EOC v Crowe

[2021] NSWCATAD 335

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EOC v Crowe [2021] NSWCATAD 335

Hearing dates:

On the papers

Date of orders:

11 November 2021

Decision date:

11 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The Tribunal decides to take no action in respect of conduct of Dr Crowe.

Catchwords:

ADMINISTRATIVE REVIEW - privacy - health records - alleged breaches of Health Privacy Principles – conduct – HPP 7

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Health Care Complaints Act 1993

Health Records and Information Privacy Act 2002

Category:

Principal judgment

Parties:

EOC (Applicant)
Dr Sarah Crowe (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Mills Oakley (Respondent)

File Number(s):

2021/00015994

Publication restriction:

Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 the name of the Applicant is not to be disclosed.

REASONS FOR DECISION

1. The Respondent is an Ophthalmic Surgeon, Dr Sarah Crowe.

2. The Tribunal has made orders in these proceedings that the name of the Applicant not be disclosed to preserve the privacy of her health information. The Applicant is referred to as EOC.

3. EOC was a patient of Dr Crowe and first consulted her on 16 April 2015.

4. On 25 September 2019, EOC underwent cataract surgery under the hand of Dr Crowe.

5. The therapeutic relationship ceased on 21 November 2019.

6. On 19 March 2020, Dr Crowe received a complaint notification from the Health Care Complaints Commission (HCCC) in relation to a complaint made by EOC.

7. On 5 May 2020, the HCCC decided to take no further action against Dr Crowe.

8. On 24 May 2020, EOC made a request to Dr Crowe for access to:

(1) Reports for consultation on the following dates; 16/04/2015; 27/10/2016; 8/03/2018, and per advice from the Information Privacy Commission (IPC).

(2) A copy of ‘Medical Record’ you provided to HCCC (as per advice by IPC and Janette Campbell HCCC Assessment Officer).

(3) A copy of ‘your response’ to HCCC.

9. By application filed 19 January 2021, EOC seeks a review of a decision of Dr Crowe to not provide a copy of her response to the HCCC as follows:

‘Information Privacy Commissioner did not ask Dr Crowe to provide a copy of her response to HCCC and therefore Privacy Commissioner has not examined the specific information at issue in assessment of my complaint.’

10. In written submissions filed by EOC on 27 July 2021, the following is recorded:

‘I am seeking NCAT to obtain Dr Crowe’s response to HCCC in order to determine she is not using her professional privilege to present me as a mentally worthless person who should not be trusted with my complaints as she did in her reports and other communications.

I would also like to request that NCAT would consider releasing to me Dr Crowe’s response to HCCC in order to determine it does not include inaccurate or misleading information.’

11. In the written submissions filed by Dr Crowe’s solicitors, Mills Oakley, the following is recorded:

‘At the case conference on 6 April 2021, Senior Member McAteer ordered parties to ‘put their best attempts to informally resolve the matter between [6 April 2021] and the mid-June listing …’

Senior Member McAteer further commented that in the event of the parties being unable to resolve the matter by the next case conference on 15 June 2021, then the matter would be listed for hearing on the sole issue of whether a copy of Dr Crowe’s response to the HCCC should be provided to the Applicant.’

12. The parties were not able to resolve the matter. In the result, I am to determine the sole issue of whether a copy of Dr Crowe’s response to the HCCC should be provided to EOC.

13. Much of EOC’s submissions relate to allegations of possible negligence of Dr Crowe, or, other investigations undertaken by the HCCC in relation to EOC’s complaint to that body. EOC raises a number of assumptions which she contends could be satisfied by the provision of Dr Crowe’s response to the HCCC. It has not been possible in these reasons to refer to every allegation raised in that regard, nor is it necessary to do so.

14. The scope of the matters before the Tribunal to be determined is whether Dr Crowe’s response to the HCCC should be provided to EOC.

15. Pursuant to s55(2) of the Civil and Administrative Tribunal Act 2013, a hearing has been dispensed with. The proceedings have been determined on the papers.

Applicable law

16. It is not in dispute that the information the subject of these proceedings is EOC’s health information. Therefore, the Health Privacy Principles, in Schedule 1 to the Health Records and Information Privacy Act 2002 (HRIP Act), are engaged.

17. Health Privacy Principle 7 in Schedule 1 (HPP 7) to the HRIP Act provides:

1. An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the health information

…

1. An organisation is not required to comply with the provision of this clause if--

   (a)   the organisation is lawfully authorised or required not to comply with the provision concerned, or

   (b)   non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

   18. ‘Organisation’ is defined in s4 of the HRIP Act as being:

‘Organisation’ means a public sector agency or a private sector person

19. A ‘private sector person’ is relevantly defined as:

‘Private sector person’ means any of the following that is not a public sector agency--

(a)   a natural person,

…

But does not include a small business operator within the meaning of the Privacy Act 1988 of the Commonwealth, or an agency within the meaning of that Act.

