Pillinger v Northern Sydney Local Health District

NCAT Administrative and Equal Opportunity|2020-12-18

Also heard: Gary McKay (see s 104(3) Government Information (Public Access) Act 2009) Representation: Counsel: M Gerace (for Dr McKay)

Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent) Moray & Agnew (Dr McKay) File Number(s): 2020/00239360 Publication restriction: 1.Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication or disclosure of the name of any of the patients referred to in the documents filed with the Tribunal in this proceeding is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

On 17 August 2020 Dr Stephen Pillinger applied to the Tribunal for administrative review of a decision of the Northern Sydney Local Health District (the NSLHD) made on 24 June 2020 in response to his request for access under the Government Information (Public Access) Act 2009 (the GIPA Act) to information, described as "External Review by Professor Denis King into Dr Gary McKay at Ryde Hospital 2020".
The NSLHD had responded to the access request advising the applicant that it did not hold the report of the review. It subsequently received the report, and made a further decision on the access application. The NSLHD consulted third parties as required by s 54 of the GIPA Act, and on 24 June 2020 notified the applicant of the decision. One document was identified, being "Investigation Report, NSLHD Investigation into Concerns regarding the Clinical Performance of Dr Gary McKay February 2020" (the Investigation Report). The decision was to refuse access to the Investigation Report under s 58(1)(d) of the GIPA Act because there is an overriding public interest against disclosure of the information.
The applicant applied to the Tribunal under s 100 of the GIPA Act for administrative review of the decision, stating that he believes it is in the public interest in particular the protection of the health and safety of the public to have the report released.
Dr Gary McKay, as a person who could be aggrieved by a decision of the Tribunal, has exercised his right under s 104(3) of the GIPA Act to appear and be heard in the proceedings.

Background

The applicant is a Visiting Medical Officer (VMO) appointed in the Department of Surgery at Ryde Hospital. In late 2019 the NSLHD engaged a consultant, People Strengths, assisted by an independent expert Professor Denis King, to undertake an investigation into certain allegations and concerns raised by the applicant and others regarding aspects of clinical practice of Dr Gary McKay, who was at that time also a VMO at Ryde Hospital. Dr McKay participated in the investigation process. Dr McKay has resigned from Ryde Hospital.
The applicant was one of the persons interviewed as part of the investigation process. On 28 August 2020 the General Manager of Ryde Hospital wrote to the applicant, stating: The confidential investigation report was provided to the Decision Maker appointed by the Ministry of Health for consideration and determination of outcome. The Decision Maker endorsed a recommendation that is relevant to you as a complainant in this matter, which reads as follows: The General Manager, Ryde Hospital and the Director of Medical Services, communicate directly to the Complainants in this matter, regarding the outcome of this investigation. This communication should identify that this subject should now be closed as this investigation lacked enough evidence to support a finding of misconduct by Dr McKay. Other recommendations in the report have been endorsed where applicable as system improvements for Ryde Hospital. On the basis of the recommendation and the endorsement of the Decision Maker the investigation is concluded and the matter is now closed.
The documents before the Tribunal confirm that there has been a period of difficult interpersonal issues within the Department of Surgery at Ryde Hospital. The material provided to the Tribunal reflects a long history of animosity between the applicant and Dr McKay, including assertions of untrue and defamatory allegations. It is unnecessary for the purposes of this administrative review to traverse that material in detail, or to express any view on the substantive issues reflected in that conflict.
The task of the Tribunal on this review is to determine, having regard to the material before it and the applicable law, whether the decision to refuse access to the information under s 58(1)(d) of the GIPA Act because there is an overriding public interest against disclosure of the information was the correct and preferable decision. It is for the respondent agency to establish that its decision is justified: GIPA Act, s 105.

Legislation

The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: GIPA Act, s 4(1).
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": GIPA Act, s 5.
There is a general public interest in favour of disclosure of government information: s 12(1) GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12: 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.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test 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.
The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and as relevant to this review are discussed below.
The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: GIPA Act, s 55. Those factors are the applicant's identity and relationship with any other person, the applicant's motives for making the access application, and any other factors particular to the applicant.
Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: GIPA Act, s 73.

Evidence

The applicant provided documents in support of his application for review, which he stated provided background and context to the investigation. An objection based on the relevance of some of the documents was upheld, and the remaining documents were admitted as exhibit A1. The documents include submissions in support of the applicant's position that it is in the public interest in particular the health and safety of the public to have the Investigation Report released.
Some of the material provided by the applicant identifies individual patients, and an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) prohibiting the publication or disclosure of the name of any of the patients referred to in the documents filed with the Tribunal in this proceeding.
Dr McKay provided written submissions, with references to specific pages in the Investigation Report redacted in the copy provided to the applicant.
The respondent's evidence consisted of an affidavit of Mr Adam Quested, Deputy Director People and Culture for the NSLHD. A copy of that affidavit was provided to the applicant and to Dr McKay in redacted form (ex R1). A confidential copy of the affidavit, containing the redacted information, was also before the Tribunal (ex Conf R1). Mr Quested gave oral evidence and was cross examined.
The respondent provided a copy of the Investigation Report to the Tribunal on a confidential basis (ex Conf R2). The respondent provided written submissions, including a confidential version provided only to the Tribunal.

