Crewdson v Central Sydney Area Health Service

[2000] NSWADT 184

Reported Decision: Set aside by appeal on 28/12/2001

CITATION:	Crewdson -v- Central Sydney Area Health Service [2000] NSWADT 184
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Crewdson RESPONDENT Central Sydney Area Health Service
FILE NUMBER:	993252
HEARING DATES:	07/04/00, 21/06/00
SUBMISSIONS CLOSED:	07/14/2000
DATE OF DECISION:	12/12/2000
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Freedom of Information Act - amendment to documents - amendment to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Morgan v Director- General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 S v Director-General, Department of Community Services [2000] NSWADT 24 Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46 Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Gordon and Department of Social Security (1991) 25 ALD 335 Cox and the Department of Defence (1990) 20 ALD 499 Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369 Stephens and Victoria Police (1988) 2 VAR 236 RR v Department of Army (1980) 483 S v Director-General, Department of Community Services [2000] NSWADT 24 at [54]-[59]
REPRESENTATION:	APPLICANT In person RESPONDENT J Whalan, officer of the respondent
ORDERS:	1. The decision of the respondent is set aside; 2. The words "currently unfit for work and" should be removed or obliterated from the original and from any copy of the Interim Report dated 29 October 1997 held or contained in the respondent's records; 3. An annotation in relation to each record should be added by the respondent containing the following words : "The Administrative Decisions Tribunal of NSW has determined that some words formerly in this record be removed or obliterated pursuant to section 43(1) of the Freedom of Information Act 1989."

1 This is an application from a refusal of an agency to amend its records pursuant to section 43 of the Freedom of Information Act 1989 (NSW) ("the FOI Act") relating to the personal affairs of the applicant. Section 39 of the FOI Act provides for a right to a person to apply for the amendment of an agency's records in certain cases if the information contained in the records is considered incomplete, incorrect, out of date or misleading under the Act. It is accepted by the parties that the respondent is an agency under the Act.

2 The applicant seeks to have the agency's records amended by deleting a statement appearing in a medical opinion in his “HealthQuest” file and by adding various notations to that file explaining the deletion.

3 The initial decision by the agency officer was dated 20 August 1999. The applicant requested an internal review of the decision pursuant to section 47 of the FOI Act. On 5 October 1999 the respondent made its decision on the internal review again refusing to amend the records. The primary basis for the decision was that the record contained advice/opinions from a general medical practitioner, Dr Jagger, following an interview with the applicant on 29 October 1997 by Dr Roberts, a psychiatrist.

4 Notwithstanding the refusal to amend its records, the agency, citing section 46 of the FOI Act, added in handwriting to the medical opinion a notation and added a detailed file note and extensive attachments to the file.

5 Extensive written and oral evidence was adduced at the two day hearing conducted in this matter on 7 April 2000 and 21 June 2000. On 28 June 2000, a copy of the applicant's file as it was at 29 October 2000 was filed by the respondent and the respondent indicated that it had no objection, other than that based on relevance, to the applicant's statement of evidence filed on 9 June 2000. The respondent relied, inter alia, on written submissions dated 1 March 2000 (exhibit 1). The applicant filed written submissions on 27 March 2000. In addition, a lengthy final written submission was filed by the applicant on 12 July 2000 and an explanatory letter relating to it dated 14 July 2000 was delivered to the Tribunal.

6 At the hearing, extensive oral evidence was given by Dr Mary Roberts, consultant psychiatrist, at the relevant time engaged by the respondent as a Visiting Medical Officer, and Dr Helen Mary Jagger, who was at the relevant time, the Deputy Director of HealthQuest (an organisation within the respondent) and a general practitioner concerned with occupational health services. Both of these doctors were cross-examined extensively by the applicant. The applicant also gave oral evidence at the hearing. The applicant represented himself at the hearing and the respondent was represented by an officer of the agency.

