Tomasevic v Cheung (General) [2006] VCAT 2292

1 The Tribunal finds that the applicant's complaint is not proven and it is therefore dismissed.

2 Senior Constable Sinclair is entitled to be paid witness expenses of $385.00 which must be paid by the applicant.

1 In 1999 Mr Tomasevic was a full time member of the Victorian Teaching Service and the Manager of the Knowledge and Learning area at Deer Park Secondary College. Mr Don Brown was the Acting Principal in the absence of the permanent principal Mr Bert Van Halen. Mr Tomasevic felt overburdened by his managerial responsibilities and of other miscellaneous responsibilities which had been placed on his shoulders. He was suffering from clinical depression. The stress upon him was increased, he said, by a fellow teacher who is a friend of his confessing to him that he had misappropriated school property to use in the course of his business.

2 From there, events in Mr Tomasevic's life have spiralled downwards leaving his career in ruins. He says he is the victim of adverse administrative action initiated by the Principal Mr Van Halen when he refused the Principal's request to engage in a sexual liaison with a third person. He was suspended from teaching. He was required to undergo a psychiatric assessment by Dr Nigel Strauss whom he believes labelled him as psychotic and suffering from schizophrenia. Mr Tomasevic was prosecuted in the Magistrates' Court for allegedly threatening the lives of a number of people. Most of the charges were dismissed but one, an alleged threat or threats to the life of Mr Don Brown, the Deputy Principal and some time Acting Principal, was found proven by the Magistrate and Mr Tomasevic was placed on a good behaviour bond. There were then proceedings seeking intervention orders against Mr Tomasevic, inter alia, by Mr Brown which culminated in 2003 in a settlement whereby Mr Brown accepted private undertakings leaving the proceedings in court to be terminated.

3 Mr Tomasevic sought redress by way of proceedings in this Tribunal in its Anti Discrimination List. He says, however, that his depression was so severe that he was unable to prosecute his claim and so it was struck out. When his condition had improved, he secured a reinstatement of the proceeding but it was ultimately summarily dismissed by the Tribunal and attempts to have that summary dismissal reversed through the appeal process were unsuccessful.

4 Mr Tomasevic was removed from the teaching service following a hearing conducted under s 45 of the Teaching Service Act 1981. Proceedings have been threatened to have his registration as a teacher with the Victorian Institute of Teaching cancelled.

5 Nevertheless, Mr Tomasevic said that his psychiatric condition had substantially improved under treatment from the respondent in this proceeding, Dr Cheung.

6 In the second half of 2005 Dr Cheung found that Mr Tomasevic was presenting at his monthly therapy sessions as "quite settled". Nevertheless, Mr Brown alleges that on a number of occasions in 2005 and once at the very beginning of this year, Mr Tomasevic made telephone contact with him speaking in a threatening manner in contravention of the private undertakings given in 2003.

7 On 10 January 2006 Mr Brown rang the Sunshine Crime Investigation Unit of the Victoria Police and spoke to Senior Constable Melinda Sinclair (then known as Hiatt). The Senior Constable's regular assignment was to the Footscray Sexual Offences and Child Abuse Unit. She was in January of this year in the course of a 3 month secondment to the Crime Investigation Unit. According to Ms Sinclair, he complained to her that Mr Tomasevic had been contacting him and arranged for an interview with Ms Sinclair. Ms Sinclair said that Mr Brown brought a two page set of notes describing the incidents of which he was complaining. He was reluctant and unwilling to initiate a criminal prosecution. According to Ms Sinclair, Mr Brown said he was keen to avoid any confrontation with Mr Tomasevic.

8 The Senior Constable says she discussed a number of options with Mr Brown one of which was that he should make application to the Magistrates' Court of Victoria at Sunshine for an intervention order under the Magistrates' Court Crimes (Family Violence) Act 1987 as an alternative to a criminal prosecution. She told Mr Brown that he was able to change his mind later and seek to bring criminal proceedings.

9 Ms Sinclair said that having read the notes prepared by Mr Brown she feared that Mr Tomasevic might be a danger to Mr Brown or to himself. She suggested that she might contact Mr Tomasevic's treating psychiatrist, Dr Cheung.

