Reaper v QBE Workers Compensation & Anor (Health and Privacy) [2012] VCAT 1514

Pursuant to section 78(1) of the Health Records Act 2001 the Tribunal, having found the complaint not proved, dismisses the complaint.

1. By two letters, both dated 4 March 2012, the complainant ("Mr Reaper") lodged a complaint with the Health Services Commissioner (the "Commissioner") under the Health Records Act 2001 (the "HR Act"). The complaint was initially made against the first respondent ("QBE"). During the processing of the complaint, the Commissioner joined the second respondent ("VWA").
2. The complaint claims that the respondents breached the HR Act by interfering with Mr Reaper's health information privacy. It did this by disclosing his health information to a member of VWA's clinical services panel and by the use of that information by that panel member in discussions with Mr Reaper's treating health practitioner and, through those discussions, in the making of an agreement between that member and that health practitioner. Mr Reaper seeks the withdrawal of that agreement, an apology, and the disbanding of the clinical panel.
3. On its proper interpretation, the complaint (read in conjunction with the Commissioner's decision) alleges that the respondents breached Mr Reaper's health information privacy by breaching Health Privacy Principle ("HPP") 2.
4. Under section 51 of the HR Act, the Commissioner declined to entertain the complaint, and to notify the parties of that decision on 19 April 2012. The applicant, as is his right under the HR Act, then required the Commissioner to refer the complaint to VCAT. The Commissioner did so by letter dated 25 May 2012. Under s 74 of the HR Act, VCAT has jurisdiction to hear a complaint referred to it in this way.
5. I have before me the initial complaint, a number of documents filed by Mr Reaper, a response from the respondents, written submissions from Mr Reaper and the respondents, a witness statement (with attachments) from Ms Boyd (a witness for VWA) and oral submissions from the parties. Mr Reaper is unrepresented in this proceeding. Where the documents filed by Mr Reaper are evidence, I treat them as evidence. Where they are submissions, I treat them as submissions. I understand that it is sometimes difficult for an unrepresented person to distinguish between them.
6. It is fair to say that QBE called no evidence and made no submissions at the hearing, except to say that it relied on the evidence and submissions of VWA.
7. In declining the complaint, the Commissioner considered only HPP 2.1 and 2.2. In letters written to the Tribunal, Mr Reaper also mentions other Health Privacy Principles - 1.2, 1.3, 1.4, 1.6 and 3.1. However, when I asked him about these additional HPPs during the hearing, he said that he relied on what the Commissioner had told him about the relevant HPPs. While I do not necessarily agree with VWA's submission that the scope of a complaint cannot be broadened after it has been referred to VCAT, I have not considered the additional HPPs mentioned by Mr Reaper. No application was clearly made to amend the complaint and, at the hearing, Mr Reaper said that he relief on the HPPs mentioned by the Commissioner.
8. I first say some general things about the HR Act. I then consider the evidence and make findings. Finally, I consider the submissions and state my conclusions.

1. I have explained the process by which this complaint came to VCAT, and how VCAT has jurisdiction to hear it. There is no dispute (and I am satisfied) that QBE and VWA are organisations to which the HR Act applies. There is also no dispute (and I am satisfied) that the information, the disclosure and use of which is said to breach the HR Act, is health information within the meaning of that Act.
2. The effect of ss 10, 18 and 21 and Schedule I of the HR Act is relevantly this. An organisation to which the Act applies must not do an act or engage in a practice that interferes with the health privacy of an individual. Such an interference occurs if and only if there is a breach of an HPP in relation to the health information that relates to the individual. If an organisation's employee or agent does such an act or engages in such a practice, that conduct is to be taken to be the conduct or practice of the organisation.[1]
3. The HPPs relevant to this case are:

2.1. An organisation may use or disclose health information about an individual for the primary purpose for which the information was collected in accordance with HPP 1.1.

2.2. An organisation must not use or disclose health information about an individual for a purpose (the secondary purpose) other than the primary purpose for which the information was collected unless at least one of the following paragraphs applies10-

(i) the secondary purpose is directly related to the primary purpose; and

(ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or

(b) the individual has consented to the use or disclosure; or

(c) the use or disclosure is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law); or

1. It will be noted that HPP 2.1 refers to HPP 1.1. HPP 1.1 relevantly provides -

1.1. An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies-

(b) the collection is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law);

(h) the collection is necessary for the establishment, exercise or defence of a legal or equitable claim;

1. Except in relation to the content of the relevant claim form, there is no dispute in the evidence. My findings are based on the evidence of Mr Reaper and Ms Boyd, and the respondents' response (the material in which was not disputed), and the other documentary evidence before me.

