applicant's complaints has led me to the conclusion that there are two 'private sector persons' within the meaning of s 4 and Part 4 of the HRIP Act which hold the health records that were the subject of the applicant's requests. However, this was never appreciated by the applicant when he requested this information from "Arys Health", and it does not appear to have come to the Commissioner's attention during her investigation of the applicant's complaints (she does not refer to it in her s 47 Report). Indeed, that fact did not fully crystalise until the hearing.

Procedural history

The application came before the Tribunal, differently constituted, for a Case Conference on 27 February 2023. The applicant attended that Case Conference in person, however, there was no appearance by the respondent "Arys Health". As a consequence of that the Tribunal adjourned the proceedings to a further Case Conference on 6 March 2023 and directed the Registrar to write to the respondent "at both the street address and the email address and ask for an explanation for the non-appearance today and advise of the new case conference listing on 6 March 2023". At that time the addresses being used by the Registry for the respondent were "Level 7/428 George Street, Sydney, NSW, 2000" which was the address the applicant had provided on his application and info@aryshealth.com.au. Both addresses are those of Baig.
The matter returned to the Tribunal for a Case Conference on 6 March 2023. The applicant attended the Case Conference in person. Dr Mirza Baig appeared by telephone. The Tribunal file does not indicate that there was any discussion in relation to the capacity in which Dr Baig appeared at the Case Conference. There is no indication on the Tribunal's file that there was any discussion at the case conference as to the legal entity or entities that lay behind the description of the respondent as "Arys Health".
The dispute was not resolved at that Case Conference. Consequently, the Tribunal adjourned the proceedings for determination by inquiry and issued directions to the parties for the filing and exchange of the documents and submissions that they intended to rely upon in relation to that inquiry. Those directions relevantly included: 3. FHP is to give to the Tribunal and all other parties the following material: evidence including statements, documents and a summary of legal arguments about the alleged conduct and about any financial, psychological or physical harm suffered because of the conduct by 03 April 2023. 4. Arys Health is to give to the Tribunal and all other parties the following material: all evidence including statements, documents and a summary of legal arguments by 25 April 2023. 5. FHP is to give to the Tribunal and all other parties the following material: all evidence in reply by 16 May 2023. 6. FHP is to give to all other parties the following material: a list of all witnesses required for cross-examination by 23 May 2023. 7. The respondent is to give to the Tribunal and all other parties the following material: a summary of legal arguments by 23 May 2023.
The applicant filed a bundle of documents on 4 April 2023 in response to direction 3. That comprises a 4 page submission which has 4 attachments. The applicant contends that he served a copy of this on the respondent by delivering an envelope addressed to Dr Baig to Arys Health Medical Centre at 7/428 George Street, Sydney, on the same date. He has filed evidence that he also sent that submission to "Dr Baig, Arys Health" by Registered Post on 6 April 2023. Ms Scott informed the Tribunal that V Plus Corporation Pty Ltd did not receive this submission on behalf of Arys Health Pty Ltd.
"Arys Health" did not comply with direction 4, and as a consequence, the applicant could not comply with direction 5. The applicant did not comply with direction 6. "Arys Health" did not comply with direction 7.
On 17 May 2023 the applicant wrote to the Registry by email to complain that "Arys Health" had not complied with the procedural directions for the filing and exchange of its evidence and submissions. That email was copied to info@aryshealth.com.au. This prompted an email response from Dr Baig later that day in which he asserts that "we have not received any documents" and requesting that they be emailed to "us". On 19 May 2023 the Registry sent a copy of the Tribunal's orders of 6 March 2023 to info@aryshealth.com.au. An email trail attached to a later email indicates that this email was forwarded from that email address to arys.sydney@gmail.com in the later afternoon of 19 May 2023.
By email to the Registry dated 22 May 2023, a Mr Maloney, 'Team Lead, Arys Records Management Team' (email address arys.sydney@gmail.com) made a further request for a copy of the Tribunal's directions of 6 March 2023 so that "Arys Health" could comply with them, stating that he did not have a copy. It is now clear that Mr Maloney is a staff member of Arys Health Pty Ltd's record management agency, V Corportation Pty Ltd. The Registry complied with Mr Maloney's request later that day.
On 23 May 2023 Mr Maloney wrote to the Registry again, stating in part: Dear Registrar, Sincerely appreciate the share of information and specifically the NCAT orders of 6 March 2023. My office has spent all day today trying to find the submissions of claim/dispute with no success hence it is quite impossible for Arys to adequately Respond with details. Notwithstanding, the issue has been on foot for sometime and resolved by the Information and Privacy Commission in March 2022 (Email below with IPC Decision Letter). It is not clear to Arys Health the exact nature of the complaint or dispute submitted by FPH (the applicant) in this NCAT matter and how it differs to dispute that was resolved by the IPC, however, we have applied our best endeavours to respond in order to comply with NCAT order #7 of 6 March 2023, which is due by 23 May 2023. Without much information, Arys Health responses are limited to as follows: 1. Arys Health denies any allegation of non-compliance to: NCAT orders, and NSW Health Records and Information Privacy (HRIP) Act 2002, Arys Health relies on the relevance of matter and determination made by the Information and Privacy Commission (IPC), in the letter dated 28 March 2022 - Annexure A On 2 February 2022, the applicant … submitted a complaint with the Information and Privacy Commission (IPC) against Arys Health On 28 March 2022, IPC finalised the complaint on the basis that the complaint had been resolved to satisfaction - Annexure A, is a copy of IPC Letter Ref: IPC22/C000012 details the nature of complaint made by FHP, relevant law, assessment of complaint and finalisation of complaint. Furthermore 2. On 3 March 2023, Arys Health sent eleven (11) sets of emails containing same digital/electronic medical records to FHP, to email provided by FHP - Annexure B1 to B11 3. At the date of 23 May 2023, Arys Health (the Respondent) confirms that it has not received or [sic, been?] provided any submissions from FHP (Applicant), in order for Arys Health to further assess the nature of dispute relevant to HRIP Act 2002 and adequately respond, in complying to NCAT orders of 6 March 2023. … we shall comply with hardcopy of the entire submission filed with NCAT tomorrow. We shall provide a stamped copy of the same to FPH, forthwith.
With respect to item 2 of this email, I note from the copies of the emails referred to there, which are in evidence, that V Plus Corporation Pty Ltd did not supply the applicant with these health records directly. They were provided via info@aryshealth.com.au meaning that they emanated from Baig. It thus appears that they were requested from V Plus Corporation Pty Ltd by Baig.
The cover note in each of those emails states: Dear [applicant] Good afternoon Please see the following 1. As per our telephone conversation on earlier this week. 2. Recommendation from Information and Privacy Commission IPC (IPC 22/C000130) …
I conclude from this procedural history that this proceeding did not come to the attention of Arys Health Pty Ltd, via V Plus Corporation Pty Ltd, until 19 May 2023. V Plus Corporation Pty Ltd was aware of the applicant's first complaint to the Commissioner which it understood had been resolved and closed. It was not aware of the applicant's second complaint to the Commissioner. However, at some time in late February or early March 2023 it supplied the applicant's health records retained by it to Baig to provide to the applicant. Baig was aware of the applicant's second complaint and the Commissioner's s 47 Report finalising that complaint.