10 She said that she consulted the internet at one or more telephone numbers for the doctor and left messages on those numbers. She received a call on 14 January which was a Saturday. According to her diary note she

Advised same [Dr Cheung] of current scenario. He advised he had been seeing Tomasevic monthly however had not seen him for a couple of months. Could not provide date last seen. Stated Tomasevic had been presenting as quite settled, is being prescribed anti-depressants. Faxed a copy of (V)'s notes due to concerns this was an indicator of delusions and/or psychosis. Dr Cheung to examine the notes of the conversation to look for evidence of same to deal with appropriately. Warringal Medical Centre fax 9459 6166.

11 She said she then transmitted three sheets by facsimile, the first of which was a cover sheet stating -

Notes of phone calls received. Please do not show Milan that you have these notes in the instance. I need to conduct an investigation into these threats.

12 Ms Sinclair was unclear as to whose initiative it was to fax the notes to the doctor's clinic. Dr Cheung said it was he who requested that the notes be transmitted to him.

13 Meanwhile Mr Brown filed his application in the Magistrates' Court at Sunshine on 18 January. This resulted in an interim order or a "show cause" being made with the matter stood over for a hearing on 30 January 2006. A final intervention order was made against Mr Tomasevic on that day. He said he was absent from the court due to a misunderstanding.

14 On 20 February Dr Cheung rang Ms Sinclair. According to her diary note the Dr -

stated he saw same [Mr Tomasevic] on 27/1 - showed IVO papers [ie the order or notice issued by the court on 18 January] - strongly denying allegations. Also saw again 17/2 - still denying alleg. Dr Cheung mentioned my name - Tomasevic stated wanting to sue etc. Advised Dr Cheung nil investigation.

15 Dr Cheung's record shows that the consultation said to have occurred on 27 January occurred on 25 January, though nothing seems to turn on this point. Prior to this consultation he said whilst Mr Tomasevic was on a regime of monthly consultations he had failed to attend his scheduled appointment in November and had cancelled his consultation in December 2005.

16 At the February consultation, Dr Cheung said that he "wanted an open and honest discussion" about the allegations made by Mr Brown. He began reading from the document sent to him by Ms Sinclair. He said he did this because he believed that since an intervention order had already been made the matter was concluded and no obligation of confidentiality persisted despite the terms of the facsimile cover sheet.

17 Mr Tomasevic asked to see the paper and the doctor handed it to him. At this stage Mr Tomasevic would have been at liberty to take his time and read every word. However, he said that this document was different from the material placed before the Magistrates' Court. For that reason after a brief glance he handed it back to the doctor. Later he asked for a copy. The doctor was initially willing but became progressively uneasy and ultimately said that he should seek the permission of Ms Sinclair before releasing a copy to Mr Tomasevic.

18 Subsequently he took legal advice from the Australian Medical Association and was informed that by virtue of the provisions of the Health Records Act 2001, he was precluded from releasing the document to Mr Tomasevic without the permission of Ms Sinclair. That permission has never been forthcoming and in the course of lengthy evidence before the Tribunal, she reiterated her objection to the release of the document.

19 Being refused access to this document, Mr Tomasevic lodged a complaint with the Health Services Commissioner. The complaint dated 3 April 2006 in answer to the question "What do you hope to gain from lodging this complaint? What outcome are you seeking?" stated :

To be provided with the health info (inaccurate, misleading and not up to date) Dr Cheung collected on or about January 2006 from Police on behalf of my ex-principal in 1999 without my consent.

The Commissioner declined to entertain the complaint and referred it to the Tribunal pursuant to s 51(6) of the Health Records Act 2001.

20 Section 45 of the Health Records Act 2001 enables a person to complain to the Health Services Commission "about an act or practice that may be an interference with the privacy of the individual". Section 51 of the Act entitles the Commissioner to decline to entertain complaints in a number of circumstances. Where the Commissioner so declines sub-sections (5) and (6) entitle a complainant to require the Commissioner to refer the complaint to the Tribunal.

21 Section 74 of the Act gives the Tribunal jurisdiction to hear a complaint referred to it by the Commissioner under s 51 and s 78 lays down a variety of orders which the Tribunal may make in the course of determining the proceeding referred to it.

22 Dr Cheung, both in his evidence and through his counsel Mr Harper, stated that he had no private or personal interest in withholding the notes made by Mr Brown from Mr Tomasevic. He said his advice was that he was obliged to do so by s 27 of the Health Records Act 2001. Since that section is central to the present proceeding, I will set it out in full :

27. No access to health information where information given in confidence

(1) Subject to sub-section (3), an organisation must not give an individual access under this Act to his or her health information if the health information is subject to confidentiality within the meaning of this section.

