Whyte v Medical Council of NSW

NCAT Administrative and Equal Opportunity|2014-11-07

Introduction 1The applicant seeks review of a decision of the respondent, made under the Government Information (Public Access) Act 2009 (GIPA Act), refusing her access to the information for which she sought access under that Act. 2The information sought by the applicant was the written response of Dr N Hartnell to a formal complaint she had made about his treatment of her. That complaint was made on or about 3 April 2013, to the respondent and the Health Care Complaints Commission (HCCC). The complaint included a complaint against another two medical practitioners who had also treated the applicant. Following consultation between the respondent and the HCCC, responses were sought from the three medical practitioners. Each medical practitioner responded individually. On obtaining these responses, the respondent and the HCCC determined to discontinue the complaints against the other two medical practitioners and the applicant was provided with their respective responses to her complaint about them. 3On 8 July 2013, the HCCC determined that the applicant's complaint against Dr Hartnell was to be referred for direct resolution and that Dr Hartnell's response was not to be provided to the applicant in accordance with the disclosure policy of the HCCC. The respondent informed the applicant about the outcome of her complaint against Dr Hartnell, on 7 August 2013. The applicant was also informed that the HCCC had not authorised the release of Dr Hartnell's response to her complaint. After further requests for a copy of the response, on 24 February 2014, the applicant made her formal application for access to Dr Hartnell's response under the GIPA Act. 4As I have noted, the respondent refused to grant the applicant access to Dr Hartnell's response. The grounds relied on by the respondent in its determination was that there was a conclusive overriding public interest against disclosure of the information in Dr Hartnell's response (see ss 13 and 14(1) and cl 1(1) and 6 of Schedule 1 of the GIPA Act). In this application, the respondent has also contended that the applicant's access request was not a valid request by reason of subsection 43(2) of the GIPA Act. 5The applicant is pressing access to Dr Hartnell's response as she feels she cannot progress to resolve her complaint without first seeing what he said in response to her complaint. 6The applicant's application came before me at a planning meeting 29 April 2014. At the planning meeting I made orders for the filing and serving of evidence and submissions. I also made an order under subs 50(2) of the Civil and Administrative Tribunal Act 2013 that this application can be adequately determined on the papers in the absence of the parties. 7The parties have filed and served material in accordance with the orders that were made. The applicant has filed and served a number of documents and has commented on the material filed and served on the respondent. 8There is no dispute that the tribunal has jurisdiction to hear and determine this application (see section 30 of the Civil and Administrative Tribunal Act 2013, sections 7 and 9 of the Administrative Decisions Review Act 1997 and section 100 of the GIPA Act). 9I have now considered all the material filed by the parties and for the reasons set out below I have determined that the decision of the respondent should be affirmed as the information in Dr Hartnell's response falls within the subsection 14(1) GIPA Act conclusive presumption of an overriding public interest consideration against disclosure.