Non-publication order

At the Case Conference conducted on 6 March 2023, the Tribunal, differently constituted, made orders pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the applicant's name and assigning him the pseudonym "FHP". Those orders apply in relation to this decision and reasons. I have not redetermined the issue.

Material considered

In reaching my determination I have considered the following material:

Applicant

i. Administrative review application dated 10 February 2023 and Annexure, being a Final Investigation Report Issued by the Privacy Commissioner under s 47(1) of the HRIP Act on 16 January 2023,
ii. Applicant's submissions filed on 4 April 2023 and annexures "A" to "D".
Respondent
iii. Bundle of documents filed on 24 May 2023 (being a hardcopy of the bundle which V Plus Corporation Pty Ltd attempted to file electronically on 23 May 2023.

Hearing

The hearing was conducted in person. FHP attended the hearing in person. Ms Joslyn Scott attended the hearing via AVL on behalf of Arys Health Pty Ltd. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Preliminary issues

A number of preliminary issues arose for determination. They were: 1. Whether I should recuse myself from conducting the inquiry on the ground of apprehended bias, 2. Whether the hearing should be adjourned on the basis that the respondent had not complied with the procedural directions to the applicant's disadvantage, 3. Who were the proper respondents to the inquiry, 4. Whether Ms Scott ought to be permitted to represent Arys Health Pty Ltd in the inquiry, and 5. Whether Dr Baig should be compelled to attend the hearing to give evidence.

Recusal application

At the hearing outset the applicant made an oral application for me to recuse myself from conducting the inquiry on the ground that my doing so would give rise to an apprehension of bias against him. It was submitted that this was because in the last year I had determined an administrative review application the applicant had made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) where I had affirmed a reviewable decision made by an agency that information sought by his access application was not held by the agency, contrary to his case. I was informed that this decision had been the subject of an Internal Appeal, and a decision was pending in that Appeal.
It was also said that I had used two words in my published reasons for decision to describe the intensity of the applicant's belief that certain information existed which implied that he had a psychological impairment, and which were pejorative. I understood that I was to infer from this submission that I would have somehow prejudged the applicant's case in these proceedings based on the psychological impairment he believes I imputed to him in the GIPA Act administrative review.
I note that I am unable to make any direct reference to the GIPA Act administrative review because that would disclose the identity of the applicant by reference to his name which is the subject of a non-publication order in this proceeding. I shall also refrain from repeating the particular words I used in the earlier decision in an attempt to avoid giving any further offence to the applicant. I note that I do not do so to avoid dealing with the substance of the applicant's submission concerning the implications of those words.
The principles to be applied in determining if a judicial officer should recuse themselves, relevantly, on the ground of apprehended bias, are helpfully summarised by reference to the primary caselaw by Johnson J in Gaudie v Local Court of New South Wales & Anor [2013] NSWSC 1425 at [78] to [87]: [78] The governing principle is that, subject to qualifications relating to waiver, necessity or possibly special circumstances (none of which arise in this case), a judicial officer is disqualified if a fair-minded lay observer or bystander (hereinafter "the bystander") might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question or questions that the Judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at 331 [139], 333-335 [146]-[152]. The question is one of "possibility (real and not remote), not probability": Ebner v Official Trustee in Bankruptcy at 345 [7]. [79] In practice, the application of this test involves the following steps: (a) the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345 [8]; (b) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8]. [80] Once the matter suggesting bias has been identified and the logical connection between the matter and the feared deviation has been articulated, the party seeking disqualification must establish that there is an ensuing apprehension of bias and that that apprehension is reasonable: Ebner v Official Trustee in Bankruptcy at 345 [8]. [81] A judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352. However, the principle that a judicial officer should not disqualify him or herself too readily is not "a blanket that smothers the effect of disqualification where it has already arisen": Antoun v The Queen [2006] HCA 2; 224 ALR 51 at 60 [35] (Kirby J). [82] Where (as here, at least in part), prejudgment is relied upon, what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker's mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or arguments presented. That reasonable fear must be firmly established because it is to be expected that judicial officers may have formed views or inclinations of mind with respect to particular subjects in the course of their professional careers, which will be put to one side in the determination of proceedings on the evidence and on the merits: CUR24 v Director of Public Prosecutions at [36]. [83] It is necessary to keep firmly in mind the distinction between apprehended bias and actual bias… … [85] In a case of actual bias, the actual state of mind of the judicial officer is in issue. In a case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy: Spencer v Bamber [2012] NSWCA 274 at [16]. … [87] As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick - it is the public's perception of neutrality with which the rule is concerned: British American Tobacco Australia Services Limited v Laurie at 331 [139]. …
After hearing from the applicant, I was not satisfied that he had established a proper basis upon which I should recuse myself because my conduct of the inquiry would give rise to an apprehension of bias.
The mere fact that I had determined another administrative review application contrary to the applicant's case would not, in my view, lead a fair-minded lay observer to apprehend that I would not bring an impartial mind to the issues in this inquiry or to determine its outcome other than on its merits. This inquiry is entirely unrelated to the applicant's GIPA Act proceedings. A fair minded lay observer would accept that my decision in those proceedings has no bearing on my decision in this inquiry. The same would be true if I had determined the GIPA Act proceedings in a manner favourable to the applicant. I am not satisfied that a fair minded observer would apprehend that this would lead to me determine the present inquiry in the applicant's favour contrary to its merits.
Nor in my view would a fair-minded lay observer be concerned that the applicant's Internal Appeal from my decision in his GIPA Act proceedings would cause me to bring other than an impartial mind to the determination of the present proceedings. Such a person would accept that appellate review of decisions made by me is an ordinary incident of my role as a Tribunal Member and is not a circumstance that would cause me to deviate from determining a different application made by the applicant other than in accordance with its merits.
I am satisfied that a fair minded observer would not consider the words I used in the GIPA Act proceedings to describe the intensity of the applicant's belief as to the existence of certain information pejorative or as imputing to him a psychological impairment. I accept that those words may be used in other contexts in a diagnostic sense, but that is not the context in which they were used in the GIPA Act decision.
Additionally, even if it were to be accepted that the use of those words could result in the imputation of a psychological impairment to the applicant, that does not mean that such an imputation would result in me determining this inquiry other than on its merits. Those words do not constitute adverse findings as to the applicant's credit. Administrative and Equal Opportunity Division Tribunal Members deal routinely with applications made by persons with diverse characteristics including persons with psychological impairments. In these circumstances a fair minded observer would not conclude that an application made by a person with this characteristic would be determined by me other than in accordance with its merits.

