For completeness, it is submitted that to the extent that documents 3 and 4 contain "purely factual material", that material is so inextricably intertwined with the material within section 30(1)(a) that it is "difficult to separate them to produce an expurgated document of any meaning": Re Kosky and Department of Human Services (1998) 13 VAR 420 at 424.

93 Dr Emerton made submissions in relation to Document 3, the draft report provided to the hospital for comment. Counsel referred to Ms Croke's evidence that matters of advice, opinion and recommendation contained in the draft report had been settled by the time Document 3 was prepared and that comments of the hospital were sought in relation to factual matters. She submitted :

15. Document 3 is clearly not a document recording the "preliminary thoughts" of the investigation team. It is apparently a near final report, subject only to adjustment to correct any factual errors.

16. It is therefore reasonable to assume that the matters of advice, opinion and recommendation contained in Document 3 are already in the public domain through the release of the final report to the applicant.

17. Insofar as Document 4 contains additional material to the material in Document 3, and that material consists of handwritten annotations by staff at The Alfred -

17.1 It was intended by the investigation team that information provided by The Alfred should have been confined to factual maters;

17.2 If the information provided by The Alfred was not confined to factual matters, it was provided on an unsolicited basis and did not form part of the processes of deliberation or consultation - the "thinking process" - of the investigation team;

17.3 Alternatively, if information was provided in response to an invitation in order to accord 'due process' or 'natural justice' it can scarcely be said to form part of a process of consultation or deliberation in the course of a policy making process.

Where a final report has been released, drafts of the report will usually be exempt; see for example Re Birrell and Department of Premier & Cabinet (1986) 1 VAR 230. However, drafts are not necessarily exempt and each document must be assessed individually: Re Brog & Department of Premier & Cabinet (1989) 3 VAR 201.

In this case, it would not be contrary to the public interest to release the draft report (Document 3) and the comments that are apparently inscribed on the second copy of the draft report (Document 4). The basis on which the draft report and the comments are said to be exempt is that their release would undermine public confidence in the final report because they contain matters which were considered but discarded by the investigation team which could be misleading or cause confusion. That is not consistent with the draft report being in near final form (subject only to adjustment to correct factual errors or inaccuracies).

If only comments relating to factual matters were taken into account, any possible detriment caused by the potentially inhibitory effects on hospital staff of releasing the draft reports and the possible generation of confusion or debate would be negligible.

If comments were made by staff at The Alfred that were not confident to factual matters, it is a matter of public interest whether, and if so to what extent, they were taken into account given that this represented a departure from the procedure agreed in the investigation team.

Furthermore, in the present case, public confidence in the integrity of the final report has been placed at risk by the selective access to the draft report given to the Alfred Hospital in circumstances where the Alfred Hospital was the subject of an investigation into serious breaches of the Mental Health Act. Again, it is in the public interest that the "air be cleared" in relation to the conduct of the investigation by the Chief Psychiatrist".

94 Documents 3 and 4 are the Committee's draft report, in fact drafted by Ms Croke. The latter document has annotations in the nature of what I would regard as minor amendments or suggestions about what might be qualified or omitted. Those, as I understand it, were made by the Department. The hospital's suggestions are accompanied by a letter of explanation, Document 7.

95 Both documents clearly contain opinion and recommendation prepared in the course of the Committee's deliberative process.

96 I do not accept Dr Emerton's submissions that comments from the hospital or Department were to be confined to correcting factual errors. Correspondence from Associate Professor Tanaghow to Bayside Health dated 14 February 2005 (see Attachment L to Exhibit B) sought comments on the draft report, including comments in relation to any findings of fact, before the report was finalised. The terms of that correspondence do not support her contentions. It is also clear from the correspondence that the comments were sought before the Committee finalised its report. The Associate Professor, not Ms Croke, wrote the letter inviting comment. I am satisfied that the Committee was still engaged in its deliberative process. That finding is supported by Professor Tanaghow's evidence at para 72 of his statement (Exhibit 2), which evidence I accepted. I am also satisfied that the comments and suggestions proffered by the hospital and the respondent were considered by the Committee and formed part of its deliberative process.