Confidential hearing

Section 107 of the GIPA Act provides that in determining an application for review, the Tribunal is to ensure that it does not, in the reasons for decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. The Tribunal must receive evidence and hear argument in the absence of the public, the review applicant and their representative if in the Tribunal's opinion it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
A confidential session was held in the absence of the applicant, Dr McKay's representatives, and the public. The confidential session gave the Tribunal an opportunity to consider the Investigation Report and the confidential affidavit, and to hear submissions on behalf of the respondent.
The Tribunal has made an order under s 64 of the NCAT Act that no record of the confidential session is to be released to the applicant or the public. That order applies to the documents provided to the Tribunal by the respondent on a confidential basis and to those paragraphs of these reasons identified as [NOT FOR PUBLICATION], and they are not to be released to the applicant or to the public.

Mr Quested's evidence

Mr Quested stated that in his role as Deputy Director People and Culture, a position held since December 2018, he is responsible for providing advice guidance and support across the NSLHD Human Resources teams and senior leadership groups with respect to NSW Health awards, policies and procedures. The People and Culture Directorate is responsible for supporting and educating groups across the NSLHD regarding a range of issues including managing misconduct, investigations, complaints involving bullying or harassment, performance management and development, and resolving conflict. In his current and previous roles he has directly managed workplace complaints involving a variety of professional disciplines including medical and support staff, which has included working with investigators and workplace relations firms external to the NSLHD in the investigation and management of workplace complaints.
Mr Quested stated that he was not directly involved in the oversight or management of the investigation undertaken with respect to Dr McKay. For the purposes of his evidence he had reviewed the Investigation Report.
Mr Quested identified the relevant NSW Health policies setting out procedures for management of complaints and performance issues among staff. The principal policy setting out procedures for dealing with a complaint made or concerns raised about a clinician is "Managing Complaints and Concerns about Clinicians, PD2018_032". That policy, a copy of which was annexed to his affidavit, is in substantially the same terms as "NSW Health Managing Misconduct, PD2018_031", with additional provisions dealing with mandatory notification requirements that might apply with respect to clinicians. NSW Health has published Information Sheets, including Information Sheet 3: Rights and Responsibilities of Parties to a Misconduct Allegation or Complaint or Concern about a Clinician (Information Sheet 3) and Information Sheet 7: Providing Advice to a staff member/clinician about an allegation, complaint or concern (Information Sheet 7). All NSW Health policies and Information Sheets are published on the NSW Health intranet and are available to staff and VMOs.
Mr Quested outlined the NSLHD practice for managing complaints, as follows. An initial assessment is undertaken, including consideration of whether specialist expertise is required to manage the matter. If the preliminary assessment indicates that further consideration is warranted, and investigation may be instigated. If an external investigator or consultant is engaged, they are required to act in accordance with and apply the requirements of NSW Health policies and directives for managing complaints and grievances.
A fundamental principle that underlies the complaints management process, including any investigation, is confidentiality of the process. That is reflected in policies PD2018_31 NSW Health Managing Misconduct and PD2018_32 Managing Complaints and Concerns about Clinicians, both of which provide for confidentiality as a mandatory requirement. As part of an investigation interviews are usually conducted with the complainant, as well as any other witnesses who may be able to provide information relevant to the allegations raised. PD2018_31 and PD2018_32 require that the person being interviewed is advised that the reasons for the interview and the content must remain confidential.
The person about whom the complaint is made is advised of the allegation in sufficient detail to enable a considered response. Not all the information gathered would be provided to the person. The identity of staff who participate in the investigation process on the condition that they will remain anonymous would not be revealed.
NSW Health policy requires that all persons involved in the complaint management process are advised of the outcome "in so far as it relates to them" but "having regard to the confidentiality of other persons involved in the matter" (PD2018_31 at 9.1, PD2018_32 at 9.2). At the conclusion of the process all records including the review and any outcomes are required to be maintained in a dedicated and confidential file.
Mr Quested stated that in his experience confidentiality is maintained at all stages of a complaint management process, and all investigation reports are treated as strictly confidential. The contents of a report are only shared with the person who is the subject of the complaint, the decision-maker, the manager responsible for ongoing actions or monitoring, and appropriate People and Culture or NSLHD Executive Staff. Mandatory reporting requirements may require specific details of an investigation be provided for further review or action, in which case a full copy of the investigation report may be provided.
Mr Quested commented on the Investigation Report, stating that as part of the investigation a total of 17 current and former staff of Ryde Hospital were interviewed including Dr McKay and the applicant. Of that total, seven nursing staff and six medical staff spoke to the investigation anonymously. As far as Mr Quested was aware the requirements of confidentiality contained in PD2018_31 and PD2018_32 were observed during the investigation process, and to his knowledge the Investigation Report had not been disclosed except as required by the terms of the policy documents (para [32] above).
Mr Quested stated his concerns regarding disclosure of the Investigation Report. He was of the opinion that the provision for confidentiality is an essential element of the complaints management process. The NSLHD relies on the voluntary participation of staff. The willingness or otherwise of staff to participate in the process would impact on the level of detail and quality of information they would provide to the investigative process. In his experience staff may be reluctant to raise concerns about other staff and are generally reluctant to participate in internal investigations, in particular where they have a close working relationship with others involved in the investigation. The hierarchical nature of the workplace is also a factor that can give rise to concerns amongst staff, such as concerns for negative impact on career advancement or damage to relations with colleagues. Often staff will only participate in an investigation on condition of anonymity. His experience is that being able to give assurances that anonymity and confidentiality will be maintained is essential to securing the participation of staff in an investigation.
Mr Quested was of the opinion that maintaining confidentiality is essential to maintaining confidence of staff in the complaints management process, and that confidence is essential to securing the participation and cooperation of staff in the process. Disclosure of investigation reports would significantly undermine confidence in the complaints management process and staff would be unwilling to participate in future investigations. Maintaining confidentiality is necessary to protect the health, well-being and privacy of persons involved in the investigation.
Investigation reports may include allegations that have not been substantiated or information that would otherwise be damaging to the reputations of individuals, not necessarily limited to the person about whom the complaint is made. Disclosure of such information would be damaging to the professional reputations of those individuals, or their health or well-being. Maintaining confidentiality is also important to minimise the incidence of gossiping and inappropriate sharing of information within the workplace. That could be detrimental to the functioning of the workplace, and undermine the integrity of investigations into genuine issues.
In oral evidence Mr Quested stated that while it is policy to notify persons involved in the complaint process of the outcome, in so far as it relates to them, it would not be routine to notify if improvements were suggested. Mr Quested confirmed that participation by staff in an investigation is voluntary and there is no power to compel anyone to provide information in the investigative process.