The Amendment of Records under the FOI Act

7 Part 4 of the FOI Act, sections 39-51 inclusive, relate to the amendment of records of agencies and Ministers under the FOI Act. Leaving out considerations of Ministers' records, sections 39 to 46 relate to two main kinds of decisions, namely, decisions to determine applications for amendment of agency records (section 43), and, decisions for a notation to be added to records (section 46). Only the first kind of decision is reviewable on internal review under section 47 of the FOI Act. Only the first kind of decision is a reviewable decision in this Tribunal. Pursuant to section 53(1) of the FOI Act, it is made clear that only the section 43 decision is reviewable here.

8 Section 44 of the FOI Act provides for the primary reasons that an application for amendment of personal records can be made. It provides:

“Refusal to amend records
An agency may refuse to amend its records in accordance with an application:
(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or
(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or
(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.”

9 The amendment of personal records under the FOI Act has been considered in NSW in a number of cases, including: Bennett v University of New England unreported, District Court, NSW, Dunford DCJ, 7 August 1991, Morgan v Director- General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91; S v Director-General, Department of Community Services [2000] NSWADT 24; and Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46;

10 The applicant was employed under the Public Sector Management Act 1988. The Public Sector Management (General) Regulation 1996 was made under that Act (“the Regulations”). The regulations deal with appointment, discipline, leave entitlements and other conditions relating to the employment of NSW public servants. Regulation 17 provides:

“Health and safety
(1) For the purposes of this clause, a public servant is not fit for work if the health of the public servant:
(a) may render the public servant a danger to other public servants or to the public, or
(b) is likely to be seriously affected by the public servant's remaining on duty or, if the public servant is absent from duty, by the public servant's resuming duty.
(2) The appropriate Department Head may direct a public servant to submit to such medical examination or other health assessment as the Department Head may, on the advice of the Government Medical Officer, consider necessary, if the Department Head has reason to believe that the public servant is not fit for work.
(3) If the appropriate Department Head has issued any such direction to a public servant, the public servant:
(a) must, if on duty, cease duty immediately, and
(b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of the Government Medical Officer is first obtained or a certificate is furnished by a medical practitioner that the public servant is fit for work.
(4) If the appropriate Department Head receives a health assessment from the Government Medical Officer that a public servant:
(a) is fit for work, the Department Head is to direct in writing that the public servant, if absent from duty, must resume duty, or
(b) is not fit for work, the Department Head is to direct in writing that the public servant must cease duty immediately or, if absent from duty, must not resume duty.
(5) If a direction has been given to a public servant under subclause (4), the nature of the leave, if any, to be granted to the public servant during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of the Government Medical Officer.
(6) A public servant to whom a direction has been given under subclause (4) (b) must not resume duty unless the appropriate Department Head, on the advice of the Government Medical Officer, approves in writing.
(7) The appropriate Department Head is to give the health care professional providing a health assessment of a public servant under this clause any requested information about the duties of the public servant's position that is reasonably required for the purpose of providing the assessment.”

The Evidence

11 The applicant, who was originally trained as an architect in New Zealand, and who attained a Bachelor of Architecture in 1981 from the Victoria University in Wellington, found work in 1990 as a full-time Disability Carer of the Disability Service of the NSW Department of Community Services, Hornsby - Ryde Area (“the Department”).

12 He worked for the Department from 7 September 1990 to 2 October 1998 under the formal title of “Residential Care Assistant/Worker”. His primary duty during that time concerned working full-time at a group home in Eastwood, Sydney, providing care and assistance to adults with a range of disabilities who lived there from time to time.

13 On about 15 October 1997 a request was made by an officer of the Department to the respondent seeking a report be provided to the employer on the applicant's fitness to continue his work in the Department. It appears that this request was not made in accordance with regulation 17. A file was opened on about that day by the respondent agency and an appointment was made for the applicant to meet with a visiting medical officer of the agency on 29 October 1997 at 9 am. The applicant never received sufficient information regarding this appointment. He was not informed of it’s nature and the true reasons for it, was not given the documents that were given to the respondent, was not sent the standard form by the respondent regarding the appointment and was given the wrong address by the Department to attend the interview. Unaware at the time of these substantial defects in the appropriate procedure here, the applicant voluntarily set out to attend the interview appointment.

