AET v Western NSW Local Health District AET v Rural and Remote Medical Services t/as Gulgong Medical Centre

[2012] NSWADT 77

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AET v Western NSW Local Health District AET v Rural and Remote Medical Services t/as Gulgong Medical Centre [2012] NSWADT 77
Hearing dates:	13 February 2012
Decision date:	27 April 2012
Jurisdiction:	General Division
Before:	N Isenberg, Judicial member
Decision:	The application is dismissed.
Legislation Cited:	Health Records and Information Privacy Act 2002 Health Services Act 1997
Cases Cited:	Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192 WH v Internal Audit Bureau of NSW [2011] NSWADT 237 GE & Anor v Macquarie University [2008] NSWADT 144 ZR v Department of Education and Training [2010] NSWADTAP 74 CS v Anna Biedrzycka[2011] NSWSC 1213
Category:	Principal judgment
Parties:	AET (Applicant) Western NSW Local Health District (First Respondent) Rural and Remote Medical Services t/as Gulgong Medical Centre (Second Respondent)
Representation:	Counsel C Jackson (Second Respondent) AET (Applicant in person) Crown Solicitors (First Respondent) Moray & Agnew (Second Respondent) Privacy Commissioner
File Number(s):	113322, 113219

reasons for decision

Background to the application

1. Because the background relates to the applicant's dealings with both respondents it was convenient to have both matters heard together.

1. Gulgong Health Service Emergency Department (the Gulgong ED) is part of the Western NSW Local Health District, the respondent in the first matter (the first respondent). Rural and Remote Medical Services, the respondent in the second matter (the second respondent) is a not for profit charity which provides practice management support in rural areas. It operates the Gulgong Medical Centre (the Medical Centre).

1. On 19 April 2011 the applicant contacted the Gulgong ED seeking medical assistance. She was referred to the Medical Centre where she was offered an appointment which she declined as she intended to see a doctor in Mudgee the following day. On a subsequent visit to the Gulgong ED on 26 April 2011 a nurse commented that a member of the Medical Centre staff had advised that the applicant had not kept an appointment there the previous week.

1. On the same occasion the applicant saw Dr Alseneid, one of two on-call doctors at Gulgong ED. He referred her for a CT scan, which was undertaken at Mudgee Radiology. The results were subsequently sent to Dr Alseneid at the Medical Centre, where he practised privately, rather than to him at the Gulgong ED. A file was created for the applicant at the Medical Centre into which the report was placed. The report was reviewed by another doctor at the Medical Centre, Dr Nicholson as Dr Alseneid was absent.

1. When the applicant became aware that a file had been created for her at the Medical Centre she requested the first respondent to review the conduct surrounding the provision of the CT scan to the Medical Centre. She alleges that a representative of the first respondent then contacted the Medical Centre, and was permitted to access the applicant's file.

Scope of the applicant's complaint

1. The applicant claims that her privacy was breached on the basis that her medical information was disclosed to another party without her consent and her personal medical details were incorrectly recorded.

1. When the Privacy Commissioner conducted an investigation 5 allegations were identified as the basis of the applicant's complaint, namely:

• As the Medical Centre did not provide medical services to the applicant, it should delete the file in accordance with her request.
• Robyn Evans of the Medical Centre wrongly disclosed to Joy Adams, of the first respondent, the contents of the applicant's file by allowing her to view it on 31 May 2011.
• The Medical Centre advised the applicant that a file had been created for her as she had been seen by Dr Nicholson when she had actually not been seen by Dr Nicholson.
• Someone at the Medical Centre had discussed the applicant's personal information with the Gulgong ED, advising them that she had not kept the appointment apparently scheduled for 19 April 2011.
• The Medical Centre should have forwarded her CT scan results to Dr Alseneid, and Dr Nicholson should not have viewed the CT scan results in his absence.