1. VWA is responsible for administering the workers' compensation scheme established by the Accident Compensation Act 1985 (the "AC Act"). QBE is its agent. QBE's role in the issues in this case is not entirely clear. For present purposes, I assume that it was involved in providing information to the relevant clinical advisor, and also in making the decision to cease certain treatment of Mr Reaper.
2. Under s 20(1) of the AC Act, VWA's functions include -
   • Receiving, assessing, and accepting or rejecting claims for compensation;
   • Paying compensation to people entitled to it under the AC Act;
   • Ensuring that the compensation scheme is competitive and fully funded;
   • Improving occupational health and safety and return to work;
   • Facilitating the development of rehabilitation plans and facilities to assist injured workers;
   • Monitoring the operation of occupational health and safety, rehabilitation, and workers' compensation.
3. Under s 20(2) and s 20A, in performing its functions, VWA must ensure efficient, effective and equitable occupational rehabilitation and compensation of people injured at work, must ensure financial viability and efficient operation of workers' compensation arrangements, and has power to do all things necessary or convenient in connection with the performance of its functions.[2]
4. As far as claims for compensation are concerned, s 103(3) of the AC Act requires that a claim form must include an authority, signed by the worker, "authorising the provider of medical services to the worker in connection with the injury to which the claim relates, to give to the authority, self insurer or employer, information regarding the service relevant to the claim". Under s 5 of the AC Act, "medical services" include (among other things) attendance, examination or treatment of any kind provided by a registered chiropractor.

1. In 2008, there was formed a group known as Health Services Group. The Group was part of a collaborative arrangement between the VWA and the Transport Accident Commission. The Group's aim was to simplify processes and implement initiatives to assist health service providers to achieve better rehabilitation and return to work outcomes for injured workers. One of these initiatives was to establish a clinical panel which reviewed the treatment of injured workers, particularly those under long term treatment. I call this "the Panel". The Panel is an administrative mechanism, not a statutory body.
2. The Panel consists of health practitioners from various fields, with expertise in the relevant field. The members of the Panel are known as "clinical advisors".
3. A clinical advisor's role is to review the treatment of an injured worker receiving long term treatment to determine whether services are provided in line with the principles of the "Clinical Framework for the Delivery of Health Services" (the "Framework").
4. That Framework sets out guiding principles to assist health service delivery to injured workers. One of its aims is to ensure that health services are "goal orientated, evidence based and clinically justified". The principles include such things as measurable treatment effectiveness and a focus on empowering workers to manage their injury.
5. The process by which a clinical advisor reviews a claim is this. Claims are identified for review where (from the data) the treatment of the injured worker does not appear to be in line with the Framework's guiding principles. Once selected for review, the file is referred to a clinical advisor qualified in the relevant area. It seems that this referral is by the claims agent. The clinical advisor reviews the file and then discusses the treatment with the worker's treating health practitioner. Usually, the discussion is by telephone.
6. If the treating health practitioner and the clinical advisor agree that treatment should be continued, discontinued or changed, they both sign a note of their agreement, and that agreement then becomes a recommendation to the workers' claims agent. If they do not agree, the treatment issue will be referred back to VWA and may then be referred to an independent medical examiner. The worker and the worker's treating health practitioner are given written notice that the treatment is to be reviewed, and then of the outcome of that review. Information about the process appears on VWA's website.