Issues

In determining this application the Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure of the information; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondent; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport NSW v Searle [2018] NSWCATAP 93 at [104].
The respondent submits that the determination that there is an overriding public interest against disclosure of the Investigation Report is the correct and preferable decision, and the Tribunal should affirm the respondent's decision on review.
Dr McKay opposes the disclosure of the Investigation Report, and submits that the respondent's decision should be affirmed.
The applicant accepts that the investigative process is confidential, and that sensitive and personal information should not be disclosed, and should be redacted. His position is that the findings and recommendations for systemic workplace improvements should be disclosed.

Public interest considerations in favour of disclosure

In addition to the general public interest in favour of disclosure of information, the respondent took into account the public interest considerations in favour of disclosure identified in paras (a), (b) and (e) of the Note to s 12 in the GIPA Act (see para [12] above). The respondent submits that the public interest in promoting informed debate, and giving insight into the issues giving rise to the complaints, should be given limited weight.
The respondent also took into account the fact that the applicant had provided information for the investigation and has a personal interest in the outcome, as personal factors relevant to the assessment of the public interest, acknowledging that those factors lend weight to the public interest in favour of disclosure. The respondent submitted that that interest had been substantially met by correspondence to the applicant advising him of the outcome of the investigation, being the letter of 28 August 2020.
The applicant stated that he accepts that the investigation process is confidential and that there is a need to protect that confidentiality. His concern is with maintenance of standards and public health and safety, and that if there are recommendations for systemic improvements, those should be public.
Dr McKay submitted that the concern for the health and safety of the public is met by maintaining the confidentiality of the investigation process.
The Tribunal agrees that in addition to the general public interest in disclosure of information, there is a public interest in disclosure of information that could contribute to informed debate on issues of public importance, in this instance whether there are concerns as to the functioning of the hospital and its staff, and in informing the public about the operations of the hospital, in the interests of public health and safety. To the extent that information contained in the Investigation Report may reveal or substantiate that the hospital or any of its staff have engaged in misconduct or improper conduct, there is a public interest in disclosure of that information.

Public interest considerations against disclosure

The respondent relies on the public interest considerations against disclosure identified in cl 1(d), (e), (f), (g), (h) and cl 3(a), (b) and (e) in the Table to s 14 of the GIPA Act: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … (e) reveal false or unsubstantiated allegations about a person that are defamatory, …
Dr McKay relies on the submissions and evidence of the respondent as to the applicable principles to be applied, and the public interest considerations in favour of and against disclosure. In oral submissions Dr McKay submitted that the public interest consideration against disclosure in cl 4(d) also is relevant. That provision provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
In considering the public interest considerations against disclosure, the following principles are relevant: 1. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC." 1. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]). 2. In considering the evidence required to establish that disclosure "could reasonably be expected to have" one of the effects stated in cll 1 or 3, the relevant principles are: 1. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; 2. there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; and 3. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59].