1. As far as I could ascertain from the applicant's submissions, these continue to represent the nub of her complaint. In my view the issues can be further distilled:

• Issue 1: the CT scan and the file at the Medical Centre
• Issue 2: discussion about failure to keep an appointment
• Issue 3: disclosure of the contents of the Medical Centre file

Law

1. The Health Records and Information Privacy Act 2002 (the Health Privacy Act) regulates the use of health information by government agencies, through the adoption of 15 health privacy principles (HPPs). These relate to the collection, storage, accuracy, use, disclosure of, and access to health information. Every organisation that is a health service provider or collects, holds or uses health information is required to comply with the HPPs: s. 11.

1. The Tribunal has jurisdiction only to consider the conduct of the respondents which may involve a contravention of an information protection principle or health privacy principle or code of practice: s55(1) Privacy and Personal Information Protection Act 1998. The applicant, in the course of the proceedings and in the material she filed in support of her claim raised issues relating to her medical care and treatment by staff in addition to conduct which she claimed breached the Health Privacy Act. These matters which the applicant raises do not amount to a contravention of an information protection principle or health privacy principle, and are outside the Tribunal's jurisdiction.

The evidence

1. The applicant gave evidence which broadly was in accordance with the background noted above. Her ex-husband also gave evidence about her attendance at the Gulgong ED.

1. Dr Alseneid provided 2 statements and gave evidence. He is a general practitioner with rooms at the Medical Centre and at Walgett, and alternates his practice fortnightly. He is also appointed as a visiting medical officer (VMO) under a service contract under Health Services Act 1997 with the first respondent to provide on call services to the Gulgong ED. If follow up is required he sees the patient at the Medical Centre and never at the Gulgong ED. Because the Gulgong ED is not regularly staffed by doctors, if test results are sent to the Gulgong ED they would have to be forwarded to the doctor and there could be delay. Therefore, his usual practice is to have all results sent to him at the Medical Centre. There, results are held electronically until they can be reviewed by a doctor and are then transferred to the patient's file. If a referring doctor is not available another doctor will look at the results to make sure no urgent treatment or action is required. If no immediate action is required the doctor will receive the results in consultation, which is in accordance with the Royal Australian College of General Practitioners' standards for general practice, a copy of which was provided.

1. Dr Alseneid's evidence was that he saw the applicant at the Gulgong ED in his capacity as the on call doctor. In accordance with his practice, when he referred the applicant for a CT scan, he had the radiologist electronically send the CT scan results to him at the Medical Centre. He said he told the applicant the follow up would occur at the Medical Centre and he did not recall that she made any objection to this. In his evidence he said that if a patient does not want test results to go to a GP that it is noted on the file. If a patient indicated that wanted the results sent elsewhere that can be recorded also.

1. Ms Weir, the Director of Operations, Western NSW Local Health District provided a statement and gave evidence. She noted that the Gulgong ED is a "walk-in" service with nursing staff on site to assess and treat patients. An on call doctor, a VMO attends as necessary. She recorded that it is the practice that test results go to the referring doctor and not the patient because the patient would not necessarily understand the results, or could misinterpret them. She gave evidence that a referring doctor has responsibility to review the tests results and follow-up if there is an adverse result. If the referring doctor is not available, the doctor should make arrangements for test results to be checked by another doctor. As to how this is managed and whether this entails creating a file for the patient at the referring doctor's practice, she said this is a matter for each practice.

1. Ms Lane, the Privacy Contact Officer for Western New South Wales Local Health District who conducted the internal review, provided a statement gave evidence. She wrote in her statement that when conducting the review she interviewed the nurse manager, Ms Wood about the applicant's complaint about an appointment she supposedly missed. She said that Ms Wood had told her that no call had been received at the Gulgong ED from the Medical Centre about the applicant. Ms Wood did say though that the Gulgong ED might give the Medical Centre a 'heads up' that a patient might be coming in.

1. Ms Lane also gave evidence that she had spoken with Ms Adams as to whether she had inspected the applicant's file at the Medical Centre, and had been informed that she did not.