(2) Health information relating to an individual is subject to confidentiality to the extent that it is given in confidence to the person who recorded the health information by a person other than -

(b) a health service provider in the course of, or otherwise in relation to, the provision of health services to the individual -

with a request that the information not be communicated to the individual to whom it relates.

(3) A person who gives health information in confidence may consent to the information being communicated to the individual to whom it relates.

23 Mr Harper on behalf of Dr Cheung submitted that s 27 constituted a mandatory prohibition upon the doctor's release of the document while Ms Sinclair maintained her refusal to consent. First, he contended that the section applied to Dr Cheung even although in its terms it constituted a prohibition upon "an organisation". The definition of "organisation" appears in s 3 as follows -

"organisation" means a person or body that is an organisation to which this Act applies by force of Division 1 or 2 of Part 2;

24 Part 2 of the Act which deals with the application of the statute deals in Division 1 with its application to "public sector organisations" and in Division 2 to its application to "private sector organisations". Section 11 (1) which is found in Division 2 of Part 2 states, inter alia :

25 The definition of "health service provider" in s 3 is as follows :

"health service provider" means an organisation that provides a health service in Victoria to the extent that it provides such a service but does not include a health service provider, or a class of health service provider, that is prescribed as an exempt health service provider for the purposes of this Act generally or for the purposes of specified provisions of this Act or to the extent that it is prescribed as an exempt health service provider;

It will be seen that this definition itself makes use of the word "organisation".

26 For the reasons already given, the definition of "health service provider" is part of the definition of "organisation". It is to say the least unsatisfactory that a definition should make use of the word which is to be defined. Nevertheless, it is clear from s 11(1) that the concept of "organisation" extends to a natural person such as Dr Cheung. Once that is accepted, it is clear that Dr Cheung is a health service provider and hence is an organisation for the purposes of s 27.

27 According to Mr Harper, the notes prepared by Mr Brown in the circumstances fell within the definition of "health information". That definition from s 3 states, inter alia :

(i) the physical, mental or psychological health (at any time) of an individual; or

(ii) a disability (at any time) of an individual; or

(iii) an individual's expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual -

(b) other personal information collected to provide, or in providing, a health service; or

28 According to Mr Harper whilst there were other parts of the definition of "health information" which might be relevant, the notes prepared by Mr Brown clearly fell within the definition of "personal information", the definition of which is as follows :

"personal information" means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information about an individual who has been dead for more than 30 years;

29 The notes insofar as they purported to describe the activities of Mr Tomasevic, were clearly information or an opinion, whether true or not, about an individual whose identity was apparent. This personal information would be said to be health information if in accordance with sub-paragraph (b) of the definition it was "collected to provide, or in providing, a health service". He did not take me to the definition of "health service" but implicitly submitted that the treatment given by Dr Cheung to Mr Tomasevic constituted such a health service. A reference to the lengthy definition in s 3 which I will not burden these reasons by setting out in full bears out that view.

30 Mr Harper contended that the evidence showed that the document had been communicated to the doctor in confidence. He referred to the judgment of McInerney J in Mense and Ampere Electrical Manufacturing Co Pty Ltd v Milenkovic [1973] VicRp 78; [1973] VR 784, 801 - a case dealing with trade secret - where his Honour observed :

The question whether the information was supplied in such circumstances as to give rise to an obligation of confidence on the part of the defendants is obviously bound up with the question whether the information supplied or acquired (as the case may be) was 'confidential information' or 'a trade secret'. Nevertheless the two questions are distinct. Circumstances can be envisaged in which confidential information is imparted or acquired in such a way as to make it clear that no obligation of confidence is expected to arise. On the other hand, if the information is not of a confidential nature and does not constitute a trade secret, but, on the contrary, is a matter of public knowledge, indeed, of public notoriety, then it would seem clear that no amount of 'swearing to secrecy' can impose an obligation of confidence, or if it does, that an injunction will not go to restrain a breach of that obligation.

31 He also relied upon the decision of Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 where, according to the head note, his Lordship held that it was necessary to establish for a successful proceeding for breach of confidence, inter alia, that the information "was communicated in circumstances importing an obligation of confidence". The evidence said Mr Harper established that these tests had been met. Hence, he said, Dr Cheung was under a mandatory prohibition from disclosing Mr Brown's notes and no complaint should be sustained against Dr Cheung.

