BVS v Sydney Local Health District - [2015] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BVS v Sydney Local Health District [2015] NSWCATAD 171
Hearing dates: 29 July 2015
Decision date: 18 August 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
1. The Sydney Local Health District is, within 30 days of the publication of these reasons, to render a written apology to the applicant for disclosing health information about the Applicant to a third person without lawful authority.

2. The Sydney Local Health District is to advise the Applicant of the steps to be taken by the agency to minimise the possibility of a similar breach in future.
3. Otherwise the Tribunal determines not to take any action in the matter.
Catchwords: Privacy - Health information - health privacy principle - security - access - use - disclosure
Legislation Cited: Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998
Cases Cited: AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16
Director General, Department of Education and Training v MT [2006] NSWCA 270
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
HP v Hunter New England Area Health Services [2009] NSWADT 186
NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258
NS v Commissioner, Department of Protective Services [2004] NSWADT 263
Category: Principal judgment
Parties: BVS (Applicant)
Sydney Local Health District (Respondent)
Representation:
Counsel:
P Rooney (Respondent)
Solicitors:
BVS (Applicant in Person)
Hicksons Lawyers (Respondent)

File Number(s): 1510201
Publication restriction: A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

REASONS FOR DECISION

The Applicant has applied to the Tribunal for review of a determination by the Sydney Local Health District in relation to a complaint that he made about conduct of an officer of the Respondent. His complaint was brought under the Health Records and Information Privacy Act 2002 ("HRIP Act") and he alleges that the conduct contravened several of the Health Privacy Principles ("HPP's) of the HRIP Act.
The names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs. I have also limited my discussion of some issues in order to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as 'BVS'.
On 1 September 2014 BVS completed a Privacy Complaint: Internal Review Application Form seeking an Internal Review in relation to conduct of a Psychiatrist ("Dr. P"). The specific conduct of which he complained was:

"A psychiatrist wrote a letter (without being summoned to do so) where she gave my medical history details on that letter without my permission or written consent'.

The letter in issue (“the letter”) was dated 9 April 2014. It was written by Dr. P with the intention that it be delivered to the NSW Police.

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: [2015] NSWCATAD 171
Decision Date: 18 August 2015

CaseChat Overview and Summary

The case of BVS versus the Sydney Local Health District involved a dispute where the Applicant, BVS, claimed that their health information was disclosed without lawful authority. The matter was brought before the Civil and Administrative Tribunal of New South Wales. The Applicant argued that the Sydney Local Health District breached the health privacy principle by improperly accessing, using, and disclosing their health information. Specifically, the Applicant alleged that their health information was disclosed to a third party without proper authorisation, which constituted a privacy breach under the Health Records and Information Privacy Act 2002.

The primary legal issue the Tribunal had to address was whether the Sydney Local Health District indeed breached the health privacy principle by disclosing the Applicant's health information without lawful authority. This involved examining the circumstances under which the disclosure occurred, the adequacy of the safeguards in place, and whether the Applicant's privacy rights were violated. The Tribunal had to determine if the actions of the Sydney Local Health District were consistent with the statutory obligations set out in the Health Records and Information Privacy Act.

The Tribunal concluded that the Sydney Local Health District did breach the health privacy principle by disclosing the Applicant's health information without lawful authority. The Tribunal found that the District failed to implement sufficient security measures to protect the Applicant's health information, leading to the unauthorised disclosure. The Tribunal emphasised the importance of adhering to privacy laws and the need for health service providers to ensure that health information is securely managed and accessed only with proper authorisation. Consequently, the Tribunal ordered the Sydney Local Health District to issue a written apology to the Applicant and to inform the Applicant of the measures that will be implemented to prevent future breaches. No further action was deemed necessary by the Tribunal.

Orders

Orders of the court

1. The Sydney Local Health District is, within 30 days of the publication of these reasons, to render a written apology to the applicant for disclosing health information about the Applicant to a third person without lawful authority.

2. The Sydney Local Health District is to advise the Applicant of the steps to be taken by the agency to minimise the possibility of a similar breach in future.

3. Otherwise the Tribunal determines not to take any action in the matter.

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:	BVS v Sydney Local Health District [2015] NSWCATAD 171
Hearing dates:	29 July 2015
Decision date:	18 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	1. The Sydney Local Health District is, within 30 days of the publication of these reasons, to render a written apology to the applicant for disclosing health information about the Applicant to a third person without lawful authority. 2. The Sydney Local Health District is to advise the Applicant of the steps to be taken by the agency to minimise the possibility of a similar breach in future. 3. Otherwise the Tribunal determines not to take any action in the matter.
Catchwords:	Privacy - Health information - health privacy principle - security - access - use - disclosure
Legislation Cited:	Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16 Director General, Department of Education and Training v MT [2006] NSWCA 270 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 HP v Hunter New England Area Health Services [2009] NSWADT 186 NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258 NS v Commissioner, Department of Protective Services [2004] NSWADT 263
Category:	Principal judgment
Parties:	BVS (Applicant) Sydney Local Health District (Respondent)
Representation:	Counsel: P Rooney (Respondent) Solicitors: BVS (Applicant in Person) Hicksons Lawyers (Respondent)
File Number(s):	1510201
Publication restriction:	A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.