The Applicant seeks a finding of defamation for the multiple defamous imputations contained within the online publication of her medical records as published to the internet.
[2]
In addition to an apology and an order that the Respondent will not records to anyone or publish or have them published in any form every again. In further addition to the deletion of any content from the medical record that is found to be older than seven years or wrong. [sic]
[3]
HPP 6.5 was not a subject of the referred complaint and defamation is beyond the Tribunal's jurisdiction.
On 20 April 2015 the complainant filed "better particulars of defamation" including assertions of wrongful diagnosis. The further particulars relate to wrongful diagnosis and "correction in relation medical breach" (sic), side effects of medication along with claims of "negligent wrongs and misinformation".
It is true that HPP 6.5 provides that a person may claim that a health service provider holds incorrect information about the person and that the information can be corrected if the person is able to establish that it is incorrect. Nevertheless, such a complaint was not, and is not capable of, being referred to the Tribunal until the HSC determines that, after investigation and conciliation, it will take no further action. These matters were not the subject of the referral to the Tribunal and as a result, the further points filed under email dated 20April 2015 will be struck out.
That brings me to a consideration of the handwritten words ("And that it was untrue) added to the section 63(3) document and consequently included as part of the complainant's particulars of claim... I infer that the respondent has, as a matter of convenience, referred to this as clause 35 although the Tribunal notes that its filed copy does not include a clause 35, nor does exhibit EKD5 to Ms Dawes affidavit.
The Notice of Referral to the Tribunal under section 63(3) was prepared in accordance with the notice given to the complainant under section 63(1) of the Act. The notice under section 63(1) sets out the complaint which has been the subject of the Commissi0oners' investigation.
Section 63 of the Act governs the actions to be taken by the Commissioner if the Commissioner has attempted unsuccessfully to conciliate a complaint.
Section 63(1)(a) provides that the Commissioner may investigate further or take no further action with respect to the complaint, and then, under section 63(1)((b), is required to notify the complainant and respondent of the decision to investigate or not, as the case may be.
Section 63(2) required the Commissioner to advise the complainant that the complainant may require the Commissioner to refer the complaint to the Tribunal.
Section 63(3) provides that:
[4]
If the Health Services Commissioner proposes to take no further action in respect of a complaint, the complainant, by written notice to the Health Services Commissioner within 60 days after receiving the notice under subsection (1), may require the Health Services Commissioner to refer the complaint to the Tribunal for hearing.
[5]
The respondent's counsel submits, and I accept, that it is clear from the plain words of section 63 that the complaint referred to in each of the subsections remains "the complaint" about which the Commissioner has made a determination.
A complainant may only refer to the Tribunal "the complaint" as formulated by the Commissioner. The introduction of the handwritten words is not just some gloss on other matters already particularised, it is not a re-characterisation of facts already pleaded; it is an entirely new complaint that was not considered by the Commission (See Youd Homes). For that reason, it cannot be considered part of the complaint referred to the Tribunal. The words relating to the truth or otherwise of the neuropsychological report of Dr Hoskin, or relating to the complainant's health information should be struck out.
The result of my findings that only paragraphs 5, 15, 16, 17, 18, 19, 20, 21, 28, 29 and 32 remain for consideration by the Tribunal. The other particulars are struck out.
It will be necessary for me to make new directions in both this matter, and the Tang matter, dealing with the filing of witness statements. I will deal with those by way of orders made in chambers today.
The Tribunal's order concerning the respondent's strike out application is as follows:
[6]
Save for paragraphs 5, 15, 16, 17, 18, 19, 20, 21, 28, 29 and 32, the complainant's points of claim are struck out.