All v Sydney Local Health District

[2019] NSWCATAD 143

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ALL v Sydney Local Health District [2019] NSWCATAD 143
Hearing dates:	14 May 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Pearson, Principal Member
Decision:	1. The application to set aside the summons to the respondent Sydney Local Health District dated 27 February 2019 and 1 March 2019 is granted. 2. The application to set aside the summons to the Information and Privacy Commission dated 28 February 2019 is granted. 3. The matter is listed at 9.30am Tuesday 30 July 2019 for further directions and to set a hearing date.
Catchwords:	PROCEDURE – summons to produce documents – application to set aside summons - whether summons has legitimate forensic purpose – whether summons oppressive
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Health Care Complaints Act 1993 Health Records and Information Privacy Act 2002 Mental Health Act 1990 Privacy and Personal Information Protection Act 1998
Cases Cited:	ALL v Sydney Local Health District [2014] NSWCATAD 4 CPJ v The University of Newcastle [2017] NSWCATAD 350 CYL v YZA [2017] NSWCATAP 105 KO v Commissioner or Police, NSW Police Force (GD) [2005] NSWADTAP 56 Lonsdale v University of Sydney [2015] NSWCATAP 277
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	ALL (Applicant) Sydney Local Health District (Respondent)
Representation:	ALL (Applicant in person) Crown Solicitor (Respondent)   C Higgins, Information and Privacy Commission
File Number(s):	2018/00381439
Publication restriction:	Disclosure of the name of the applicant is prohibited

REASONS FOR DECISION

1. The applicant “ALL” applied to the Tribunal on 11 December 2018 under s 55 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and s 21 of the Health Records and Information Privacy Act 2002 (the HRIP Act) for review of conduct the subject of an Internal Review by the respondent Sydney Local Health District (SLHD) dated 16 November 2018. At his request, the Tribunal has issued a number of summonses. The respondent SLHD and the Information and Privacy Commission (IPC) have applied to have the summonses for production of documents addressed to them set aside.

Background

2. The applicant ALL was an involuntary patient at the Missenden Psychiatric Unit (MPU) of Royal Prince Alfred Hospital (a facility of Sydney Local Health District), admitted on the evening of 18 August 2007 and discharged on 20 August 2007.

The 2012 Internal Review and 2014 Tribunal proceedings

3. In 2012 ALL applied for internal review of conduct of employees of the SLHD, which he asserted was in breach of a health privacy principle (HPP) under Sch 1 of the HRIP Act, in regard to the accuracy of documentation and the secure retention of his medical record. The Internal Review completed on 23 July 2012 concluded that there had been a breach of HPP 5: retention and security and HPP 9: accuracy, and detailed proposed remedial actions, including an apology, an audit of compliance, and other steps to flag that the medical record held by the respondent is incomplete.

4. ALL applied to the former Administrative Decisions Tribunal for review, maintaining that there was a breach of HPP 9 and 5 in the use and security of his health information. That application related to records of the circumstances leading to the applicant’s admission, documented on forms under the Mental Health Act 1990 by the police officers who brought the applicant to the MPU; records made by Dr Allan, the on-duty psychiatric registrar who assessed the applicant, including a medical report under s 29 of the Mental Health Act; an assessment made by Dr Holton, another psychiatrist employed by the respondent; notes made by the discharge nurse on the discharge documents; and records made by an administrative clinical coder, a Coding/DRG Summary Report.

5. In ALL v Sydney Local Health District [2014] NSWCATAD 4, decided on 28 January 2014, Principal Member Higgins concluded that there was no breach of the health privacy principles in cl 9 of Schedule 1 of the HRIP Act; that the conduct of the respondent in relation to a missing discharge summary and case history notes was a breach of the health privacy principle in cl 5(1)(c) of Schedule 1 of the HRIP Act; and that the applicant had failed to establish that he had suffered any loss or damage as a result of the breach of cl 5(1)(c), or that any loss was minimal and it was not appropriate to make an order for compensation. Principal Member Higgins decided to take no further action on the matter.

