All v Sydney Local Health District

[2020] NSWCATAD 174

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ALL v Sydney Local Health District [2020] NSWCATAD 174

Hearing dates:

On the papers

Date of orders:

8 July 2020

Decision date:

08 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) Pursuant to Clause 8(1) of Schedule 1 to the Health Records and Information Privacy Act 2002, the undated Coding/DRG Summary Report is to be removed from the applicant’s medical record held by the respondent.

(2) Pursuant to Clause 8(1) of Schedule 1 to the Health Records and Information Privacy Act 2002, the words ‘dilusional ideation’ and ‘high’ be struck through in the Continuity of Care Form dated 20 August 2007 contained in the applicant’s medical record held by the respondent.

(3) Pursuant to Clause 8(1) of Schedule 1 to the Health Records and Information Privacy Act 2002, the words ‘or the clinical coder (on the Coding/DRG summary report)’ are to be struck through on the cover page of ALL’s medical records held by the respondent.

Catchwords:

ADMINISTRATIVE REVIEW – health record – deletion of health record - personal information – review of conduct of agency – contravention of - Health Records and Information Privacy Act 2002 -contravention of Privacy and Personal Information Protection Act 1998 – order for compensation

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Mental Health Act 1990

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

AA & Ors v Department of Family and Community Services [2016] NSWSC 842

ALL v Sydney Local Health District (2004)

AQO v Minister for Finance and Services (2006) 93 NSWLR NSWCATAD 4

ARC v Northern New South Wales Local Health District (2014) NSWCATAD

Crewdson v Central Sydney Area Health Service (2002) NSWCA 345

Department of Education and Training v GA (No 3) [2004] NSWADTTAP 50

FH v Commissioner, New South Wales Department of Corrective Services (2003) NSWADT 72 and ALZ v WorkCover NSW (No 2) (2014) NSWCATAD 122

JD v Department of Health (GD) (2005) NSWADTAP 44

KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15

KT v Sydney South West Area Health Service (2010) NSWADT 94

OD v Department of Education and Training (GD) [2005] NSWADTAP 74

RT v Commissioner of Police v NSW Police (2010) NSWADT 24

Category:

Principal judgment

Parties:

ALL (Applicant)
Sydney Local Health District (Respondent)

Representation:

Solicitors:
ALL (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2018/00381439

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

1. This is an application made by ALL on 11 December 2018 for a review of a decision of made by the Sydney Local Health District (the respondent) dated 16 November 2018 pursuant to s. 21 Health Records and Information Privacy Act 2002 (HRIP Act) and s, 53 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act).

2. ALL is a pseudonym used to anonymise the name of ALL pursuant to an order made under s64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)

3. The proceedings relate to the accuracy, amendment, security and the retention of ALL’s medical record.

Background to the conduct the subject of review

4. A useful summary concerning the background to the conduct which is the subject of this review is contained in the Decision of Principal Member Higgins in ALL v Sydney Local Health District (2004) NSWCATAD 4 (All v SLHD (No.1). I have adopted that summary below.

1. The conduct the subject of ALL's application for review relates to ALL's involuntary admission, to the Missenden Psychiatric Unit (MPU), of the Royal Prince Alfred Hospital (RPAH), on the evening of, Saturday, 18 August 2007. ALL was admitted pursuant to ss 24 and 29 of the Mental Health Act 1990, as they applied at that time.

2. S 24 of the Mental Health Act 1990, made provision for a member of the NSW Police to apprehend a person, without a warrant, and take that person to a hospital, where that person appears to be mentally disturbed and the Police Officer has reasonable grounds to believe that it is probable that the person will attempt to cause serious bodily harm to himself or another person.

3. Constable Jayleen Donaldson, of the NSW Police, and her colleague (also a member of the NSW Police) brought ALL to MPU at around 5.40 pm that afternoon. They had gone to assist ALL, after he had made a triple zero call to police from an inner suburban hotel. 

4. In bringing ALL to the MPU, Constable Donaldson completed a pro forma s 24 Form. In that Form Constable Donaldson described the circumstances which led to her request for ALL's admission as follows:

   'Police called to hotel in [suburb] by POI who stated two men were there with firearms trying to get him. Police spoke to persons from a business who stated that POI was very agitated saying everyone was after him. Police arrived POI appeared extremely paranoid saying people were out to get him etc. POI stated he hasn't slept for some time.'

5. On the back of the s 24 Form, under the heading 'History Known to Conveying Police', Constable Donaldson has ticked the yes box against question 5 (i.e. 'Known to be a drug user') and added the words 'charged with drug possession of cannabis.'

6. Dr Allan, the on-duty psychiatric registrar at the MPU, assessed ALL at around 7:00 pm that evening. Dr Allan recorded his assessment (including provisional diagnosis) of ALL in the respondents pro forma NSW Mental Health A5 Brief Assessment and Plan Form (Brief Assessment and Plan Form). That Form makes provision for entries to be made under a number of headings, including:

   - 'History of Presenting Illness', 

   - 'Current Medications', 

   - 'Past Psychiatric History, 

   - 'Medical History', 

   - 'Drug and Alcohol History', 

   - 'Developmental History/Premorbid Personality',

   - 'Mental State Examination', 

   - 'Risk Assessment', 

   - 'Provisional Diagnosis', 

   - 'Problem List' and 

   - 'Management Plan.' 

7. I note, Dr Allan made handwritten entries under the majority of the headings on the Form.

8. Under the heading 'Provisional Diagnosis', Dr Allan wrote (to the extent I am able to understand):

   Delusional and paranoid, unclear [unable to read] hx, ongoing THC use - difficult history, wanting to leave unit.

9. Under the heading 'Management Plan', Dr Allan wrote 'Admit as mentally ill - Form 1 + 2'.

10. Dr Allan also completed a pro forma medical report, for the purpose of subs 29(2) of the Mental Health Act 1990 (as it applied at that time), as to ALL's mental state (Form 2).

11. Subs 29(1) of that Act provided that a person taken to and detained in a hospital, under that Division 1 of Part 2 in Chapter 4 of that Act, must be examined, as soon as practicable (but not more than 12 hours) after the persons arrival at the hospital, by the medical superintendent. Subs 29(2) provided that a person must not be detained after examination unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person or a mentally disordered person.

12. On page one, of Form 2, under the heading '(Reported behaviour of the patient), Dr Allan wrote: 'Called police in paranoid state, stating seeing people carrying guns.' On page two of Form 2, under the heading '(Observation by me of the patient)', Dr Allan wrote that ALL appeared 'paranoid, delusional ... telling me he was to see the top policeman from Kings Cross to discuss a previous sexual assault.' On the same page, under the heading '(Conclusion)', Dr Allan wrote that ALL required 'containment and further assessment. He is delusional and poses a risk to others if he acts on these delusions.'