Clause 1(d) - prejudice the supply of confidential information that facilitates the effective exercise of the agency's functions

There are three elements to be considered under cl 1(d): whether information was obtained in confidence; whether disclosure could reasonably be expected to prejudice the supply of such information to the agency in future; and whether the information facilitates the effective exercise of the agency's functions.
The respondent submits that the consideration under cl 1(d) applies and should be given compelling weight when balancing the public interest. The NSW Health policies relating to an investigation into complaints and concerns about a clinician emphasise the confidential nature of the complaints management and investigation process, and the respondent relies on Mr Quested's evidence that confidentiality is maintained at all stages of a complaints management process including the treatment of investigation reports as strictly confidential. That information in the Investigation Report is "confidential information" is clear having regard to the framework within which the information was supplied, and the terms of the Investigation Report itself. The second limb of cl 1(d), prejudice to the future supply of information, is not concerned with whether a particular complainant whose compliant is disclosed would in future refuse to supply that information, but rather at a broader operational level, and the question is whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future. The third limb of cl 1(d) involves consideration of the effect of disclosure on the effective exercise of the agency's functions; the respondent submits that the supply of confidential information of the nature included in the Investigation Report is necessary for the effective exercise of the respondent's complaints management and investigative functions, and also for the effective exercise of the respondent's human resources functions.
In Ansoul v City of Sydney [2017] NSWCATAD 65 the Tribunal summarised the principles to be applied in considering cl 1(d) in the following terms: 33. "Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, " to cause detriment or disadvantage " or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 34. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it". 35. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information." 36. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
Mr Quested's evidence is based on his experience as part of the Executive of the People and Culture Directorate of NSLHD since December 2018 and extensive experience before then in the NSW Public Health system. Annexed to his affidavit are copies of PD2018_32 Managing Complaints and Concerns about Clinicians, and Information Sheet 3: Rights and Responsibilities of Parties to a Misconduct Allegation or Complaint or Concern about a Clinician (Information Sheet 3) and Information Sheet 7: Providing Advice to a staff member/clinician about an allegation, complaint or concern (Information Sheet 7). Those documents confirm Mr Quested's evidence as to the confidentiality of the investigation process. The Mandatory Requirements of PD2018_32 include the statement: Those involved have the right to confidentiality and the responsibility for maintaining confidentiality, subject to the overriding need to be able to undertake any inquiries, investigation or action necessary under this and other relevant Policy Directives.
Information Sheet 3 states in respect of the person making a complaint, a staff member or clinician the subject of a complaint, other participants eg witnesses, and those involved in managing the misconduct or complaints/concerns about clinicians, that they maintain appropriate confidentiality, explained in the following terms: All parties involved in a misconduct matter or a complaint or concern about a staff member/clinician must maintain appropriate confidentiality throughout the process. Confidentiality minimises the risk of harm to any of the persons involved. It also helps ensure the integrity of any investigation. Matters related to an allegation of misconduct (including the identity of those involved) or a complaint about a clinician must only be discussed with people who have a specific role in relation to the allegation, complaint or concern, and such discussion must be restricted to matters relevant to that role. No information is to be provided to third parties, unless this is necessary for the effective management of the issue, or required by policies or legislation.
Based on the evidence of Mr Quested, and the policy documents, the Tribunal accepts that both the policy framework and the practice adopted by NSLHD is that confidentiality of the investigative process is a mandatory requirement; that those interviewed as part of an investigation are advised that the content of the interview is to remain confidential; that those involved are advised of the outcome of the investigation so far as it relates to them, having regard to the confidentiality of other persons involved; and that at the conclusion of the process all records are maintained on a dedicated and confidential file. A similar conclusion was reached in analogous circumstances involving other Local Health Districts carrying out complaints management and employee grievance functions in AMH v Western New South Wales Local Health District [2013] NSWCADT 282 and Amos v Western Sydney Local Health District [2017] NSWCATAD 359.
The Tribunal has considered the Investigation Report, provided on a confidential basis. The Investigation Report provides the Background to the investigation and a summary of the allegations; discusses the scope of the investigation, the findings of the investigation and an analysis of the findings; comments on matters arising and provides a conclusion; and concludes with recommendations.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The Tribunal is satisfied based on consideration of the Investigation Report that the approach to the investigation was consistent with the NSW Health policy framework, and with the practice summarised by Mr Quested. The statements by interviewees quoted in the Investigation Report, and the correspondence provided in exhibit Conf R2, confirm that a number of interviewees participated on the condition of confidentiality of their identity, and that some opposed disclosure of their identity. The Tribunal is satisfied that the information in the Investigation Report is "confidential information", having regard to the confidential nature of the complaints management and investigative process, and the specific assurances of the confidentiality of information provided by interviewees.
The Tribunal is satisfied that even though individual interviewees are for the most part not named in the document, the direct quotes and the description of their role in the hospital would enable their identification, and this is not a situation where it may be possible to remove or redact a name or identifying information so as to facilitate release of the document: Webb v Port Stephens Council [2019] NSWCATAD 47.
The Tribunal accepts the evidence of Mr Quested that maintaining confidentiality of the complaints management process is essential to maintaining the confidence that staff have in that process, and that that confidence is essential to securing the participation and cooperation of staff in that process. The Tribunal is satisfied that the extent and quality of information provided in the course of the complaints management and investigative process relies on the assurances of confidentiality, and that disclosure of that information would impair the ability of the NSLHD to obtain that type of information in the future.
The applicant submitted that the Investigation Report was the report of an external investigation and so disclosure would have no effect on the agency's functions. Mr Quested's evidence was that while investigations are often conducted internally by NSLHD, where a complaint raises issues of sufficient complexity, involves a senior member of staff, or requires particular expertise, an external investigator or consultant may be engaged to conduct the investigation. The Tribunal is satisfied that while the investigation into complaints and concerns about Dr McKay was conducted by an external consultant, with external expert assistance, the investigation was conducted on behalf of the NSLHD.
Section 1.1 of PD2018_032 states that it applies to complaints or concerns that are assessed as alleged misconduct or alleged unsatisfactory performance requiring administrative action against the clinician to manage risks to patient or staff safety pending any findings in relation to the complaint or concern, or notifications to external agencies, or a disciplinary response if substantiated; less serious matters should be managed by the clinician's manager or supervisor in line with local arrangements. In all cases, the ongoing safety of patients is the paramount consideration. In that context, the Tribunal is satisfied that the supply of information gathered in the conduct of an investigation is necessary for the effective exercise of the NSLHD's complaints management and human resources functions, both for the specific investigation in this instance, and for the ongoing ability of the respondent to continue to conduct investigations in a thorough and informed manner.
The public interest consideration against disclosure in cl 1(d) applies to the information, other than that information identified in [63] above which goes to systemic rather than specific matters.

