Vafa v Northern Sydney Local Health District [2020] NSWCATAD 44 | Case summary

NCAT Administrative and Equal Opportunity|2019-12-16

The applicant's evidence

Mr Vafa provided a statement which deposed that following an operation on his right wrist on 6 March 2013, he began experiencing sharp shooting pain in the middle bone of his left ring finger with "painful trigger finger symptoms". He said that he received injections for pain relief on a number of occasions after the surgery. Mr Vafa maintains that he received laser surgery on his hand after the operation which he underwent on 6 March 2013.
The evidence showed that Mr Vafa complained to the Health Care Complaints Commission (HCCC) on 24 September 2015 concerning the treatment of his wrist. He states that the letter to the HCCC from the Director Clinical Governance dated 23 November 2015 which responded to that complaint, referred erroneously to his surgery taking place on 16 November or 16 March 2016 rather than 6 March 2013 and he suggested that this was part of an attempt by the respondent to cover up what they had done concerning the laser surgery.
The letter stated: "… at no time did Dr Beard or any of the surgical staff at Royal North Shore Hospital use laser treatment during this procedure. The theatre in which the surgery was performed does have a sign which reads 'Laser in Use', which is displayed when laser procedures are being performed to provide precaution to those entering. This sign was not displayed during Mr Vafa's procedure on 16 March 2016 and the laser was not active at any stage during Mr Vafa's surgery."
The HCCC stated in its letter to Mr Vafa on 14 December 2018 that it was unable to find any evidence that there were laser procedures performed on him in 2013. The letter noted that it had reviewed his complaint twice, consulted the Medical Council of NSW and reviewed the medical records.
Mr Vafa referred to the observations chart for 6 March after his surgery which shows that he experienced pain between the times of 14:15 and 15:15, while his surgery was recorded as finishing at 13:55. His pain score was recorded as measuring 7 at 14:15 and decreasing to 2 at 15:15. He was discharged at 15:21. He submitted that this showed that he received some treatment on his hand after the surgery which caused the pain he experienced later.

The respondent's evidence

Ms Carol Parker is the Corporate Records Manager for the respondent. She requested that searches be undertaken for the relevant CCTV and Mr Vafa's full medical record. She was informed by the Security Manager of the Royal North Shore Hospital that CCTV footage is only regained for 28 days and thus it was no longer held. She received a full copy of Mr Vafa's medical record and did not find in that record any report following his operation or any mention of laser treatment being applied to Mr Vafa while he was a patient at the hospital. She was not aware of any other information system within the Local Health District which would hold the information sought.
Ms Parker submitted that the Observations sheet referred to by Mr Vafa recorded the pain he was experiencing as he woke up after the surgery on his wrist and did not indicate that he received laser treatment.
She agreed that the letter to the HCCC contained errors in relation to the date of the surgery but it was correct in stating that he did not receive any laser treatment.

Consideration

I have considered the matters raised by the applicant and respondent. Based on the available evidence, I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency. There is no evidence to suggest that laser treatment occurred. The evidence that he suffered pain after recovering from surgery can be explained as the effects of the earlier surgery. It does not establish that he underwent laser treatment. There is nothing else to suggest that there should be a report following his surgery apart from what has already been provided as part of his medical record.
As I am not satisfied that there are reasonable grounds to believe that the information exists and is held by the respondent it is not necessary to consider the adequacy of the searches.
The decision under review should be affirmed.

Order 1. The decision under review is affirmed.

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: 07 February 2020

Issues to be determined

The issue is whether the respondent's decision that it does not hold the information is the correct and preferable decision.
Where the Tribunal is reviewing a decision that an agency does not hold information, it should consider: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of the case. (Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.)
The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at [33]-[34]).

Vafa v Northern Sydney Local Health District

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