1. Ms Evans, the practice manager of the Medical Centre, gave evidence that on 31 May 2011 she received a phone call from Ms Adams, the Director of Nursing enquiring, as a result of the applicant's complaint, how the applicant's CT scan results had ended up at the Medical Centre. Ms Adams did not attend the Medical Centre nor did she inspect the applicant's file. The applicant contended though that Ms Adams had informed her that she had attended the Medical Centre and inspected the applicant's 'file' which consisted only of the CT scan results.

1. Ms Evans also gave evidence that it is standard practice that if a referring doctor is absent other doctors will review will incoming test results. It was regarded as a vital safeguard to ensure that important results are not missed the diagnoses delayed due to doctors' absences.

1. As to whether she or someone at the Medical Centre had told staff at Gulgong ED that the applicant had failed to keep an appointment, she said she was aware that on Tuesday, 19 April 2011 the applicant telephoned the Medical Centre and was offered an appointment at 4:45 PM with a doctor for follow-up after presenting at Mudgee Hospital the previous weekend. She did not attend the appointment. As a matter of courtesy, a member of the Medical Centre staff contacted the Gulgong ED and advised that she did not attend the scheduled appointment. She could not recall whether she had made a phone call or that it was another staff member. She said that if a patient does not attend a scheduled appointment at the Medical Centre it is the usual practice to advise the Gulgong ED in the event that the patient should attend there. She said this is common practice and its purpose is to ensure continuity of care at the highest possible level.

1. Dr Cameron, the Director of Rural and Remote Medical Services provided a statement and gave evidence that the Medical Centre had a duty to ensure prompt follow-up of any test results it received in accordance with the Royal Australian College of General Practitioners' standards for general practice, which he provided. He also provided a copy of the Medical Centre's policy which dictates that correspondence in relation to the patient should be seen by the treating practitioner, or otherwise, in their absence, another GP. He wrote in his statement that correspondence is reviewed at the Medical Centre on a daily basis and must be reviewed initially prior to being filed or scanned. This is common practice, not only in rural medical communities, but in multi-practitioner practices generally.

1. He recorded in his statement that the Gulgong ED operates only on an emergency basis and does not provide ongoing treatment or consultations.

Consideration

Issue 1: The CT scan results and the file at the Medical Centre

1. The applicant complained that a file was created at the Medical Centre and the CT scan results were read there by another doctor, Dr Nicholson. The applicant complained that the Medical Centre had created a file on the basis that she had been seen by Dr Nicholson when this was not the case. She asserted that the Medical Centre should have forwarded her CT scan results to Dr Alseneid personally, and Dr Nicholson should not have viewed the CT scan results in his absence.

1. The substance of this aspect of the applicant's complaint is that the CT scan results were sent to Dr Alseneid at the Medical Centre and not to him at the Gulgong ED, where she had seen him. Somewhat inconsistent with this contention, she asserted that the results should have been sent to him at Walgett where he was also practised.

1. The evidence of Ms Weir and Dr Alseneid was that it is standard practice, where a doctor provides a VMO service, that the results of tests ordered by the doctor are sent to the doctor at their private practice so as to ensure prompt and efficient patient care. The evidence was that the Gulgong ED is a small rural facility, staffed by nurses. A doctor attends when clinically necessary and no ongoing treatment or consultations are provided. Further, it was Dr Alseneid's evidence that if test results were sent to the Gulgong ED, they would have to be faxed to the referring doctor, otherwise, they may not be reviewed for some time and result in patients receiving an inadequate standard of care. There was evidence that this is a standard practice in rural towns where a GP provides a VMO service.

1. The evidence was that the VMO remains responsible for patient follow-up and management. This duty of care was confirmed recently in CS v Anna Biedrzycka [2011] NSWSC 1213. I therefore find that the applicant's CT scan results were forwarded to the Medical Centre for the attention of Dr Alseneid in his capacity as a VMO contracted to first respondent.