Adjournment application

At the outset the applicant also sought an adjournment of the hearing. He cited as grounds for an adjournment the respondent's failure to comply with the Tribunal's directions for the filing and exchange of evidence, which he contended resulted in procedural unfairness because it deprived him of a reasonable opportunity to present his case. He also contended that the hearing should be adjourned because Dr Baig was not in attendance and thus was not available for cross-examination. Additionally, it was submitted that the hearing should be adjourned because Ms Scott was not an appropriate representative of the respondent and should not be permitted to present the respondent's case.
The Tribunal's power to adjourn proceedings is found in s 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It is in the form of a discretion, which is unfettered. However, that discretion must be exercised judicially having regard to the objects of the NCAT Act and the procedural rules: Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 at [54] (Ghazal). Notable considerations in this regard are:
i. NCAT's 'guiding principle', which is the just, quick and cheap resolution of the real issues in dispute', which must be applied in all aspects of practice and procedure: s 36(1) of the NCAT Act,
ii. the related principle of 'proportionality' in the allocation of party and public resources to the resolution of disputes which requires that these are commensurate with the importance and complexity of the dispute: s 36(4) of the NCAT Act,
iii. the Tribunal's obligation to ensure that proceedings are conducted in a manner which is procedurally fair to the parties: s 38(2) of the NCAT Act, and
iv. the Tribunal's obligation to take such measures as are reasonably practicable to ensure that the parties to proceedings have a reasonable opportunity to be heard: s38(5)(c) of the NCAT Act.
Additionally, or relatedly, the following principles relevant to the exercise of discretion in this case may be distilled from the caselaw:
i. it is necessary for the applicant to establish a good reason for the adjournment bearing in mind that this inquiry was fixed for hearing on 6 March 2023 and its presence in the list has prevented other matters from being listed on this hearing date: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [6],
ii. there is a public interest in the efficient use of NCAT's resources: AON Risk Services Australia Limited v Australian National University [2009] HCA 27 at [27],
iii. matters should almost always proceed on the date fixed for hearing; an application for adjournment should be an exception and not the ordinary course: Ghazal at [54],
iv. where the party seeking the adjournment has not complied with an order of the Tribunal, an adequate explanation is called for and its absence weighs heavily against an adjournment being granted: Ghazal at [54],
v. the effect of the adjournment on the opposing party must be considered: Ghazal at [54].
I deal in greater detail with the issues of Dr Baig's availability as a witness and Ms Scott's appearance on behalf of Arys Health Pty Ltd following. For reasons I explain I was not satisfied that the hearing should be adjourned on those grounds.
When conducting an inquiry under s 49 of the HRIP Act, the Tribunal is exercising NCAT's general jurisdiction, not its administrative review jurisdiction. Consequently, the applicant bears an onus of proof. The health service provider has no duty under s 58 of the Administrative Decisions Review Act 1997 (NSW) to lodge material documents with the Tribunal in relation to the inquiry.
It is of course desirable that parties to proceedings comply with procedural directions given for the filing and exchange of evidence and submissions, but if they fail to do so the Tribunal must ultimately determine the matter on the material before it.
In this case Arys Health Pty Ltd has not complied with the procedural directions made by the Tribunal on 6 March 2023 because the application and those directions did not come to its attention until 19 May 2023 for the reasons set out above. All Tribunal correspondence prior to that date had been issued to Baid addresses.
Nevertheless, Ms Scott assured the Tribunal that V Plus Corporation Pty Ltd had filed and served all primary health records Arys Health Pty Ltd's retained in relation to the applicant on 23 May 2023. That was 8 days prior to the inquiry. These records totalled 99 pages. Pages 46 to 66 were a "Patient Health Summary" in respect of the applicant which it is clear the applicant had from 24 March 2022. Pages 7 to 9 were a copy of the Information and Privacy Commission's first complaint determination dated 28 March 2022 which was (also) addressed to the applicant.
I was thus satisfied that on 23 May 2023 the applicant was already familiar with at least 23 of the 99 pages filed by V Plus Corporation Pty Ltd having had this material since March 2022. Additionally, I was satisfied having regard to copies of the 3 March 2023 emails to the applicant enclosing his health records that he had also been provided with most or all of the balance of the documents filed by V Plus Corporation Pty Ltd on 23 May 2023 on that date.
Having regard to these matters, despite the respondent's non-compliance with the Tribunal's procedural directions for the filing of its evidence and submissions I was satisfied that the applicant had received the material to be relied upon by Arys Health Pty Ltd in sufficient time to deal with it at the hearing and that it would not be procedurally unfair to him to proceed with the inquiry.
Of course, at this stage of the hearing I was not determining that Arys Health Pty Ltd had provided copies of all the applicant's medical records to him. What I was determining was whether there was any likelihood that an adjournment and further directions would result in any improvement to the material before the Tribunal. I was not satisfied that it would.
There are significant public and party costs associated with the conduct of this inquiry. Those costs would have been thrown away if the hearing were to be adjourned. While the subject matter of the inquiry is important to the applicant and that is to be given weight, no particular public importance attaches to it. For reasons that will emerge there is complexity associated with this inquiry but at the point I was determining the adjournment application, I was not satisfied that the Tribunal would be in any better position to deal with that complexity if the hearing was adjourned to a later date.
For the foregoing reasons I refused the applicant's request for an adjournment. I note that as a result of my deliberation this inquiry will continue insofar as it concerns Baig.