The GIPA Act 10The object of the GIPA Act is to give every member of the public an enforceable right to seek access to government information and only restrict access where there is an overriding public interest against disclosure (see sections 3, 5, 9 and 13 of the GIPA Act). 11The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. 12Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information, unless there is an 'overriding public interest against disclosure'. Subsection 9(1) gives every person seeking access under the Act a legally enforceable right to be provided with the information sought in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure of the information.' 13The test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. That section provides: 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. 14Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These are: Note. 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. 15The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subsection 14(1), provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to an overriding public interest consideration against disclosure. 16Subsection 14(2) contains a table of the prescribed public interest considerations against disclosure of government information. If one or more of these prescribed public interest considerations against disclosure apply to the information for which access is sought, the administrator must apply the section 13 public interest test and determine where the balance lies between the established public interest considerations against disclosure of the information and the public interest considerations in favour of its disclosure. Only, where on balance, it is determined that the public interest considerations against disclosure of the information outweighs the public interest considerations in favour of its disclosure can the agency refuse access to the information. 17As the respondent has not relied on any of the prescribed public interest considerations against disclosure in subsection 14(2) I have not considered these any further. 18Instead the respondent has relied on the conclusively presumed overriding public interest consideration against disclosure in subsection 14(1) of the GIPA Act. As I have mentioned these are set out in Schedule 1 of the GIPA Act, which relevantly provide as follows: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure (Section 14) 1 Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence: ... Health Care Complaints Act 1993 ... ... 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5. 19Overriding Secrecy Laws The relevant secrecy provision in the Health Care Complaints Act 1993 is section 99A, which provides: 99A Offence: improper disclosure of information (1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made: (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both. (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act. (3) Subsection (2) does not apply to the following proceedings: (a) proceedings under the Royal Commissions Act 1923, (b) proceedings before the Independent Commission Against Corruption, (c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983, (d) an inquiry under the Ombudsman Act 1974 20Section 99B of the Health Care Complaints Act 1993 sets out the circumstances in which a disclosure of information can be made: 99B Disclosure of information to certain persons or bodies (1) The Commission or a member of staff of the Commission may, at the Commission's discretion, disclose information obtained in exercising a function under this Act to any of the following: (a) the Minister, (b) any court, tribunal or other person acting judicially, (c) any person or body regulating health service providers in Australia, (d) any officer of, or Australian legal practitioner instructed by, any of the following: (i) any authority regulating health service providers in Australia, (ii) the Commonwealth or a State or Territory, (iii) an authority of the Commonwealth or of a State or Territory, (e) any investigative or prosecuting authority established by or under legislation, (f) a police officer if the Commission suspects on reasonable grounds that the information relates to an offence that may have been committed, (g) an investigator carrying out an investigation, examination or audit in relation to a health service provider, (h) a health service provider that is the subject of an investigation under this Act, (i) a client of a health service provider that has been the subject of an investigation under this Act, but only to the extent the information relates to that client. (2) The Commission may exercise its discretion under subsection (1) to disclose, or authorise a member of the Commission's staff to disclose, information only if: (a) the Commission considers the public interest in disclosing the information outweighs the public interest in protecting the confidentiality of the information and the privacy of any person to whom the information relates, and (b) the Commission has had due regard to the principle set out in section 3 (2). 21Excluded Information 'Excluded information' is defined in clause 1 of the Dictionary in Schedule 4 of the GIPA Act to mean information that relates to a function of an agency specified in Schedule 2 of the Act. The HCCC is an agency included in Schedule 2, which relevantly provides as follows: Schedule 2 Excluded information of particular agencies Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1 Judicial and prosecutorial information A court-judicial functions. The office of Director of Public Prosecutions-prosecuting functions. 2 Complaints handling and investigative information The office of Auditor-General-investigative, audit and reporting functions. The Independent Commission Against Corruption-corruption prevention, complaint handling, investigative and reporting functions. The office of Inspector of the Independent Commission Against Corruption-operational auditing, complaint handling, investigative and reporting functions. The Judicial Commission of New South Wales (including the Conduct Division)-complaint handling, investigative and reporting functions. The office of Ombudsman-complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). The office of Information Commissioner-review, complaint handling, investigative and reporting functions. The office of Legal Services Commissioner-complaint handling, investigative, review and reporting functions. The Health Care Complaints Commission-complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint). ... 22Subsection 43(1) of the GIPA Act provides that an access application cannot be made to an agency for access to 'excluded information' of that agency. Subsection 43(2) provides that an application for government information that is 'excluded information' is not a valid access application to the extent the application is made in contravention of subs 43(1). As I have noted, the respondent also relies on subsection 43(2) in that the applicant's application for access is not a valid application. 23The respondent has provided the tribunal with a copy of Dr Hartnell's report. That report was provided in confidence pursuant to section 107 of the GIPA Act. 24Subsection 105(1) of the GIPA Act places the burden of establishing that the decision the subject of review is justified on the respondent agency.

