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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCATAD 174
Decision Date: 08 July 2020

CaseChat Overview and Summary

All v Sydney Local Health District involved a dispute over the deletion of certain information from the plaintiff’s medical records held by the defendant, the Sydney Local Health District. The plaintiff sought an order for the removal of a Coding/DRG Summary Report from their medical record, the redaction of specific terms from a Continuity of Care Form, and the alteration of the cover page of their medical records. The case was heard and determined by the Civil and Administrative Tribunal of New South Wales.

The primary legal issue was whether the defendant had contravened the Health Records and Information Privacy Act 2002 by failing to appropriately manage the plaintiff’s personal information within their medical records. A secondary issue was whether the defendant had breached the Privacy and Personal Information Protection Act 1998 in relation to the same personal information. The court needed to determine whether these alleged breaches warranted the orders sought by the plaintiff.

The tribunal found that the defendant had indeed contravened the Health Records and Information Privacy Act 2002 by retaining certain information in the plaintiff’s medical records that should have been removed. The tribunal also determined that the defendant’s actions were unreasonable and constituted a breach of the Privacy and Personal Information Protection Act 1998. Consequently, the tribunal ordered the removal of specific information from the plaintiff's records and the redaction of certain terms as requested. The tribunal further awarded the plaintiff compensation for the distress caused by the breaches.

The final orders of the tribunal required the Sydney Local Health District to remove and redact specific information from the plaintiff’s medical records. Additionally, the tribunal ordered that the district compensate the plaintiff for the distress caused by the breaches of privacy.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.