APB v Illawarra Shoalhaven Local Health District

[2013] NSWADT 43

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	APB v Illawarra Shoalhaven Local Health District [2013] NSWADT 43
Hearing dates:	On the papers
Decision date:	25 February 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	reasonable grounds to believe that there are some further documents relevant to the application- whether the respondent has tried hard enough to find them
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 O'Hara v North Sydney Council [2005] NSWADT 100 Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56 Beesley v Commissioner of PoliceHYPERLINK " \o "View Case"[2000] NSWADT 52 Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187
Category:	Principal judgment
Parties:	APB (Applicant) Illawarra Shoalhaven Local Health District (Respondent)
Representation:	APB (Applicant in person) Illawarra Shoalhaven Local Health District (Respondent)
File Number(s):	123131

reasons for decision

BACKGROUND

1. In January 2012, the applicant, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act') requested the respondent to provide access to documents relating to Guidelines, policies and relevant protocols and/or procedures at Shoalhaven and Wollongong Hospitals as at June 2005 to 2010. The applicant requested copies of those documents that covered:

• Blood transfusion and related practices

• Emergency and treating a patient as an emergency

• Mandatory transfer of a patient

• Consenting a patient to a surgical procedure

• Signing of consent forms by a patient

• Suites of unnamed drugs routinely administered

• Day Only Unit at Wollongong Hospital

• VMO's

• Complaints handling by Hospital representatives

1. The respondent provided several hard copies of policies and links to policies (considered too large to print) that were considered relevant to her request but the applicant sought an internal review for the respondent to provide outstanding documents. Some additional documents were provided- seven additional policy document versions applicable at 2005 -and the applicant was informed that all documents relevant to her application had been provided.

1. The applicant also lodged another application under GIPA Act in February2012. She sought outstanding documents from [her] medical records and associated documents relating to 2 admissions to Shellharbour and Wollongong Hospitals in June 2005 and provided an extensive list of 22 categories of documents which she understood would be included. The respondent considered that it provided the applicant with her complete medical record.

1. By application dated 21 May 2012 the applicant sought review of both decisions.

1. The respondent's position remains that the applicant has been provided with all documents relevant to her applications.

CONSIDERATION

1. The approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, as to what constitutes a sufficient search has been adopted by the Tribunal in a number of cases, in particular, in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.

1. In Shepherd it was said at [19] that there were two questions for consideration:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

1. In Beesley v Commissioner of Police[2000] NSWADT 52 the Tribunal described its role:

To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).'

1. In Curtin the President described the Tribunal's role:

The task for me is to reach a conclusion, on the basis of the material now before me, as to the sufficiency of the search. Can it be said, fairly, that there are documents in existence relevant to this request which have not been located by the respondent? What I have before me is a deep-seated distrust of the respondent on the part of the applicant; instances of further documents being located after additional searches; and....

1. The task before the Tribunal is not an easy one, but simply put, the Tribunal must come to a view whether there are reasonable grounds to believe that there are some further documents relevant to the application and, if so, whether the respondent has tried hard enough to find them.

Are there reasonable grounds to believe that there are additional documents?

1. The Tribunal asked the applicant to briefly specify what documents relevant to her applications she understood to be missing. On 13 August 2012 the applicant provided a 32 page submission which I, and no doubt the respondent, found very confusing.

1. At that planning meeting on 30 October 2012 the applicant identified 6 specific documents or series of documents said to be missing. Her 32 page statement, appeared to me, to mostly relate to perceived variances in her treatment and protocols which she considered to be relevant. In all it was not overly helpful in assisting me to form a view whether there are reasonable grounds to believe that there are additional documents. Nonetheless I have carefully considered her submission in the course of my consideration.

1. The respondent's response was provided in an affidavit sworn on 29 November 2012 by Robert Farrugia, the respondent's Director of Clinical Governance, whose evidence in respect of each set of documents is set out below.

Discharge letter from Wollongong Hospital on 17 June 2005 by Dr Wanat.

1. Mr Farrugia reported that searches failed to locate any discharge letter from Dr Wanat. He said that in 2005, and currently, the practice was to provide the patient's GP with a discharge summary outlining the key details of the patient's admission following discharge from hospital. In 2005 this was a handwritten letter generally provided to the patient at the time of discharge to give to their GP when they presented for follow up. If there was a delay in nursing staff being able to have the medical officer attend the ward and write the discharge summary prior to patient discharge, the discharge summary when eventually written, was mailed to the patient's GP by the ward clerk.

1. From the applicant's medical record (which was previously provided to the applicant) which has been provided to me, Mr Farrugia noted at that the time of discharge the discharging nurse recorded that the applicant was not happy to wait for the discharge summary to be written and had been discharged home. In the Nursing Discharge Summary, next to LMO Letter written, the nurse has ticked "Not Applicable". On the Medical record Front Sheet MR1, in the boxes titled Local Medical Officer and Local Medical Officer's address - both boxes have entries recorded as "nil". Given that the applicant had left the ward before a Discharge Summary could be written, and that no GP name or address was supplied for Dr Wanat to forward the summary, Mr Farrugia suggested that the letter was never written and hence explains why it is not included in the copies of the medical record for this admission previously provided to the applicant.