32 Mr Tomasevic submitted that Dr Cheung could not be regarded as an "organisation"; he was a single practitioner in private practice. Further, he said that there was no evidence that Ms Sinclair had communicated the information to Dr Cheung in confidence. Whilst she said in viva voce evidence that she had conveyed in the telephone call the same demand for confidentiality that appeared in the facsimile face sheet, this was not mentioned in her diary note and was not mentioned as part of the conversation described by Dr Cheung. Moreover, he said the words of the facsimile were not sufficient to show that the information was communicated in confidence. In cross-examination, he asked Ms Sinclair how it was that she could be purporting to communicate confidentially with the doctor without having asked for the suppression of her own identity. He was also highly critical of her taking the action that she did without reference to her superior officers. Ms Sinclair conceded that she acted entirely upon her own initiative and without direction or opinion from any superior.

33 Mr Tomasevic also sought to canvass many of the issues that have led to the various adverse adjudications to which he has been subject in the years since 1999. I ruled these various matters irrelevant based upon my perception of the relatively narrow issues that arose under the Health Records Act for determination in this proceeding. Mr Tomasevic said that his ultimate objective with regard to these records was to obtain their correction. He referred to and relied upon clauses 6.5 and 6.9 of the Health Privacy Principles appearing as Schedule 1 to the Health Records Act 2001. Section 18 of the Act provides that for the purposes of the statute :

an act or practice of an organisation is an interference with the privacy of an individual if, and only if -

(a) the act or practice breaches Part 5 or a Health Privacy Principle in relation to health information that relates to the individual; or

6.5 If an organisation holds health information about an individual and the individual is able to establish that the information is inaccurate, incomplete, misleading or not up to date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up to date but must not delete the information otherwise than in accordance with HPP 4.2.

6.9 If an individual requests an organisation to correct health information about the individual, the organisation must take reasonable steps to notify the individual of a decision on the request as soon as practicable but in any case not later than 30 days after the request is received by the organisation.

35 He drew my attention to a letter which he wrote to an officer of the Health Services Commissioner dated 3 April 2006 which concluded :

This collected information should be corrected wholly pending this act. I respectfully request access to this info in regard to appropriate action to be taken for the correction.

By this letter he said he had invoked these health privacy principles.

36 I substantially accept the submissions put by Mr Harper. As the definitions which are recited above show, albeit inelegantly, Dr Cheung is to be regarded for the purposes of the statute as an "organisation". The notes prepared by Mr Brown, even although they are regarded by Mr Tomasevic as being false to the extent that he can gather what they state, clearly fall within the definition of "personal information". This personal information clearly was not brought into existence for any purpose related to the health care system. Mr Brown seems to have brought it into existence for law enforcement purposes. However, for the purposes of the application of the definition of what is "health information" paragraph (b), I am concerned with the purpose for which the information was "collected". It was "collected" by Dr Cheung when it was transmitted to his clinic and received by him and placed amongst the records he kept relative to Mr Tomasevic. His evidence was that he requested that the notes be transmitted to him because he said what they were alleged to contain was inconsistent with the observations he had made of Mr Tomasevic in recent consultations. He collected this material therefore to enable him to provide a health service mainly "to assess, maintain or improve the individual's [ie Mr Tomasevic's] health" (para (a)(i) of the definition of "health service").

37 Sub-section (2) of s 27 quoted above appears to be in the nature of a definition, defining or describing when health information relating to an individual is subject to confidentiality. Once again, it falls into the vice of using the word or a derivative of the word or phrase to be defined in the definition stating that information is "subject to confidentiality" "to the extent that it is given in confidence ...". Certainly, Ms Sinclair included "a request that the information not be communicated to the individual to whom it relates". The words in the facsimile cover sheet are as clear and direct to a request to that effect as is possible. It remains however to make out the requirements of sub-section (2) to indicate in addition that the information was "given in confidence" appearing to indicate some additional and separate requirement. More likely, I think the later part of the section is merely an elaboration of the concept of what information is given in confidence. There have been a large number of proceedings in this Tribunal dealing with the application of the exemption under s 35(1)(b) of the Freedom of Information Act 1982 which exemption requires for its application, inter alia, that the document in question include "information or matter communicated in confidence". In Thwaites v Department of Community Services (1995) 8 VAR 31, 366, I reviewed the decisions made to that date concluding that a communication in confidence may be established based upon "the understanding of a party communicating in the circumstances surrounding the communication or the very nature of the information" (see Kyrou Victoria Administrative Law [2364] [update 95]).