6. In the course of her reasons Principal Member Higgins noted that ALL had not, in the internal review the subject of those proceedings, requested that the records he claimed to be inaccurate be amended. The question as to the accuracy and amendment of the discharge diagnosis in the Continuity of Care Form and that contained in the Coding/DRG Summary Report remained an issue. Principal Member Higgins recommended that actions be taken by SLHD to discuss and make the requested amendments.

Internal Review 16 November 2018

7. The Internal Review report of 16 November 2018, which is the subject of these proceedings, identified two internal review applications made by ALL, the first on 12 March 2018 and the second on 22 March 2018, and noted that the conduct complained of by ALL included the accuracy of documentation currently held on his medical record and his requests for their amendment and/or removal. The Internal Review Report noted that both applications were of a similar nature, and would be processed as one Internal Review request. The reviewer noted that the allegation was that SLHD employees had not maintained a full and accurate medical record and had refused to make notations and/or amendments to the file to ensure that the content was factually correct and not misleading. The reviewer noted that ALL had not specified in his request the specific HPPs said to have been breached, and identified them as HPP 5: retention and security; HPP 8: amendment of health information; and HPP 9: accuracy.

8. Some detail of the Internal Review is required in order to enable the summons issue to be determined. The reviewer noted that since Principal Member Higgins’ decision ALL had made several unsuccessful attempts to request that his records be reviewed and amended by the respondent, and that the Internal Review requests were made because he considered his requests were not adequately addressed.

9. There were 13 items for review. Items 1 and 2 were letters by Mr Allan Hall Director Clinical Governance for Mental Health (13 March 2012) and Dr Nick O’Connor (29 March 2012). The Internal Review report concluded that while there was no breach of HPP 9 as they were the views of Mr Hall and Dr O’Connor based on information available to them at the time, they did not form part of the medical record. They should be removed from ALL’s medical record, but should remain on the Internal Review file.

10. For item 3, the Coding/DRG Summary Report, the reviewer found that the information was inaccurate and misleading and in breach of HPP 9, and recommended that it be removed and destroyed. The reviewer recommended notations to be made to Items 4 and 5, which were the forms completed by police under the Mental Health Act for ALL’s admission.

11. For Item 6, the admission notes made by Dr Allan, the reviewer recommended notations, including a notation that the document is incomplete, other than for the provisional diagnosis recorded as it was a clinical opinion expressed at that time by a treating clinician. The recommendation for Item 7, the Continuity of Care form dated 20 August 2007, was to strike a line through the discharge diagnosis recorded. Item 8 the Discharge Checklist had not been completed and the recommendation was for its removal from the medical record.

12. Item 9 related to the Case History Notes dated 18-20 August 2007. The reviewer found that some information in those documents was inaccurate and misleading, and breached HPP 9: accuracy. Principal Member Higgins had found in the earlier application that in relation to the missing Discharge Summary and part of the Case History Notes there was a breach of HPP 5: retention and security. The Internal Review Report recommendations included that notations be made.

13. Item 10 was “all documents, emails, letters and attachments” placed on ALL’s medical record to support the 2012 internal review: the Internal Review reviewer concluded that those attachments were not serving any intended purpose by remaining on the record, and all addendums and attachments should be removed.

14. In relation to Item 11, the 2012 Internal Review had recommended that a copy of the Internal Review Report be placed on ALL’s file as a reference, and a coversheet explaining that the record of admission in 2007 was incomplete and should not be relied upon, should be placed on the file. The Internal Review Report was missing and the coversheet had been amended. As part of this Internal Review the reviewer confirmed that the current Medical Records Manager had advised that the report was not currently located on ALL’s medical record; that the cover sheet had been amended, to delete the point that indicated that the Internal review Report was to be placed within ALL’s medical record, with no notations as to why it had been done or who had done it or when. The reviewer concluded that the respondent had not followed up adequately the recommendations made in 2012, and recommended the documents be placed back on the medical record.