14 HealthQuest is a service of the agency which provides occupational health and medical assessments to government employers in NSW. The objective of a "fitness to continue" medical examination is for a medical practitioner of HealthQuest or the Government Medical Officer (“GMO”) to determine a person's medical capacity to continue working either in that person's substantive position or in alternative duties and to assist with rehabilitation by provision of advice to the employer in a timely manner (exhibit E). It appears that there is or may be a procedure or practice of assessment by HealthQuest officers undertaken before the opinion of the GMO is sought under regulation 17. The process appears to be a voluntary one.

15 From reading the relevant file (a copy as at 29 October 1997 is exhibit 6), it appears that HealthQuest was contacted by telephone on 10 October 1997 by an officer of the Department in relation to alleged concerns about the applicant's unusual behaviour at work. The relevant file note of that day reveals that the HealthQuest officer was told orally that it was considered there was “delusional behavior causing concern” in respect of the applicant and that “a couple of managers with mental health training thinks (sic) he has a mental health problem”. It was alleged that the applicant had been offered counseling, but he had declined it and that he believed that the Department would be taken over by McDonalds. The HealthQuest officer had a discussion with Dr Jagger who immediately suggested that the applicant “go off on sick leave” or be referred to a HealthQuest doctor together “with the Department’s documented concerns”. An appointment was then made for the applicant to see a HealthQuest doctor. Also on that day, a completed standard form styled “Request for Services” was sent to the agency by the Department seeking a “fitness to continue” medical examination of the applicant.

16 On 15 October 1997 a detailed facsimile was sent to the respondent by the Human Resources Manager, Northern Sydney Area Office, of the applicant's employer. It comprised a private and confidential memorandum dated 15 September 1997, from Ms Julia Gillett, the person with whom the applicant worked, his House Manager, to Ms Jacklyn Pitchford, who’s designation was described as “ACM (Disabilities), Ryde CSC”. This memorandum related to a request for a temporary staff swap involving the applicant due to a number of alleged "specific instances" of alleged "grave concern". Having read this memorandum carefully, it seems to me that most of those concerns were significantly overstated. Some of them related to incidents that had occurred years before or were trivial in nature and, in the main, concerned work performance issues and staff management issues. It is significant that the memorandum was written for the purpose of effecting a "temporary" transfer of the applicant and was not proposing that the applicant be medically assessed for his fitness to continue working. This is the extent of the “Department’s document concerns” delivered to the respondent before the applicant’s medical examination occurred.

17 This memorandum provided a slim basis for seeking to have a fellow employee medically assessed as unfit for work. It contained highly prejudicial allegations and expressions of the author’s suspicions and, significantly, made no reference to the views allegedly held by managers of the applicant with mental health training that the applicant had a “mental health problem”. The memorandum was not provided to the applicant before or during the course of the interview with the respondent’s doctor.

18 In addition, prior to the applicant’s interview appointment, the applicant was hand delivered an undated letter on 13 October 1997 by Ms Jackie Pitchford advising him of the interview. The letter contained, in my view, a misleading picture as to the nature of the proposed interview and that the applicant would be subjected to a mental state examination by a qualified psychiatrist for the purpose of providing a written report to this employer. Indeed, the letter stated that the concerns of the employer related to “your work and attitudes”. I shall return to this letter later in these reasons. The letter was not given to the respondent by the Department before the interview.

19 On 29 October 1997, the applicant attended the appointment with Dr Roberts. Dr Roberts made a report to Dr Jagger. Dr Jagger was the author of the disputed document in these proceedings. It is styled as an "Interim Advice" dated 29 October 1997. It contains, the offending words, in the opinion of the applicant, that the applicant "is currently unfit for work" and recommends that he should proceed on sick leave and seek an assessment by a psychiatrist. In addition to giving oral evidence at the hearing regarding this interim advice, both doctors provided the Tribunal with written reports relating to the said appointment and the interim advice of 29 October 1997 (exhibit 2).