97 Whilst it is well accepted that drafts of reports will be exempt from release, Dr Emerton's submissions about this consideration focussed on several things. First, if it were factual errors only that were corrected, there should be no difficulty in releasing the drafts because potentially inhibitory effects and the chance for confusion would be negligible. Secondly, if comments were not confined to factual matters, that in itself is a matter of public interest whether, and if so to what extent, they were taken into account by the Committee for the final report. Thirdly, Dr Emerton questioned the integrity of the Final report where the hospital had access to the draft report where the hospital was the subject of an investigation into serious breaches of the Mental Health Act.

98 So far as that last point is concerned, I agree with Mr Pizer's submission. It was quite appropriate for the hospital to be given the opportunity to comment on the draft report, particularly so because it was the organisation being investigated and potentially the subject of adverse findings.

99 It may well be that Mr Rosen had not been aware that that was how the Committee would proceed, but the fact that it took that course does not persuade me that disclosure would not be contrary to the public interest.

100 Mr Pizer, in oral submissions, submitted that I could look at the documents, assess them for myself and confirm that the comments from the hospital did not influence the final version and that no changes of substance were made. He submitted that if I compared and contrasted the documents, there was nothing in them to justify departing from the trend of authorities in relation to draft documents. The more so he submitted, where there was a draft document and the final version is in the public domain.

101 The Terms of Reference and Appendix B of the Report are unchanged, except for how the "Root Cause Analysis" report conducted by the hospital is referred to. In the Appendix A - Terms of Reference - it is unaltered and is referred to as the Root Cause Analysis Report. In Appendix B it has been changed to "investigation report" prepared by The Alfred dated 15 June 2004. In my view, nothing turns on that.

102 Ms Croke gave evidence in camera about any amendments made to the draft report after the Committee received the responses from the hospital and the Department. Her evidence was that the Committee did not make any substantive changes following the receipt of comments and that any changes the Committee made were essentially about choice of words in an endeavour to be more objective.

103 It is convenient to touch upon the nature of any comments made to the Committee and to consider whether and if so how the Committee responded to them.

104 For example, the hospital suggested certain sentences in the introduction of the Executive Summary were incorrect. The Department suggested a rewording. The final version however is substantially the same. It is clear the Committee ignored the hospital's claims.

105 Further, for the Executive Summary's Recommendations, the hospital suggested changes to two of the recommendations about access and entry, which were not made by the Committee.

106 Again the hospital suggested changes to the Recommendations about Treatment and Care. I agree with Ms Croke's evidence that any changes made were not substantially different from the draft report and that the Committee removed one recommendation because it was outside the Committee's terms of reference.

107 There were other matters of style changed, and further changes made to the draft report obviously by the Committee itself, unprompted by any comments or suggestions. There were typographical corrections and appropriate changes made to the description of the seclusion room for example.

108 There are other instances where changes have been made so that there is more detailed explication of matters for clarification purposes but are not changes of a substantive nature.

109 There were some amendments made to the draft report that Ms Croke indicated were amendments made to correct factual errors.

110 Given what I have set out above and the nature of any amendments made to the draft, I am not persuaded that it is a matter of public interest whether, and if so to what extent, the hospital's or respondent's comments were taken into account by the Committee in the final report. This is so because I am satisfied having looked at the comments made and what was taken on board by the Committee, that the Committee's final report was not substantially altered by reason of any such comments.

111 Further, I do not accept Dr Emerton's submission that the public confidence in the integrity of the final report is placed at risk by any selective access to the draft report. It is proper to provide a copy of a draft report for comment, to a body one is potentially making adverse findings about.

112 The drafts and annotated versions are the Committee's working documents. They have properly been provided to the body that was being investigated and that body's comments have been considered and properly incorporated or discarded by the Committee as part of its deliberative process.

113 In my view, disclosure of the draft report is contrary to the public interest.

114 In those circumstances, I am satisfied the drafts are exempt from release under s 30(1) of the Act.

115 The final class of documents are Documents 5, 6 and 7. They contain comments on the draft version of the final report. They are all made by officers of Bayside Health. The first is made by the hospital's Director of Psychiatric Services and provides particular comment. The second and third are by Bayside's Chief Executive. The second provides very brief comment of a general nature. The third contains more detailed and specific comment. The Department claims they are exempt from release under sections 30(1) and 35(1)(b) of the Act.