15. Item 12 related to an allegation that ALL’s medical records had not been stored securely or had been inappropriately modified. The reviewer noted her discussions with current and former Medical Records Managers as to where ALL’s medical record was being held and the degree of security, and acknowledged that there were issues with where and how ALL’s medical records had been stored, and with the failure to provide to him copies of documents and records at his request. The review concluded that although unintentional there had been a breakdown in communications which resulted in a breach of HPP 5: retention and security. Item 13 related to documents which had been added to ALL’s record including case history notes made in October 2009: the reviewer recommended that the entire file be reviewed and each document placed in chronological order.

The Tribunal proceedings

16. Directions made at a case conference after the review application was lodged included a direction that ALL provide a schedule setting out the documents he wishes to be amended and how he wishes them to be amended, and specifying any other remedy sought by him including the quantum of damages if any.

17. On 25 February 2019 ALL provided a statement of the remedies he is seeking, which includes 32 items. The list is detailed, and in summary, ALL asserts that the Internal Review acknowledged and identified only some of the false or inaccurate information recorded in his medical record. The orders he is seeking include orders for further amendments and notations, an apology, orders as to how his medical record is to be stored, changes to SLHD practice, orders relating to alleged illegal and negligent acts, acknowledgement of further breaches of HPPs, orders that his involuntary admission was a result of systemic failure, and orders informing the Medical Board and HCCC about certain medical practitioners. On 19 March 2019 ALL advised the Tribunal that he is seeking damages in the order of $1.00.

18. ALL attached a schedule to those documents, which is based on the schedule and item numbers used in the Internal Review. He takes issue with the Internal Review findings of no breach of HPPs for items 1, 2, 8, and 13, and proposes different responses for those items and items 3, 7, and 10. ALL has added four additional items, seeking amendments and notations to nurses’ notes under HPP 9: accuracy; and asserting multiple breaches in relation to “the new evidence that has yet to be scrutinised” and the coded summary.

19. On 4 March 2019 SLHD responded to ALL’s documents filed on 25 February 2019. The response stated that it had identified that there had been requests for amendments before the Internal Review in relation to items 1, 2, 3 and 7 and that those items and the proposed order for amendments and annotations to the coded summary fall within the scope of the administrative review. The respondent disputed whether the requests for amendments in relation to the other items could be the subject of the administrative review. Notwithstanding the respondent’s position that some of the amendments sought by ALL in his documents of 25 February 2019 are beyond the Tribunal’s jurisdiction to review, and reserving its position in relation to the concerns as to scope, the respondent has proceeded for the purposes of the summons issue on the basis that the amendments and/or removal of documents considered in the Internal Review fall within the scope of the administrative review proceedings.

20. The matter has been the subject of a mediation, at which it appears some of the issues in dispute may have been resolved.

21. The respondent SLHD has filed documents under s 58 of the Administrative Decisions Review Act 1997 on 8 February 2019, being background documents, documents in the medical records in dispute, correspondence related and possibly related to the requests for amendments, applications in 2017/02018 for access to medical records and related correspondence, and policy documents. In addition to several emails annexing documents provided to the Tribunal in the lead up to the mediation, ALL has filed three folders of material, on 5, 11, and 12 April 2019.

Summons to produce

22. On 27 February 2019 at ALL’s request two summonses to produce were issued: one to Woden Valley Hospital, and the other to the respondent. On 1 March 2019, four further summonses to produce were issued: to the Information and Privacy Commission, the Commissioner of Police, the respondent, and the Health Care Complaints Commission. On 6 March 2019 a further summons to produce was issued to the respondent SLHD.

23. The summonses to the Commissioner of Police, the Health Care Complaints Commission and the third summons to the respondent are not pressed. The IPC is seeking to have the summons issued on 1 March 2019 set aside. The respondent SLHD is seeking to have the summonses issued on 27 February 2019 and 1 March 2019 set aside. ALL is not pressing the summons to the respondent of 6 March 2019.

24. The parties were given an opportunity to make written submissions in support of, or in response to, the applications to have the summons set aside. Oral submissions were made on 14 May 2019.