Proper respondent

There is a degree of complexity associated with the identification of the proper respondent in this case. In his Administrative review application, FHP identified the respondent as "Arys Health" and gave as the address for that entity: "Level 7/428 George Street, Sydney, NSW, 2000".
If "Arys Health" ever was a registered business name that is no longer the case. It appears to be an informal trading name formerly used by a company registered as Arys Health Pty Ltd. Arys Health Pty Ltd operated a medical practice from 280 Pitt Street, Sydney, NSW, 2000. Ms Scott gave oral evidence under oath that Arys Health Pty Ltd ceased to operate that medical practice in or about May 2021; that is, that it wound up that business in its entirety. Arys Health Pty Ltd remains a registered company, but no longer conducts any business.
Upon its closure of the medical practice, Arys Health Pty Ltd engaged V Plus Corporation Pty Ltd to manage the practice's medical records including by providing secure storage and managing requests for access to those records. Ms Scott, who is an officer in the Records Management Team of that organisation, appeared as the representative of the respondent at the hearing. V Plus Corporation Pty Ltd maintains the following email address in relation to its records management role: arys.sydney@gmail.com.
Dr Mirza Baig was either a principal or employed doctor of Arys Health Pty Ltd. He is the principal of Baig Medical Services Pty Ltd. It appears that in 2021 Arys Health Pty Ltd's medical practice was 'bought out' by Dr Baig as principal of Baig Medical Services Pty Ltd. Since that time Baig Medical Services Pty Ltd has conducted a medical practice under the trading name "Arys Health Medical Centre" which was registered on 2 September 2021.
From the closure of Arys Health Pty Ltd, Baig Medical Services Pty Ltd operated from 280 Pitt Street, Sydney, NSW, 2000 up to on or about 7 July 2022 when it relocated to Level 7, 428 George Street, Sydney, NSW, 2000. In communications with the NCAT Registry, Dr Baig lists that address in connection with an email address info@aryshealth.com.au and a website address "aryshealth.com.au". Baig Medical Services Pty Ltd also uses the name "Arys Health" as an informal trading name. It appears on various of its' documents and in communications.
V Plus Corporation Pty Ltd does not manage Baig's medical records.
This inquiry arises from a complaints made by the applicant to the Information and Privacy Commission which were to the effect that 'Arys Health' failed to provide him with copies of his complete medical record when he requested this on 6 September 2021 and 22 April 2022. In particular, the applicant complained that he had not been provided with consultation notes arising from his attendance at 'Arys Health' medical practice on 16 and 17 August 2021.
'Arys Health' provided the applicant with a "Patient Health Summary" on 16 March 2022 in response to his 21 September 2021 request which sets out in summary form each of his attendances at that practice. The applicant's first recorded attendance was on 17 January 2017. His last recorded attendance was on 16 March 2022. The Summary includes entries related to 16 and 17 August 2021. Doing the best that I can with this evidence, I conclude that the Patient Health Summary is an integrated medical record created and/or maintained by Baig that incorporates the attendance of the applicant at the medical practice conducted by Arys Health Pty Ltd and that conducted by Baig. In this respect it is a complete medical record but in summary form.
This inquiry concerns what the applicant contends is 'Arys Health's' failure to provide him with copies of his primary health records. Those records are retained by V Plus Corporation Pty Ltd on behalf of Arys Health Pty Ltd in respect of the period 17 January 2017 up to about May 2021, but not after that date. After that date it is Baig that was responsible for the retention of those records.
Having regard to these matters, it will be apparent that "Arys Health" is not a proper description of the respondent in these proceedings. It does not denote any legal person. There ought, properly, to be two respondent parties, being Arys Health Pty Ltd and Baig. Pursuant to s 44(1) of the NCAT Act I will therefore order the amendment of the description of the respondent and the joinder of Baig Medical Services Pty Ltd trading as Arys Health Medical Centre as a respondent party to the proceedings.
I note that at no stage prior to the final hearing was an issue in respect of the proper respondent to the proceedings identified. Nor was this a matter considered by the Commissioner when she dealt with the applicant's complaints. While I can be satisfied that Arys Health Pty Ltd was sufficiently engaged by the application for me to finalise this inquiry with respect to that entity, for the reasons set out following I cannot be satisfied that this is the case in respect of Baig.

Ms Scott as representative for Arys Health Pty Ltd

At the outset of the hearing the applicant objected to Ms Scott's appearance at the hearing on behalf of the respondent, which, for the reasons outlined above, should now be identified as Arys Health Pty Ltd. It was submitted that only Dr Baig would be an appropriate representative because of his knowledge of the applicant and his medical history.
As I have already set out above, Ms Scott gave oral evidence under oath that Arys Health Pty Ltd wound up its medical practice in or about May 2021, and from that time has retained V Plus Corporation Pty Ltd to manage the practice's medical records. Ms Scott gave evidence that she works in V Plus Corporation Pty Ltd's Records Management Team which is responsible for the management of Arys Health Pty Ltd's medical records.
Arys Health Pty Ltd is a company. It can only be represented by a natural person. I was satisfied on Ms Scott's evidence that she was authorised by V Plus Corporation Pty Ltd to appear on its behalf and that she had sufficient knowledge in relation to the subject matter of the inquiry to be a competent representative. I therefore granted leave to Arys Health Pty Ltd to be represented by Ms Scott pursuant to s 44(1)(b) of the NCAT Act.
In relation to Dr Baig, I note that he may have been a former principal or employed doctor with Arys Health Pty Ltd, but for the foregoing reasons, I was not satisfied that he was the only person who could be permitted to represent that company. In any event, he did not attend the hearing to offer himself as a representative and there is no evidence that he would have been authorised by the principals of that company to do so.
I note that Ms Scott did not purport to be authorised by Baig to represent it in the inquiry. That organisation was therefore unrepresented.

Dr Baig as a witness

The applicant complained that Dr Baig had not provided any statement of evidence and was not in attendance at the inquiry for cross-examination. He contended that the Tribunal ought to compel Dr Baig to attend the hearing to give evidence in the inquiry.
This issue is complicated by the fact that the proper respondents to the inquiry were not identified prior to the hearing. For reasons I have already set out, I cannot be satisfied that Dr Baig's current medical practice was effectively joined as a respondent party. That organisation therefore had no obligation to appear at the inquiry by Dr Baig or anyone else. It also had no obligation to file evidence, including any witness Statement made by Dr Baig.
I did not doubt that that Dr Baig was capable of giving evidence of apparent relevance to the inquiry and was therefore potentially compellable as a witness under Summons (s 48 of the NCAT Act) or on the Tribunal's own motion (s 46 of the NCAT Act).
However, the applicant did not make application to the Registrar to issue a Summons to compel Dr Baig's attendance at the inquiry prior to the hearing. Additionally, I note that there was no satisfactory evidence before the Tribunal that the applicant complied with direction 6 of the orders made by the Tribunal on 6 March 2023 by giving Arys Health Pty Ltd a list of witnesses required for cross-examination by 23 May 2023. Nor was there evidence that he had otherwise notified Dr Baig that he was required to attend the hearing to be available for cross-examination.
In circumstances where Dr Baig's current medical practice had not been joined as a respondent to the inquiry prior to the hearing I considered it premature and otherwise inappropriate to exercise of the compulsory power conferred by s 46 to compel his attendance.
For these reasons, on the day of the hearing, I declined to adjourn the inquiry to compel Dr Baig's attendance as a witness.
I confess that, in hindsight, had I fully appreciated the complexity related to the identification of the proper respondents then that I now do after deliberation I may have made a different decision. However, I note that as a result of the orders I make here Baig is joined as a respondent party and that a Case Conference will be conducted to determine if the inquiry should continue with respect to that organisation.

