BW v Registrar, New South Wales Medical Board

[2002] NSWADT 76

CITATION:	BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76
DIVISION:	General Division
PARTIES:	APPLICANT BW RESPONDENT Registrar, New South Wales Medical Board
FILE NUMBER:	013212
HEARING DATES:	07/02/2002
SUBMISSIONS CLOSED:	02/07/2002
DATE OF DECISION:	05/14/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Care Complaints Act 1993 Mental Health Act 1990
CASES CITED:	Young v Wicks (1986) 13 FCR 85 Colakovski (1991) 29 FCR 429 News Corporation (1984) 1 FCR 64 News Corporation Ltd v NCSC (1984) 52 ALR 277 Re Stewart (1993) 1 QAR 227 Re Forrest and Department of Social Security (1991) 23 ALD 649 Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Re F and Health Department (1988) 2 VAR 458 Humane Society International Inc. v National Parks & Wildlife Service & ors [2000] NSWADT 133 Re Thomas and Royal Women’s Hospital and Director-General of Community Services (1998) 2 VAR 618 Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604 Central Service Health Service v Crewdson (GD) [2001] NSWADTAP 44
REPRESENTATION:	APPLICANT In person RESPONDENT A Tadros, solicitor
ORDERS:	The decision under review is affirmed.

1 This is an application to review a decision by the New South Wales Medical Board (“the Board”) refusing to grant access under the Freedom of Information Act 1989 (NSW) (“the Act”) to a number of documents contained in the applicant’s medical file. The identity of all persons mentioned in the proceedings is the subject of a suppression order.

2 The issue for determination is whether the Board, in refusing access to the applicant, made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Tribunal Act”).

3 The Tribunal has jurisdiction to review this decision pursuant to s 38 of the Tribunal Act and s 53 of the Act.

Background
4 In a letter dated 23 May 2001 the applicant requested the Board to grant access to four statements (“the documents”) provided to her treating doctor (“Dr A”) by her husband and three children. Access was refused (“the original decision”).

5 The applicant sought internal review of the original decision. By notice dated 11 July 2001 a delegate of the Board advised that the original decision had been affirmed on the ground that the release of the documents would involve the unreasonable disclosure of information concerning the personal affairs of those family members who provided statements to Dr A.

6 It is useful at this point to briefly set out how the Board came to possess the documents to which the applicant now seeks access.

7 On 25 July 2000 the applicant made a complaint to the Health Care Complaints Commission (the Commission) in respect of the conduct of Dr A, and a number of other practitioners involved in her admission and treatment at St George Public Hospital in 1999. She alleged among other things, that without her knowledge or consent, Dr A spoke to members of her family about her mental health. The applicant further complained that she had been “inappropriately scheduled to St George Psychiatric Unit under the Mental Health Act.” The Commission referred these complaints to the Board pursuant to s 26 of the Health Care Complaints Act 1993 (NSW).

8 In a letter dated 5 March 2001 the Board advised Dr A that the applicant’s complaint had been referred to it by the Commission and requested that he provide the Board with the applicant’s medical file. This file was duly supplied. It contained the letters written to Dr A by members of the applicant’s family to which she now seeks access.

9 In a letter dated 10 May 2001 the Board advised the applicant “The issues raised by your complaint have been addressed and the matter does not raise issues requiring further consideration under the Medical Practitioners Act”.

Scheme of the Act
10 The objects of the Act set out in s 5, are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government; and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.
11 Section 16 of the Act gives individuals a legally enforceable right to be given access to an agency’s documents in accordance with the Act.

12 An agency may refuse access to a document if it is an “exempt document”: s 25(1)(a) of the Act. Section 6(1) of the Act defines an “exempt document” to include a document referred to in Schedule 1. The agency has the burden of proving that their determination is justified: s 61 of the Act.

13 Section 25(4) of the Act provides that:

An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
Conduct of Proceedings
14 In these proceedings the applicant was represented in person and the Board was represented by its in-house solicitor, Mr Tadros.

15 The applicant gave oral evidence and was not required for cross-examination. The respondent tendered a bundle of documents, which consisted of correspondence between the Board, the Commission, the applicant and Dr A in relation to the applicant’s complaint.

16 The documents for which the Board claims exemption were produced to the Tribunal on a confidential basis pursuant to s 55(b) of the Act. Also produced on a confidential basis was the correspondence from members of the applicant’s family to the Board about the release of the documents to the applicant.

17 Pursuant to s 55(b) the respondent made short submissions in the absence of the applicant concerning the views of relevant family members about the release of the documents.