Relevant principles

25. The Appeal Panel summarised the relevant principles for a grant of leave to issue a summons in Lonsdale v University of Sydney [2015] NSWCATAP 277 as follows:

25. In White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36, the Appeal Panel listed these considerations as relevant to the grant of leave to issue summonses:

(a)legitimate forensic purpose;

(b)identification of the respondent to an attendance summons ‘with clarity and precision’; and similarly,

(c)identification of the documents in a documents summons with clarity and precision, rather than setting out a series of questions.

26. We agree with the respondent’s submissions that to these should be added:

(d) the respondent must be both competent and compellable (though this will sometimes be a difficult matter for a registrar to address at that stage of consideration);

(e) a summons should not be over-broad and/or oppressive.

26. The principles to be applied when considering an application to set aside a summons were summarised by Deputy President Hennessy in CPJ v The University of Newcastle [2017] NSWCATAD 350 at [8] to [12]:

8. The Tribunal's guiding principle when exercising any power under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), is to "facilitate the just, quick and cheap resolution of the 'real issues' in proceedings": s 36(1). …

9. A registrar may, on the application of a party to proceedings or at the direction of the Tribunal, issue a summons: NCAT Act, s 48. NCAT Procedural Direction 2 gives as an example of an objection that can be made to a summons, that the "evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings". The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].

10. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585.

11. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447.

12. In a recent Supreme Court case, Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.)

Summons

Sydney Local Health District

27. The summons dated 27 February 2019 (the First Summons) is for production of the following documents:

1.The original medical records of the applicant ALL regarding his admission RPA 18/8/2007-20/8/2007

2.Copy of the medical records sent to the applicant ALL by privacy officer Sonia Makira (A true copy) that was sent via email to the applicant ALL at [email address] on Monday June 4th 2018 at 7.36am. These records sent by Sonia Makira were a black and white copy.

3.Requesting the qualifications of the clinical coder who completed the coded summary that was attached to the applicant’s medical record. I am requesting the coders qualifications at the time the coded summary was made by the coder.

4.All copies of the applicant ALL Internal Review requests made from 2011 to the present day 2019, whether the respondent has complied with the Internal Review requests or not.

5.All correspondence from SLHD to the Health Care Complaints Commission in response to ALL the applicant’s complaint to the HCCC reference 10/01170 – Especially Dr Allans response that which Dr Allan denied the applicant ALL access to.

6.[deleted]

28. The reasons for requesting the summons were stated to be:

For assistance in identifying any errors in medical records of ALL. Identifying any misconduct and/or privacy breaches, assistance in remedy. Breaches to HPPs possible false misleading deceptive, concealed corrupted documentation flaws lack of transparencies, accountability. In the interests of justice. Abuse of the victim (the applicant) ALL and neglect of ALL.

29. The summons dated 1 March 2019 (the Second Summons) is for production of the following documents:

1.Emails from and to Mr Hall, Dr O’Connor, Gillian Holt, Mr Slade, Sonia Makira, Maria Mappis, Margaret Suda, including:

Allan Hall [email address] to [email address]

Hall to applicant Dec 7 22012 at 11.24am

All to Hall Dec 6 2012 at 8.20am

ALL to Hall May 26 2012 at 1.12pm

Hall to ALL November 28 2011 at 1.12pm

Hall to ALL March 13 2012 at 9.03am

ALL to Hall Dec 10 2012 at 8.36am

Hall to ALL Dec 7 2012 at 11.24am

Hall to ALL Jan 22 2013 at 10.34am

2.Copy of letter to ALL from Mr Hall dated 16 November 2007 regarding the medical record as having been lost

3.Dr Kerrs notes and report 2009 re ALL

4.Dr O’Connor letter to ALL 4 December 2008

5.Emails from ALL to Mr Slade [email address] on 16/10/12, 12.55pm 12.49pm 16/10/12

6.Gillian Holt [email address] to ALL 29/6/11, 20/1/09, 30/8/11, 21/10/11, 17/2/12, 30/8/11, 25/6/11

7.From ALL to Holt 20/1/09; 25/6/11 to Gillian Holt 25/6/11, 18/9/11

8.To Dr O’Connor 27/7/11

Dr O’Connor to ALL 27/7/2011

Dr O’Connor to ALL Oct 20 2011

To ALL from Dr O’Connor Oct 20 2011 at 4.45pm.