13. ALL was discharged the following Monday, 20 August 2007, after being further assessed by Dr Holton, another psychiatrist employed by the respondent. Dr Holton made a hand written record of that assessment on ALL's 'Case History Notes'. It would appear that ALL's mother was also present during this assessment. 

14. Included in Dr Holton's hand written notes are the circumstances in which ALL was brought to the MPU, ALL's account of events, his past psychological history, his medical history, his drug and alcohol history and his personal history. In those handwritten notes, Dr Holton noted that ALL had no past history of psychosis and '? No charges had been laid against him.

15. Following Dr Holton's assessment, at about mid-day that day, ALL was discharged. In discharging ALL, discharge nurse, Patrick Rice completed the respondent's pro forma 'Continuity of Care Form'. Against the heading 'Discharge Diagnosis' on that form, Nurse Rice wrote 'Delusional Ideation'.

16. Sometime after ALL's discharge, on 9 January 2008, the respondent's administrative clinical coder completed a 'Coding/DRG Summary Report' in regard to ALL's hospitalisation from 18 to 20 August 2007. That report contains the following information:

    New South Wales DRG

    U62B PARANOIA & ACUTE PSYCH DISCORDER W/O CAT/SEV CC W/O MENTAL HEALTH LEGAL STATUS

    PCCL

    ...

    ICD-10-AM Principal Diagnosis

    F220 Delusional disorder

    DRG

    ....

    5. It is uncontroversial that from 18 to 20 August 2007, ALL was admitted as an involuntary patient under the Mental Health Act 1990 (the MH Act) to the Missenden Psychiatric Unit (MPU) of the Royal Prince Alfred Hospital (RPAH).

    6. Following his admission to the MPU a number of forms were completed in relation to ALL, including:

    1. a form for the purposes of s24 of the MH Act completed by Constable Jaylene Donaldson, Police Officer, who formed the opinion that ALL appeared to be mentally disturbed after attending the scene following ALL’s 000 call;

    2. a form for the purposes of sections 29 and 33(1) of the MH Act completed by Dr Martin Allan, Psychiatric Registrar, who formed the opinion that ALL required ‘containment and further assessment’;

    3. a ‘NSW Mental Health A5 Brief Assessment and Plan’ form completed by Dr Allan, who recorded an opinion following his assessment of ALL that he appeared ‘delusional and paranoid’;

    4. case history notes completed by various RPAH nursing staff and a Dr Nick Holton, Psychiatric Registrar, who formed an opinion that ALL should be discharged;

    5. a ‘Continuity of Care Form’ signed by Registered Nurse Patrick Rice, which on the other side of the document contained a ‘discharge checklist’ that was not completed; and

    6. a ‘Coding/DRG Summary Report’ completed by an Administrative Clinical Coder, which noted that ALL’s principal diagnosis was ‘delusional disorder’.

    7. The respondent contends that each of the documents referred to above form part of ALL’s medical record. These documents which relate to ALL’s involuntary admission are subject to a secrecy provision, s289 of the MH Act, and RPAH provides limited access to medical records generally.

    8. After ALL’s discharge from the MPU he sought, and was provided with, copies of his medical record that were held by the respondent. A number of meetings were also convened, and correspondence passing between ALL and the respondent to address concerns in relation to his medical record.

    9. ALL on 3 April 2012, applied to the respondent for internal review under the PIPA Act in relation to the documents contained in his medical record.

    10. On 16 July 2012, the respondent, having completed its first internal review, added a number of documents to ALL’s medical record (first internal review).

    11. Having completed the first internal review, the respondent added the following documents to ALL’s medical record:

    • A cover page to the record noting that the record is incomplete, and the diagnosis recorded by the registered nurse, the clinical coder or Continuity of Care Form, the Coding DRG/Summary should not be relied upon as accurate;

    • A letter from Dr Nick O’Connor and Mr Alan Hall (O’Conner and Hall letter) dated 29 March 2010 are missing from the medical record;

    • A copy of the internal review report (First Report); and

    • A letter from Mr Hall dated 13 March 2012 (Hall letter).

    12. On 29 March 2012, ALL filed an application for administrative review in the then Administrative Decision Tribunal in relation to the conduct of the respondent that was the subject of the first internal review (First Administrative Review Application).

    13. On 28 January 2014, Principal Member Higgins delivered the Tribunal’s decision in ALL v SLHD (No 1). Principal Member Higgins found that:

    1. there was no breach of the use principle (clause 9 of Schedule 1 to the HRIP Act) because Dr Allan had not only relied upon the s24 form (at [85]);

    2. there was a breach of retention and security principle (clause 5 of Schedule 1 to the HRIP Act) arising from the missing case notes by Dr Holton (at [95]), and

    3. the application before the Tribunal did not relate to a request for amendments of the Continuity of Care Form or the coding/DRG summary report (at [99]).

Request for Amendments

14. Following the decision being handed down in ALL v SLHD (No 1), ALL sought to have various documents referred to in paragraph 6 above in his medical record amended and/or removed. Lengthy correspondence passing between ALL and the respondent has occurred since that time.

Requests for access to documents

15. In late August 2017, ALL made an application to access his personal health information. His request included a box ticked ‘medical records’ and contained words to the effect: ‘letters from Dr Victor Storm and all pathology results’. The respondent took this to mean that ALL was requesting access to limited health records and not the entire record. On 1 December 2017, ALL was provided with a copy of correspondence from Mr Hall as there were no letters from Dr Storm or pathology results.

16. On 15 Decembers 2017, ALL sought access to “copy of medical records – All letters from Sydney Health to [ALL], 1992 TESTS – pathology. The respondent again interpreted this request to be for limited parts of ALL’s medical record and not the entire record.

17. In response, copies of four letters written by RPAH were provided to ALL. No pathology results were provided given that the respondent contends ALL had presented to RPAH in 2006. As such it has no pathology tests from 1992.

Complaints and requests for second internal review

18. Correspondence passing between the parties revealed that the respondent has misinterpreted ALL’s requests concerning his medical records. It says that instead of requesting specific parts of the medical record, ALL was requesting the entire medical record.

19. On 12 March 2018, having received an email form ALL, the respondent says it was only then that it understood that ALL was requesting his entire medical record and provided the entire medical record within 3 hours.

20. On 21 March 2018, in the first application for internal review (First 21 March Application), ALL stated that he was complaining about the following conduct:

‘The stalemate reached in Feb 2018 after all negotiations failed in my attempts to have notations and lines through selected wording added by Sydney Health District to my medical record and more acknowledge of errors and suggested remedies to inaccurate + incomplete records.’