38 In the present circumstances, the material in question was being provided to a medical practitioner who was giving psychiatric treatment to the subject. There was clearly an element of delicacy involved in an attempt to approach and defuse a potentially dangerous situation as Ms Sinclair said she saw it by an approach to the treating practitioner rather than the subject himself. Those considerations together with the terms of the facsimile cover sheet, in my view, make out the contention that the information contained in Mr Brown's notes was communicated to Dr Cheung in confidence. Hence, I agree with the contention put by Mr Harper that Dr Cheung is under a mandatory prohibition not to disclose this information.

39 Nor, in my view, can Mr Tomasevic place any reliance upon health privacy principles 6.5 and 6.9. First, as I have sought to describe the Tribunal's jurisdiction is entirely derivative. It can only deal with the complaint referred to it by the Commissioner. I have quoted from the terms of the complaint and it is an application for access not for correction. I do not believe that the terms of the complaint can be changed by the applicant's letter unless the Commissioner effected a formal amendment to the complaint. Even if I were wrong in this, in the circumstances there is no means whereby Mr Tomasevic could effectively invoke the provisions of the two paragraphs. The necessary requirement is that "the individual", that is Mr Tomasevic, "is able to establish that the information is inaccurate, incomplete, misleading or not up to date ...". Since s 27 of the statute in the circumstances prohibits him from gaining access to the document, he is precluded from proving the inaccuracy of the material. It is, as Mr Tomasevic himself rightly observed, the problem of the chicken and the egg.

40 One can readily sympathise with Mr Tomasevic's situation. He believes that his career has been destroyed and his life has been blighted by the actions of Mr Brown. Now information from that source has, as he sees it, compromised his therapeutic relationship with his former treating practitioner. Dr Cheung told me that he no longer treats Mr Tomasevic. He says he discharged him as patient not because of the material given to him by Ms Sinclair but rather because he felt unable to take up the partisan position in various litigious matters which he believed Mr Tomasevic wanted him to do. At any rate, it is understandable enough that Mr Tomasevic would regard these matters as having played a role in the breakdown of his relationship with a practitioner, whom he described as his "angel".

41 Nevertheless, s 27 is clear and mandatory. There appear to be no provisos to it such as the doctrine of waiver which may see access granted to otherwise privileged material or the "public interest override" which exists in the Freedom of Information Act.

42 There might be a question as to whether the refusal to produce a document as distinct from the release of a document could ever be an interference with privacy. As it is however, this point was not argued and I need not express any opinion upon it.

43 Senior Constable Sinclair attended and gave evidence upon a subpoena issued on the application of Mr Tomasevic. Her evidence occupied the whole of the afternoon of the first day and the morning of the second day until after midday. Section 104(4) of the Victorian Civil and Administrative Tribunal Act 1998 which authorises the issue of subpoenas or witness summonses as the heading to the section describes them. It provides that a witness summonsed pursuant to the section "is entitled to be paid the prescribed fees and allowances or, if no fees and allowances are prescribed, the fees and allowances (if any) determined by the Tribunal". No fees and allowances had been prescribed. Hence, it is a matter for me to determine what fee if any, should be payable to Ms Sinclair. She told me that she was "on overtime" when she gave evidence on the second day. I assume therefore that she gave evidence in the course of periods when she was rostered "on duty" by the Victoria Police so that any fees awarded to her would be accounted for to the Crown.

44 Mr Tomasevic submitted that no fees should be awarded because Ms Sinclair was merely doing her job as a police officer.

45 Whatever merit there might be in that submission where a police officer is summonsed to give evidence in the course of a police prosecution, it cannot be accepted here. These proceedings are purely civil and the police are not parties to them. These are Mr Tomasevic's proceedings not Ms Sinclair's. Sub-section (4) of s 104 says a person subpoenaed to the Tribunal "is entitled to be paid" (my emphasis). It does not seem to me to be a matter of discretion for me. Ms Sinclair quoted a "charge out" rate which had been officially adopted by the Victoria Police of $70 per hour. On the calculations made immediately prior to her leaving the box, this works out at $385.