Jurisdiction

Part 6 of the HRIP Act deals with complaints against 'private sector persons'. A person who has made a complaint to the Privacy Commissioner under Division 1 of that Part may apply to the Tribunal for an inquiry into the complaint, but only if the complaint was the subject of a Report to the Privacy Commissioner under s 47: s 48(1). Such an application may only be made, relevantly, within 28 days of the day on which the complainant received the Privacy Commissioner's report.
In this case there is no issue that the applicant made two complaints to the Commissioner and that these were the subject of an investigation and Report by the Commissioner under s 47 of the HRIP Act. The Commissioner's report is dated 16 January 2023 and it was issued to the applicant by email on that date. As noted above, his application to NCAT for this inquiry was filed on 10 February 2023.
The Tribunal therefore has jurisdiction to deal with this application.
Division 2 of Part 6 of the HRIP Act sets out the functions of the Tribunal in relation to complaints about private sector persons. It relevantly provides: 49 Inquiries into complaints The Tribunal is to hold an inquiry into a complaint that is the subject of an application. … 52 Tribunal may dismiss frivolous etc complaints (1) If, at any stage of an inquiry into a complaint, the Tribunal is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be dealt with, it may dismiss the complaint. … … 54 Order or other decision of Tribunal (1) After holding an inquiry, 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 subsection (2), an order requiring the respondent to pay to the complainant damages not exceeding $40,000 if the respondent is a body corporate, or not exceeding $10,000 in any other case, by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) an order requiring the respondent to refrain from any conduct or action in contravention of a Health Privacy Principle … (c) an order requiring the performance of a Health Privacy Principle … … (e) an order requiring the respondent to take specified steps to remedy any loss or damage suffered by the complainant, (f) such ancillary orders as the Tribunal thinks appropriate. (2) The Tribunal may make an order under subsection (1)(a) only if - … (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the respondent. (3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the persons or persons.

Applicable law

Part 2 of the HRIP Act establishes the general framework for the operation of that Act. In this respect, s 11 provides: 11 How this Act applies to organisations (1) This Act applies to every organisation that is a health service provider or that collects, holds or uses health information. Note: The term organisation means a public sector agency or a private sector person. (2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles … (3) An organisation must not do a thing, or engage in any practice, that contravenes a Health Privacy Principle …
Part 4 of the HRIP Act contains provisions for private sector agencies. Division 2 concerns the Retention of health information. In this respect s 25 provides: 25 Retention of health information: health service providers (1) A private sector person who is a health service provider must retain health information relating to an individual as follows - (a) in the case of health information collected while the individual was an adult - for 7 years from the last occasion on which a health service was provided to the individual by the health service provider, (b) in the case of health information collected while the individual was under 18 years - until the individual has attained the age of 25 years. (2) A health service provider who deletes or disposes of health information must keep a record of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted or disposed of. (3) A health service provider who transfers health information to another organisation and does not continue to hold a record of that information must keep a record of the name and address of the organisation to whom or to which it was transferred. (4) A record referred to in subsection (2) or (3) may be kept in electronic form, but only if it is capable of being printed on paper. (5) Nothing in this section authorises a health service provider to delete, dispose of or transfer health information in contravention of an Act (including an Act of the Commonwealth) or any other law.
Division 3 of Part 4 concerns Access to health information. In this respect, ss 26 to 29 provide, relevantly: 26 Making a request for access (1) An individual may request a private sector person to provide the individual with access to health information relating to the individual held by the private sector person. A request must - (a) be in writing, and (b) state the name and the address of the individual making the request, and (c) sufficiently identify the health information to which access is sought, and (d) specify the form in which the individual wishes the information to be provided, being a form provided for by this Act. …. 27 Response to request for access (1) A private sector person must respond to a request for access within 45 days after receiving the request, (2) A private sector person responds to a request for access by - (a) providing access to the information as required by this Act, or (b) refusing access to the information. (3) A private sector person who refuses to give an individual access to information must give the individual a written reason for refusal of access, being a reason for refusal provided for by this Act. … (6) A private sector person is taken to have refused access to health information if the private sector person fails to respond to the request for access as required by this section. 28 Form of access (1) Access to health information relating to an individual is to be provided to the individual - (a) by giving the individual a copy of the health information, or (b) by giving the individual a reasonable opportunity to inspect and take notes from the health information (2) If an individual has requested that access to health information be provided in a particular form, the private sector person is to provide access in that form, and in accordance with any guidelines issued by the Privacy Commissioner for the purposes of this section. … 29 Situations where access need not be granted A private sector person is not required to provide an individual with access to health information relating to the individual held by the private sector person if - … (k) the individual has been provided with access to the health information in accordance with this Act and is making an unreasonable, repeated request for access to the same information in the same manner.
Part 6 of the HRIP Act deals with complaints against private sector persons. In this respect s 42 provides, relevantly, that a complaint may be made to the Privacy Commissioner about the alleged contravention of a Health Privacy Principle, a provision of Part 4, and a health privacy code of practice.
Section 45 sets out how the Privacy Commissioner may deal with a complaint. It provides, relevantly: 45 Dealing with a complaint (1) If the Privacy Commissioner is satisfied that there is a prima facie case that the respondent contravened a Health Privacy Principle, …, the Privacy Commissioner may - … (b) further investigate the complaint and make a report under section 47, … …
Section 47 concerns reports and recommendations that the Privacy Commissioner may make. It provides: 47 Reports and recommendations of Privacy Commissioner (1) The Privacy Commissioner may make a written report as to any findings or recommendations by the Privacy Commissioner in relation to a complaint dealt with by the Privacy Commissioner under s 45(1)(b). (2) The Privacy Commissioner may give a copy of any such report to the complainant, the respondent and to such other persons or bodies as appear to be materially involved in matters concerning the complaint, (3) A report under this section is admissible in subsequent proceedings under this Part relating to the complaint.
Part 7 of the HRIP Act concerns the functions and powers of the Privacy Commissioner. In this regard s 59 relevantly provides: 59 Requirement to give information (1) The Privacy Commissioner may, in connection with the exercise of the Privacy Commissioner's functions, require any person or organisation. (a) to give the Privacy Commissioner a statement of information, or (b) to produce to the Privacy Commissioner any document or other thing, or (c) to give the Privacy Commissioner a copy of any documents. … (3) A requirement under this section must be in writing, must specify or describe the information, document or thing required, and must specify the time and manner for complying with the requirement. …

Consideration

There is no issue in this inquiry that Arys Health Pty Ltd and Baig are both 'private sector persons' within the meaning of s 4 and Part 4 of the HRIP Act and therefore must comply with the requirements of that Act as 'health service providers' within the meaning of that Act.
To determine the outcome of this application the Tribunal must pose and answer the following questions: 1. what was the 'complaint' that was the subject of the report by the Privacy Commissioner under s 47 of the HRIP Act? 2. do the matters identified by the applicant as "grounds for application" in a document attached to his application fall within the scope of that complaint? 3. are the complaint allegations substantiated? 4. if the answer to (c) is "yes" what remedy, if any, ought the Tribunal order pursuant to s 54 of the HRIP Act? 5. what other orders, if any, should be made in the circumstances of this case?