21. On 21 March 2018, in the second application for internal review (Second 21 March Application), ALL stated that he was complaining about the following conduct:

‘The refusal to make further concessions regarding amending my medical record by Sydney Local Health District. The refusal to acknowledge and amend missing, false and inaccurate information in letters and correspondence and also submissions to the HCC, the ADT and to myself. Refusal to put lines through certain wordings and refusal for adding notations.’

22. On 22 March 2018, in the third application for internal review (22 March Application), ALL stated he was complaining about the following conduct:

‘Record keeping. Documents that should be there are missing and documents that were inappropriate + misleading are there any I and the ADT (NCAT) were told by Sydney Health that these documents were removed/I have ADT recording as EVIDENCE.’

Second internal review

23. The respondent on 28 March 2018 told ALL that his two applications for internal review (the first 21 March application and the 22 March application) would be conducted together.

24. In the course of conducting the second internal review, on 4 May 2018, the respondent discovered that ALL’s medical records had been moved to the storage area with other medical records held by the respondent at RPAH, the cover page had been amended and the first report had been removed from ALL’s medical record. ALL was notified of this.

25. On 16 November 2018, the respondent completed its second internal review (Second Report), which was provided to ALL. The respondent has not implemented the recommendations in the Second Report, given ALL’s expressed objection to the implementation of the recommendations and the intention of seeking administrative review.

26. On 19 February 2019, by letter, the respondent confirmed that the further conduct complained of in the second 21 March application did not form part of the second internal review. ALL has not filed an application for administrative review of the Second 21 March Application.

The Hearing

27. The hearing proceeded to be determined on the papers by consent of the parties and by order of the Tribunal.

28. The following evidence was submitted by the parties.

29. The evidence of ALL included:

1. Bundle of documents filed 5 February 2019 (A1).

2. Bundle of documents filed 5 April 2019 (A2).

3. Bundle of documents filed 11 April 2019 (A3).

4. Bundle of documents filed 12 April 2019 (A4).

5. ALL’s two page document filed 14 August 2019 (A5).

6. Including the list pressed filed 13 August 2019 (A6).

30. The evidence relied upon by the Respondent consists of:

1. A 10 page document titled ‘ALL (deleted) (ALL) to suggest possible consideration by the Tribunal to make the following orders’ dated 25 February 2019 (R1).

2. A 1 page document titled ‘The schedule orders’ contained in ALL’s bundle filed 25 February 2019 (R2).

3. Bundle of documents filed 8 February 2019 pursuant to s58 of the Administrative Decisions Review Act 1997 (‘ADR Act’) (R3).

4. Further bundle of documents filed 13 August 2019 (R4).

5. ALL’s bundle of documents dated and filed 14 August 2019 titled ‘Line struck through notations in caps’ (R5).

6. Further bundle of documents filed by the respondent (R6).

31. Both ALL and respondent filed and relied upon written submissions.

The procedural background in relation to this application

32. ALL’s application filed in this Tribunal seeking administrative review (Second Administrative Review Application) sets out the following grounds upon which he relies:

‘New evidence, new documentation - previously undisclosed to me and others since 2007, yet to be scrutinised. The need for NCAT. Needing to be fully informed on the legal issues. Need to secure a legal rep. If needed. Possible conflicts arising from new and old information and documentation. More breaches to the HPP [sic] Act to be acknowledged. Identifying past and present flaws. Finding correct and appropriate remedy. I an [sic] not wishing to have documents removed, destroyed or the originol [sic] - position, particular order of placement of documents in the originol [sic] med report released to me in 2008. Wishing to evidence to supply including included recordings. Keep - title from previous ADT - ALL v Syd Health.’

33. A number of interlocutory hearings have been convened to determine exactly what ALL’s complaint is. ALL has over time refined his complaint to what now appears to be a concluded position which is contained in a document filed on 13 and 14 August 2019, together with 3 bundles. These documents were filed in response to directions and orders made by Principal Member Pearson on 30 July 2019.

33. The document filed 13 August 2019 entitled ‘List Pressed’ was followed by a lengthier document which includes various degrees of underlining, crossing out, highlighting, and redaction. Despite the order or Principal Member Pearson, ALL’s request remains broad and lacks specificity.

34. Of the 10 proposed orders that ALL was initially seeking, he amended the orders being sought on 19 March 2019 to seek “damages in the order of $1.00”.

35. In the respondent’s written submissions, is a list of matters that appears to be what ALL is now seeking to be considered with respect to documents to be amended, or supplemented. I have adopted the list below:

1. amendments to the Hall letter (item 1 in the Second Report);

2. amendments to the O’Connor and Hall letter (item 2 in the Second Report);

3. amendments to the Coding/DRG Summary Report (item 3 in the Second Report);

4. amendments to the s24 Form (item 4 in the Second Report);

5. amendments to the sections 29(2) and 33(1) form (item 5 in the Second Report);

6. amendments to the admission notes (item 6 in the Second Report);

7. amendments to the Continuity of Care Form (item 7 in the Second Report);

8. amendments to the discharge checklist (item 8 in the Second Report);

9. amendments to the case history notes (item 9 in the Second Report);

10. an addendum to be added to the Kerr note (see 13 August documents, where the words ‘transcription - added to Dr Kerr notes’ are annotated on page 2 of the Second Report and page 57 of the 13 August documents which appears to be the proposed addendum);

11. amendments to the letter dated 8 June 2010 from Mike Wallace to the HCCC (page Z25 of the 13 August documents);

12. the cover page to ALL’s medical record held by the respondent to be replaced by a document in the new bundle of documents titled ‘New Cover Page for Medical Report’ (PZ1 of the 13 August documents);

13. amendments to the statement of Alan Hall dated 21 March 2013 and filed in the first administrative review proceedings, which ALL refers to as ‘Mr Alan Holls [sic] submission’ (pages Z15 to Z17 of the 13 August documents); and

14. the amendments to the submissions of the respondent dated 25 March 2013 and filed in the first administrative review proceedings.

