Bongiovanni and National Disability Insurance Agency
[2023] AATA 25
•16 January 2023
Bongiovanni and National Disability Insurance Agency [2023] AATA 25 (16 January 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/0020
Re:Santo Joseph Bongiovanni
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member I Thompson
Date:16 January 2023
Place:Adelaide
For the reasons set out below, the Tribunal decides that the Respondent has leave to inspect the documents identified as RSB email correspondence dated 6/07/2022 (in batch 1) and the RSB Occupational Therapy Service Annual Progress Report dated 29 March 2019 (in batch 3).
...........[Sgnd]...........................................
Member I Thompson
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – objection to inspection of summonsed material – reasons for objection – where documents of a private and personal nature – whether documents contain information of apparent relevance to the issues before the Tribunal – objection partially upheld
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
MMMY & National Disability Insurance Agency [2022] AATA 3236 (6 July 2022)
REASONS FOR DECISION
Member I Thompson
16 January 2023
The Applicant is a participant in the National Disability Insurance Scheme (NDIS). He has a three-year NDIS plan, which commenced on 13 September 2021. He lodged an application to the Tribunal for review of an internal review decision of the Respondent regarding requests for certain, funded supports. The Applicant has spinal muscular atrophy, which is a neuromuscular and degenerative condition that affects his gross motor function.
In his application to the Tribunal the Applicant submitted that the internal review decision was incorrect in relation to transport funding, changes in his disability support needs, the sufficiency of supporting evidence regarding therapy and level of supports, and a failure to apply an evidence-based framework to an occupational therapy assessment of mobility devices, particularly a manual wheelchair.
On 29 July 2022, the Respondent requested that a summons be issued to the Royal Society for the Blind (RSB) for the Applicant’s medical records in relation to occupational therapy services with regard to risks to the Applicant in relation to use of manual wheelchairs, consideration of options for assistive technology, consideration of home modifications, and assessment of the need for support worker assistance.
On 1 August 2022, the Tribunal issued a summons requiring that the summonsed material be produced, returnable before 15 August 2022 at 9:00AM, and the records were produced in accordance with the summons.
Pursuant to section 40B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) a direction was made giving each party leave to inspect the documents produced under summons, with the Applicant having leave to inspect from 15 August 2022 and the Respondent having leave to inspect from 29 August 2022.
The Applicant lodged a notice of objection on 28 August 2022. In that notice he objected to the Respondent inspecting three batches of documents which were identified as:
(1) RSB email correspondences dated 12/10/2021, 23/02/2022, 23/03/2022, 06/04/2022, 19/05/2022, 07/06/2022 and 06/07/2022;
(2) RSB email correspondence dated 27/05/2022;
(3) All documentation prior to 2020 not relating to Assistive Technology (AT) or medical diagnoses.
The RSB has provided services to the Applicant.
In addition to the specific reasons for objection for each of the three categories of documents, the Applicant provided additional reasons that applied to all categories of objection. Those reasons related to the impact of the Covid 19 pandemic on the supports that he has received, a suggestion that the RSB documentation does not accurately reflect his current situation, and that any reliance upon those documents could cause the Tribunal “to make gross errors of facts”.
The Respondent provided detailed written submissions in support of its contention that the Tribunal should exercise its discretion to grant the Respondent leave to inspect the documents in question. Those submissions included an analysis of the legal principles regarding the exercise of power to issue a summons, and the application of those legal principles to this matter. In short, it was submitted that the documents appear to have relevance to the assessment of the issues in dispute. It was noted that the Applicant had not objected to the production and inspection of records requested separately by summonses from a physiotherapist and an exercise physiologist.
On 28 September 2022, the Tribunal directed that the summons material from RSB, to which the notice of objection applied, remain confidential, pursuant to section 35(4) of the AAT Act.
The RSB material which was not the subject of objection was made available to the Respondent for inspection. That documentation comprised 279 pages. It included some redactions of names and addresses. While querying the purpose, apparent ineffectiveness and relevance of those redactions, the Respondent did not object to those redactions remaining in place.
At an interlocutory hearing on 8 November 2022, and briefly also on 16 November 2022, the Tribunal heard oral submissions by the parties. The Applicant was self-represented with support from a family member. The Respondent was represented by counsel, Ms Knight.