20 In her written report dated 19 January 2000, Dr Roberts stated that she did not reach a diagnosis when she saw the applicant on 29 October 1997. She said the applicant was very late for his appointment (this is because the applicant was given the wrong address by his employer) and said he was extremely guarded and mistrustful throughout the interview and that he refused to give her the information "that a patient normally gives to a psychiatrist". I find that an unusual statement for a medical specialist to make in circumstances where the practitioner is seeing the patient on behalf of their client's employer and not at the instigation of the patient alone. It is a statement which I consider reflects Dr Roberts’ personal experience in a clinical situation but does not establish the normative relationship of all psychiatrists and their patients.

21 The highest that the report of Dr Roberts reached here is that a psychotic illness could not be ruled out because of the applicant's "intensely agitated state, his clear anxiety, his hostility and very marked mistrust of anyone and everything". She reasoned that it would be appropriate for the applicant to seek out a private psychiatrist who he could trust so that an accurate diagnosis could be made and appropriate treatment commenced. She said:

"Because of the incidences described in his employer's report I felt it would be inappropriate to send him back to work, and recommended that he go on sick leave until the matter of his diagnosis and treatment had been clarified. We would then have been happy to review the situation at HealthQuest and make further recommendations about his employment." (my emphasis)

22 In her oral evidence, Dr Roberts said that she had been a psychiatrist for 25 years and was working for the respondent as a visiting medical officer in October 1997. She is still engaged by the respondent from time to time and is also in private practice. She said she first read through the applicant’s file and upon examining the applicant, she made her own assessment about the state of the applicant’s fitness for work (transcript, day 3 page 19). She did not conduct any investigation into the truthfulness of the employers’ allegations against the applicant set out in the file (ibid, p 21). She made handwritten contemporaneous notes about the appointment (exhibit 4) which she kindly read out on to the transcript during her evidence (ibid, p 29)

23 When cross-examined by the applicant, the following exchange occurred (ibid, page 42):

“APPLICANT: Q. Did you find me unfit for my duties?
A. I thought that there was a very strong possibility that you could be .
Q. But did you positively find me unfit for my duties?
A. I just said what I thought.” (my emphasis)

24 Dr Roberts said that at the interview, it appeared to her that the applicant was having a lot of difficulties in relating to other people and that, had she been required to issue a medical certificate for him, which she was not, she would have written the words “nervous condition” as the condition suffered. At one stage, the applicant questioned the witness about the proper guidelines concerning fitness for work interviews. The following exchange occurred (at ibid, page 45):

“APPLICANT: … It appears to me that a fitness to continue examination as set out in those guidelines was not undertaken on that day by you?
A. That is also why I recommended that you go and see a psychiatrist of your choice, so that you could have a proper fitness to continue done, but on the evidence before me that day I did not think that you - it was safe to send you to work.
Q. And that particular judgment, and you've written that down in your statement of 19 January, I thought it would be - "because of the incidents described in this employer's report", so you made that decision that I should not be returned to work, which effectively meant that I should be placed on sick leave based on the incidents that you had read and--

A. It was based on the incidents that I had read in the reports from your employer, and on your presentation to me that day.”

25 Dr Roberts made a written report, noted above, and further gave an oral report to the ultimate decision-maker here (for the purposes of making the “Interim Advice”), Dr Jagger.

26 In cross-examination of Dr Jagger by the applicant, the following exchange occurred (transcript, 7 April 2000, page 71):

“APPLICANT: When you wrote out:
“Mr Crewdson is currently unfit for work” was that a statement of fact or of opinion?
WITNESS: Statement of medical opinion.
APPLICANT: Upon what grounds?
WITNESS: Upon the grounds that you have just read out in my statement. That’s my professional opinion as a doctor which has been formed by a combination of different inputs”.

27 She said her professional opinion was formed by a combination of her professional experience, reading the notes on the file and speaking with Dr Roberts after her interview with the applicant.