37. The respondent sets out the requests for amendments that appear to be pressed in the 13 August documents and the 14 August documents which I have adopted, include:

1. crossing out the words in the line starting ‘U62B’ and ‘F220’ in the Coding/DRG summary report (page 1 of the 14 August Documents);

2. crossing out the words ‘delusional ideation’ and ‘high’ in the Continuity of Care Form (p1 of the 14 August Documents, where ALL says ‘there should be a line through … sections as shown in the page - item 7 … (in red)’ and in the Continuity of Care Form marked ‘item 7’ in the 13 August 2019 Documents, the respondent notes that the words ‘delusional ideation’ is crossed out in red and the word ‘high’ is underlined in red);

3. the crossing out of ‘mum says’ in the admission notes (page 2 of the 14 August Documents says ‘line struck through all references to Dr Allan having had discussions with ALL’s mother (anonymised). Notations regarding those lines ‘the statement is incorrect’); and

4. the crossing out of the words ‘charged with drug possession of cannabis’ in the s24 Form (page 1 of the 14 August Documents, which provides ‘s24 - lines through as displayed in … page - with item 4’ and on the page following the page marked ‘item 4’ in the 13 August Documents, those words are crossed out and underlined).

38. It appears in my view that these are the complaints raised by ALL which are the subject of determination in this application.

39. I accept the respondent’s submission that the balance of the matters set out in the 13 August Documents and 14 August Documents were not the subject of a request for amendment by ALL prior to the first 21 March Application and 22 March Application.

The Relevant Legislation

40. ‘Personal Information’ is defined by section 5 of the HRIP Act and section 4 of the PPIP Act as:

1. In this Act, 

   "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

   41. The definition of "Health Information" is found at section 6 of the HRIP Act:

"health information" means-- 

(a)   personal information that is information or an opinion about-- 

(i)   the physical or mental health or a disability (at any time) of an individual, or 

(ii)   an individual's express wishes about the future provision of health services to him or her, or 

(iii)   a health service provided, or to be provided, to an individual, or 

(b)   other personal information collected to provide, or in providing, a health service, or 

(c)   other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or 

(d)   other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or 

(e)   healthcare identifiers, 

but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.

42. The HRIP Act applies to the respondent as it is an organisation being a ‘health service provider’ and a public sector agency (see ss 4 and 11 HRIP Act). This was not in contest.

43. The HRIP Act regulates ‘health information’ through fifteen principles which are set out in schedule 1 of that Act (HPPs). A ‘health service provider’ must comply with, and not do anything, or engage in any practice, that contravenes those principles or a ‘health industry code of practice’ or a provision of Part 4 that is applicable to the respondent (see section 11 of the HRIP Act).

44. The HPPs include principles in regard to the collection (cl 1 to 4), retention and security (cl 5), access and amendment (cl 6 to 8), use (cl 9 and 10) and disclosure (cl 11) of a person's health information. The HPPs relevant to this application are set out below.

45. Subsection 21(1) of the HRIP Act makes provision for complaints to be made against a public sector agency in regard to conduct which is alleged to be a contravention of a HPP that applies to the agency. Such complaints are made pursuant to Part 5 of the PPIP Act and for that purpose a reference in Part 5 of the PPIP Act to 'personal information' is to be taken to include 'health information': see subs 21(2) of the HRIP Act.

46. There is no dispute that the information that is subject of this application is the health information of ALL.

47. The HPP’s which are relevant to this application, are those contained in clauses 5, 8 and 9 of schedule 1 of the HRIP Act. Each of those clauses are set out below:

5 Retention and security

1. An organisation that holds health information must ensure that:

   (a)   the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

   (b)   the information is disposed of securely and in accordance with any requirements for the retention and disposal of health information, and

   (c)   the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

   (d)   if it is necessary for the information to be given to a person in connection with the provision of a service to the organisation, everything reasonably within the power of the organisation is done to prevent unauthorised use or disclosure of the information.

Note. Division 2 (Retention of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

1. An organisation is not required to comply with a requirement of this clause if:

   (a)   the organisation is lawfully authorised or required not to comply with it, or

   (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

2. An investigative agency is not required to comply with subclause (1) (a).

8 Amendment of Health Information

1. An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information--

   (a)   is accurate, and 

   (b)   having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. 

2. If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. 

3. If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation. 

Note : Division 4 (Amendment of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause. 

Amendment of health information held by public sector agencies may also be able to be sought under the Privacy and Personal Information Protection Act 1998 .

1. An organisation is not required to comply with a provision of this clause if-- 

   (a)   the organisation is lawfully authorised or required not to comply with the provision concerned, or 

   (b)   non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ).

9 Accuracy

An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

48. In Part 5 of the PPIPA Act an applicant can seek the review of the conduct of a public sector agency. ‘Conduct’ is defined in section 52 to include the contravention of an information protection principle that applies to a government agency. The various information protection principals are set out in Part 2 of the PPIP Act (ss 8-19) which include principles in regard to the collection, retention and security, access, alteration, accuracy, use and disclosure of personal information.

49. Section 21(2) of the HRIP Act provides that for the purposes of Part 5 of the PPIP Act, a complaint made about the conduct of an agency that contravenes a HPP, is also conduct falling within that Part.

50. A person who is aggrieved by a contravention of a public sector agency can seek internal review of the conduct by that agency (see section 53 of the PPIP Act). The right extends to conduct which is alleged to be a contravention of a HPP that applies to the agency (see section 21(1) of the HRIP Act).

51. Section 55(2)(1) of the PPIPA provides:

1. If a person who has made an application for internal review under section 53 is not satisfied with:

   (a)   the findings of the review, or

   (b)   the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under s53.

…

1. On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any or more of the following orders:

   (a)   subject to subsections (4) and (4A), an order requiring the public sector agency to pay to ALL damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

   (b)   an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

   (c)   an order requiring the performance of an information protection principle or a privacy code of practice,

   (d)   an order requiring personal information that has been disclosed to be corrected by the public sector agency,

   (e)   an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by ALL,

   (f)   an order requiring the public sector agency not to disclose personal information contained in a public register,

   (g)   such ancillary orders as the Tribunal thinks appropriate.

2. Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

3. The Tribunal may make an order under subsection (2) (a) only if:

   (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

   (b)   the Tribunal is satisfied that ALL has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A)   ...

1. ...

2. The Privacy Commissioner is to be notified by the Tribunal of any application for a review under this section. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.

3. ...

   52. Where left in a state of uncertainty in relation to a fact in issue, the fact should be decided against ALL (see KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 at [31].

   53. It is not in dispute that the Tribunal has jurisdiction to determine this matter pursuant to s63 of the Administrative Decisions Review Act 1997 (ADR Act). The Tribunal in determining an application for administrative review is to decide the correct and preferable decision having regard to the material before it, including: any relevant factual material and any applicable written or unwritten law.

   54. In determining an application for administrative review of an administrative reviewable decision, the Tribunal may decide to affirm the respondent’s decision, or to vary the respondent’s decision, or to set it aside and make a new decision in substitution of the respondent’s decision, or to set aside the respondent’s decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal.