Clause 1 (e) - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

The Tribunal is satisfied, having considered the Investigation Report, that its disclosure would reveal consultations conducted with staff of the respondent with respect to the issues arising in the investigation of the complaints and concerns about Dr McKay, and advice and recommendations given to the NSLHD by the investigators. The Tribunal accepts that the first part of cl 1(e) is satisfied.
The issue is whether disclosure would prejudice the deliberative process of the agency. The "deliberative process" of an agency has been described as the "thinking" process of the agency, that is the process of reflection: Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [58]. There must be a "relevant connection" between the deliberation as contained in the information in dispute and the deliberative processes that would be prejudiced: Van der Wall v University of Sydney [2008] NSWADT 213 at [36].
The respondent submits that future deliberations regarding complaints about staff would be prejudiced by the release of the Investigation Report. If staff were aware that information provided in an investigation could subsequently be disclosed it is reasonable to infer that they would be less forthcoming in their responses or unwilling to participate in the process altogether. The full and frank participation of staff is necessary to ensure that deliberations are fully informed. To the extent that there would be prejudice to future investigations arising from disclosure of the Investigation Report, that would also prejudice the related deliberative process. Release of the Investigation Report would impede the full and frank participation of staff in the complaints management process and in doing so, impede future deliberations arising from this process.
The Tribunal is satisfied that the complaints management and investigation process requires the full and frank participation of staff, and to the extent that disclosure of information relating to the investigation could dissuade staff in future from participating, that could prejudice the complaints management process. Accordingly, disclosure of the "deliberation or consultation conducted" in an investigation could prejudice the deliberative process of the respondent in responding to and addressing complaints about staff.
Whether disclosure of the ultimate recommendations made as a consequence of that investigation, which would fall within the term "opinion, advice or recommendation given", could reasonably be expected to have that effect is less clear. The Investigation Report analyses in detail the findings of the investigation and matters arising; and makes formal recommendations. The Tribunal is not persuaded that to the extent that those formal recommendations traverse systemic rather than specific sensitive or personal issues raised by the investigation, the connection between the deliberation contained in the information in the Investigation Report and the deliberative processes of the agency is made out.
The Tribunal is satisfied that the public interest against disclosure in cl 1(e) applies to the information, other than to those recommendations which traverse systemic rather than specific issues raised by the investigation or identified or identifiable individuals.

Clause 1 (f)- prejudice the effective exercise by an agency of the agency's functions

The respondent submits that disclosure of the Investigation Report would prejudice the respondent's complaint management functions, would undermine confidence in the complaints management process, and would serve to discourage staff from participating in future investigations.
The Tribunal is satisfied that disclosure of the Investigation Report could, as discussed above in relation to cl 1(d), undermine the confidence of staff in the complaints management and investigation process, and inhibit co-operation in future investigations. That would prejudice the effective exercise of the agency's functions, which include its human resources functions.
[NOT FOR PUBLICATION]
The Tribunal is satisfied that the public interest consideration against disclosure in cl 1(f) applies to information in the Investigation Report other than to the information identified in [63] above.

Clause 1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

As discussed above, the Investigation Report includes information provided in the complaint management and investigation process by staff on a confidential basis. The objection of some of those consulted to disclosure of the information (ex Conf R2) is consistent with an expectation that the information provided by them is confidential.
The public interest consideration against disclosure in cl 1(g) is established in respect of information in the Investigation Report provided in confidence.

