Exw v Mulroney - [2022] VSC 524

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01558

EXW	Applicant
v
Dr Christopher Mulroney	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2021
DATE OF JUDGMENT:	7 September 2022
CASE MAY BE CITED AS:	EXW v Mulroney
MEDIUM NEUTRAL CITATION:	[2022] VSC 524

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ADMINISTRATIVE LAW – Health – Health Privacy Principles – Complaint about correctness of health records following insurer declining insurance application – Whether recorded diagnoses actually made – Health Complaints Commissioner referring complaint to VCAT – Deletions to health records not recorded as Principles require – Applicant disputes recorded diagnosis was made – VCAT misunderstanding applicant’s case – Failure to exercise jurisdiction – Whether reasons were adequate – Whether VCAT’s decision was unreasonable or open on the evidence – Whether VCAT had regard to relevant considerations or had regard to irrelevant considerations – Error of law – Appeal allowed – Victorian Civil and Administrative Tribunal Act1998 s 148; Health Records Act 2001 s 78; Health Privacy Principles 3, 4.2, 4.3, 6.5.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Fuller	Springvale Monash Legal Services
For the Respondent	Mr P Cadman	HWL Ebsworth Lawyers

TABLE OF CONTENTS

EXW’s history

The Tribunal proceeding and the Health Privacy Principles

EXW’s allegations that Health Privacy Principles were breached
Senior Member’s findings and conclusions

EXW’s questions of law and grounds of appeal

Legal principles

Leave under section 148 of the VCAT Act
The Tribunal’s jurisdiction

The Medical History Allegations

EXW’s submissions
Dr Mulroney’s submissions
Analysis: the Medical History Allegations

The Brintellix Allegation 4 August 2017

EXW’s submissions
Dr Mulroney’s submissions
Analysis: the Brintellix Allegation

The Reason for Contact Allegation

EXW’s submissions
Dr Mulroney’s submissions
Analysis: the Reason for Contact Allegation

Conclusion

HIS HONOUR:

The applicant, EXW, seeks leave to appeal from orders made by a Senior Member of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) on 13 April 2021. EXW alleges that the respondent, Dr Christopher Mulroney, interfered with her privacy by breaching the Health Privacy Principles (‘HPPs’ or the ‘Principles’), as contained in Sch 1 of the Health Records Act 2001 (‘HRA’ or ‘the Act’) in connection with her health records. Dr Mulroney is a General Practitioner at a medical clinic (‘the Clinic’) and was EXW’s treating practitioner between August 2017 and August 2018.

The Tribunal found EXW’s main claims ‘not proven’, but found other claims ‘proven’ and ordered that Dr Mulroney make corrections to her health records because he had made deletions to them that did not follow the procedures required by HPP 4.3.[1] The Tribunal ordered that he pay EXW $2,000 as compensation for breach of HPP 4.3.
[1]EXW v Mulroney (Human Rights) [2021] VCAT 322 (‘Tribunal Reasons’).

The purpose of the HRA is to promote fair and responsible handling of health information, by protecting the privacy of individuals’ health information, providing individuals with a right of access to their health information, and…

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 Exw v Mulroney

Details

AGLC: EXW v Mulroney [2022] VSC 524
Case: [2022] VSC 524
Decision Date: 7 September 2022

CaseChat Overview and Summary

Exw initiated proceedings against Mulroney in the County Court of Victoria, appealing a decision of the Victorian Civil and Administrative Tribunal (VCAT). The applicant, Exw, sought to have certain medical records corrected following the rejection of an insurance application by Mulroney. The crux of the dispute was whether the recorded diagnoses were accurate, with Exw contesting that they were never actually made. This led to the Health Complaints Commissioner referring the complaint to VCAT, which found in favour of Mulroney. Exw's appeal was based on the assertion that VCAT failed to properly exercise its jurisdiction, the adequacy of VCAT's reasons, and the reasonableness of its decision.

The central legal issues revolved around the interpretation and application of the Health Privacy Principles under the Health Records Act 2001. Specifically, the court had to determine whether VCAT correctly understood Exw's complaint and whether VCAT's decision was based on an erroneous interpretation of the principles. It was also necessary to assess whether VCAT had regard to the relevant considerations and whether it overlooked any pertinent factors. Additionally, the court examined whether VCAT's decision was unreasonable or open on the evidence presented.

The County Court of Victoria found that VCAT had misunderstood Exw's case, thereby failing to properly exercise its jurisdiction. The Court concluded that VCAT's reasons were inadequate and that its decision was unreasonable. VCAT had not properly considered the Health Privacy Principles and made an error of law in its interpretation. Consequently, the Court allowed the appeal, finding that VCAT's decision was flawed and that the tribunal had not adequately addressed the statutory requirements.

The final orders of the court included the allowance of Exw's appeal, the quashing of VCAT's decision, and the referral of the matter back to VCAT for reconsideration in light of the Court's findings. The Court emphasised the importance of VCAT correctly understanding the principles and exercising its jurisdiction properly, ensuring that all relevant considerations are taken into account.

Orders