30. The reasons for requesting the summons were stated to be:

To obtain confirmation certain issues were raised, attempt were made by applicant ALL to address the misconduct and false information that served to misrepresent the applicant. Also many of the requested emails need acknowledging and that some should have been but were missing from s 58.

SLHD’s submissions

31. The respondent SLHD submits that both the First and Second Summons should be set aside, as lacking a legitimate forensic purpose, and because certain documents particularised are oppressive.

32. The respondent submits that the Internal Review comprised conduct being:

1. The respondent’s refusal to amend certain documents in the medical record;

2. The respondent’s refusal to remove certain documents from the medical record;

3. The respondent’s alleged failure to take reasonable steps prior to use of three documents in the medical record;

4. The respondent’s provision of an “incomplete” medical record to the applicant in response to two applications for access made in 2017;

5. The respondent’s movement of the applicant’s medical record from the security access filing cabinet to the common storage area for other medical records; and

6. The unrequested amendment to the cover page of the applicant’s medical record and removal of a document from the medical record, which was reversed during the course of the Internal Review.

33. In relation to the First Summons, SLHD submits that:

1. Points 1,2: the applicant has not established that the documents at tabs 6-13 of the respondent’s s 58 documents do not accurately reflect the documents that he has requested be amended or removed;

2. A copy of the unrequested amendment to the cover page is at tab 15 of the s 58 documents;

3. The other documents in the medical record are not relevant to these proceedings;

4. Point 3: the qualifications of the person who coded the Coding DRG/Summary are not relevant to whether that document should be amended;

5. Point 4: the applications for internal review the subject of the Internal Review are at tabs 2 and 3 of the s 58 documents, and any other applications are not relevant; and

6. Point 5: the correspondence sent by the respondent to the HCCC in relation to a complaint made by the applicant is not relevant to the proceedings because it was not the subject of the Internal Review; and since under s 99A(2) of the Health Care Complaints Act 1993 the HCCC cannot be compelled in legal proceedings to give evidence about or produce documents containing information obtained in exercising a function under that Act the Tribunal’s processes should not be used as a circuitous route to obtain documents to which the applicant has not been provided access by the HCCC.

34. In relation to the Second Summons, the SLHD submits:

1. The documents particularised predate the majority of the respondent’s conduct that is the subject of the Internal Review, which is the subject of the current administrative review proceedings. Principal Member Higgins had in the earlier decision accepted there had been no requests for amendments to the medical records; and

2. The applicant has not established how every email received and sent by the seven people named in point 1 is relevant to these administrative review proceedings.

35. The respondent submits that having regard to the reasons for requesting the summons, the documents sought in the First Summons are sought on a speculative basis, and it is impermissible to use a summons for fishing purposes. Further, some of the documents sought appear to be in the applicant’s possession, and the production of a further copy of those documents could not reasonably be said to add in some way to the relevant evidence in the proceedings.

36. The respondent submits that the summonses are oppressive: in circumstances where the documents called to be produced have no apparent relevance, the burden placed on the respondent in complying with either would be excessive.

ALL’s submissions

37. In relation to the First Summons, ALL accepts that he has copies of the documents at points 1 and 2. For points 3 and 4 he has not had the detail, and the dispute is whether documents should be held and amended, as he submits, or removed. Point 5 is the most important document because it is relevant to the conduct of the doctor and the legality of what occurred. There are inaccuracies in the part of the record compiled by Dr Allan, and inaccuracies about what is said about ALL’s mother, and he has not obtained a copy of it.

38. In relation to the Second Summons, ALL submits that he had not previously sought amendments because he was told it was illegal to amend and all he was offered was an addendum. He made the internal review application in March 2018 seeking to amend the inaccurate and incomplete records. He has copies of the correspondence he identifies in the summons, however his concern is how he can prove he has not tampered with it, which is why he wants copies from the SLHD to give to the Tribunal.