Clause 1 (h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)

The respondent submits that disclosure of the Investigation Report would reveal details about the conduct of the investigation into Dr McKay, and the results of that investigation. That could reasonably be expected to prejudice the effectiveness of that investigation as a means of identifying issues of concern within the workplace, and identifying appropriate recommendations to deal with those issues. To the extent that disclosure could reasonably be expected to exacerbate issues discussed in the course of the investigation such disclosure would undermine the effectiveness of the investigation in this case.
In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [75] the Tribunal held that it is the conduct, effectiveness and integrity of the audit, test, investigation or review in issue, and not some future audit or review, that is in issue in considering cl 1(h). Some doubt has been cast on that understanding, however, in Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23, where the Tribunal noted that the opening words of cl 1 refer to "in a particular case or generally".
In the present circumstances the conduct of the investigation proceeded in accordance with the published NSW Health policies. This is not a situation such as Sheehy v Commissioner of Police [2018] NSWCATAD 73 where disclosure of disclosure of complaint information would have a tendency to reveal the purpose of an investigation that is being conducted and the manner in which it is being conducted, and enable persons to understand covert police methodology.
As discussed above in relation to cl 1(d) and (f), the confidentiality of the complaints management and investigation process is fundamental to the proper conduct of that process, and it is the disclosure of specific information provided to and discussed in the Investigation Report contrary to those policies that could prejudice the conduct or effectiveness of future investigations.
The Tribunal is of the view that that concern is less applicable to the issue of whether disclosure of the results of the investigation could reasonably be expected to prejudice the conduct, effectiveness or integrity of either the investigation itself, adopting the more limited view of the ambit of cl 1(h), which appears to be the approach adopted by the respondent, or to future investigation processes.
[NOT FOR PUBLICATION]
The Tribunal is satisfied that the public interest against disclosure in cl 1(h) applies to the information, other than that part of the Investigation Report which provides recommendations which traverse systemic rather than specific issues raised by the investigation or identified or identifiable individuals.

Clause 3(a) - reveal an individual's personal information; Clause 3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002

The respondent submits that the Investigation Report is predominantly the personal information of Dr McKay, as it considers information gathered in the course of an investigation of issues relating to him. In so far as the report reveals information that has been supplied by other named individuals in the course of the complaints management process or is of the nature of information or opinion about them, that is also the personal information of those individuals.
The Tribunal is satisfied that disclosure of the Investigation Report would reveal personal information of Dr McKay and other individuals who participated in the investigation process.
The Investigation Report contains information and opinions about the conduct of Dr McKay, and as information about an employee of an agency in the course of undertaking their duties it is "personal information" for the purposes of the GIPA Act: McKinnon v Blacktown City Council [2012] NSWADT 44 at [73].
Other individuals are named in the Investigation Report, and the report includes information provided by a number of staff on condition of anonymity. The identity of some of those individuals, even though not named, could reasonably be ascertained from the information provided about them in the Investigation Report.
The Tribunal is also satisfied that disclosure of that information would contravene s 18 of the Privacy and Personal Information Protection Act 1998, under which an agency must not disclose personal information unless the disclosure is directly related to the purpose for which the information was collected and the agency has no reason to believe that the person would object (s 18(1)(a)), or the person concerned is reasonably likely to have been aware that information of that kind is usually disclosed (s 18(1)(b)), or the agency reasonably believes that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person (s 18(1)(c)).
None of those provisions apply in the present circumstances.
As discussed above in relation to cl 1(d), the information was supplied as part of a confidential process, and a number of those consulted as part of the consideration of the access request objected to the release of the information.
The public interest considerations against disclosure in clauses 3(a) and (b) apply to those parts of the Investigation report that contain the personal information of Dr McKay or other named or identifiable individuals.

Clause 3 (e) - reveal false or unsubstantiated allegations about a person that are defamatory

The respondent submits that the Investigation Report contains a number of allegations and complaints about Dr McKay that, ultimately, were found not to be substantiated, and contains information of unsubstantiated allegations about other individuals that are defamatory; and that on that basis cl 3(e) applies as a consideration against disclosure, and should be given significant weight.
The public interest consideration against disclosure in cl 3(e) requires that the allegations made in the information are false or unsubstantiated; and that the allegations are defamatory, according to the general principles of defamation law: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [50]. That requires that the publication tends, in the minds of ordinary reasonable people, to injure the person's reputation by disparaging him or her, causing others to shun or avoid him or her, or subjecting him or her to hatred, ridicule or contempt: Hurst at [52].
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
As notified to the applicant in the letter of 28 August 2020, the Investigation Report concluded that the investigation lacked enough evidence to support a finding of misconduct against Dr McKay. Having considered the Investigation Report, the Tribunal accepts the respondent's submission that it contains allegations and complaints that ultimately were found not to be substantiated. Clause 3(e) does not require that the allegations be both false and unsubstantiated. The Tribunal accepts that some of the allegations considered in the Investigation Report could be described as defamatory of Dr McKay, in the sense that they could be regarded as disparaging. The Tribunal also accepts, having considered the Investigation Report, that it includes information being unsubstantiated allegations made about individuals other than Dr McKay that were found to have no substance, and which are defamatory.
The public interest consideration against disclosure in cl 3(e) is established.