1. Mr Reaper made a claim under the AC Act on 14 July 2007. He signed the relevant claim form. There is a dispute in the evidence of Ms Boyd and Mr Reaper about whether the form Mr Reaper signed included four pages or two. Ms Boyd's evidence was that the four page form was the standard form at the time when Mr Reaper signed his claim form. Mr Reaper says that he did not recall the additional two pages, but also that he was in a "shocking condition" at the time (because of his injury). I consider it more probable than not that the form included all four pages.
2. On 17 October 2011, Mr Reaper was notified that his claim had been selected for review. Dr Pilkington was the clinical advisor nominated for the review. An agreement between the VWA and Dr Pilkington is in evidence. Although that agreement states (among other things) that neither party is agent for the other, it is clear that Dr Pilkington was a contractor of the VWA when he performed his functions and that he acted on its behalf in doing so. The agreement imposes on Dr Pilkington the same obligations in respect of privacy as the VWA has under legislation.
3. Dr Pilkington is a registered chiropractor. There is no dispute that he followed the usual review procedure in respect of Mr Reaper's claim. He read Mr Reaper's file and then discussed it by telephone with the person whom he understood to be Mr Reaper's treating chiropractor, Dr Lewis. Both then signed a fax indicating that they had agreed that further chiropractic treatment would be discontinued after three months and there would be a change to a self managed "home program". There is little evidence on the matter, but it would appear that this agreement was implemented by QBE or some other claims agent.
4. It is fair to say that Mr Reaper has written many letters challenging the fairness and lawfulness of the disclosure of his health information to, and use of his health information by Dr Pilkington, and its use in discussion with his chiropractor and the agreement that was then reached. He maintains that discussions ought to have occurred with his regular treating chiropractor (rather than someone he describes as a "temporary"), and that the AC Act does not recognise the clinical panel or clinical advisors. On this point, I note that he mentions s 91 of the AC Act. However, that section deals with assessing the degree of impairment, not with the administrative arrangement under which the clinical panel and clinical advisors exist.
5. However, the only issue which I must determine in this proceeding is whether VWA or QBE, by disclosing Mr Reaper's file to Dr Pilkington and permitting his health information to be used in the review, has breached HPP 2.
6. The claim form which Mr Reaper signed in July 2007 included these words:

"I authorise and consent to any person who provides a medical service or hospital service to me in connection with an injury/condition to which this claim relates to provide upon request by the workers' compensation authority, my employer or insurer/claims agent any information regarding the service relevant to the claim. I understand that my authority has effect and cannot be revoked for the duration of this claim".

1. The first page of that form tells the worker that the worker needs to "sign the authority to release medical information and the worker declaration at the end of this form" and that the worker needs to "read the statement on the back of this form that explains how your personal and health information will be collected and used".
2. The last page of the form reads in part:

"In processing your claim, the Victorian WorkCover Authority (VWA) and any WorkCover Agent acting for the VWA in relation to your claim may collect personal and health information about you. The VWA and Agents are required by law to ensure that all people about whom they collect personal and health information are provided with the following information:

The VWA is a body corporate established under the Accident Compensation Act 1985. Agents are appointed by the VWA under that Act to act on its behalf in managing workers' compensation policies and claims for compensation.

Personal and health information about you is collected on this form and may also be collected during the processing, assessing and management of your claim. It may be collected from your current, previous and future employers, other government agencies, credit reporting agencies, health service providers and other persons who can provide information relevant to the claim.

Personal and health information about you also may be collected by solicitors, private investigators, loss adjusters and other service providers acting on behalf of the VWA or your employer's Agent.

Personal and health information collected about you is used for the purpose of processing, assessing and managing your claim and to verify any evidence you may submit in support of the claim. The information may also be used for one or more of the purposes listed in section 243 of the Accident Compensation Act 1985, for the purposes of legal proceedings arising under that Act, to assist with your rehabilitation and return to work and to assist the VWA and WorkCover Agents to better manage claims generally.

For the purposes of processing, assessing and managing your claim, the VWA and your employer's Agent may disclose personal and health information about you to each other and to the following types of organisations:

• Employees, contractors and agents of the VWA and the VWA's Agents".

1. The respondents make a number of alternative submissions about this.

1. First the respondents submit that Mr Reaper's health information was disclosed to Dr Pilkington and used for the primary purpose for which it was collected in accordance with HPP 1.1. I am satisfied that, for the purposes of HPP 2.1, Mr Reaper's health information was collected in accordance with HPP 1.1. It was collected as part of VWA's ongoing claims management functions (which include the review, from time to time, of treatment for the claimant's injury, and the consideration of whether that treatment continued to be appropriate). Its collection was authorised by Mr Reaper when he signed the claim form. If I am wrong that the collection was so authorised, I am also of the view that s 103(3) of the AC Act, by requiring that the claimant sign an authority for the collection of that information, permitted that information to be collected. It would have been a failure of compliance with that sub-section if the claimant had not authorised that information to be collected.
2. I am satisfied that the disclosure and use of the health information occurred for the primary purpose of collection. They occurred in the course of VWA's claims management and review processes, and its function to determine whether treatment continued to be appropriate.
3. I treat the words "primary purpose" as involving an objective test. All the circumstances will be relevant. The word is not "intention" or "intent", which would refer to a subjective element.[3]
4. Given my conclusion, it is unnecessary for me to deal with the other alternative submissions made for the respondents.
5. I conclude that there has been no breach of HPP 2 by the respondents. I find the complaint not proven and dismiss it.

[2] See generally s 20(1), (2) and 20A of the AC Act.

[3] See for example Ng v Department of Education (2005) VCAT 1054.