28 When asked directly by the applicant why it was recommended he be placed on sick leave the following was said (ibid, page 76):

“APPLICANT: I would like to ask Dr Jagger why you made a decision that I should proceed on sick leave when it was open to you to advise the department that I could proceed on special purpose leave until further investigations were made?”
WITNESS: Because in the opinion of Mary Roberts and myself we believed at that time that you were sick.”

29 The applicant gave extensive evidence, largely by way of his affidavit filed 9 June 2000 (exhibit D). The affidavit is 48 pages and has annexed to it about 77 documents. He was not cross examined on any of it by the representative for the respondent. Apart from the general objection to it made by the respondent as to relevance, there was no objection to the receipt by the Tribunal of this evidence.

30 The applicant described his employment history and some of the internal staff relationships, work duties and management changes in the years leading up to October 1997. One person in particular, Ms Julia Gillett, then Home Manager for the home the applicant worked in, emerged as a former work friend of the applicant who, in his eyes, turned against him and implemented work practices he did not agree with or that he contends were in breach of proper work practices and the patients’ legal rights. The applicant made a formal complaint to her in July 1997 but was not satisfied with her response. By September 1997, the applicant had agreed with Ms Gillett that he should seek a transfer. Privately, he was considering some travel and then leaving his employment. By October, he had changed his mind about leaving his employment out of what he described as his sense of duty to the disabled clients at the home.

31 In his statement, the applicant set out the assessment of his work performance by Ms Gillett on 20 September 1997. There is no doubt that, notwithstanding the opinions earlier expressed in Ms Gillett’s memorandum of 15 September 1997, she regarded the applicant’s work performance overall as satisfactory on 20 September 1997 (affidavit, paragraph 91, annexure 15).

32 On 13 October 1997, Ms Jackie Pitchford, of the employer’s Ryde office, hand delivered the applicant a letter (statement, annexure 17) setting out alleged “issues of concern” and informing him that an appointment had been made for him to attend HealthQuest on 29 October 1997 at 9am. The wrong address was given in the letter for the appointment. The letter stated that he would receive “formal written confirmation of his appointment in the near future”. He did not receive such confirmation. Further, as I have mentioned earlier in these reasons, this letter did not appear at all on the HealthQuest file at the relevant time (it was handed to the doctor by the applicant during the interview). The 8 stated issues of concern in the letter primarily related to work performance issues and were not particularised. The issues there plainly related to and relied upon the memorandum of 15 September 1997. If anything, it showed that the memorandum of 15 September 1997 should have been read more carefully and, from the point of view of the employer, it primarily raised issues of work concern and, with one exception relating to an alleged unusual remark attributed to that applicant relating to “McDonalds” and “clones”, did not impact on his mental stability. The applicant explained to Ms Pitchford when he handed him this letter that the alleged unusual remark was a joke that was taken out of context by his work colleagues. The applicant sat down with Ms Pitchford for almost 2 hours and discussed the document. At the conclusion of the conversation, she said:

“Well, I still want you to go.”

33 On 21 October 1997 to the applicant attended an appointment with his general medical practitioner, Dr David Baker in Sydney. Dr Baker wrote a letter for the applicant for him to take with him to the HealthQuest appointment. The letter read:

"The above has attended my practice for 10 year (sic).
I am aware that he works as a residential car (sic) assistant working with disabled people. I also understand that he has been questioned over his work performance.

In my dealings with him I have always found him to be a very caring, diligent person who expresses a great deal of commitment to his clients.

In his background he is a university graduate and artist. He has worked with disabled people for the last eight years.

There is no past history of psychiatric disorder, psychiatric treatment or major medical condition.

Much of the problem seems to be as a result of the very high level of care and compassion that Mr Crewdson brings to his work. This may be at variance to the norms of the organisation that employs him which creates conflict with other employees.

I would be happy to provide further information if required."