Clause 4(d) - prejudice any person's legitimate business, commercial, professional or financial interests

As noted above, Dr McKay in oral submissions relied on this public interest against disclosure, based on the effect of unsubstantiated allegations on Dr McKay's professional interests. In support of a submission that the likely effect of disclosure of the information would not be ameliorated by the fact that he had left Ryde Hospital, Dr McKay referred to there being a small community of colorectal surgeons, and the influence on GPs referring patients.
The Tribunal accepts that Dr McKay's professional interests could be affected by disclosure of information relating to allegations and complaints investigated in circumstances where the outcome of the investigation was, as notified to the applicant, that the investigation lacked enough evidence to support a finding of misconduct by Dr McKay.

Personal factors of the application

Section 55 of the GIPA Act provides that in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account as personal factors of the application the applicant's identity and relationship with any other person, the applicant's motives for making the access application, and any other factors particular to the applicant. Those factors can only be taken into account as factors against providing access if relevant to consideration whether the information concerned could reasonably be expected to have any of the effects referred to in cll 2-5 but not 1, 6 or 7, of the Table to s 14. The personal factors of the application can also be taken into account as factors in favour of providing the person with access to the information.
The respondent submits that the fact that the applicant provided information to the investigation and has a personal interest in the outcome of the investigation are personal factors lending weight to the factors favouring disclosure; however submits that that interest has substantially been met by correspondence to him advising the outcome of the investigation. It submits that the relationship of the applicant as a person holding a senior position at Ryde Hospital, where a number of those whose personal information is included continue to work, is a personal factor that may be taken into account under the s 55 as adding weight to the clause 3 considerations against disclosure.
The applicant disputes that his interests have been met by being advised the outcome of the investigation, submitting that he should be informed of the recommendations of the investigation, and that the findings as to his employer and workplace should be public. His personal information is included in the Investigation Report. The applicant submits that his focus is on ensuring standards and public health and safety. He has no personal animosity to Dr McKay, and rejects the submission that he is motivated by animosity, and that allegation is untrue and defamatory. He submits that it is the job of the Medical Council and the Health Care Complaints Commission to determine whether Dr McKay should practise. He accepts that the investigation process is confidential, and that sensitive and personal information should be redacted.
Dr McKay submits that the applicant has used the complaints process as a means of bullying and harassing Dr McKay, and that his wish to pursue Dr McKay goes beyond what is objectively reasonable for the purposes of him discharging his obligations under s 130 of the Health Practitioner Regulation National Law. He submits that there is cause for concern that the applicant has an improper ulterior motive for seeking disclosure of the Investigation Report, and that his real purpose is to obtain information to publicly discredit Dr McKay or otherwise cause harm to him. Disclosure of the report would likely exacerbate the personal conflict between the applicant and Dr McKay, exposing Dr McKay to the risk of harm or serious harassment or intimidation by the applicant.
The Tribunal is of the view that the applicant's motive based on his stated concern for public health and safety in seeking access to the recommendations in the Investigation Report relating to any systemic issues, rather than information provided confidentially to the investigation or personal information, is a personal factor of the application that adds weight to the public interest considerations in favour of disclosure.
The fact that the applicant holds a senior position at Ryde Hospital, where a number of those whose personal information is included continue to work, is a personal factor of the application that adds weight to the public interest considerations against disclosure in clause 3 (a), (b) and (e). In Pemberton v Macquarie University [2014] NSWCATAD 76 the Tribunal expressed the view that the effect of release of information in a work environment is a significant consideration to be taken into account in balancing the competing public interests. While Dr McKay has left Ryde Hospital, others referred to or identified in the Investigation Report, remain.

Balancing the public interests

Having identified the public interest considerations in favour of, and against, disclosure, the Tribunal must attribute weight to each consideration, which depends on the effect of disclosing each particular piece of information: Destination NSW v Taylor [2019] NSWCATAP 123 at [69].
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure". Section 13 provides that there is an overriding public interest against disclosure if, and only if, the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. In undertaking that consideration, it is relevant that disclosure cannot be made subject to any conditions on the use or disclosure of information: GIPA Act, s 15(e).