Consideration 25As I have noted the applicant argues that the information for which she seeks access is about her and should be disclosed to her. She also argues and that there is a public interest in individuals being provided with information that relates to them. 26While I can understand the applicant's concerns and the reasons why she seeks access to Dr Hartnell's response to her complaint, as I explained to her at the planning meeting, the tribunal's role is limited to determining whether the respondent's decision is justified, having regard to the relevant provisions of the GIPA Act and the relevant facts. 27In regard to the relevant facts, there is no question that Dr Hartnell's response was provided to the HCCC in the course of its complaint handling function under Part 2 of the Health Care Complaints Act 1993. Where a complaint is made to the HCCC, Division 2 of Part 2 of that Act requires the HCCC to liaise with the relevant health professional council in regard to how that complaint is to be dealt with and resolved. In this case the relevant health professional council was the respondent and on the material before the tribunal such consultation did occur in regard to the applicant's complaint about Dr Hartnell and the other two medical practitioners. 28Excluded information Having regard to the circumstances in which Dr Hartnell's response came into existence, I am satisfied that the information in that response is excluded information under clause 2 of Schedule 2 of the GIPA Act. That is, it is information that relates to the complaint handling function of the HCCC and had the applicant sought access to that information from the HCCC her access request would have been an invalid request by reasons of subsection 43(2) of the GIPA Act. 29The respondent contends that subsection 43(2) of the GIPA Act also applies to the applicant's access application that is the subject of this application. In this regard it argues that it is also a relevant agency for the purpose of clause 2 of Schedule 2 of the GIPA Act. I accept that the respondent is a co-regulator with the HCCC under the Health Care Complaints Act (see for example sections 4 and 20 of that Act). However, I do not accept that the relevant provision of clause 2 of Schedule 2 (i.e. the HCCC) of the GIPA Act can be construed to include the respondent as an agency for the purpose of that clause. The clause only refers to the HCCC as the applicable agency. However, the clause does make provision for any communications by the HCCC with the professional councils in regard to its complaint handling function etc. to be excluded information. As noted by the respondent, it is a professional council included in the meaning of this term in section 4 of the Health Care Complaints Act. But this does not make it an agency for the purpose of section 43 of the GIPA Act. For the reasons set out above, in my view on its proper construction clause 2 of Schedule 2 of the GIPA Act does not include the respondent or any other professional council established under the Health Practitioner Regulation National Law (NSW) No 86a and the Health Practitioner Regulation (Adoption of National Law) Act 2009. 30However, by reason of clause 6 of Schedule 1 of the GIPA Act there remains a conclusively presumed overriding public interest against the disclosure of Dr Hartnell's response, subject to the agency from whom the information is sought (in this case the respondent) asking the HCCC whether it consents to the agency disclosing the information. 31In this case the respondent did not approach the HCCC after it had received the applicant's GIPA request. However, the respondent has provided copies of correspondence it received from the applicant in August and September 2013 concerning earlier requests for access she had made to the HCCC and the respondent. The applicant initially requested access from the respondent in a letter dated 1 August 2013. In a letter dated 7 August 2013, the respondent informed the applicant that the HCCC had advised that Dr Hartnell did not authorise release of his response to the applicant. 32On 29 August 2013, the applicant again made a written request to the respondent for access to Dr Hartnell's response. In making that request the applicant also provided a copy of a letter she had received from the HCCC, dated 23 August 2013. In that letter the HCCC said: 'Since our conversation, I have spoken to Dr Hartnell and he confirms his decision that he does not want his written response released. The Commission seeks responses from health care providers to assist it to make assessment decisions. Providers may request that their responses be used only for the Commission's assessment and not released. The Commission honours these requests to facilitate providers providing full and frank accounts, rather than filtering their responses according to consents about legal liability. I believe it would be improper for me to release the response ... ... Unfortunately, I am unable to provide a copy of his written response to you. I am, however, able to discuss Dr Hartnell's response with you if that is something that you may consider.' 33The applicant has at all times stated that she needs to see the response in order to have a discussion about it. 34On 10 and 11 September 2013, the applicant made further requests to the respondent for a copy of Dr Hartnell's report. In her request of 11 September, the applicant said 'Do not pass this request to HCCC.' 35On 11 November 2013, the respondent wrote to the applicant advising her that her complaint had been closed as she had advised that she did not wish to be involved in the resolution process of her complaint. And on 18 February 2014, the applicant made the formal access application that is the subject of this application. 36In regard to the conclusively presumed overriding public interest against disclosure in clause 6 of Schedule 1 of the GIPA Act, the question is whether the respondent has satisfied the requirements of clause 6(2). In my view, given the response of the HCCC in its letter to the applicant on 23 August 2013, I am satisfied that the statutory requirement of clause 6(2) has been met. And on the basis of this finding, I find that there is a conclusively presumed overriding public interest consideration against disclosure. 37Overriding Secrecy Law As noted above, subsection 99A(1) of the Health Care Complaints Act applies to a 'person' who discloses 'information obtained in the exercise of a function' under that Act, unless one or more of the exceptions in para 99A(1)(a) to (d) applies. The word 'person' is not defined in the Health Care Complaints Act. The word 'person; is defined in subsection 21(1) of the Interpretation Act 1987 to include 'an individual, a corporation and a body corporate or politic'. Subsection 41B(3)(a) of Schedule 1 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 provides that the respondent is a body corporate. 38Accordingly, subsection 99A(1) of the Health Care Complaints Act applies to the respondent to the extent of any disclosure of information obtained in the exercise of a function under that Act. As I have noted above, the respondent obtained Dr Hartnell's response in the course of its consultation role under the Health Care Complaints Act when dealing with the applicant's complaint. As this was information obtained in its complaint handling role under that Act, I am satisfied that the overriding secrecy provision in the Health Care Complaints Act applies to the information in Dr Hartnell's report. On this basis I am also satisfied that the conclusively presumed overriding public interest against disclosure in clause 1(1) of Schedule 1 of the GIPA Act applies to the information in Dr Hartnell's response.

Conclusions and orders 39On the basis of my findings above, I am satisfied that the respondent has established that its decision to refuse the applicant access to Dr Hartnell's response to the applicant's complaint is justified on the grounds that there is a conclusively presumed overriding public interest consideration against disclosure of that response. 40As noted above, Parliament has excluded information of this kind from the operation of the GIPA Act. However, Parliament has provided a mechanism for disclosure of information of this kind under sections 99A and 99B of the Health Care Complaints Act. That mechanism makes provision for disclosure of information to 'a client of a health service provider' to the extent the information relates to that client. That disclosure is entirely within the discretion of the HCCC. It is not for the tribunal to comment on the HCCC's policy in regard to disclosures of this kind. However, it is noted that the HCCC has offered to discuss Dr Hartnell's response with the applicant. This would appear to involve some disclosure of that information. 41On the basis of my findings, the appropriate order is to affirm the decision of the respondent and on this basis I make the following order. ORDER: the decision of the respondent to refuse the applicant access to Dr Hartnell's response 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 November 2014

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