AF v Healthquest & Another

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AF v Healthquest & Another [2011] NSWADT 99

Hearing dates:

17 - 19 February 2010, 22 - 23 February 2010, 12 - 14 July 2010 and 25 August 2010

Decision date:

10 May 2011

Jurisdiction:

General Division

Before:

Judicial Member R B Wilson

Decision:

1. On 20.06.07 the respondent acted contrary to s.11 Health Records Information and Privacy Act 2002 in that it did not comply with Health Privacy Principle 3 when collecting information about the applicant contained in the referral HQ1 dated 14.06.07 and attachments (exhibit R3 annexure 'C'), save to the extent that these reasons provide otherwise.

2. The proceedings are listed for directions on Thursday 26 May 2011 at 02:00 pm.

Legislation Cited:

Privacy and Personal Information Protection Act 1998
Health Records and Information Privacy Act 2002
Administrative Decisions Tribunal Act 1997

Cases Cited:

AF v Healthquest [2009] NSWADTAP 42
Y v Department of Education and Training [2001] NSWADR 149
GL v Department of Education and Training [2003] NSWADT 166
EY v Department of Corrective Services [2009] NSWADTAP 25
OD v Department of Education and Training [2005] NSWADTAP 74

Category:

Principal judgment

Parties:

AF (applicant)
Healthquest (respondent)
Minister for Health NSW (third party)

Representation:

In person (applicant)
Dr J Lucy (respondent)

File Number(s):

073365

Publication restriction:

Applicant's name has been anonymised

REASONS FOR DECISION

1. The applicant commenced this proceeding in the Tribunal pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 (the Privacy legislation) alleging a series of acts done by the respondent in breach thereof. At material times the named respondent was a statutory instrumentality with designated functions under its enabling legislation. At the time of hearing the respondent had been dissolved and, by reason of this, the named third party was joined as an interested party. The parties have filed extensive evidence and submissions, and there has been 9 days of hearing of evidence and oral submissions. At the request of the parties, the hearing and arguments to date have been limited to the question of breach of the privacy legislation. The proceedings have been protracted at first instance, in part by reason of an appeal to the Appeal Panel in relation to summonses that the applicant wished to issue ( AF v Healthquest [2009] NSWADTAP 42) and in part by reason of the complexity of the issues raised. Whilst the applicant's claims are numerous, and each one must be duly considered, in the final analysis the only significant issues concern (a) whether the information supplied with the referral documents was information about the applicant's suitability for employment and (b) whether that information was collected by the respondent in breach of privacy legislation.

1. It is common ground that the applicant at material times was employed by the Roads and Traffic Authority NSW (the RTA) during the course of which three significant events occurred. First the applicant had some time away from her…