34 There is no evidence that this medical certificate was ever shown to the respondent before or during the interview.

35 The applicant then set out in his statement (at paragraph 176) a very detailed account of his appointment on 29 October 1997 with the HealthQuest psychiatrist Dr Roberts. It was plainly from any perspective a most unsatisfactory interview. The applicant was late due to having been given the incorrect address. The applicant had not been given the appropriate formal notification letter that had been foreshadowed. The doctor did not have all the appropriate documentation before her. The real issues of concern to the employer in substance can only have related to work performance and management of staff issues. They related only marginally to the question of the applicant's mental health. To make matters worse, the applicant did not co-operate with the doctor during the interview. He insisted on taking notes during the course of the interview and was very tired from having worked nightshift prior to the interview. The doctor was at times hostile towards the applicant and admitted this in cross examination (transcript day two, page 38). She said she also made a lot of effort to try and get the applicant on side to win over his confidence. However that did not happen. She recognised that she did not gain the applicant’s trust. She thus formed the view that he be assessed by a private psychiatrist who could he could trust in order that an accurate diagnosis could be made.

36 The applicant was then placed on three months sick leave by his employer. During that time he travelled to New Zealand to spend some time with his family and on his return to Australia, he inspected his personnel file. He then discovered and read for the first time the memorandum of 15 September 1997. He also saw copies of letters that had been sent to him by HealthQuest during that time. He made the decision then to apply for correction of what he saw as an incorrect record.

37 On 30 December 1997, the applicant lodged a complaint with the President of the NSW Anti-Discrimination Board regarding “presumed” disability discrimination concerning his treatment by his employer and HealthQuest. That complaint resulted in the matters recorded by this Tribunal in this Division on 16 May 2000 in Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60. I will not refer to those matters here.

38 On 20 February 1998 the applicant’s employer placed him on leave without pay. He has not been employed since. He says he had been refused employment in the disability sector since because of the assessment by HealthQuest remaining on his file and has adduced documentary evidence to that effect (in exhibit D, annexure 67).

39 The respondent’s representative, and the internal review decision-maker, Ms Janelle Whalan, relied on her affidavit filed 16 June 2000 (exhibit 5) in reply to the applicant’s statement. It contained matters put largely by way of submission.

The FOI Application

40 On the first day of the hearing, I asked the applicant to clarify in writing what it was he wanted amended in his FOI application. He filed on 9 June 2000 a document setting out the precise findings of fact he would propose (13 separate factual findings) and 4 amendments he desired to be made to the documentary record on the applicant’s file described earlier in these reasons (exhibit E). This was accepted by both parties as the amended FOI application before the Tribunal. The amendments he seeks are as follows:

“1. I wish that a line be drawn through Dr Jagger's words statement: "Mr Crewdson is currently unfit for work" in accordance with Department of Health directives.
2. I wish notation to be added to explain that Dr Jagger relied upon information from my employer in formulating this opinion that had not been examined for its veracity and balance.
3. I wish notation to be added that there was no objective evidence to show that I was unfit for my duties prior to on or after 29 October 1997.
4. I wish notation to be added to state also that the direction given by Dr Jagger for me to cease work was unnecessary as per section 6-8.11.5 of the New South Wales Personnel Handbook.”

41 As indicated earlier in these reasons, the disputed document is a document on the HealthQuest letterhead dated 29 October 1997 being an “Interim Advice" relating to the applicant. It is 3 paragraphs long, was signed by Dr Jagger (for Dr H Gapper, NSW Government Medical Officer) and provides as follows:

“The above employee attended HealthQuest today as arranged for independent assessment of his fitness to continue duty. He had not received the appointment letter due to incorrect address details supplied and he was given wrong instructions about HealthQuest's location and consequently arrived late. Because of this and also Mr Crewdson’s agitated and distressed state about his attendance at HealthQuest, a clear and full psychological assessment has not been possible today.

Mr Crewdson is currently unfit for work and in need of further psychiatric assessment and consideration of treatment. He has been told that he should seek referral to a psychiatrist via his own doctor. He should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest. This will take about three months as he needs to be seen more than once to explore his mental health fully.