Scope of administrative review proceedings under the PPIP Act

55. Unless an applicant has applied for internal review of the relevant conduct, the Tribunal has no jurisdiction to review conduct under s55 of the PPIP Act (Department of Education and Training v GA (No 3) [2004] NSWADTTAP 50 at [7]).

56. The scope of the application for internal review sets the scope of the proceedings before the Tribunal. The Tribunal will determine objectively whether an application for internal review has been made. The scope of the application is a matter of fact to be determined objectively by construing the application reasonably. There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principal, whether or not the principal itself is actually specified by the application in determining its conduct subject to review.

57. It is established authority that an applicant cannot, after the application has been dealt with by the agency, widen the scope of the process. This is so as the premise of the Act is such that the agency should be given the first opportunity to review the conduct of concern to ALL. It would be incorrect for the Tribunal to allow proceedings to be changed in scope as to allow ALL to put in issue new items of conduct or new bodies of information that had not been previously determined by the agency. The agency and the Tribunal should delineate with care and precision the actual information that is the subject of the internal review application and any subsequent application to the Tribunal (see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13] to [14]).

58. In determining the scope of this review I have considered the words used in the first 21 March application and the 22 March application (which were accepted by the respondent for internal review); correspondence passing between ALL and the respondent before the first 21 March application and 22 March application were received; the respondent’s obligation to conduct an internal review under s53 of the PPIP Act; and that the internal review conducted by the respondent had regard to the subsequent correspondence send by ALL and the content of what is addressed and considered in the Second Report.

59. In considering the First 21 March application and the Second 22 March application the respondent considered the following matters:

1. no amendments had been made to documents in ALL’s medical records which were the subject of ‘negotiations’ to have lines and notations made to the documents prior to and including February 2018;

2. that there were documents not in ALL’s medical record which ALL expected to be in his medical record; and

3. there were documents in ALL’s medical records which ALL had not expected to be in his medical records.

60. It is evident to me that the respondent did not have an application for internal review engaging s53(2) of the PPIP Act regarding a ‘request’ to ‘amend’ the health information in the respondent’s correspondence and submissions to the HCCC or the Administrative Decisions Tribunal.

61. I have considered various emails in March 2018 sent by ALL to the respondent prior to receipt of the First 21 March application and 22 March application which the respondent submits supports a conclusion that the second review should be confined to the following:

1. the respondent’s refusal to amend information in his medical record; and

2. the respondent’s delay in providing ALL with a copy of his medical record.

62. Having considered ALL’s 12 March 2018 email where he states, ‘requesting amendments to my medical records and other documentation’ and his email of 15 March 2018 referring to the First Administrative Review Proceedings ‘the review is not about amendments to the record. The review I have asked for now is specifically about amending records’ supports the respondent’s submission. Likewise, the findings of this Tribunal in ALL v SLHD (No 1) referred to possible amendments to the Continuity of Care Form and the Coding/DRG summary report which are documents held in ALL’s medical record.

63. I am also satisfied that the respondent has not extended the time to accept an application for internal review in relation to its conduct, or indeed that after 22 March 2018 the provision of documents by ALL to the respondent does not demonstrate that the respondent has agreed to widen the scope of the internal review.

64. For these reasons I therefore find that the scope of these administrative review proceedings include:

1. the respondent’s refusal to amend certain documents in ALL’s medical record, namely:

1. the Coding/DRG summary report (item 3 in the Second Report);

2. the s24 form (item 4 in the Second Report); and

3. the admission notes (item 6 in the Second Report);

4. the Continuity of Care Form (item 7 in the Second Report);

2. the respondent’s refusal to remove certain documents from ALL’s medical record, namely:

1. the Hall Letter from ALL’s medical record (item 1 in the Second Report);

2. the O’Connor and Hall Letter (item 2 in the Second Report);

3. the Coding/DRG summary (item 3 in the Second Report);

4. the Continuity of Care Form (item 7 in the Second Report);

5. the attachments to the First Report from ALL’s medical record (item 10 in the Second Report);

3. the respondent’s provision of an ‘incomplete’ medical record to ALL in response to two applications for access made in 2017.

65. I am not satisfied that the following documents which are included in ALL’s proposed orders, schedule and 13 and 14 August documents fall within the scope of the second internal review, namely:

1. a refusal of the respondent to amend:

1. the s29(2) and s33(1) form (item 5 in the Second Report);

2. the discharge checklist (item 8 in the Second Report);

3. the case history notes (item 9 in the Second Report;

4. the Kerr note by placing it in its chronological order in ALL’s medical record (item 13 in the Second Report);

5. the letter dated 8 June 2010 from Mike Wallace to the HCCC;

6. a cover page to ALL’s medical record which is held by the respondent to be replaced by a new document in ALL’s bundle of documents titled ‘new cover page for medical report’ (PZ1 of the 13 August documents);

7. statement of Alan Hall 21 March 2013 filed in the first administrative review proceedings;

8. submissions of the respondent dated 25 March 2013 filed in the first administrative review proceedings and adding an addendum to the Kerr note;

2. the respondent’s failure to take reasonable steps prior to the use of documents in ALL’s medical record;

3. movement of ALL’s medical records by the respondent from the security access filing cabinet to common storage;

4. an unrequested amendment to the cover page of ALL’s medical record and removal of a document from ALL’s medical record, which was reversed during the course of the Second Internal Review; and

5. conduct referred to in written submissions dated 20 December 2012 relating to the first administrative review proceedings titled ‘Breaches as identified by me, [ALL]’.

MY FINDINGS AND CONSIDERATION

Alleged contravention of clause 8 of Schedule 1 - appropriate amendments to health information

66. The respondent submits that it has not breached clause 8(1) of Schedule 1 to the HRIP Act and that it has not been contravened because:

1. ALL has not made a ‘request’ for amendment and there has been no amendment in relation to all the amendments considered in the Second Report;

2. the requested amendments are not required to ‘ensure’ that health information is ‘accurate’ or ‘relevant, up to date, complete and not misleading’ for the purpose for which the respondent proposes to use the information; and

3. on its proper construction, clause 8(1) of Schedule 1 of the HRIP Act does not require an organisation to make a requested amendment if it is not prepared to do so.

67. The respondent relies upon the following material in relation to there being no request for amendment. It says that it must have received a request in accordance with the provisions of clause 8 of Schedule 1 of the Act. It places in issue whether ALL made a request for all of the amendments in relation to the amendments sought in his proposed orders, the schedule, the 13 August documents and the 14 August documents. The respondent relies upon the decision of Slattery J in AA & Ors v Department of Family and Community Services [2016] NSWSC 842 (‘AA’) referring to the operation of s15 of the PPIP Act (the equivalent provision of clause 8 of Schedule 1 of the HRIP Act) at 195:

It sets up a process in which a complainant about the content of public sector agency information is required to draft an amendment to the information on file, so that the agency will be in a position to consider the precise changes the complainant wants to what is recorded. This is a simple and useful measure to make sure that the differences between the complainant and the relevant government agency are adequately defined at the outset. And even before that point is reached, the department has to be asked in a non-adversarial atmosphere whether it accepts the amendments being proposed or declined.