Are the documents exempt from release under s 30(1)?

116 I have already canvassed generally the type of comment or suggestion that may have been made by the hospital (Bayside) in response to the request for comment on the draft report.

117 It is clear to me that they are communications in the nature of opinion and advice prepared by officers in the course of the deliberative processes of the committee. I agree with Mr Pizer's submissions that they contain matters in the nature of opinion, recommendation or advice in relation to the draft report.

118 I agree with Mr Pizer's submissions that the documents were created in the course of or for the purpose of the deliberative process that the Committee was engaged in.

119 I agree with Mr Pizer's submission that it would be contrary to the public interest to disclose the documents. I accept that to disclose these documents would create unnecessary confusion and debate. As I have already indicated, it is apparent the comments have not been slavishly accepted, and were either rejected or accepted in part and that any changes have not been substantive, irrespective of any suggestions Bayside may or may not have made.

120 For reasons set out earlier, I do not accept Dr Emerton's submissions that Bayside's comments should have been confined to comments on factual matters. Further, I am satisfied the comments have formed part of the deliberative process, and am not persuaded that release would not be contrary to the public interest, in that release would redress any concern the final report may have been unduly influenced by the comments.

121 I am satisfied that the documents in this category are exempt from release under s 30(1) of the Act.

122 Whilst I have found the documents are exempt from release under s 30(1) of the Act, that is not the end of the matter.

123 Section 50(4) of the Act gives the Tribunal the power to grant access where it is of the opinion that the public interest requires that access be granted.

124 Section 50(4) states :

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 3(3) or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

125 Section 50(4) is subject to some exceptions, which are not relevant to my considerations in this case.

126 The task of the Tribunal is to decide whether the public interest has been demonstrated to the extent that it outweighs the competing interest of documents protected from disclosure by specific provisions of the Act and requires that access should be granted.[5]

127 "Public interest" is a term not defined in the legislation. However, the case law is clear in that we need to distinguish between what is in the public interest and what is of interest for the public to know.[6]

128 Mr Pizer submitted that "the override" should not be invoked because :

(a) there is no "public" interest in disclosure of the documents in dispute: rather, the documents relate to a matter of personal significance only and do not have "wider social significance". Put another way, the documents relate to the grievances of an individual and those grievances are not part of a "wider controversy".

(b) if the Tribunal were to find that the asserted interest in disclosure is a "public" interest, it is submitted that disclosure of the documents in dispute would not advance or promote that interest. For example, it could not be said that disclosure of the handwritten notes would clear the air in relation to Bayside Health's so-called interference with the drafting of the Final Report.

(c) if the Tribunal were to find that disclosure of the documents in dispute would advance or promote a public interest in disclosure, that asserted public interest is not so strong as to override the factors that confer exempt status on the documents in the first place. That is particularly so when one has regard to the fact that there is nothing in the documents in dispute to support the Applicant's stated concerns about the manner in which the investigation was carried out or the way in which the report was finalised. It follows, to use the language of the Tribunal in Just, that the public interest does not require the release of the exempt documents as the "public benefit in view" can be achieved by a means other than their disclosure: namely, by the Tribunal, in its reasons, confirming that there is nothing in the documents in dispute to support the Applicant's stated concerns about the process or the end product.

129 Dr Emerton's submissions, indeed the focus of the applicant's case, addressed the application of the "public interest override". Particularly it was submitted that, in this case, there is a matter of public interest of the relevant kind such that release of the documents sought, is required. It was contended that release is necessary to demonstrate and thus maintain public confidence that the Chief Psychiatrist's investigation was conducted in accordance with its terms of reference and consistently with his obligations under the Mental Health Act.

130 In the circumstances, I will set out Dr Emerton's submissions relevant to the application of s 50(4), omitting the footnotes :

The public interest in the release of the disputed documents should be considered in the light of the central role of the Chief Psychiatrist in protecting the interests of persons receiving treatment for mental illness in accordance with the Mental Health Act.