A request for a report is being provided to Mr Crewdson and the details of consequent personal and medical information will remain confidential at HealthQuest. You will be advised of any necessary administrative action when the report is received and our assessment is finalised.” (emphasis in original)

42 Written on to this document is a clearly legible handwritten note signed by Ms Jan Whalan. The note states as follows:

“ NOTE : Mr Crewdson believes this letter to be incorrect and out of date. A Statement of Service (fax dated 6 October 1998, Crown Solicitors) was issued certifying that “Mr Crewdson was employed from 7 September 1990 to 2 October 1998 in the capacity of Residential Care Assistant/Worker. Mr Crewdson was a satisfactory employee who resigned of his own accord". The Statement has been initialled by Dr H Gapper, Director HealthQuest and three other signatories. A copy of the Statement is appended. It is noted that Dr Roberts conducted her assessment of Mr Crewdson on 29 October 1997. Dr Jagger wrote this letter indicating that Mr Crewdson was “… unfit for work and in need of further psychiatric assessment and consideration of treatment…” on 29 October 1997. Mr Crewdson believes that the Statement of Service refutes the contents of this letter. (emphasis in original)”

43 There is some controversy about this statement of service which was in evidence before me. It appears that the applicant now contends that he did not resign from his employment voluntarily and he is otherwise unhappy with the note that I have just set out. However, as the notation was made pursuant to section 46 of the FOI Act, I have no jurisdiction to do anything about it.

The Contentions of the Parties

44 The respondent primarily submits that the decision under review should remain intact and characterises the applicant’s request as seeking to physically amend a HealthQuest record by way of correction to a medical opinion. It is not conceded by the respondent that the information contained in the record was, or is, incomplete, incorrect, out of date, or misleading. The respondent contends that the applicant has not produced evidence refuting the medical opinion contained on the record. It also contends that the Tribunal has no power to "amend" a record by removing or deleting part of it.

45 There was also some reliance placed upon regulations/guidelines/manuals relating to the proper maintenance of medical records in NSW. For example, I was referred to regulation 13(1) and schedule 2, item 7 of the Medical Practice Regulation 1998, and the State Records Act 1998. The submissions in this regard did not contend that the Tribunal should refuse to amend its records due to the provisions of a legislative instrument other than the FOI Act within the meaning of section 44(c) of the FOI Act.

46 In my view, the applicant has not been fairly treated by the respondent and his employer in relation to the prudent and careful recording of matters which could affect his fitness for work. A careful examination of all the relevant documents at the time should have indicated to the medical professionals concerned that the real issues involved in the applicant's case primarily concerned work practices, staff personalities and internal work and management disputes. They did not sufficiently relate to or relevantly reflect on the applicant's mental stability as at the time of his interview on 29 October 1997. There are many reasons that explain the applicant’s behaviour at the interview and why he was unable to be assessed properly. Indeed there is significant (and uncontested) evidence that the applicant was in fact capable of and was performing his duties adequately at about the time of the medical interview which I have referred to earlier in these reasons.

47 In terms of the Interim Report itself, the medical assessment of the applicant was “unclear” and incomplete. In an exchange with the Tribunal in her oral evidence, the following was said:

“TRIBUNAL: Is it fair to say that you made your recommendation in your letter of 27 October out of more abundance of caution than anything else?
Dr JAGGER: Yes, I think that’s a fair assessment.”

48 Given that fact and this admission, and when combined with the unfortunate series of events that led to the decision, including the extremely prejudicial, inflammatory and unsubstantiated comments contained in the documents emanating from the Department here to which both doctors had regard in arriving at their assessment, I do not think the positive finding that the applicant was “currently unfit for work” can now stand or should remain on the applicant’s file.

49 It may be true that the applicant voluntarily attended the HealthQuest interview. However, he was not then aware of the extent of the material on the file against him or of the highly prejudicial comments that had been made about the then alleged state of his mental health by this employer. He was not aware of how the two doctors would take that material into account, what importance they would attach to it or whether it would form any part of their determination of his fitness for work. Had he known all that, he might well have chosen not to attend the interview, which would have been within his legal rights.