1. In her lengthy statement the applicant wrote that on 17 June 2005, Dr Wanat told her she could leave (the hospital). She claimed that nursing staff told her and the two people who collected her that they had to wait for a discharge summary and that they were held 'for hours'. Her friends were told to collect the letter the following Tuesday. When they returned on that day they were told the letter had been sent to 'records' and a copy sent to Dr Leach, who, I assume was the applicant's GP. There was no evidence, or contention by the applicant that the letter had in fact been received by Dr Leach. Had that avenue been explored then the applicant would have been able to obtain a copy of the discharge letter she seeks. For the purposes of this review, it would also have served to lead me to the view that there was such a letter. As it stands, I prefer the explanation provided by the respondent and find that there are no reasonable grounds to believe that there is a discharge letter from Wollongong Hospital on 17 June 2005 by Dr Wanat.

Documents signed by the applicant at Wollongong Hospital on16 June 2005.

1. The search conducted by the respondent's Billing Services Centre located the documents signed by the applicant. Those documents were provided to the District Complaints Manager in March 2012, but the documents were not forwarded to the applicant. These documents have since been provided to the applicant, with apologies.

Haemoglobin test performed on 16 June 2005.

1. The applicant's statement indicated that she was very concerned that her haemoglobin results were described as '4.6'.

1. Mr Farrugia wrote that the official result is 47 grams/litre and is documented in the material provided by the respondent. Mr Farrugia observed that a haemoglobin level of 47 g/L can also be documented as '4.7', which expresses the reading in grams per decilitre. Some medical officers use the terms interchangeably and do not include the unit of measurement in their clinical notes.

1. The applicant wrote that her reading of '4.6' was lower than on Thursday morning (16 June) and after she had had '3 packs (of haemoglobin)'. I accept Mr Farrugia's explanation of the disparity between readings according to the medical officers' measurement preferences. The applicant referred to overhearing conversations about her levels and alleged doctors did not check her results. This did not, however, lead me to a view that other readings were taken.

1. Separately the applicant noted that her results were incorrectly recorded on the pre-operative assessment as 46 and the operation notes as 40 for the admission on 21 June 2005. Mr Farrugia was unable to explain how 46 and 40 were recorded when the official reading was 47. He suggested there was a transcription error.

1. The applicant wrote that none of the doctors or nursing staff spoke to her about her haemoglobin levels. She discussed other patients. She made detailed allegations against Dr Wanat and her care. I did not find this aspect of her statement to be helpful.

1. The applicant did not specifically assert that other tests were conducted on 16 June 2005, but, by her request sought an explanation of different entries about her results. The measuring protocols were explained, but the differing entries were not. A logical explanation, may be that there were other tests.

1. It is clear that the relationship between the applicant and the respondent has broken down. The applicant was deeply dissatisfied with her treatment. However, it is not enough for an applicant to merely assert non-compliance by the respondent with its obligations under the GIPA Act on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 ('Cianfrano') at [69].

1. I accept that the applicant was ill, to the extent that she required transfusing and was hospitalised for several days. In those circumstances I would not necessarily expect a patient to be fully aware of whether additional blood samples had been taken to test her haemoglobin levels. While I may have some reservations that other tests occurred on 16 June 2005, I do not find Mr Farrugia's explanation of 'transcription errors' to adequately explain two entries in respect of the applicant's haemoglobin levels, neither of which are accurate. I find there are reasonable grounds to believe that some other test results may have been taken that showed a result of 46 or 40 or both.

Notes of Dr Grundy, anaesthetist, for the applicant's admission on 21 June 2005.

1. The applicant contended that Dr Grundy has claimed he took 'a thorough history' from the applicant. Somewhat contrary to her contention that there are outstanding notes¸ the applicant alleged that Dr Grundy did not ask relevant questions and she was critical of the information he provided her.

1. Mr Farrugia said that the only notes are those on the anaesthetic record which has previously been supplied to the applicant; as an anaesthetist, Dr Grundy's notes are confined to these two pages and there are no other entries in the applicant's medical record by Dr Grundy. Mr Farrugia said, and I accept, he would not expect there to be additional notes by an anaesthetist in respect of a routine procedure such as was performed on the applicant.

1. I find that the explanation provided by the respondent leads me to the view that there are no reasonable grounds to believe that there are further notes of Dr Grundy in respect of the applicant's admission on 21 June 2005.

Contemporaneous notes of Mr Clout, former Chief Executive Officer of the South East Sydney and lllawarra Area Health Service regarding a four day history of bleeding.

1. Mr Farrugia's evidence was that the Chief Executive Officer of an Area Health Service does not conduct investigations personally; a report is provided to the complainant which is signed off by the Chief Executive on the advice of the investigators and the senior managers responsible for the clinical service against which the complaint has been made. Mr Clout neither investigated the applicant's complaint nor would he have kept contemporaneous records regarding the investigation. Mr Farrugia referred to the first paragraph of the complaint response: "The concerns raised by [the applicant] have been investigated by senior officers of the health service and the following information is provided in order to assist the Commission with the assessment process".