The Chief Psychiatrist is responsible for the enforcement of sections 81 and 82 of the Mental Health Act. He is responsible for investigating abuses that occur within the public mental health system - see Dr Vine's response to the Senate Select Committee inquiry into mental health dated August 2005.

However, the Chief Psychiatrist's evidence to the Tribunal makes plain that he sees his supervisory or monitoring role as being limited to providing support and advice to mental health services. He regards himself as working exclusively co-operatively with the institutions that he has a statutory obligation to supervise and, in essence, asserts that anything that threatens the relationship of "trust" between him and those institutions will compromise ability to perform his functions.

This ignores an important part of his role, which is to evaluate whether mental health services have complied with legislative requirements and clinical standards and to enforce those requirements and standards where necessary.

The objects of the Mental Health Act are concerned with protecting the rights of mental health patients and ensuring that they receive the best possible psychiatric care and treatment. The Act establishes the office of the Chief Psychiatrist to assist in carrying out these objects.

The Mental Health Act contains a significant number of provisions that require the Chief Psychiatrist provide oversight of psychiatric treatment, ensure that the provisions of the Mental Health Act are being complied with, and to act as an advocate for the rights of mental health patients.

The Chief Psychiatrist's description of his role in his evidence to the Tribunal as being exclusively one of providing support and advice rather than "policing" is not consistent with the proper discharge of these statutory functions.

The Rosen family, and the public at large, have good reason to be concerned that the Chief Psychiatrist has not discharged his responsibility to properly investigate whether the circumstances of the death of Adam Rosen's death in seclusion at the Alfred Hospital involved breaches of the Mental Health Act and to take appropriate action in respect of identified breaches of the Act.

52.1

On the basis of information that they had extracted from the Alfred Hospital, the Rosen family reasonably believed that the treatment that Adam Rosen received on the day that he died gave rise to breaches of the Mental Health Act as a result of non-compliance with procedures governing the seclusion of patients;

52.2

The Rosen family alerted the respondent to these possible breaches and requested that they be investigated;

52.3

The Rosen family was told that the Chief Psychiatrist would conduct an investigation into Adam's death - the terms of reference for the investigation included ascertaining whether there had been compliance with the Mental Health Act.

52.4

Some months after the Rosen family had provided information to the investigation team, Mr Rosen inquired about the results of the investigation and was told -

•

The draft investigation report had been provided to The Alfred for comment;

•

However, the Rosen family would not be given a copy of the draft or the final investigation report.

52.5

While a decision was eventually taken to provide the Rosen family with a copy of the executive summary of the investigation report, the summary was not provided until 17 May 2005 (almost a year after Adam's death). It was not possible for the Rosen family to discern from the executive summary whether the concerns that they had raised concerning compliance with s 82 of the Mental Health Act had been addressed by the investigators;

52.6

Had Mr Rosen not threatened to take proceedings to obtain full copies of his son's medical records and initiated proceedings under the FOI Act, the information made available to the Rosen family by the hospital and the Department would have been negligible. It would not have permitted the Rosen family to understand whether any consideration had been given to compliance with the Mental Health Act by the investigation team.

Members of the public who complain about breaches of the Mental Health Act are informed that the Chief Psychiatrist will investigate; they rightly have an expectation that the provisions of the Mental Health Act will be enforced and that serious breaches will be prosecuted. In practice, however, it appears that the Chief Psychiatrist does not enforce compliance with the provisions for which he is responsible, but relies on exclusively on his "advisory" and "support" functions to monitor the activities of mental health service providers.

53.1

The Chief Psychiatrist gave equivocal and unpersuasive evidence to the Tribunal when asked whether he would ever be prepared to make a recommendation for a prosecution under the Mental Health Act.

53.2

He refused to say whether the matters raised in the investigation report itself concerning Adam Rosen's seclusion constituted a breach of the Mental Health Act, notwithstanding that some of the findings may well have supported such a conclusion.