18 Section 55(a) of the Act requires that in my reasons for decision I do not disclose any exempt matter. Accordingly in these reasons I make only the most general references to the documents the subject of review. However I note that the Board has provided the applicant with a copy of a letter received from Dr A dated 30 April 2001, which broadly describes how he came to obtain the letters from members of the applicant’s family, the subject of the application in these proceedings.

The personal affairs exemption
19 The Board relies on the personal affairs exemption set out in clause 6 of Schedule 1 of the Act. Clause 6 provides:

6 Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
20 Section 31 sets out the consultation process to be followed by the relevant agency where documents contain information concerning personal affairs. In short the agency is required to take “such steps as are reasonably practicable” to obtain the views of the person concerned: s 31(2). For convenience s 31 is set out in full:
31 Documents affecting personal affairs
(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.
(3) If:
(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and
(b) the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1, the agency shall:
(c) forthwith cause written notice to be given to the person concerned:
(i) that the agency has determined that access to the document is to be given, and
(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and
(iii) of the procedures to be followed for the purpose of exercising those rights, and
(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.
(4) If:
(a) an application is made to an agency for access to a document to which this section applies, and
(b) the document contains information of a medical or psychiatric nature concerning the applicant, and
(c) the agency is of the opinion that disclosure of the information to the applicant may have an adverse effect on the physical or mental health of the applicant, and
(d) the agency decides that access to the document is to be given, it is sufficient compliance with this Act if access to the document is given to a registered medical practitioner nominated by the applicant.
(5) A reference in this section to the person concerned is, in the case of a deceased person, a reference to that person's closest relative who is of or above the age of 18 years.
21 Two issues arise for consideration and determination in relation to this application. First, whether the documents sought contain information concerning the personal affairs of any person (other than the applicant) and, second, if so, whether the release of that information would be unreasonable in the circumstances of this case.

Do the documents contain information concerning personal affairs?
22 As noted the documents the subject of this application consists of individual statements, prepared and provided to Dr A by the applicant’s husband and three of her children.

23 While the term “personal affairs” is inherently imprecise, it has been generally interpreted to mean “matters of private concern to an individual”. (See Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J; Colakovski (1991) 29 FCR 429 at 431 per Lockhart J.) In News Corporation (1984) 1 FCR 64 at 79 St John J drew a distinction between business and personal affairs characterising the concept of “personal affairs” as “relating to family and marital relationships, health or ill-health, relationships with and emotional ties with other real people.” In Colakovski (at 436) Lockart J expressed the view that the scope of “personal affairs” was not quite so easy to delineate, broadening the definition to “information which concerns or affects the person as an individual whether it is known to other persons or not.” He was also anxious (at 436) to distinguish between information that was “personal” and information which was “private and confidential” – the two concepts not being synonymous.

24 Examples of types of information which have been considered to be “personal affairs” include information concerning a person’s family, marital and domestic relationships: Re Stewart (1993) 1 QAR 227; information concerning a person’s medical affairs: News Corporation Ltd v NCSC (1984) 52 ALR 277; and “information as to the relationship of two persons with one another as de facto husband and de facto wife, the facts relating to the break-up of that de facto relationship and the time and circumstances in which it occurred…: Re Forrest and Department of Social Security (1991) 23 ALD 649 at 652. In Department of Social Security v Dyrenfurth (1988) 80 ALR 533 it was held that information concerning family and marital matters, health matters, relationships with others, domestic responsibilities and financial obligations constitutes personal information. In Re F and Health Department (1988) 2 VAR 458 it was held that private behaviour, home life and personal family relationships also constitute personal affairs.

25 As a general rule a document cannot be said to contain information about the personal affairs of its author solely on the grounds that that person created the document. The document must contain information about the author’s personal affairs. A document will not fall within clause 6 of Schedule 1 simply because it was written or created by a member of the applicant’s family.

26 Without revealing details, it is evident that the information contained in the documents to which the applicant seeks access relates to the relationships between the applicant and members of her family. The documents relate to certain questions and representations of a personal character put by the applicant to them and their responses to those matters, as well as their assessments of the nature of the relationship between themselves and the applicant, and of the applicant’s health and its effect on members of the family.

27 In my view the material contained in the documents clearly constitutes information relating to personal affairs. The critical issue is whether the information concerns the personal affairs of a person or person other than the applicant. A document will not be exempt merely because it contains information relating to the personal affairs of the applicant: cl 6(2).

28 While much of the material contained in the documents squarely concerns the applicant, it is clear from a reading of each document that none could be said to relate exclusively to her personal affairs. Instead the information concerning the applicant and her personal affairs is inextricably linked to information concerning the personal affairs of members of her family.