Discussion and findings

39. In an application under s 55 of the PPIP Act for administrative review, the Tribunal only has jurisdiction to review conduct of the respondent where the applicant has earlier applied for internal review of that conduct. The "conduct" that is the subject of a review sought by an applicant under s 53, and thus the conduct the subject of the external review by the Tribunal under s 55 of the PPIP Act, is the action or circumstances involving the agency that might amount to a possible contravention of an information protection principle, or a health privacy principle: CYL v YZA [2017] NSWCATAP 105. The scope of the application is a matter of fact to be determined objectively by construing the application reasonably: KO v Commissioner or Police, NSW Police Force (GD) [2005] NSWADTAP 56; CYL v YZA [2017] NSWCATAP 105 at [58].

40. The Tribunal will be required to determine the scope of the administrative review the subject of these proceedings, by reference to the conduct the subject of the application for internal review. It is clear from the respondent’s submissions that there is a live issue as to that scope, and it is not appropriate to determine that in this present interlocutory application.

41. However, even on a broad view as to what may be ultimately regarded as within the scope of the application, to the extent that ALL is seeking material that might support a claim of further breaches of HPPs not the subject of the Internal Review, as suggested in his reasons for seeking the issue of the summons, that would be an impermissible use of a summons for fishing purposes, summarised in CPJ v University of Newcastle as being an attempt “to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge”. The applications for internal review which were the subject of the Internal Review, and thus the basis for, and the only applications relevant to, the Tribunal’s administrative review determination, are provided in the s 58 documents filed on 8 February 2019. That ALL had made previous requests for amendments and notations, and that SLHD had failed to respond, was acknowledged and discussed in the Internal Review Report which is the basis for the present proceedings.

42. To the extent that ALL is seeking production of documents which he already holds or which have been provided in the s 58 documents, to require further production of those documents could not be considered to be likely to add to the relevant evidence in the proceedings, and would be oppressive.

43. As to the First Summons, Points 1 (provided in the s 58 documents) and 2 (which ALL acknowledges he has received as a black and white copy) of the First Summons should be set aside on the basis that to require further production of those documents would be oppressive. On Point 3, the qualifications of the person who coded the document “Coding DRG/Summary” are not relevant to the question of whether that document should be amended. The Tribunal notes the discussion of that issue at paragraph [89] of the reasons in ALL v Sydney Local Health District [2014] NSWCATAD 4. Given the comprehensive discussion in the Internal Review Report, it is not likely that the other internal review requests would add to the relevant evidence in the case. The documents sought at points 3 and 4 of the First Summons have no apparent relevance to the issues for determination, and points 3 and 4 should be set aside.

44. Point 5 of the First Summons relates to a complaint made by ALL to the HCCC about Dr Allan. ALL’s documents filed on 5 April 2019 include documents relating to that complaint, including SLHD’s response to the complaint which was communicated to the HCCC in a letter dated 8 June 2010. The documents include the HCCC notification to ALL on 9 August 2010 of the outcome, which was that the HCCC was not critical of Dr Allan’s clinical assessment of ALL, had determined there were no other issues requiring further investigation by it, and decided to take no further action. That document summarises the claims made by ALL, and Dr Allan’s responses, including the basis on which Dr Allan had made his assessment of ALL and formed his clinical opinion. A further letter dated 21 October 2010 by the HCCC responding to a request by ALL’s lawyer for a review of that outcome, includes reasons for the HCCC’s decision that it was unlikely that Dr Allan’s actions would be considered to fall significantly below the standard of care reasonably expected of a Psychiatric Registrar. In a letter to ALL dated 13 May 2013 the HCCC provided a copy of its original response, and declined to provide a copy of Dr Allan’s response to the complaint at Dr Allan’s request.

