BMS v St Vincent's Health Network Sydney Limited
[2015] NSWCATAD 177
•25 August 2015
|
New South Wales |
Case Name: | BMS v St Vincent’s Health Network Sydney Limited |
Medium Neutral Citation: | [2015] NSWCATAD 177 |
Hearing Date(s): | 28 July 2015 |
Decision Date: | 25 August 2015 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | J Kinross, Senior Member |
Decision: | There is no breach of HPP8 |
Catchwords: | ADMINISTRATIVE REVIEW- - amendment of health information -whether amendment required to ensure that health information is accurate |
Legislation Cited: | Health Records and Information Privacy Act 2002 |
Cases Cited: | Commission For Children and Young People - v- V [2002] NSWSC 949; |
Category: | Principal judgment |
Parties: | BMS (Applicant) |
Representation: | Solicitors: |
File Number(s): | 1410550 |
Publication Restriction: | Pursuant to subs 64 (a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant is not to be published or broadcasted without the leave of the Tribunal. |
REASONS FOR DECISION
Background
The applicant was hospitalised for the period 4 – 29 April 2013. She denies making a statement recorded in the medical progress notes. The respondent was not prepared to amend the progress notes but sealed that part of the record, attached a letter from the applicant and made a notation. The applicant seeks the deletion of the statement from the medical record.
Relevant law
Certain agencies are required to comply with the Health Privacy Principles: s11(2) Health Records and Information Privacy Act 2002. An organisation must, at the request of the individual make appropriate amendments to ensure that the health information is accurate: Schedule 1, cl 8 (HPP8). If an organisation is not prepared to amend health information in accordance with a request, the organisation must take such steps as are reasonable to attach to the information, any statement of the amendment sought provided by that individual: HPP8.
Evidence
I have considered the affidavits and oral evidence of the applicant and Dr Millard, the health records for the period of care between 4 – 29 April 2013 and the written and oral submissions of the parties.
Parties’ contentions
The applicant contends that she never made the statement reflected in the progress notes nor did she commit the act recorded by Dr Michael Millard in the progress notes in the medical record relating to a review performed by Professor Tennant and Dr Millard at 12.30pm on 8 April 2013. (see for e.g. Admin Review Application Form)
The respondent contends that the progress notes are accurate and that it has satisfied any obligation by sealing the record, attaching a copy of a letter by the applicant to the medical record and making a notation against the relevant record.
Consideration
Nothing in HPP8 requires an agency to amend information it considers accurate however in those circumstances it must attach to the information any statement provided by the applicant of the amendment sought. It follows that a finding by the Tribunal that the information is inaccurate is a necessary pre-condition to a consideration of the appropriate amendment, whether by correction, deletion as sought by the applicant, or additions.
Is the information accurate?
Under oath the applicant denied having made the statement and being reviewed by the doctors on that day. The applicant denied being in the room where the interview took place. She recalled having a conversation with Dr Millard and Professor Tennant in the common room about voluntary treatment as an outpatient, and that no notes were taken. (See affidavit and oral evidence) When it was put to him at hearing, Dr Millard denied this conversation took place as the applicant described.
The applicant submitted that a nursing progress note commencing with the time of 12.45pm on 8 April 2013 and noting “where I was and alone at that time” was evidence that she was in a different location at the time the review took place and therefore, she had not been interviewed by the doctors. She also attached to her affidavit a letter written by her requesting voluntary treatment to support her version of events. I am satisfied that this letter is evidence of her desire for voluntary treatment but I am not satisfied that the letter provides any probative evidence of her version of events.
Having carefully considered the nursing progress note and Dr Millard’s evidence at the hearing, I find that the statement contained in it - “Post review pt was low in mood and sat alone in courtyard for some time. Retired to bed in early afternoon” - provides no evidence of “where the (applicant) was and alone at the time” of the review. It does however provide evidence of the fact that the nursing staff were aware of the review and that the applicant had attended it. I also find that the note provides evidence of the location of the applicant after the review and not before or during it, as pressed by the applicant.
The discrepancy in the recorded times as submitted by the applicant is apparent from the notes and because Dr Millard at the hearing indicated that the review “took around 30 minutes”. I am not satisfied that such a discrepancy provides sufficient evidence to show that the review did not take place, particularly in light of the finding that the nursing note was written after the review.
The applicant pointed to her complaint to the Health Care Complaints Commission in support however that allegation concerns events as they unfolded on the 15 April 2013 and does not allege inaccurate medical records. The applicant also pointed to a media report of medical practitioners making false records. Neither or these documents are relevant to the accuracy of the information in dispute.
The applicant submitted she would never make such a statement as ‘she is a good talker’, (submission at hearing), she has never hurt anyone, and that she had no reason to say the words. It is not necessary for me to determine whether the applicant committed the act described, whether she has ever hurt anyone in order to decide whether the record is an accurate record of what took place on the day the record was made.
It is agreed between the parties that the applicant was an involuntary patient and that there had been a review by the Mental Health Tribunal. Accordingly, it is to be expected that the relevant statutory paperwork would be available.
Under oath Dr Millard gave evidence that he and Dr Professor Tennant performed an assessment of the applicant for the purpose of completing the second ‘Form 1 Medical Report as the Mental State of a Detained Person under the Mental Health Act 2007’. The assessment completes the process required in order to detain a person in hospital as an ‘Assessable Peron’, awaiting their Mental Health Review Tribunal Hearing. The respondent submitted that the presence of the relevant Form 1 in the medical record, signed and dated by Professor Tennant on 8 April 2013 provided evidence of the fact that the review took place. I agree.
Dr Millard swore that he made detailed notes of that assessment comprising a little over 3 pages. In his affidavit, Dr Millard stated that he had no independent recollection of where the information in dispute came from. At hearing, the applicant submitted that this undermined the veracity of the note.
At oral hearing Dr Millard gave a detailed description of the room in which the review took place and testified that the notes were contemporaneous. His role at the psychiatric review was to take notes. His usual practice is to write down what is said as it is said. In his affidavit Dr Millard noted that the statement appeared among other notations of episodes of a particular genus and that he believed the notation was of a statement made by the applicant during the review.
In summary, the applicant denied the review took place and gave evidence by reference to the nursing progress notes that she was elsewhere. She also swore that she had a conversation with Dr Millard in a different location at that time and remembered what was spoken about. The nursing progress notes do not support this version of events. Dr Millard denies this event took place. The applicant seeks the deletion of only one statement in the progress notes, not the entire record pertaining to the review. The remedy sought is inconsistent with the applicant’s evidence that the review did not take place.
Dr Millard gave detailed evidence about the room in which the review took place, his role, who was present and the purpose of the review. The medical and nursing progress notes, and the signed Form 1 all provide contemporaneous written evidence that supports Dr Millard’s version of events. The nurse’s note provides independent (of the doctor’s) evidence that the review took place. He stated his role was to make notes during the review.
The progress note is a continuous note containing either paraphrasing or direct quotes of statements made by the applicant during the review. I accept the submissions of the respondent that the notes were of things said at the time and that they were taken during a continuous period of time during the interview and comprise a distinct 3 and a bit pages in the progress notes without interruption. The respondent also submitted that the applicant has made no complaint about the accuracy of the rest of the notes.
I am comfortably satisfied that the statement in the medical progress notes is an accurate record of the review. It follows that there is no obligation for the agency to amend the record. It does however have an obligation to take steps as are reasonable to attach to the progress notes any statement provided by the applicant of the amendment sought. I am satisfied that the respondent has met this obligation contained in HPP8.
Decision
For the reasons set out above, no action is required to be taken 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
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