29 I am satisfied that each of the documents contains material concerning the personal affairs within the meaning of clause 6 of Schedule 1 of the Act.

Would disclosure of the documents be unreasonable?
30 The heart of this case, then, is whether or not the release to the applicant of the documents would constitute unreasonable disclosure of information. The test to be applied is whether disclosure is reasonable in all the circumstances. (See Humane Society International Inc. v National Parks & Wildlife Service & ors [2000] NSWADT 133 [at 23]).

31 The applicant submits that as the documents are about her, the Board’s decision not to release them must be seen as unreasonable. She argues that she has a legitimate right to know what information was given to Dr A as, in her view, this information was the trigger for the decision to admit her as an involuntary patient to St George Hospital. She says this experience was deeply distressing and humiliating and it is important for her to know on what information the relevant health professionals relied in reaching the conclusion that admission was warranted. She contends that it is nonsense to suggest that the release of the documents would destroy family unity. In her view it is inconceivable that relationships can be restored with her family unless she knows what they said to Dr A.

32 The applicant also stated that she seeks the document as she wishes to amend the St George Hospital records to remove references to her diagnosis of schizophrenia and the documents are necessary for this purpose. The Board concedes in its submissions to the Tribunal that this was not an issue that was raised during the internal review. However it is highly relevant to the Tribunal’s review of the matter. The Board submits that the application is misguided and instead the applicant should have made an application pursuant to s 40 of the Act to the relevant Area Health Service to have the records concerning her admission to St George Hospital amended.

33 The Board submits that the documents ought not be released for the following reasons.

34 First, the Board, pursuant to s 31(2) of the Act sought the views of the authors of the documents, all of whom claimed an exemption thus indicating that they did not wish the documents to be disclosed.

35 Second, the Board upheld those claims and found that the documents were indeed exempt documents on the basis that they disclosed information concerning family, marital and health matters.

36 Third, the documents were originally made by the family members for and provided to the family’s General Practitioner, Dr A to assist in the diagnosis and treatment of the applicant. The Board argues that the information was given to Dr A by the family members within the doctor-patient relationship (as they were also patients of Dr A) and that the ordinary rules of doctor-patient confidentiality apply in this case.

37 In relation to this question, the Board submits that the decision in Re Thomas and Royal Women’s Hospital and Director-General of Community Services (1998) 2 VAR 618 is apt. In that case, Deputy President Galvin said (at 637):

It is, in my view, self-evident that the frustration of a public expectation of confidentiality is necessarily against the public interest. There is convincing evidence before the Tribunal that the public has an expectation that all information given to a hospital by a patient is to be kept confidential. Any situation which might result in the withholding of information to hospitals by patients and consequently be likely to give rise to disadvantage to the proper treatment of the patient or to the proper administration of the hospitals is, in my view, contrary to the public interest.
38 It is not entirely clear to me that if a person provides information to a doctor about another person who may need treatment that the information provided by the first person is confidential, at least on the basis of the doctor-patient relationship. For example, a Good Samaritan may find a person lying on a street, take him or her to a hospital and provide a history and other information, which is relevant to the diagnosis and treatment of the patient. It is difficult to see how that information falls within the scope of the confidential relationship between doctor and patient.

39 While the family members were Dr A’s patients, it does not seem that the information was provided to him within the doctor-patient relationship. Nonetheless, it is clear from those documents and the subsequent advice to the Board from family members about disclosure that the documents were clearly provided to Dr A on a confidential basis with the expectation that he would honour and protect their confidences. It is also obvious that he expressly or impliedly offered such an undertaking. It seems to me that that expectation and undertaking, when taken in combination with the claim for confidentiality pursuant to the Act, is an important consideration to be taken into account in determining whether the disclosure sought now by the applicant is reasonable.

40 There may well be an analogy to be drawn between such a case as this and that of the doctor-patient relationship. It is clearly in the public interest that family members concerned about their relations should be able to discuss their concerns in a confidential fashion with medical practitioners.

41 For example, the family of a person suffering Alzheimer’s Disease ought be able to take their concerns to the patient’s doctor. A parent afraid that his or her child is suffering from schizophrenia ought be able to raise those concerns with the child’s doctor who, as in this case, will usually be the family doctor. It would be inimical to the public interest if concerned families refused to approach the medical profession because they feared that their confidences would not be honoured and their statements would be mishandled.