One of the difficulties of the present case is that before the applicant sought that the relief that they now do about changing the content of the department’s files they did not go through the kind of discipline that PPIP Act, s15 requires.

68. The respondent contends that a similar process and precision in seeking amendments to health information is contemplated and required by clause 8(1) of Schedule 1 of the HRIP Act given the similarity and relationship between the HRIP Act and the PPIP Act. I accept these submissions.

69. After reviewing the documents, the following requests for certain amendments with respect to various documents are found in the material:

1. On 15 February 2013, the respondent’s legal representative sought confirmation from ALL that ALL only wanted the cover page, the O’Connor and Hall Letter and the First Report without its annexures to be amended. The respondent submits, and I accept that it is not clear whether ALL provided confirmation of this.

2. In a letter dated 9 April 2014, ALL’s legal representative outlined what was requested:

1. the removal and destruction of the Continuity of Care Form or, in the alternative, the redaction of the words ‘dilusional [sic] ideation’, legal status on D/C; s12 (if it means something similar to delusional ideation) and the word ‘high’ next to the words ‘assessment confidence’;

2. the removal and destruction of the Coding/DRG summary report or, in the alternative, the redaction of the words ‘U62B PARANOIA AND ACUTE PSYCH DISORDER W/O’, ‘F220-delusional disorder’ ‘DRG’ and ‘NSW WGT0.62’ (if the words relate to a psychiatric condition);

3. the removal of the O’Connor and Hall Letter (if the Continuity of Care Form and Coding/DRG summary report are destroyed); and

4. confirmation that ‘the proposal contained in the email of John McDonnell [sic] (Crown Solicitor’s Office) dated 15 February 2019 … has been put into effect.

70. Between 17 August 2017 and 9 September 2019 ALL made requests for amendment to the New South Wales Civil and Administrative Tribunal documents and a request for the removal of the O’Connor and Hall Letter.

71. Whilst it is unclear as to how the following documents were provided, there appears not to be any request for an amendment to any documents in ALL’s medical record. The documents included:

1. a cannabis caution line contact;

2. a copy of ALL’s NSW Police criminal infringement notice history; and

3. a Statutory Declaration from ALL’s mother stating that she was not physically present at the RPAH on 18 August 2007.

72. At Tab 21 of the s58 documents an email to the Minister for Health’s office was sent by ALL on 8 September 2017 which states:

‘The police have changed their records even though legally they had no need to. The health dept has unfortunately for me have acted in the opposite way and I have had to call out them admissions of errors misleading remedy options and more misleading errors in their attempts to remedy misleading errors, go figure! I have provided Syd Health with the information of the systemic failures from the police and evidence that police COPS reports made have had deletions and additions to my satisfaction even though I had not no right to make the police do so.’

73. I do not accept that this is a request which satisfies the provisions of clause 8 of schedule 1 of the HRIP Act.

74. There is no evidence before me which demonstrates a request having been made for amendment in relation to documents considered in the Second Report being:

1. the s29(2) and s33(1) form;

2. the discharge checklist;

3. the case history notes; and

4. the Kerr notes.

75. In relation to the respondent’s submissions concerning there being no request I find as follows.

76. The matters as set out in the letter of ALL’s legal representative on 9 April 2014 in my view amount to a request for an amendment. Those being the matters as set out in paragraph 69(b) above.

77. In all other respects I find that ALL’s assertion that requests were made are vague and unclear and cannot constitute a proper request to amend health information held by the respondent in his medical record (see AQO v Minister for Finance and Services (2006) 93 NSWLR 46 at [173] and [176]).

Clause 8(1) of Schedule 1 to the HRIP Act - Amendments to ensure ‘accurate’ ‘relevant, up to date, complete and not misleading’ information

78. The obligation of the respondent to make an amendment under clause 8(1) of Schedule 1 to the HRIP Act requires it to consider whether the amendment ensures the health information is ‘accurate’ or ‘relevant, up to date, complete and not misleading’. As the respondent has submitted it does not turn on the ‘satisfaction’ or the ‘approval’ of ALL.

79. In RT v Commissioner of Police v NSW Police (2010) NSWADT 24 at [46] to [47], [50], [62] clause 8(1) of Schedule 1 to the HRIP Act should not be used for a purpose other than to ensure the accuracy, relevance and up to date and complete and not misleading information contained in a health record.

80. In determining questions of accuracy, relevance, up to date, complete and not misleading health information the following decisions are apposite.

81. In ARC v Northern New South Wales Local Health District (2014) NSWCATAD 109, the Tribunal determined that a case note record between an applicant and psychologist was accurate even in circumstances where a different psychologist had provided an alternative finding as to ALL’s mental health.

82. In Crewdson v Central Sydney Area Health Service (2002) NSWCA 345 the New South Wales Court of Appeal held that a doctor who held an opinion and reported that opinion was correct even if the procedures which the doctor followed were legally flawed in arriving at that opinion.

Request to remove the Continuity of Care Form

83. I am not satisfied that the Continuity of Care From should be removed. The form was completed by registered nurse Patrick Rice as part of ALL’s proposed discharge planning. It is apparent that nurse Rice and others acted in compliance with the RPAH’s policies and procedures at the time in completion the form.

84. Having regard to the nature of ALL’s admission, the apparent procedures in place at the time, I am satisfied that nurse Rice took steps to use ALL’s health information as was reasonable in the circumstances. However, I note that during the hearing ALL v SLHD (No.1) Principal Member Higgins was of the view, having considered the evidence before her, that the descriptor used was a symptom and not a diagnosis. The opinions of Dr O’Connor and Mr Hall support this finding.

85. I am not satisfied that the diagnosis is accurate and it cannot be relied upon. The Continuity of Care From should be amended to strike out by placing a line through the words “dilusional (sic) ideation”. It follows that the word ‘high’ which is circled should also be struck through I find there has been a breach HPP9 – accuracy and the record should be amended.

Request to remove the Coding/DRG Summary Report

86. The accuracy of this report has been the subject of much discussion. Indeed, the decision of Principal Member Higgins in ALL v SLHD (No1) canvassed much of the evidence concerning this record. It is apparent to me that the summary report was assigned codes using Dr Allan’s presenting diagnosis and nurse Rice’s discharge diagnosis. The admission was coded at a lengthy time after ALL’s admission, being 5 months later.