The complaint

The Tribunal has jurisdiction under s 48(1) of the HRIP Act to conduct an inquiry into a complaint that has been the subject of a report of the Privacy Commissioner under s 47 of that Act.
A difficulty for the Tribunal is that the applicant has not filed a copy of his complaints to the Privacy Commissioner.
However, the applicant has filed a copy of requests he made to "Dr Mirza Baig, Ayrs Health" for health records by letter dated 6 September 2021 and 22 April 2022. Those requests are in the following terms: [6 September 2021] Dear Dr Baig I am writing to request copies of my medical records as allowed by the Health Records and Information Privacy Act 2002 (HRIP Act) I was treated at your clinic on Park Street and Pitt Street recent years. Last I visited your clinic on Monday, 16 August 2021. (Your record shows incomplete records.) You asked me to attend your Medical Centre on Tuesday 17 August 2021 at 10am (tomorrow) for Shockwave Therapy for plantar facilities. • On 17 August 2021 about 9 50 am, I was attending it your clinic. About 10 15 am, I called your room with Joshua (your staff) when you arrived it. • Later, you did not treat my foot and you asked me to leave your room, (you stated you call me back later), • I saw YouTube videos related shockwaves therapy for plantar facilities. I found out your machine was working at that time on Tuesday. • I waited a week, but yours Medical Centre did not contact me for treatment. • On Monday 23 August 2021, I call your Medical Centre and I spoke to Joshua about machine who told me there was no machine problem. I am writing above information, please included complete consultation notes for both days in 16-17 August 2021. Please include all charts, test results, consultation notes (at the information at your office) and referrals regarding my medical care during this period. Please mail the requested records to me at the above address. Thank you for your cooperation. Please let me know if you need any additional information. Note: Please include if there is an information provided a third party regarding me without my knowledge or consent. [22 April 2022] Dear Dr Baig On 1st September 2021, I requested a copy of my medical records. Thank you for your Email dated 24 March 2022 and a summary of my Medical Records. I am writing to request, could you please send me original (what is recorded in the patient's medical records. For examples, i.e.: all charts, test results, consultation notes and referrals (in the information from your office, pdf document) such as Document imported re. Letter, Letter written re. Doctor's Notes, Letter written re Medical Certificate - ARYS HEALTH, Document imported re. Consultation Notes. (1) Could you please include complete consultation notes for both days in 16-17 August 2021 and you sent (or attempted to send) an Email to a third party which attached a material linked Diagnostic and Statistical Manual of Mental Disorders (DSM). I rejected you sent any email connected with me on 16 August 2021 without my consent, but when I was leaving your medical practice, you wrote in your note "incomplete", when I was asked a copy. I left your ffice. …. (1) According to the pdf document of the Arys Health dated 24 March 2022.
In her Final Investigation Report issued pursuant to s 47(1) of the Act the Privacy Commissioner describes the applicant's complaint by reference to his requests for his health information as follows: 5. On 6 September 2021, the Complainant sent a letter to the Respondent requesting access to his health records. In particular, he was seeking consultation notes arising from his attendance at the Respondent's practice between 16 and 17 August 2021. The Complainant requested that the Respondent provide the following records: "all charts, test results, consultation notes, (at the information at your office) and referrals regarding my medical care during this period. Please mail the requested records to me at the above request". … 7. On 2 February 2022, the Complainant lodged a complaint to the IPC about the Respondent's failure to provide the Complainant with his requested health records. The complaint was registered by the IPC under reference number: IPC22/C000012. … 11. Following enquires from the IPC to the Respondent on 24 March 2022, the Respondent provided the Complainant with a PDF file containing a summary of his health record. 12. On 29 March 2022, the IPC finalised and closed its complaint (IPC22/C000012). 13. On 22 April 2022, the Complainant wrote to the Respondent requesting the following information: "Original (what is recorded in the patient's medical records. For examples. i.e: all charts, test results, consultation notes and referrals (in the information from your office, pdf document) such as Document imported re.Letter, Letter written re. Doctor's Notes, Letter written re. Medical Certificate - ARYS HEALTH, Document imported re. Consultation Notes. Could you please include complete consultation notes for both days in 16-17 August 2021 and you sent (or attempted to send) an Email to a third party which attached a material linked Diagnostic and Statistical manual of Mental Disorders (DSM). I rejected you sent any email connected with me on 16 August 2021 without my consent, but when I was leaving your medical practice, you wrote in your note "incomplete", wen I asked a copy, I left your office. 14. On 1 June 2022, the Complainant wrote to the IPC advising that he still had not received access their requested health records from the Respondent. … 19. On 27 October 2022, the Complainant wrote to the IPC advising that he still had not received the copies of the requested health records from the Respondent. Noting the ongoing delay and failure to provide access to the health records by the Respondent, the IPC proceeded to deal with the failure to provide the access as a new complaint and proceeded by making further enquiries with the Complainant and Respondent. The IPC reference number for this complaint was: IPC22/C000130. …
It is apparent from what is set out above that the complaint that was the subject of the Commissioner's Report under 47(1) was the failure of "the respondent" to provide the applicant with access to the whole of his health records within the prescribed period of 45 days from his request. This request particularised medical records related to consultations or interactions the applicant had with Dr Baig on 16 and 17 August 2021, but was not limited to those records.
It is this complaint that the Tribunal has jurisdiction to inquire into under s 49 of the HRIP Act.