1. The second respondent submitted that it nonetheless had an obligation to create a file for the applicant at the Medical Centre in accordance with its obligations under section 25(1) of the Health Privacy Act which provides, relevantly:

(1) A private sector person who is a health service provider must retain health information relating to an individual as follows:

(a) in the case of health information collected while the individual was an adult-for 7 years from the last occasion on which a health service was provided to the individual by the health service provider,

...

1. The applicant submitted however that she was not a patient of the Medical Centre and as such, any duty under that section to retain her information rested with first respondent, being the organisation that provided her with treatment. I have come to the view that in having a doctor review the applicant's CT scan results in Dr Alseneid's absence a health service was provided by the Medical Centre. As a result, I accept that the Medical Centre had an obligation to retain health information about the applicant in accordance with the Health Privacy Act.

1. I accept that if, as the applicant claims, she was informed by the receptionist at the Medical Centre that a file had been created because she had 'seen' Dr Nicholson, such a comment was merely the result of a mistake on the receptionist's part.

1. There was no dispute that the CT scan results is 'health information' within the meaning of the Health Privacy Act. The relevant HPPS are addressed.

1. HPP1 provides that an organisation must not collect health information unless the collection is for a lawful purpose that is directly related to a function or activity of the organisation, and the collection is reasonably necessary for that purpose.

1. I accept that Dr Alseneid's conduct in 'collecting' the CT scan results was for a lawful purpose that is directly related to the functions and activities of the first respondent, in that it was maintaining the health of a resident and was maintaining adequate standards of patient care and services, and 'collecting' the CT report was reasonably necessary for those purposes: see Health Services Act 1997, s. 10. I also accept that the Medical Centre collected the information for a lawful purpose: viz S25(1) Health Privacy Act.

1. HPPs 5 to 11 impose obligations on organisations that 'hold' health information.

1. Section 9 of the Health Privacy Act provides that, for the purposes of the Act, health information is 'held' by an organisation if:

(a) the organisation is in possession or control of the information (whether or not the information is contained in a document that is outside New South Wales), or

(b) the information is in the possession or control of a person employed or engaged by the organisation in the course of such employment or engagement...

1. I accept that the CT scan results were in the possession or control of Dr Alseneid, who held them in his capacity as a VMO, albeit they were physically held at the Medical Centre. The Medical Centre held them too, once it created a file, as it was obliged, in respect of the applicant.

1. The HPPs which are possibly relevant are those relating to retention and security, use, disclosure, and the prohibition on use of inaccurate information.

1. HPP 5 is designed to ensure that health organisations hold information securely, requiring that health information is protected, by taking such security safeguards as are reasonable in the circumstances, against, inter alia, use or disclosure. HPP 10 is designed to limit the use to which health information held by an organisation can be put. I do not consider that the CT report being reviewed by Dr Nicholson, in Dr Alseneid's absence to be unauthorised (HPP 5) or that the applicant's health information was used by either respondent for a purpose other than that for which it was collected (HPP10). On the contrary, what occurred amounted to best practice to ensure the well-being of Dr Alseneid's patient. Indeed, to do otherwise could arguably give rise to a claim for medical negligence.

1. HPP 11 is designed to limit the disclosure of health information held by an organisation. An organisation that holds health information must not disclose the information for a purpose other than the purpose for which it was collected, unless one of the exceptions applies.

1. Here, the only conduct which could amount to disclosure could be the fact that the CT report was read by another doctor at Dr Alseneid's practice at the Medical Centre.

1. I accept Dr Alseneid's evidence that the purpose for which the CT report was 'disclosed' to Dr Nicholson was to ensure that the applicant received quality care. I find that the disclosure was for no other purpose than that for which the information was collected, namely the optimal care of the applicant. Accordingly, there has been no breach of HPP 11.