50 I am satisfied that the applicant has established that the record is incomplete, incorrect, out of date or misleading in material respects to the extent it contains the words that the applicant “is currently unfit for work”.

51 The record contains a firm declaration that the applicant was unfit for work at a point in time. It is obviously outdated. It is misleading because it implies that a reasonable clinical assessment has been made upon which that declaration has been made. That is not the case here. The offending words are not couched in terms of an expressed “opinion” by Dr Jagger that the applicant was unfit for work. Even if it was qualified in this way, it would be misleading because it would suggest that it was an opinion by Dr Jagger based on a reliable clinical assessment of the applicant. One matter that is clear from the evidence is that there was no reliable clinical assessment made here. There was an “interim report” in which the author states that she could not make a reliable clinical assessment and that the applicant should be seen by a private psychiatrist so as to be reliably assessed.

52 The respondent relied on a number of cases from other jurisdictions involving the amendment of personal records under FOI legislation. These cases were said to support the proposition that the Tribunal cannot amend medical records as they are not matters of fact and they are parts of history and matters of professional medical opinion. It was said the Tribunal cannot rewrite history. I was referred to, inter alia, Re Gordon and Department of Social Security (1991) 25 ALD 335; Re Cox and the Department of Defence (1990) 20 ALD 499. These cases do not relate to a situation where the opinion, notwithstanding that it is an historical fact, is so misleading, unsafe and unsatisfactory as to warrant it being appropriately amended by the Tribunal. In any event, statements of opinion are held in other jurisdictions to be amenable to amendment by excision from the record (see, for example, Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369.) I see no basis to read down or limit the statutory power of this Tribunal in the manner contended for by the respondent.

53 On the question of personal records containing expressions of opinion, I was referred by both parties to the Victorian case of Re Stephens and Victoria Police (1988) 2 VAR 236. That case did not concern a medical opinion. However, the Tribunal there quoted extensively from an American case, a decision of District Judge Gessell in RR v Department of Army (1980) 483 F Supp 770 in which the Court considered related American legislation. From that decision, the Victorian Tribunal then outlined (at page 239) four “useful” categories for a decision-maker to have regard to when determining whether there should be an amendment of opinion information. The decision-maker should consider whether:

“1. the facts underlying such opinion have been thoroughly discredited or have been demonstrated to be totally inadequate;
2. the person forming such opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience;
3. the factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely upon and likely to result in error;

4. the facts upon which the opinion was based were misapprehended.”

54 In my opinion, although I do not feel constrained to adopt these categories as the only ones applicable in making determinations of this kind, they are a useful guide to the proper approach under the NSW FOI Act.

55 In the present case, categories 1 and 3 are relevant and applicable for the reasons I have indicated. I suspect category 4 might well be applicable as well, however, I do not need to find so for present purposes.

56 The next issue concerns the manner of “amendment” of the agency’s “record” in accordance with the applicant’s application in accordance with section 43(1) of the FOI Act.

57 I agree with the observations of Deputy President Hennessy in S v Director-General, Department of Community Services [2000] NSWADT 24 at [54]-[59]. Amendment of an agency’s record may be achieved by partial deletion or obliteration from the record. An annotation should be inserted into the record, if appropriate, so as to explain the removal.

58 In the present case, I consider I should formulate an appropriate annotation. However, I should do so in a way which will not affect the notation that is presently on the record and the cover file note and papers already added to the record in response to the applicant’s FOI application.

59 Accordingly, I make the following determination:

(1) The decision of the respondent is set aside;
(2) The words “currently unfit for work and” should be removed or obliterated from the original and from any copy of the Interim Report dated 29 October 1997 held or contained in the respondent’s records;
(3) An annotation in relation to each record should be added by the respondent containing the following words: “The Administrative Decisions Tribunal of NSW has determined that some words formerly in this record be removed or obliterated pursuant to section 43(1) of the Freedom of Information Act 1989.”