Public interest considerations in favour of disclosure

The Tribunal is satisfied that the public interest considerations in favour of disclosure are, in addition to the general public interest in s 12(1), that disclosure of the information could contribute to informed debate on issues of public importance, in this instance whether there are legitimate concerns as to the functioning of the hospital and the performance of its staff, and in informing the public about the operations of the hospital, in the interests of public health and safety.
The respondent submits that limited weight should be given to those public interest considerations against disclosure.
The Tribunal has noted above that the approach to the investigation as stated in the Investigation Report was consistent with the NSW Health policy framework, and with NSLHD's practice as summarised by Mr Quested. To that extent disclosure of the information would provide limited additional insight into the respondent's policies and procedures for dealing with complaints about staff including clinicians. To the extent that disclosure would provide insight into the consideration of the specific issues raised in the complaints and concerns the subject of the investigation and any recommendations for system improvements, more significant weight should be attributed to the public interest considerations in favour of disclosure. The applicant's stated motive based on a concern for public health and safety in seeking access to the recommendations in the Investigation Report relating to any systemic issues, and not any sensitive or personal information, adds weight to those public interest considerations in favour of disclosure.
[NOT FOR PUBLICATION]
The Tribunal concludes that moderate weight should be attributed to the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

The respondent submits that the public interest considerations against disclosure in cl 1(d), (e), (f) and (h) are very weighty, because of the likely systemic prejudice to the agency's functions including its human resources functions if the information is disclosed. The consideration in cl 1(d) should be given compelling weight. Clause 1(g) together with cl 3(a) and (b) should also be given significant weight. The public interest consideration in cl 3(e) should be given considerable weight having regard to the fact that professional reputations are at stake. The fact that Dr McKay has left Ryde Hospital does not address the concerns.
Dr McKay submits that the considerations in cl 1(d), (e) and (f) should be given significant weight because of the assurances of confidentiality for participants in the investigation. The considerations in cl 3(a), (b) and (e) should be given significant weight, in circumstances where the Investigation Report itself is an array of unsubstantiated allegations, and there is significant potential for an effect of potentially defamatory unsubstantiated allegations, to which Dr McKay was not able to respond. That is not ameliorated by the fact that Dr McKay is no longer at Ryde Hospital, given the fact that it is a small community of colorectal surgeons.
Considering first the information in the Investigation Report outlining the background to the investigation, the summary of the allegations, the findings and analysis of those findings and the conclusion, the Tribunal gives significant weight to the public interest considerations against disclosure in clause 1(d), (e), (f), (g) and (h) of the Table to s 14. The confidentiality of the complaints management process is provided in the detailed NSW Health policies and the practice of NSLHD in managing such investigations; and the Investigation Report confirms that consistent with those policies and practice, assurances of confidentiality were given to staff who provided information for the investigation. The policy documents make it clear that the safety and welfare of patients, and others including staff, is paramount. The Tribunal accepts that the full and frank participation of staff is essential for the proper conduct of investigations into complaints and concerns about clinicians, and thus to the effective exercise of the respondent's functions including its human resources functions.
Significant weight should also be given to the public interest considerations against disclosure in clause 3(a), (b) and (e). The Investigation Report contains personal information, provided by and about staff who were assured of confidentiality in their participation in the investigation. Some of those staff expressed their objection to disclosure of the information in the consultation process. It is unlikely given the nature of the information about those persons provided in the Investigation Report that redactions would be possible so as to avoid identification of those persons. The weight to be given to those public interest considerations is increased by the personal factors of the application referred to at [110] above.
The position in relation to that part of the Investigation Report that makes formal recommendations on systemic matters, as opposed to recommendations relating to an identified individual, and as opposed to the analysis of the findings of the investigation, is different. Disclosure of that information would not disclose information for which there is a public interest against disclosure in cl 1(d), (e), (f), (g) or (h), or personal information, or information for which there is a public interest against disclosure in cl 3(e). The personal factors of the application which in the Tribunal's view add weight to the public interest considerations against disclosure in cl 3 otherwise would not apply to that information.
The respondent accepts that the Investigation Report deals with recommendations for system improvement, however submits that is not substantial and it is not possible to separate those parts which would not give rise to concerns from other parts.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
If, contrary to the findings above, the public interest considerations against disclosure on which the respondent relies apply to Section 8 Recommendations of the Investigation Report, recommendation 3 could be redacted; and if that redaction is made, only minimal weight could be attributed to any public interest considerations against disclosure of the remaining recommendations. On that basis, the public interest considerations against disclosure would not outweigh those in favour of disclosure.

Conclusion

The Tribunal concludes that the public interest considerations against disclosure outweigh those in favour of disclosure of the Investigation Report, other than for Section 8 Recommendations, which, if recommendation 3 is redacted, should be disclosed.
The orders of the Tribunal are: 1. The decision under review dated 24 June 2020 is varied, and within 28 days of these orders, Section 8: Recommendations (pp 27-28) of the document "Investigation Report: Northern Sydney Local Health District Investigation into Concerns regarding the Clinical Performance of Dr Gary McKay February 2020" is to be provided to the applicant, with the redaction of Recommendation 3; 2. The decision under review is otherwise affirmed; 3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication or disclosure of the name of any of the patients referred to in the documents filed with the Tribunal in this proceeding is prohibited; 4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of: 1. the material filed by the respondent on a confidential basis, 2. the copy of the submissions by Dr McKay provided to the Tribunal on a confidential basis 3. those paragraphs of these reasons identified as [Not for publication], 4. the submissions made in private before the Tribunal, and 5. the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013, is prohibited. That material is not to be released to the applicant or the public.

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: 20 January 2021

At a glance

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Decision date

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Judgment (26 paragraphs)

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Cases Cited (11)

Cited By (4)