DSC v South Eastern Sydney Local Health District - [2019] NSWCATAD 111

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111
Hearing dates: 4 June 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
The applicant is entitled, pursuant to s 7(2) of the Health Records and Information Privacy Act 2002 (NSW), to bring these proceedings as his mother’s authorised representative, insofar as the proceedings concern her health information.

Catchwords: ADMINISTRATIVE LAW – Privacy – Health information – Whether applicant has standing to bring proceedings on his mother’s behalf - Where applicant was attorney of his mother under an enduring power of attorney – Where applicant alleged that the respondent had contravened health privacy principles in relation to his mother’s health information – Where Tribunal made guardianship orders appointing applicant’s brother as his mother’s guardian for limited purposes - Whether applicant acting as mother’s authorised representative in privacy proceedings was inconsistent with the guardianship order
Legislation Cited: Guardianship Act 1987 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Category: Procedural and other rulings
Parties: DSC (Applicant)
South Eastern Sydney Local Health District (Respondent)
Representation:
Applicant in person
Professional Practice Unit, Sydney Hospital (Respondent)

File Number(s): 2018/377670
Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

This decision concerns the preliminary issue of whether the applicant, DSC, has standing to bring these proceedings under the privacy legislation on behalf of his mother. I have decided that he is entitled to do so as her “authorised representative” under the Health Records and Information Privacy Act 2002.

Background

DSC’s elderly mother is suffering from Alzheimer’s dementia and residing in a nursing home. DSC is his mother’s attorney under an enduring power of attorney.
DSC’s mother received health services from the respondent (“the Health District”) in 2018. The respondent provided documents to this Tribunal in the course of guardianship proceedings concerning DSC’s mother in 2018. DSC contends that, in doing so, it contravened certain health privacy principles within the Health Records and Information Privacy Act.
On 24 May 2018, the Tribunal appointed DSC’s brother as his mother’s guardian for a period of three months, to the extent necessary to carry out certain specified functions (including deciding where DSC’s mother may reside and what health care she may receive). DSC informed the Tribunal that this order was extended before being revoked in October 2018.
DSC lodged an application for internal review in July 2018 concerning the Health District’s dealings with his and his mother’s personal and/or health information under the Health Records and Information Privacy Act and/or the Privacy and Personal Information Protection Act 1998.
The Health District refused the application for internal review, to the extent that it concerned DSC’s mother, on the basis that DSC…

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.

Continue reading DSC v South Eastern Sydney Local Health District

Details

AGLC: DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111
Case: [2019] NSWCATAD 111
Decision Date: 07 June 2019

CaseChat Overview and Summary

The case of DSC v South Eastern Sydney Local Health District involved an applicant who sought to bring proceedings on behalf of his mother, alleging that the respondent had contravened health privacy principles in relation to her health information. The applicant had been his mother’s attorney under an enduring power of attorney. Subsequently, a Tribunal appointed the applicant’s brother as his mother’s guardian for limited purposes, including the making of health-related decisions. The court was required to determine whether the applicant, having been appointed as his mother’s authorised representative in privacy proceedings, could continue to act in that capacity in light of the guardianship order.

The central legal issue before the court was whether the applicant, acting as his mother’s authorised representative in privacy proceedings, was inconsistent with the guardianship order made by the Tribunal. The court needed to balance the applicant's role as his mother’s attorney and authorised representative in privacy matters against the limited guardianship order that vested specific decision-making powers in his brother. The court considered whether the applicant’s capacity to act as an authorised representative could coexist with the limited guardianship order, and if so, to what extent.

The court held that the applicant was entitled to bring these proceedings as his mother’s authorised representative insofar as they concerned her health information. The court reasoned that the authority granted to the applicant under the enduring power of attorney and his appointment as an authorised representative under the Health Records and Information Privacy Act 2002 (NSW) were not wholly inconsistent with the limited guardianship order. The court found that the applicant’s role as an authorised representative in privacy proceedings did not conflict with the specific powers delegated to his brother under the guardianship order. This decision underscored the importance of the statutory framework governing health information privacy and the need to respect the statutory roles and responsibilities of appointed representatives and guardians.

Orders

Orders of the court

The applicant is entitled, pursuant to s 7(2) of the Health Records and Information Privacy Act 2002 (NSW), to bring these proceedings as his mother’s authorised representative, insofar as the proceedings concern her health information.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DSC v South Eastern Sydney Local Health District [2019] NSWCATAD 111
Hearing dates:	4 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The applicant is entitled, pursuant to s 7(2) of the Health Records and Information Privacy Act 2002 (NSW), to bring these proceedings as his mother’s authorised representative, insofar as the proceedings concern her health information.
Catchwords:	ADMINISTRATIVE LAW – Privacy – Health information – Whether applicant has standing to bring proceedings on his mother’s behalf - Where applicant was attorney of his mother under an enduring power of attorney – Where applicant alleged that the respondent had contravened health privacy principles in relation to his mother’s health information – Where Tribunal made guardianship orders appointing applicant’s brother as his mother’s guardian for limited purposes - Whether applicant acting as mother’s authorised representative in privacy proceedings was inconsistent with the guardianship order
Legislation Cited:	Guardianship Act 1987 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Category:	Procedural and other rulings
Parties:	DSC (Applicant) South Eastern Sydney Local Health District (Respondent)
Representation:	Applicant in person Professional Practice Unit, Sydney Hospital (Respondent)
File Number(s):	2018/377670
Publication restriction:	The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.