LEGAL PRINCIPLES
The Tribunal is indebted to Senior Member Connolly for summarising the relevant law in the Tribunal’s decision in MMMY & National Disability Insurance Agency:[1]
[1] [2022] AATA 3236 (6 July 2022)
[13] Section 39(1) of the AAT Act provides that the Tribunal must ensure the parties are given an opportunity to present their case and inspect documents to which the Tribunal proposes to have regard in reaching its decision, and to make submissions in relation to those documents.
[14] Section 40A(1)(b) of the AAT Act relevantly provides that the Tribunal may summon a person to produce documents.
[15] Sections 40B(1) and 40B(2) of the AAT Act relevantly provide that the Tribunal may give a party to a proceeding leave to inspect documents produced under a summons in relation to the proceeding.
…
[17] With respect to concerns about privacy and inspection of personal medical information, in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340 (Panagiotou) Deputy President Forgie stated at [24]:
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
[18] Also on the issue of inspection of medical records in Re ZFCC and Comcare (Compensation) [2018] AATA 1358 (ZFCC) Deputy President Humphries stated:
[11] (When) medical records are produced to the Tribunal, an applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the respondent to inspect and copy pursuant to s 40B, often for the purpose of commissioning a medical report from a doctor regarding the applicant’s condition. An applicant may object to the respondent inspecting and copying those records, but the acceptable grounds for such objection are limited, as these reasons will explain.
[12] An objection may assert that the summonsed records include documents covered by legal professional privilege, or refer to another person (such as a family member) in such a way as to unduly intrude on that person’s privacy. Such an objection will often result in a refusal to grant access by the other party to parts of those documents. Sometimes an applicant will object to inspection on the basis that the records – or parts of them – are not relevant to the proceedings before the Tribunal. There are practical reasons however for caution in denying access on this basis and why, conversely, an eclectic approach should be taken to the question of a party inspecting medical records.
...
[17] The passing of intimate medical records to strangers in the course of proceedings like these can, of course, be distressing to an applicant. The Tribunal and the party to whom access is granted should be mindful of that distress, and take reasonable steps to minimise it. Ethical and legal constraints affect a respondent’s use of this material, and these constraints must be diligently applied in a respondent’s dealings with the records. Alternatively, the parties and the Tribunal may agree that the probative value of certain records is sufficiently low to warrant their exclusion from the proceedings. But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant.
[19] With respect to the relevance of material, the Tribunal notes that in Waind and Hill v National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 (referred to by the Deputy President in Panagiotou) Moffitt P (Hutley and Glass JJA agreeing) held (emphasis added):
The crucial question in relation to the exercise of the discretion to permit inspection in the second step[1] is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed...
Consideration
At the interlocutory hearing on 8 November 2022, the Tribunal sought clarification about the identification and location of the documentation in question. There were two sets of documents; one of them in a bundle of 279 pages, and the other in a bundle comprising 327 pages which, as it transpired, included the documents to which objection was taken.
Proceedings were held over for a week to enable the Tribunal to consider the submissions that have been made and to confirm the identification of the various documents.
The Tribunal took into account the possibility of adverse consequences of excluding material that possibly might be relevant in determination of the substantive application. In addition, the Respondent had acknowledged the implied undertaking in relation to the use of records produced under compulsion, appreciating that the National Disability Insurance Agency (NDIA) is unable to use documents for extraneous purposes.
At the adjourned interlocutory hearing on 16 November 2022, having noted the Applicant’s considered and comprehensive objections and concerns about the Respondent inspecting irrelevant material, the Tribunal advised that it would proceed by way of inspecting the material for itself.
Batch 1 – RSB email correspondence
The Applicant set out his reasons for objection as follows:
(1) RSB email correspondences dated 12/10/2021, 23/02/2022, 23/03/2022, 06/04/2022, 19/05/2022, 07/06/2022 and 06/07/2022:
1.1Reason for Objection:
(a)All RSB correspondences are informally written between my Occupational Therapist ("OT") and I and were never intended to be made public; and
(b)Such correspondence does not fully cover my disease nor treatment and is inappropriate for use in this forum as they do not demonstrate the true course of treatment required and to use them out of context is prejudicial to my case because they include errors of facts; and
(c)Such correspondence also includes private discussions between my OT and I regarding this AAT case and do not reflect the true facts of what was discussed and to use them verbatim would severely prejudice my case because they include errors of facts and perceptions by an OT that are not true in fact.