The 'grounds for application' cited by the applicant

The applicant attached to his application for this inquiry a document headed "Grounds for Application" which states as follows (errors in original): 1. Whether the applicant access rights denied when he has right to access his health record. 2. Whether Arys Health provided in any report concerning the applicant to a third party with: protections from civil, disciplinary and criminal liability or sanction for acting in relation to the exercise of the proposed examination or duty 3. Whether the applicant's records provided by a third party, (or provided the person, or an agency or an insurance). Medical or Legal professionals have the power to make decisions about the applicant's health. 4. Whether Arys Health supplied medical reports regarding psychical and mental health of the applicant to a third party. 5. Whether Dr Beig used Diagnostic and Statistical Manual of Mental Disorders DSM-IV (or DSM-5) to search a diagnosis of mental disorder (without informing consent from the applicant or without his knowledge) according to the request of a third party to experimented on the applicant. 6. Whether the reports of the medical professionals consented, and a third party paying for their reports, (without granting a judicial review to cross examine their medical reports concerning the applicant). Therefore, that the evidence (proof) is not credible because it is essentially exchanged for money. Therefore, the medical professionals could be lying, dishonest and selfish to exploit the applicant to gain financial benefits. 7. Whether the Arys Health involves any legal proceedings concerning the applicant or provide any information related to the applicant to the Tribunals or the Courts.
Ground 1 falls squarely within the scope of the complaint that was the subject of the Commissioner's s 47 Report and will therefore be considered in this inquiry. The remaining grounds appear to require the Tribunal to determine if "Arys Health" has engaged in various forms of inappropriate, unethical, or unlawful conduct with respect to the applicant and his health information. Matters of that nature were not the complaint that was the subject of the Commissioner's s 47 Report. They are therefore not matters that can be considered in this inquiry.

Is the complaint allegation substantiated?

The applicant first made a request for a copy of his health records by sending a letter dated 6 September 2021 addressed to "Dr Baig, Arys Health" to the Pitt Street address. By that time Arys Health Pty Ltd had wound up its medical practice and did not operate from that address. Its medical records were in the custody and control of V Plus Corporation Pty Ltd.
The applicant received no response to that letter. Consequently, on 17 November 2021 he sent an email addressed to Dr Baig at info@aryshealth.com.au enclosing a further copy of his original request and advising that the HRIP Act required Arys Health to respond to his request within 45 days of it being made. That is a generic email address that is used by Baig in relation to its medical practice. The applicant received no response to that email.
On 2 February 2022 the applicant lodged a complaint with the Information and Privacy Commission (IPC) about "Arys Health's" failure to respond to his request for copies of his medical records. That complaint was registered under the reference number IPC22/C000012 (the first complaint). The IPC delegate contacted "Arys Health" on 3 and 15 March 2022 concerning the complaint and directed Arys Health to respond to the applicant's request by 18 March 2022. It is not apparent from any of the material before me who, exactly, was involved in those communications on behalf of "Arys Health".
On 16 March 2022 the applicant attended the Arys Health Medical Centre at its Pitt Street address to inquire about missed calls from that Centre he had received to his mobile phone number. He made inquiries of the receptionist about his request for his medical records, which the receptionist referred to Dr Baig. Via the receptionist, Dr Baig requested the applicant to supply a secure email address which he did.
On or about 16 March 2022 a document entitled "Patient Health Summary" was created by Arys Health Medical Centre in relation to the applicant. This document includes a medical profile for the applicant and a short summary of each of his attendances at "Arys Health" between 17 January 2017 and 16 March 2022. I note that the attendances recorded after 17 August 2021 are in relation to the applicant's requests for health information, not for medical consultations. Arys Health Medical Centre provided this document to the applicant in digital form on 24 March 2022 and notified the IPC accordingly. In response to this advice the IPC finalised and closed the applicant's first complaint.
By letter dated 20 April 2022 addressed to "Dr Baig, Arys Health" at the Pitt Street address, sent by email to info@aryshealth.com.au on 22 April 2022, the applicant requested copies of all of his primary health records, including 'complete consultation notes' in relation to his attendance on 16 and 17 September 2021. In response, on 26 April 2022, the applicant received from that email address an email under the signature "Arys Health" which advised that his email had been received and "we will send your records as requested by you". However, those records were not supplied at that time.
This resulted, on 1 June 2022, in the applicant lodging a second complaint with the IPC which was registered under the reference number IPC 22/C000130 on 27 October 2022 after informal attempts by the IPC to resolve the dispute by liaison with "Arys Health" had been proved unsuccessful.
Initially "Arys Health" advised the IPC that the applicant's primary health records were too large to send in the digital format requested by him. This resulted, on 7 July 2022, in the applicant sending an email to info@aryshealth.com.au which requested these documents be provided to him on a CD Rom. On the same day, Dr Baig replied to that email stating "we have relocated" to George Street and "we will send you the tracking number". However, the applicant received no further response to his request for his primary health records.
The IPC made various attempts to contact "Arys Health" and to obtain a response to the applicant's complaint during November and December 2023 to which it received no response. This included issuing Arys Health with a requirement to produce the applicant's health records pursuant to s 59 of the HRIP Act to which no response was received.
Consequently, IPC finalised the complaint on 16 January 2023 and made the following findings and recommendations in relation to the applicant's complaint: 52. Based on the available information, my findings are that there is sufficient evidence to support a finding that there has been a breach of sections 27(1), 27(2)(a) HPP 7(1) and section 59(1) of the HRIP Act in relation to the Respondent's response to the Complainant's request for access to their health information and its lack of response to the IPC's requirement to give information. As a result of these findings and to address the issue identified above, I recommend that the Respondent, as a matter of priority under the HRIP Act: a. Provide the Complainant with his health records, as requested on 6 September 2021 and 24 April 2022. b. Provide a formal written apology to the Complainant for the delay in providing the Complainant with his requested health records. c. Review its practices and policies in relation to responding to requests for access to health information, in ensuring compliance with Sections 27 and HPP 7 of the HRIP Act d. Review its practices and policies in relation to responding to enquiries and requests for information from the IPC to ensure compliance wit section 59 of the HRIP Act.
Having regard to the above, there can be no issue in this inquiry that "Ayrs Health" failed to respond to the applicant's first and second requests for copies of his medical records within 45 days of those requests being made. Prima facie that is a contravention of s 27 of the HRIP Act (HPP 7(1)). There also can be no issue that "Arys Health" failed to comply with a requirement of the Commissioner to produce those health records to the IPC in accordance with her direction under s 59. Prima Facie that is also a contravention of that section. However, this cannot lead easily to a substantiation of the complaint in the context of this inquiry.
For the reasons stated above, "Arys Health" is not a proper respondent to this inquiry. It is an informal trading name that was used by Arys Health Pty Ltd and it is also used by Baig. It is not a registered trading name. It therefore does not identify the legal person that lies behind that name, and in the present context, the private sector person to which the obligations imposed by the HRIP Act apply.
The proper respondents in this inquiry are Arys Health Pty Ltd which was a respondent party to the proceedings before and at the inquiry hearing and Baig which was not joined as a party until the hearing. As set out above, Arys Health Pty Ltd has had some opportunity to respond to the inquiry and attended the hearing by an authorised representative, but Baig Medical Services Pty Ltd has not and did not.
It would not be procedurally fair for the Tribunal to make findings or remedial orders under the HRIP Act against a private sector person who was not a party to the proceedings prior to the hearing and which has not had a formal opportunity to respond to the inquiry.
However, in the circumstances outlined above, it is procedurally fair to determine this inquiry insofar as it concerns Arys Health Services Pty Ltd. In fact, Ms Scott submitted that the Tribunal ought to do so because V Plus Corporation Pty Ltd had provided to the applicant and the Tribunal all of the information it has available to it in relation to the applicant's health records retained on behalf of Arys Health Pty Ltd.
In that regard, insofar as the inquiry concerns Arys Health Pty Ltd, I am not satisfied on the material before me that there are sufficient grounds to find a contravention of s 27 or 59 against that entity because: 1. the applicant's first and second requests for copies of his health records were lodged with Baig. They were not lodged with or otherwise brought to the attention of Arys Health Pty Ltd or V Plus Corporation Pty Ltd by the applicant. His follow-ups of those requests were all directed to Baig, not Arys Health Pty Ltd or V Plus Corporation Pty Ltd. This was because the applicant appears not to have known that two private sector persons held his medical records. I thus cannot be satisfied that Arys Health Pty Ltd was on notice as to the applicant's requests for his health information, 2. the Commissioner's investigation into the applicant's complaints directed all communication concerning "Arys Health" to Baig. That appears to be because the Commissioner was also unaware that two private sector persons held the applicant's health records. I thus cannot be satisfied that Arys Health Pty Ltd was on notice as to the applicant's complaints, or as to the requirement issued by the Commissioner under s 59, 3. with respect to the Commissioner's s 59 requirement I also consider that this was not issued to a legal person. It therefore does not identify the private sector person, being a health service provider, who is required to comply with the requirement. It appears to me that the requirement is invalid for this reason and no contravention of s 59 could be found against Arys Health Pty Ltd in these circumstances, 4. it is clear from Mr Maloney's email communication with the Registry of 23 May 2023, and Ms Scott's oral evidence at the hearing, that V Plus Corporation Pty Ltd did come to be aware of the applicant's first complaint to the IPC because this was communicated to it by Dr Baig. It is not clear when this was. In any event, to the extent that V Plus Corporation Pty Ltd was involved in responding to that complaint it was doing so to assist Baig. I am satisfied that Arys Health Pty Ltd was never separately identified as a respondent to the complaint, 5. For the reasons set out above I am not satisfied that V Plus Corporation Pty Ltd for Arys Health Pty Ltd was ever aware of the applicant's second complaint or of the Commissioner's s 47 Report before it became engaged with this inquiry on 19 May 2023. V Plus Corporation Pty Ltd did supply the health records it held in respect of the applicant to Baig in late February 2023 or early March 2023 in response to its request for that information. However, I am not satisfied that it knew anything about the context in which that request was made.
A contravention of s 27 (HPP 7(1)) by a private sector person cannot be found where the evidence does not establish that a request for health information was properly made to that person.
Turning to a different point, the applicant contends that the health information retained by Arys Health Pty Ltd he was provided with on 3 March 2023 by Baig must be incomplete. That is because those records are limited, and some are in draft form. He also contends that the Patient Health Summary dated 16 March 2022 which he received on 24 March 2022 refers to particular documents, such as prescriptions and referral letters, as having been created and that copies of some of these are not in the documents provided.
Ms Scott gave evidence under oath that every health record retained by V Plus Corporation Pty Ltd for Arys Health Pty Ltd appeared in the digital files attached to the 3 March 2023 and are filed and exchanged in these proceedings. She gave evidence that V Plus Corporation Pty Ltd can not produce any additional records.
Ms Scott noted that the applicant's medical profile as recorded in his Patient Health Summary included as the first entry a "warning" to "keep[] the record to a minimum due to personal reasons", which she interpreted as an instruction the applicant had given to Arys Health Pty Ltd. I understood the applicant to accept that he had, in fact, given such an instruction. It was submitted that this explained why the health records were limited.
In relation to the applicant's other contentions, there is a partially completed assessment form at page 42 of the bundle filed by Arys Health Pty which is dated 16 August 2021. However, because of its' date, that is a health record created by Baig, not Arys Health Pty Ltd. It may be relevant insofar as this inquiry concerns Baig, but not insofar as it concerns Arys Health Pty Ltd.
Copies of prescriptions and some referral letters referred to in the Patient Health Summary are not in the bundle. Ms Scott suggested that this was likely because it was Arys Health Pty Ltd's doctors' practice was to record the contents of such documents in the patient health record but not retain copies of these documents. In any event, Ms Scott stated these documents have not been retained in the applicant's health record. I accept her evidence that this is so.