Finally, The Alfred Hospital appears to have played an unusual role in the preparation of the investigation report -

54.1

It apparently provided commentary of a kind that it had not been invited to provide;

54.2

It provided that commentary in a protracted and piecemeal fashion that resulted in it being in a position to hear the evidence given at the Coroner's inquest before providing its final commentary.

These matters combine to create a legitimate concern that the investigation was not conducted on a proper arms length basis and that the compliance of The Alfred with the requirements of the Mental Health Act was not properly investigated.

It is no justification for the Chief Psychiatrist's failure to properly consider whether he ought to make recommendations concerning alleged breaches of Mental Health Act that the Coroner made no such recommendations :

56.1

The Coroner is prohibited from including in a finding or comment any statement that a person is or may be guilty of an offence (s 19 of the Coroner's Act 1985);

56.2

The Coroner must report to the Director of Public Prosecutions if the Coroner believes that an indictable offence has been committed in connection with a death which the Coroner investigated (s 21). However, the offences under the Mental Health Act are summary offences. By the time that the Coroner delivered his findings, the limitation period for the prosecution of those offences had long since expired.

In these circumstances, the applicant and the public in general cannot be confident that the Chief Psychiatrist carried out the investigation into Adam Rosen's treatment consistently with the requirements of the Mental Health Act and in accordance with the responsibilities of the Chief Psychiatrist.

The disputed documents should be released whether or not they show a failure to conduct the investigation in the manner required by the Mental Health Act. Even if there is no such failure, the unfortunate circumstances surrounding this investigation make it necessary to clear the air.

131 It is understandable that Mr Rosen expresses concern about how he sees the Chief Psychiatrist may have carried out his role and given the Chief Psychiatrist's evidence, he is concerned about what that role is or should be if there have been or might have been breaches of the Mental Health Act, particularly in light of his full statutory responsibilities.

132 The Rosen family faced frustration because of the time it took for a decision to be made to conduct an investigation, the only one of this kind conducted apparently in 2004, and the delay in finalising it. This was particularly so, where the Rosen family had understood, consistently I might add, with the Chief Psychiatrist's letter to Bayside dated 14 February 2004 which can be found at Exhibit B, Attachment L, and which indicated some urgency about a response and indicating that the report was to be provided to the Coroner. The report was finalised too late for that, and was ultimately not provided to the Coroner.

133 Mr Rosen is concerned and frustrated that no recommendation for prosecution for breaches of the Mental Health Act was made either by the Chief Psychiatrist or the Department's Director of Mental Health. Without expressing any view as to whether any offences might have been committed, ultimately, none were possible because of the effluxion of time.

134 Whilst all of those matters are of legitimate concern to Mr Rosen, there is nothing in the exempt material that would enlighten Mr Rosen about why the Chief Psychiatrist did not put forward any material suggesting or recommending that matters be referred for prosecution. Release could not clear the air or assist in Mr Rosen's understanding of why there was no recommendation or provide more or better evidence for or against prosecution. Nor would release show whether or not the Chief Psychiatrist has properly discharged his functions.

135 Given those conclusions, Mr Rosen's concern about the focus of the Chief Psychiatrist's investigation and report, cannot be a reason justifying the release of the material under s 50(4).

136 I am not satisfied that the public interest requires its release.

137 For the above reasons, I affirm the decision of the respondent.

[1] See s 53 of the Freedom of Information Act 1982

[2] see Page and Metropolitan Transit Authority (1988) 2 VAR 243; Ryder v Booth [1985] VicRp 86; [1985] VR 869; Department of Agriculture v Binnie [1989] VicRp 73; [1989] VR 836; Re Herald & Weekly times and

Victorian Curriculum & Assessment Authority [2004] VCAT 924; (2004) 21 VAR 68; Medical Practitioners Board of Victoria v Sifredi (2000) VAR 347.

[3] see for example Re Gunawen and Department of Education (unreported) VCAT Davis SM 15 December 1998; Re Thomas and Department of Natural Resources & Environment [2002] VCAT 533

[4] see paragraph 15 of these reasons. One other person merely indicated support for the Department's decision.

[5] See Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

[6] Re Just and Department of Justice (1996) 10 VAR 126