20. It is uncontroversial that Dr Crowe is a ‘private sector person’ and meets the definition of an ‘organisation’ for the purposes of HPP 7.

21. Section 23 of the HRIP Act provides:

‘A private sector person is not required to comply with a requirement of this part applying to the person if--

(a)   the private sector person is lawfully authorised or required not to comply with it, or

(b)   non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under any Act or any other law.’

22. Section 99A of the Health Care Complaints Act 1993 (HCC Act), relates to improper disclosure of information and provides:

‘(1)   If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:

(a)   with the consent of the person to whom the information relates, or

(b)   in connection with the execution and administration of this Act, or

(c)   the person of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d)   with other lawful excuse,

the person is guilty of an offence.

Maximum penalty; 10 penalty points or imprisonment for 6 months, or both.’

23. Section 26(1) of the HRIP Act relevantly provides:

‘(1)   An individual may request a private sector person to provide the individual with access to health information related to the individual held by the private sector person. A request must--

(a)   be in writing, and

…’

24. It is not in contest that EOC has made a request for access to her health information.

25. Dr Crowe has refused to provide to EOC her response to the HCCC.

26. Section 29 of the HRIP Act provides:

‘A private sector person is not required to provide an individual to access to health information relating to the individual held by the private sector person if--

…

(c)   the information relates to existing or anticipated legal proceedings between the private sector person and the individual and the information would not be accessible by the process of discovery in those proceedings or is subject to legal professional privilege, or

…

(e)   providing access would be unlawful, or

(f)   denying access is required or authorised by or under law, or

…’

My consideration

27. EOC’s request for the provision of Dr Crowe’s response to the HCCC is in response to EOC’s complaint to that body lodged in February 2020.

28. EOC contends that Dr Crowe’s response to the HCCC is health information as defined by s6 of the HRIP Act and given she has requested its release pursuant to s26 of that Act, this Tribunal should order Dr Crowe’s response be released.

29. In support of her submissions in not providing her response to the HCCC, Dr Crowe relies upon the HCCC Guidelines for practitioners responding to a complaint which state that the practitioner can request that the response to the HCCC is used only for the assessment purposes of that body. Annexed to the written submissions Annexure ‘A’, Dr Crowe made a request to an assessment officer of the HCCC, Ms Janette Campbell, for her response to be kept confidential and not disclosed to EOC. Dr Crowe refers to the Guideline published on the HCCC website ( which explains:

‘Where the Commission seeks a response it will ask you to address the significant issues raised by the complainant. Copies of the response are provided to the person who made the complaint unless the health service provider has expressly asked the Commission to use their response for assessment purposes only.’

30. The HCCC through its assessment officer informed EOC of Dr Crowe’s refusal for her response to be released, without consent. Dr Crowe also relies on s99A of the HCC Act and contends that it would be an offence for her response to be released without her consent. I accept this submission.

31. A copy of Dr Crowe’s response to the HCCC is not before me. I, therefore, have not examined the specific information at issue as contained in that response. However, I am satisfied that I do not need the response before me to determine this matter.

32. I find that Dr Crowe’s submission received by the HCCC was received by the HCCC in the exercise of its function to consider EOC’s complaint to that body about Dr Crowe.

33. I find the evidence establishes that Dr Crowe has requested the HCCC to not disclose her response to EOC. When examining s99A of the HCC Act none of the exceptions are enlivened on the evidence before me. Prima facie, the disclosure of Dr Crowe’s response could potentially lead to a breach of that section. This is a material factor.

34. I have also considered the HCCC Guideline which is set out in paragraph [29] above. In that regard, Dr Crowe had the expectation that her response to the HCCC would not be released without her consent. This is also a material factor I have considered in respect of the HCCC and its function.

35. In applying s23 of the HRIP Act and also HPP 7, I find that Dr Crowe is not required by virtue of the operation of the HCCC’s investigation and s99A to disclose her response. The exceptions found in both s23 of the HRIP Act and clause 2 of HPP 7 are therefore relevant to Dr Crowe’s conduct in these proceedings since Dr Crowe is lawfully required not to disclose information that was obtained by HCCC in dealing with EOC’s complaint under the HCC Act.

36. Dr Crowe is not required under the provisions of the HCC Act to provide to EOC her submission made to the HCCC in relation to EOC’s complaint.

37. The application of the exceptions under s23 and clause 2 of HPP 7 are enlivened. I am therefore satisfied that Dr Crowe was not required to comply with the provisions of Part 4 of the HRIP Act and there has been no contravention of HPP 7 in the circumstances.

38. The Tribunal decides to take no action in respect of the conduct of Dr Crowe.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 November 2021