What orders should be made in the circumstances of this case?

For the foregoing reasons the Tribunal will take no further action in this inquiry insofar as it concerns Arys Health Pty Ltd. It is simply not open to it to find contraventions of s 27 and 59 by Arys Health Pty Ltd.
Insofar as the inquiry concerns Baig, the application is to be listed for a Case Conference to determine whether this inquiry should continue with respect to that organisation and if so, for directions.
To ensure Baig's effective joinder to the inquiry the applicant is to file with the Divisional Registrar an ASIC Company Extract for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre which sets out its Registered Address within 7 days of the date of these orders. He must also serve a copy of his application and this decision on Baig at its Registered Address within 7 days of the date of these orders.

Orders

For the foregoing reasons I make the following orders: 1. The respondent's name is amended to Arys Health Pty Ltd. 2. Baig Medical Services Pty Ltd trading as Arys Health Medical Centre is joined as a respondent. 3. Ms J Scott of V Plus Corporation Pty Ltd is granted leave to appear on behalf of Arys Health Pty Ltd. 4. The applicant's request for an adjournment of the inquiry is refused. 5. The applicant's request that I disqualify myself from conducting the inquiry on the ground of apprehended bias is refused. 6. The Tribunal will take no action on the matter insofar as it concerns Arys Health Pty Ltd. 7. Insofar as it concerns Baig Medical Services Pty Ltd trading as Arys Health Medical Centre the application is to be listed for a Case Conference to determine whether this inquiry should continue with respect to that organisation and if so, for directions. 8. The applicant is to file with the Divisional Registrar an ASIC Company Extract for Baig Medical Services Pty Ltd trading as Arys Health Medical Centre which sets out its Registered Address within 7 days of the date of these orders. 9. The applicant must serve a copy of his application and this decision on Baig Medical Services Pty Ltd trading as Arys Health Medical Centre at its Registered Address within 7 days of the date of these orders. 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: 30 January 2024

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