45. It is not clear what relevance any of those documents, or any other documents held by the respondent SLHD relating to the complaint made to the HCCC, would have to the conduct the subject of the Internal Review which is the basis for the present administrative review proceedings. The parameters of the complaint investigation process in which the HCCC was engaged and the matters relevant to that process, which are different to the matters requiring determination in the present proceedings, are stated in the letters of 9 August 2010 and 21 October 2010. The information available to Dr Allan at the time of his assessment of ALL, his use of that information, and his recording of his assessment of ALL at the time of his admission, are discussed in detail in the earlier decision at paragraphs [72]-[91]. That discussion included a discussion of the principles that may be relevant in determining the present application for review, which concerns requests for amendment and notations. Further, pursuant to s99A(2) of the Health Care Complaints Act 1993 the Commission could not be compelled to produce a copy of Dr Allan’s response to the complaint. Even if the respondent SLHD holds a copy of that response, in the absence of likely relevance to the issue requiring determination in these proceedings. The Tribunal is of the view that to require SLHD to produce it would serve no legitimate forensic purpose.

46. For the Second Summons, emails received and sent by three of the people identified in point 1 are included in the s 58 documents filed on 8 February 2019 (tabs 23-27, 29-35, 37-.41, 45-46). Other documents apparently covered in point 1, and in points 2, 4, 5, 6, 7 and 8, are documents received or sent by ALL. The respondent submits that those documents predate the majority of the conduct that is the subject of the Internal Review, which is the subject of the present administrative review proceedings. To the extent that any of that correspondence is determined to be relevant to the proceedings based on the objective determination of the scope of the review application, there is no indication that ALL no longer has a copy. It is likely that he does, as some of those documents are included in the material he filed on 5 April 2019. If the authenticity of any copy that ALL holds comes into question, that can be clarified at the final hearing. Tab 13 of the s 58 documents, a file note by Dr Kerr dated 29 October 2009, is what the respondent says that is the only document it holds that meets the description at point 3. The Tribunal accepts the respondent’s submission that to require production of documents specified in the Second Summons would not likely add to the relevant evidence in the case, and that summons should be set aside.

47. For the reasons above, both the First and Second Summons should be set aside.

Information and Privacy Commission

48. The summons dated 28 February 2019 requests production of the following documents:

All the internal review requests submitted by the applicant [ALL] since 2011 in regards to the Sydney Local Health District.

All internal review requests by [ALL] regardless of whether the Sydney Local Health District complied to the request or not, since 2011 till the present day 2019.

49. The reasons for requesting the summons were:

To show my many attempts to have issues dealt with and than many of my internal review requests were not complied with by the respondent the Sydney Local Health District.

50. Following discussion between ALL and the IPC, the scope of the request was narrowed to be:

Copies of internal review applications made by the applicant to the Sydney Local Health District for 27 March 2012, 3 April 2012, 1 November 2012, and 21 November 2012.

51. The IPC maintained its objection to the summons.

52. The SLHD submits that those are the same documents sought in point 4 of the First Summons to the SLHD and, in circumstances where those documents do not have any legitimate forensic purpose in these proceedings, it is open for the Tribunal to set aside the summons.

53. The IPC representative submitted that it is not clear how those documents are relevant to the issues requiring determination.

54. ALL submitted that the documents are necessary to try to show that he has made many requests for review. He needs to see whether any documents are held by the IPC to try and prove he did exercise due diligence and tried his best to get matters scrutinised by the Tribunal.

55. As noted above, the scope of the administrative review application under s 55 of the PPIP Act is framed by the internal review requests the subject of the Internal Review of 16 November 2018. That review acknowledged that ALL has been actively trying to make amendments to inaccuracies in his medical records since the 2014 Tribunal proceedings. As discussed above in relation to point 4 of the First Summons to the SLHD, other requests for review have no apparent relevance to the matters requiring determination in the present proceedings, and as such any documents responding to the request are unlikely to add to the relevant evidence in the proceedings. The summons to the IPC should be set aside.

Conclusion

56. For the above reasons both summonses to the SLHD of 27 February 2019 and 1 March 2019 and the summons to the IPC should be set aside.

57. The Tribunal orders:

1.The application to set aside the summonses to the respondent Sydney Local Health District dated 27 February 2019 and 1 March 2019 is granted.

2.The application to set aside the summons to the Information and Privacy Commission dated 28 February 2019 is granted.

3.The matter is listed at 9.30am Tuesday 30 July 2019 for further directions and to set a hearing date.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 24 July 2019