87. Principle Member Higgins found the descriptors used by the coder to be inaccurate (see ALL v SLHD (No1) at [98]). She supported possible amendment of the ALL’s medical record but did not proceed to determine an amendment as ALL had not made a request for amendment.

88. In my view the following parts of the documents are inaccurate:

• ‘Paranoia & Acute Psych Disorder & Principal diagnosis’ and ‘Delusional Disorder’ – In the ALL v SLHD (No1) hearing it was the concluded view of the Tribunal and the representatives of the respondent that the discharge diagnosis ‘delusional ideation’ was entirely inaccurate. There was no evidence before the Tribunal that a diagnosis of paranoia or acute psychiatric disorder was made. There is no evidence before me to substantiate such a diagnosis.

• ‘Problems related to alleged sexual abuse of child by person outside primary support group’ – The description used is unfortunately ambiguous. It may imply the ALL was the perpetrator of a child sex offence which there is no evidence whatsoever. To the contrary, ALL was himself a victim of child sex abuse and the inaccurate information is a misrepresentation of what he disclosed to Dr Allan during his admission.

• The document is not signed, nor dated and is deplete of an entry next to the words ‘This record was coded without’.

89. I find that the record is inaccurate and misleading. I note that the respondent on 12 March 2018 offered to remove the record due to its significant inaccuracies. There is no evidence that this record will be used by clinicians to review a persons’ clinical history, or for continuity of patient care and future treatment. I find there has been a breach HPP9 – accuracy. I find that the record is manifestly inaccurate and that it should be removed from the medical record.

The Hall letter and the O’Connor and Hall Letter

90. In respect of the request to remove the Hall letter, the O’Connor and Hall Letter and the attachments to the first report, the respondent contends that the removal of those documents would not have the effect of ensuring the health information it holds is accurate, up to date, complete and not misleading. In reviewing those documents I find that they are not documents which would amount to information that could be used to treat ALL’s health should he again present at the RPAH. In my view the letters provide the opinion of Dr O’Connor and Mr Hall based upon the information available to them at the time. They are not documents which are in my view misleading. I do not accept ALL’s view that they could confuse a reader in respect of ALL’s diagnosis on his admission.

91. Clause 8(1) of Schedule 1 to the HRIP Act should not be used for a purpose other than to ensure the accuracy, relevance and up to date and complete and not misleading information contained in a health record. It ought not be used to amend a record because an applicant objects to the way it may be drafted.

92. Therefore, I find they should not be removed or amended. Indeed, the documents provide some support for ALL.

Request to amend admission notes

93. In relation to the request to amend the admission notes, specifically the words ‘mum says [history] of ‘depression’, ‘PTSD post abuse’ and ‘mum says THC plus HX’, ALL seeks that they be amended or redacted as they convey an implication that his mother was not physically present at the hospital during his admission. It is common ground that ALL’s mother was not present. However, I do not agree that those words imply that ALL’s mother was present. In my view, the words relate to a conversation ALL’s mother had with Dr Allan during his admission and they record information provided to Dr Allan which in my view on the material is accurate as to what was relayed to him. There is no evidence before me to suggest otherwise.

94. The record ought not be amended or removed.

Amendments to the s24 Form

95. Contained in the s24 form are the words ‘charged with drug possession of cannabis’. The words were reported to the RPAH by a police officer and remain in ALL’s health record. ALL relies upon a printout from a webpage indicating that there is no criminal record located but includes that this is not proof you do not have a criminal record in New South Wales.

96. ALL has not provided a copy of his criminal record, which, he is able to seek from the NSW Police Force. I am not satisfied that crossing out those words will ensure that the health record is accurate.

97. However, the respondent concedes that it is prepared to delete those words on the basis that ALL has not been charged with an offence of possession of cannabis has no bearing upon his ongoing care or treatment.

Alternate cover page

98. ALL proposes that an alternate cover page for his medical records be attached in terms of the script he has provided. I reject his proposal and I am satisfied that the current note contained on the cover page of his medical record is accurate, providing one amendment is made to reflect my findings. It is to be amended to include the following deletion:

Please note that the medical records for the admission from 18 to 20 August 2007 is incomplete because important health information is missing and a final diagnosis by the RN or the clinical coder (on the Coding/DRG summary report) cannot be relied upon as accurate.

…

Alleged breach of clause 5 of Schedule 1 of the Act - deletion of documents

99. Clause 5 of Schedule 1 of the HRIP Act provides:

1. An organisation that holds health information must ensure that:

   (a)   the information is kept for no longer than is necessary for the purpose for which the information may lawfully be used and …

2. An organisation is not required to comply with a requirement of this clause if:

   …

   (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an act or any other law (in the State Records Act 1998).

   100. It is uncontroversial that the respondent is obligation to comply with the State Records Act. In particular s21 provides:

3. A person must not:

   (a)   abandon or dispose of a State record, or

   …

4. None of the following is a contravention of this section:

…

(c)   anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and codes of best practice for records management formulated by the Authority,

1. The Authority must do, or give permission or approval for or with respect to the doing of, anything referred to in subsection (1) except with the approval of the Board given either generally or in a particular case or class of cases.

2. An Act enacted after the commencement of this section is not to be interpreted as prevailing over or otherwise altering the effect of the operation of this section except in so far as that Act provides expressly for that Act to have effect despite this section.

   101. The State Records Authority General Retention and Disposal Authority issued under s21(2)(c) of the SR Act provides that patient records must be kept for a minimum of 15 years after the last attendance or official contact.

   102. I find that ALL’s medical record held by the respondent falls within that class of medical record. His medical records cannot be destroyed until 15 years has passed. The respondent remains under a statutory obligation to retain ALL’s medical record. I find it has not breached clause 5(1)(a) of Schedule 1 to the HRIP Act in retaining these documents.

Alleged breach of clause 5 of Schedule 1 - reasonableness of security safeguards

103. The allegations made by ALL, appear to be, that the following conduct gives rise to a breach of clause 5(1)(c) of Schedule 1 to the HRIP Act:

1. the respondent did not provide ALL with his whole medical record in a timely manner; and

2. the respondent mailing to ALL the documents which were responsive to the August application.

104. Clause 5 of Schedule 1 requires the respondent to ensure that ‘the information is protected by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse’.