With the exception of RSB email correspondence dated 6/07/2022, the Tribunal accepts that all of the other correspondence has no apparent relevance to the issues in dispute. The Tribunal does not place weight on the Applicant’s reasons for objection in paragraphs 1. 1 (b) and 1.1(c) regarding prejudice to his case, and possible errors of facts and perceptions. What is apparent is that the correspondence is informal and relates mainly to conversational exchanges between the Applicant and his occupational therapist about certain processes. The Applicant is entitled to express his concern about release of records which he regards as informal and private. However, the criterion which the Tribunal must apply is the one of apparent relevance, and as these emails are informal, routine exchanges between a therapist and client, akin to diary notes, reminder notes, and information sharing about prosaic detail, it is difficult to see that they have passing interest of any kind, let alone apparent relevance to the substantive issues before the Tribunal.
The one exception in this batch is the RSB email correspondence dated 6 July 2022. This comprises correspondence about issues regarding a manual wheelchair. Accordingly, this material appears to be of apparent relevance to an issue in dispute.
Batch 2 – RSB email correspondence
The Applicant set out his reasons for objection as follows:
(2)RSB email correspondence dated 27/05/2022:
2.1Reason for Objection:
(a)It is irrelevant to this case because it is an informal correspondence of acceptance into entering into a service agreement between RSB and me and does not accurately reflect the service agreement; and
(b)To use this correspondence out of context would severely prejudice my case because they include errors of facts; and
(c)Is irrelevant to the current case.
The Tribunal accepts that leave should not be granted to the Respondent to inspect this documentation. In reaching that view, the Tribunal does not accept that there is a danger of prejudice to the Applicant because of errors of facts or possible misinterpretation of the material. However, the Tribunal does accept that this material is informal and in similar vein to the majority of the email correspondence in batch 1. It too is of no apparent relevance to the assessment and determination of the issues in dispute.
Batch 3 – all documentation prior to 2020 not relating to assistive technology or medical diagnoses
The Applicant listed numerous reasons for objecting to the inspection of this documentation. He set them out in the notice of objection at paragraph 3.1 in 15 subparagraphs, which broadly relate to his physical condition and impairments, the impact of impairments on some activities of daily living and the current state of his informal supports.
In fact, there was only one document in question, namely an annual progress report headed RSB Occupational Therapy Service for the Applicant. This is a four-page report dated 29 March 2019, which includes a summary of the Applicant’s functional performance in mobility, self-care and social interaction with reference to goals in his NDIS plan at that time. The assessment addresses equipment, including wheelchairs, and review of assistive technology.
At this stage, it is clear that this RSB Occupational Therapy Service report has apparent relevance to the requested supports and could be relevant to the assessment of the issues in dispute. It is a report which was written quite recently and bears upon issues in the substantive application, including capacity building supports and assistive technology issues. Accordingly, the Tribunal declines to uphold the objection to its inspection.
The Applicant’s NDIS plan commencing 28 April 2018 was the other document in this third batch. However, it was also included in the first bundle of 279 pages to which the notice of objection did not apply, and in that way the objection was waived.
Summary
The Tribunal’s directions were delivered orally to the parties on 7 December 2022. At that time, it was indicated that written reasons would be provided for the directions, which are:
The Respondent is granted leave to inspect all documents produced by the Royal Society for the Blind (RSB) under summons other than the documents identified as:
(a)RSB email correspondence dated 12/10/2021, 23/02/2022, 23/03/2022, 6/04/2022, 19/05/2022, 7/06/2022; and
(b) RSB email correspondence dated 27/05/2022.
It follows that the Respondent has leave to inspect the documents identified as RSB email correspondence dated 6/07/2022 (in batch 1) and the RSB Occupational Therapy Service Annual Progress Report dated 29 March 2019 (in batch 3).
DECISION
For the reasons set out, the Tribunal decides that the Respondent has leave to inspect the documents identified as RSB email correspondence dated 6/07/2022 (in batch 1) and the RSB Occupational Therapy Service Annual Progress Report dated 29 March 2019 (in batch 3).
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member Thompson
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Associate
Date of Decision: 16 January 2023 Date of Hearing: 8 December 2022 Counsel for the Applicant: Self-represented Solicitor for the Respondent: Ms Knight
Maddocks Lawyers
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