Kitson v Sheehan (Human Rights) [2015] VCAT 1611

Given that the Respondent has made a nomination under s 28(3)(b)(i) of the Health Records Act 2001, the complaint is dismissed.

1. On 19 August 2015, I made the following order in this proceeding:

"Given that the Respondent has made a nomination under s 28(3)(b)(i) of the Health Records Act 2001, the complaint is dismissed".

1. Mr Kitson, the complainant, has sought reasons for that order.
2. On 3 August 2015, the Health Services Commissioner, at Mr Kitson's request, referred a complaint Mr Kitson had made about Dr Anthony Sheehan, to the Tribunal.
3. The complaint was listed for a Directions Hearing on 19 August 2015. I conducted that Directions Hearing. Mr Kitson represented himself and Dr Sheehan was represented by Ms Cockram, of Counsel.
4. It emerged during the Directions Hearing that Mr Kitson had initially asked Dr Sheehan to advise him of the number of health records he had. Further, Mr Kitson confirmed that Dr Sheehan had provided him in excess of 500 pages of his health records.
5. Mr Kitson clarified that what he was requesting was a particular mode of access to just two reports. These were reports prepared for Turks Legal by Dr Sheehan, dated 22 June 2010 and 16 August 2010.
6. Section 28 of the Health Records Act 2001 sets out how the right of access to health information may be exercised. Section 28 states, relevantly for this proceeding:

1. A right of access may be exercised in any one or more of the following ways -

1. by inspecting the health information or, if the health information is stored in electronic form, a print-out of the health information, and having the opportunity to take notes of its contents; 2. by receiving a copy of the health information;

1. by viewing the health information and, if it is held by a health service provider, having its content explained. 2. - 3. An explanation under subsection 1(c) or (2) is to be provided - 1. by the organisation holding the information if the organisation is a suitably qualified health service provider and is willing to do so; or 2. if paragraph (a) does not apply, by a suitably qualified health service provider who practises in Victoria and - * (i) is nominated by the organisation and has consented to being so nominated and is approved by the individual to whom the health information relates; or

(ii) if the individual does not approve the health service provider nominated under subparagraph (i), is nominated by the individual and has consented to being so nominated.

1. Mr Kitson explained that whilst he had received a copy of his health records, he wanted to exercise his right of access, under s 28(1)(c) by viewing the two reports referred to above, and having their content explained.
2. As I understand, Dr Sheehan was unwilling to explain the contents to Mr Kitson, as is his right under s 28(3)(a).
3. Under s 28(3)(b) of the Act, where a provider is not willing to provide an explanation of their contents, an explanation can be given by a suitably qualified health service provider who practises in Victoria and is nominated by the health service provider, being the organisation holding the information.
4. It became apparent that until the Directions Hearing, such a qualified health service provider had not been nominated by Dr Sheehan. At the Directions Hearing such a nomination was made.
5. The Directions Hearing adjourned for a short time to allow Mr Kitson the opportunity to consider whether he approved of that nomination. I then canvassed with Mr Kitson the possibility of listing the matter for an Administrative Mention to enable him to consider whether he accepted that nomination or wished to nominate someone else.
6. However, Mr Kitson indicated that as Dr Sheehan had now made a nomination, his complaint had come to an end.
7. Mr Kitson declined to withdraw his complaint. He explained that he did not see there was any need for an order. I explained that the Tribunal needed an order which formally finalised the proceeding. I therefore dismissed the complaint in this proceeding under s75 of the Victorian Civil and Administrative Tribunal Act 1998 as the complaint no longer had any substance with nothing left for the Tribunal to do.