105. The authorities which include FH v Commissioner, New South Wales Department of Corrective Services (2003) NSWADT 72 and ALZ v WorkCover NSW (No 2) (2014) NSWCATAD 122, canvass the reasonableness of security safeguards to which an agency such as the respondent must adopt. There is no obligation to show that security policies and practices are perfect or ideal in every respect. Where there are shortcomings the significance of them need to be assessed by reference to the degree of risk that they carry for intrusion into the privacy of persons whose data is secured.

104. I am satisfied that the respondent has demonstrated that it has policies in place such that they have ‘control over the movement of paper based health care records … a tracking system which is used to facilitate prompt retrieval of records and preserve privacy’. These policies are in place and are modified and audited as needed.

105. I am not satisfied ALL has demonstrated any breach of the respondent in respect of clause 5(1)(c). Indeed, in respect of the August application the respondent put ALL on notice that, unless advised otherwise, information will be sent via regular Australia Post.

106. There is no evidence before me to suggest that the storage of ALL’s medical records in the main filing area with the majority of the other medical records held at the RPAH is not reasonable.

Alleged breach of Clause 7 of Schedule 1 - failure to provide applicant with access

109. ALL alleges that the respondent is in breach of clause 7(1) of Schedule 1 in relation to its handling of ALL’s two requests for documents in August 2017 and December 2017. ALL must demonstrate that any delay is excessive for the purposes of the HRIP Act and the PPIP Act and it must exceed what is ‘usual or proper limit or degree’ or what is ‘right, proportionate or desirable’ as set out in KT v Sydney South West Area Health Service (2010) NSWADT 94 at paragraphs 42 to 44.

110. Whilst the respondent accepts there was a delay due to a misapprehension of its administrative staff as to the request made by ALL, it submits that it is not excessive for the purposes of the two Acts.

111. The evidence of the respondent is such that once the particular request was properly understood its staff provided ALL with his records within 3 hours.

112. I find that ALL has not demonstrated that there was a delay in providing his medical records which was excessive in the circumstances or indeed exceeding what is the usual proper limit or degree of what is right, proportionate or desirable in the circumstances. I accept the respondents’ submissions in terms of the initial misunderstanding concerning his requests. The respondent immediately rectified the misunderstanding as soon as his true request was realised.

Alleged breach of clause 9 of Schedule 1 reasonable steps taken before use

113. Clause 9 of Schedule 1 to the HRIP Act provides:

An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

Has there been a use of documents in ALL’s medical record?

114. The Tribunal in ALL v SLHD (No 1) at [72] to [91] identifies in my view the use of certain documents:

1. documents used by Mr Patrick Rice, Registered Nurse, to complete the continuity of care form;

2. use of Coding/DRG summary report for statistical and funding purposes; and

3. use of the Continuity of Care Form and other documents contained in ALL’s medical record by coders.

115. The respondent concedes that it holds ‘health information’ in documents contained in ALL’s medical records, the Continuity of Care Form and in the Coding/DRG summary.

116. The respondent also accepts there has been a use of some of the documents in ALL’s medical record to complete the Continuity of Care Form, a use of the documents in the medical record including Continuity of Care Form by the clinical coder and a use of the Coding/DRG summary for statistical and funding purposes.

117. The Tribunal has previously considered the following non-exhaustive list of factors which were identified in JD v Department of Health (GD) (2005) NSWADTAP 44 to include:

1. the gravity of the information, taking account of the context;

2. impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s16;

3. how recently the information was collected;

4. the experience and competence of the author of the information;

5. the significance of the information in the context;

6. the extent to which it was possible to check back the information with the providers of the information, or the subject;

7. whether check back is unnecessary because, for example, of the known reliability of the source system;

8. whether check back is impractical because of operational issues, such as time constraints or need to do with maintaining confidentiality of the process;

9. whether the particular recording methods might have been used that militate against error (such as tape recordings in an interview setting); and

10. whether there are other steps that may be taken before any final action is taken in relation to the information, and whether they are likely to occur soon.

Use of ALL’s medical record to complete the continuity of care form

118. The information used to complete the s24 form, the s29(2) and s33(1) form were limited to the particular context in which it was proposed it be used. The Continuity of Care Form was completed following a decision made by Dr Allan to admit ALL and Dr Holton to discharge him. It was not used to form the basis of any other decision or action by the respondent.

119. Parliament has designated because of the experience of health care practitioners can form an opinion as to whether a person is mentally disturbed or mentally ill for the purposes of the Mental Health Act about certain persons. The authors of the s24 form and the other two forms were a police officer and competent and trained clinical hospital staff with authority to complete the forms.

120. I am not satisfied there is evidence before me to indicate any significant damage to the reputation of ALL given the private and secret nature of the medical information which is not available to the public at large.

121. There is no evidence before me to suggest that there were other steps that may be taken before any final action is taken in relation to the information. I have also formed the view that it was impractical for any check back to be undertaken by the respondent given the time constraints and the relatively short period in which ALL was admitted to the RPAH.

122. For similar reasons I am not satisfied that it was unreasonable that the steps taken by the respondent in respect of the use of the Coding/DRG summary report and the use of documents to complete that report were unreasonable having regard to the factors listed at paragraph 117 above.

Damages and other remedies

Damages

123. ALL seeks damages in the amount of $1.00. He provides no justification for this amount, nor has he established a causal link between the damages he seeks and the respondents’ breach of HPP as set out above. I decline to exercise a discretion to make an award of damages.

Apologies

124. I note that written apologies have been provided to ALL by the respondent on 11 July 2011, 13 March 2012, 17 May 2012 and 16 November 2018. I am satisfied that these apologies are satisfactory in the circumstances. I decline to make any further order as sought by ALL.

125. I reject ALL’s submission that there is evidence that the respondent disclosed his personal and/or health information to the NSW Police Force. I decline to make an order for the respondent to circulate the documents as set out in his proposed order 11 as the proposed documents are not in my mind appropriate.

126. I decline to make any of the other orders proposed by ALL as they are either outside of my jurisdiction, or, they are not appropriate in the circumstances.

Orders

127. I make the following order:

1. Pursuant to Clause 8(1) of Schedule 1 to the Health Records and Information Privacy Act 2002, the undated Coding/DRG Summary Report is to be removed from the applicant’s medical record held by the respondent.

2. Pursuant to Clause 8(1) of Schedule 1 to the Health Records and Information Privacy Act 2002, the words ‘dilusional ideation’ and ‘high’ be struck through in the Continuity of Care Form dated 20 August 2007 contained in the applicant’s medical record held by the respondent.

3. Pursuant to Clause 8(1) of Schedule 1 to the Health Records and Information Privacy Act 2002, the words ‘or the clinical coder (on the Coding/DRG summary report)’ are to be struck through on the cover page of ALL’s medical records held by the respondent.

**********

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

Decision last updated: 08 July 2020