1. Even if this were not so, s 16(1)(c) of the Health Privacy Act provides that nothing in HPP 11 applies in respect of the disclosure of health information held by a member of a group practice to another member of the group practice, if the purpose of the disclosure is 'to ensure that a patient of a member of the group practice receives quality health care from members of the group practice'.

1. HPP 15 provides that health information can only be included in a system to link health records across more than one organisation if the individual expressly consents. The applicant alleges that in creating and maintaining a file on her behalf, the second respondent breached HPP15. I do not accept that there was any attempt to "link" the applicant's health information.

Issue 2: discussion about failure to keep an appointment

1. The applicant contended that a nurse criticised her for failing to attend an appointment at the Medical Centre.

1. Ms Lane was unable to substantiate who made the statement or how the information was provided to the Gulgong ED. The evidence was that if a message had been received from the Medical Centre for a clinical purpose, the message should have been recorded on the applicant's record. As there was no evidence of any such message, I accept that there was no clinical purpose in providing that information. I accept Ms Evans evidence that if a member of the Medical Centre staff contacted the Gulgong ED to advised that the applicant did not attend the scheduled appointment, it was done as a matter of courtesy, in the event the applicant may attend the Gulgong ED instead.

1. In Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192 at [34], the Court of Appeal, in the context of the Privacy Act, considered that information in the "possession or control" of an organisation does not extend to material held only in the mind of a person.

1. The HPPs are equivalent to the information protection principles set out in the Privacy Act. In particular, HPPs 5 to 11 apply when an organisation 'holds' health information. I do not accept that there is any evidence of information 'held' by the first respondent about the applicant having allegedly missed an appointment at another practice. The available evidence suggests the 'information' in the present matter existed merely in the minds of employees, so there can be no breach of any of the HPPs.

1. The conduct described by the applicant involved no collection, storage, use or disclosure of health information held by the first respondent. In those circumstances, there cannot have been a contravention of the HPPs.

Issue 3: disclosure of the contents of the Medical Centre file

1. I accept Ms Evans evidence that Ms Adams did not attend the Medical Centre and did not read or make a copy of the CT report. I accept that she telephoned the Centre, in order to investigate the applicant's complaint that there was a copy of the applicant's CT scan results at the Medical Centre.

1. In coming to that view I find the second respondent did not at any time 'use' (per HPP 10) the applicant's file by allowing Ms Adams to view it. Other than the CT scan results the file had no other content and the presence of the CT scan results on the file was the very matter about which Ms Adams was enquiring in response to a complaint by the applicant.

1. Further, there is clear authority that once a person enters an official complaints stream, they cannot reasonably expect that an investigation will be undertaken in a vacuum: WH v Internal Audit Bureau of NSW [2011] NSWADT 237. A person complaining of a breach of privacy cannot dictate how the agency is to handle the information conveyed in the complaint: ZR v Department of Education and Training [2010] NSWADTAP 74 at [72] and [74]. Further, it has previously been recognised by the Tribunal that it is reasonable that an applicant would be aware that people involved in the complaint will likely be spoken to at some part of the investigation: GE & Anor v Macquarie University [2008] NSWADT144. I am satisfied that the conduct complained of by the applicant amounted only to an inquiry to the Medical Centre as to how information it already held came to be held there. As the applicant's allegations involved a direct communication or provision of information by Ms Evans to Ms Adams for the purposes of such an official investigation, there has been no breach of any HPP.

Conclusions

1. I have come to the firm view that no conduct of either respondent amounted to a breach of the applicant's privacy under the Health Privacy Act. This conclusion may not address all the concerns raised by the applicant in her various submissions, and I stress that many of her concerns were not matters over which the Tribunal has jurisdiction. I was informed, however, that the respondents have taken action to address the applicant's concerns.

1. For the reasons set out above I find that the conduct the subject of these applications was not conduct that contravened the collection and disclosure information protection principles under the Health Privacy Act.

DECISION

1. The application is dismissed.

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Decision last updated: 27 April 2012