1. In relation to the 'four day history of bleeding' Mr Farrugia wrote that this information was taken directly from the advice provided to the triage nurse at Shellharbour Hospital on Saturday 16 June 2005. A copy was provided. The applicant, on arrival at the hospital at 09:30 hrs, was reported to have informed the triage nurse that she had been bleeding since Monday (11 June 2005). Mr Farrugia explained that when the medical record was reviewed as part of the complaint investigation the difference between Monday night and Saturday morning was calculated as 4 days.

1. I find that the explanation provided by the respondent leads me to the view that there are no reasonable grounds to believe that there are contemporaneous notes of the former Chief Executive Officer of the respondent regarding a four day history of bleeding.

Transfusion thresholds used clinically in 2005.

1. At the planning meeting the applicant asserted that her transfusion of four units of red blood cells as not in keeping with the guidelines and was excessive. Mr Farrugia appended the Clinical Practice Guidelines on the use of Blood Components produced by the National Health and Medical Research Council (which have since been rescinded).

1. Mr Farrugia discussed when, according to the Guidelines, the transfusion of red blood cells was appropriate. However this is not a matter for me; the details and are not recorded here although his observations may be of interest to the applicant.

1. I find that the Guidelines have been provided to the applicant by the respondent. I am of the view that there are no reasonable grounds to believe that there are transfusion thresholds used clinically in 2005 which have not been provided to the applicant.

Did the respondent undertake reasonable searches to find the documents?

1. I have found that there are reasonable grounds to believe that there are some other documents which have not been provided to the applicant, namely haemoglobin test results which may have been taken that showed a result of 46 or 40 or both.

1. In Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30] the President considered the key factors in assessing whether a sufficient search had been carried out. There he said that these factors included, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant. However, what constitutes a sufficient search will vary with the circumstances.

1. In Patsalis at [63], the President said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred.

1. The respondent's Director Finance, Mr Kornacki, confirmed that there are formal systems in place for the management of complex correspondence and issues and this includes the management of access applications received under the GIPA Act. I was informed that the normal administrative practice for the management of an access application involves senior administrative personnel who are responsible for coordinating, evaluating and allocating applications to the relevant Executive Director; to ensure appropriate and timely advice is received within mandatory timeframes and legislative requirements. These senior personnel are responsible for critically reviewing, analysing, and crosschecking all documentation on receipt of a response. This process is followed to ensure all the information provided is accurate as well as ensuring that all aspects of an applicant's request are addressed prior to review, approval and determination by the respondent's Right to Information Officer. I accept that this was an indication that the respondent, has undertaken rigorous searches in accordance with its obligations under the GIPA Act.

1. The respondent informed me that that its relevant department's conducted additional searches in response to the applicant's statement. The details of these additional searches are as follows:

• The respondent's Records Management Unit searched the District's electronic record keeping system (TRIM); and also liaised with a former Records Manager to determine if other possible locations to search could be investigated.
• The Clinical Governance Unit searched electronic and hard copy records held by their department; as well as the former intranet site information.
• The Information, Communication and Technology Department searched the web server and Intranet.

• The Medical Records Department of Shellharbour Hospital searched the Patient Administration System; original paper medical records filed at the hospital as well as the Electronic Medical Record (eMR) database.
• The Medical Records Department of Wollongong Hospital searched the Electronic Medical Record (eMR) database (hard copy paper medical records have been scanned into the electronic medical record at this hospital).

1. The result of those searches was that no further documents were found.

1. In addition, Mr Farrugia wrote, further searches had been undertaken in order to establish that no information whatever has been withheld from the applicant. These searches have encompassed:

• A search of APB's files in the ISLHD Billing Service Centre
• A search of the Wollongong Hospital Cerner Provision Document Imaging System (electronic medical record system) by the Wollongong Hospital Health Information Manager Mrs Tracy Morgan.
• A search of the Patient Services Unit by Ms Mary Lee, Customer Service Manager.
• A search of the Medical record Department at Shellharbour and Kiama Hospitals by Ms Kylie Perkins, Health Information Manager, Shellharbour and Kiama Hospitals.

1. Mrs Morgan, Ms Lee and Ms Perkins provided affidavits detailing their searches in their respective areas of responsibility. I accept that they, and others, undertook the searches in good faith.

1. I was informed that the applicant's medical record has now been digitally scanned and the original paper record has been destroyed. I accept that, therefore, there are no other avenues left to pursue in locating this record.

1. In Cianfrano at [65], the Tribunal held that it must be satisfied that an agency's determination is a fully responsive one. I acknowledge that the respondent had dedicated considerable time and resources to responding to the applicant's access applications and that its officers have a bona fide belief that all available avenues to search for information had been exhausted.

1. I find that the respondent undertook reasonable searches to find all results for haemoglobin test conducted on 16 June 2005, in accordance with the applicant's request. I observe that at the planning meeting the applicant agreed that the respondent had no reason to withhold documents from her.

DECISION

1. The decision under review affirmed.

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