42 In this case the family members who provided information fear that disclosure to the applicant of their documents would cause a deterioration rather than an improvement in their relationships with the applicant. In summary, they say they are attempting to assist the applicant deal with a serious medical issue, that the relationships between them and the applicant have been severely and adversely affected by the medical issues, that they are trying to rebuild good relationships with her and that the disclosure of the documents in question to her is likely to retard or reverse that process of rebuilding the family relationships.

43 The Board’s primary position is that it would not be reasonable for the applicant to have access to the documents. In the alternative, it submits that if the information is to be disclosed, the documents ought be released only pursuant to s31(4) of the Act to a medical practitioner nominated by the applicant.

44 Section 31(4), however, only comes into play if (a) the Tribunal concludes that access is to be given, (b) the document concerned contains medical or psychiatric information concerning the patient and (c) the disclosure of that information to the applicant may have an adverse effect on the physical or mental health of the applicant.

Conclusions
45 In determining whether disclosure would be unreasonable I am required to weigh up the public interest of protecting the privacy of members of the applicant’s family against the public interest of enabling the applicant to access documents held by a Government agency. (See Colakovski (at 438)). In making this determination the following factors are relevant: the reasons the applicant seeks access to the documents; the nature of the information contained in the documents; the circumstances in which the information was obtained; the views of the authors of the documents in respect of disclosure; and, finally, whether disclosure is likely to have any adverse impact on that person or persons whose personal affairs are contained in the document.

46 The applicant’s motives or intentions in relation to the application for access are highly important in considering whether or not the disclosure of the information would be reasonable in all the circumstances. (See Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 and Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604 at 606-607.)

47 As noted the applicant seeks access to the documents for two main reasons. First, so her hospital records can be amended, and second, because she wants to know the background to her admission to hospital and the role played by her family.

48 Section 39 (c) of the Act gives a person to whom access to an agency’s documents has been granted a right to apply for amendment of an agency’s records if, among other things, the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading. The applicant believes her medical records to be misleading and incorrect.

49 As noted by the Appeal Panel in Central Service Health Service v Crewdson (GD) [2001] NSWADTAP 44 at [47] an applicant must produce “some evidence” or a “rational basis” for concluding that the statutory test set out in s 44(a) of the Act is met. There it was held that to establish that a statement of opinion by an expert, such as a medical practitioner, is misleading “something more” is required than mere assertions by the applicant that the report is misleading, namely evidence of another practitioner in the field: Central Service Health Service v Crewdson at [72] and [79]. In my view there is no information contained in the documents in question which would enable the applicant to have altered the diagnosis reached at St George Hospital. None of the documents contains medical opinions by qualified practitioners. If the applicant seeks to have the diagnosis altered she must produce some independent evidence from medical experts. I cannot see how the documents in question would assist her proposed application. Thus her stated motive at the planning meeting in October 2001 for obtaining access to the documents is irrelevant to the consideration of the matter now before me.

50 I do not doubt that her real motive is curiosity and a determination to contradict what she suspects to be misrepresentations about her conduct and state of mind. I also accept that the applicant has a real interest in obtaining background information about a traumatic event in her life, which continues to trouble and to haunt her.

51 I accept the evidence that family members approached Dr A because they were concerned about the applicant’s state of mind and conduct. I accept that they did so in the belief that their confidences would remain exactly that – confidences.

52 The applicant asserts that the family’s healing process will be promoted by her gaining access to the documents she seeks. The family and, implicitly, the Board assert the contrary. It is difficult to see how the healing of the family’s relationships is likely to be advanced by releasing the documents to her. It appears to me to be more likely to re-open old wounds than to have any beneficial effect.

53 Nevertheless, there are strong public interest considerations which favour disclosure. The objects of the Act are to extend as far as possible the rights of members of the public to obtain access to information held by government. The public interest demands that patients have access to their medical records held by a government agency. In the area of mental health the legislature has recognised the desirability of granting patients access to their medical records if they so wish. (See for example s 45 of the Mental Health Act 1990).

54 However this matter is not simply about the applicant’s right to access parts of her medical records held by a government agency. The documents sought contain information of a highly personal and private nature concerning third parties. In my view, given the nature of the information contained in the documents and the fact that it was provided on a confidential basis there must be a compelling reason to justify disclosure especially in the face of the strong opposition of the individuals to whom that personal information relates. The public interest demands that as far as possible individuals be granted access to documents held by government, especially documents about them. However, in my view, in the circumstances of this case the release of the documents would involve the unreasonable disclosure of information concerning the personal affairs of members of the applicant’s family. Therefore the documents should not be released.

55 In my view there is no scope under s 25(4) of the Act to give access to a copy of the document from which the exempt matter has been deleted.

56 For all these reasons I affirm the original decision.