FFD v Smile Excellence Dentistry

[2022] NSWCATAD 42

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FFD v Smile Excellence Dentistry [2022] NSWCATAD 42

Hearing dates:

17 December 2021, 27 January 2022

Date of orders:

08 February 2022

Decision date:

08 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop, Senior Member

Decision:

The respondent is to pay $27 to the applicant.

Catchwords:

ADMINISTRATIVE LAW — privacy — health and medical information — Health Privacy Principle

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 49, 64

Health Records and Information Privacy Act 2002 (NSW), ss 3, 11, Pt 4, 26(1), 27, 47, 48, 52, 53, 54, , Sched 1

Cases Cited:

Carroll v Tokdogan [2015] NSWCATAD 200

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Re VC and Australian Federal Police (1985) 8 ALD 587

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Walton v Momot [1997] NSWSC 143

Category:

Principal judgment

Parties:

FFD (Applicant)
Smile Excellence Dentistry (Respondent)

Representation:

Self-represented (Applicant)
No appearance (Respondent)

File Number(s):

2021/0034492

Publication restriction:

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal dated 17 June 2021, there is to be no publication of any information that identifies or is likely to lead to the identification of the applicant.

reasons for decision

Introduction – Application for administrative inquiry

1. The applicant applied to the Tribunal for an inquiry into a complaint concerning her requests for a copy of her 2016 dental record held by the respondent.

2. The complaint was the subject of a preliminary assessment by the NSW Privacy Commissioner (“Privacy Commissioner”) who then investigated the complaint and provided a report dated 27 October 2021 (“the PC Report”).

3. The respondent ultimately provided the dental record on 16 December 2021; however the applicant would like to pursue her application in the Tribunal. In particular the applicant seeks compensation of at least $27 being the application fee to commence this proceeding and an apology from the respondent.

Procedural history

4. On 22 November 2021, at a directions hearing, the Tribunal made orders for the respondent to file evidence including statements, documents and summary of arguments by 6 December 2021.

5. The Tribunal also made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT ACT”) to restrict publication of any information that will identify the applicant. Accordingly the applicant is referred to in these proceedings as “FFD”.

6. The Respondent indicated to the Tribunal at that time that it did not seek a similar order under s 64.

7. The matter was listed for hearing on 17 December 2021. On 16 December 2021 the respondent emailed to the Tribunal a copy of the medical record sought by FFD. It was a dental diagram with a few handwritten sentences. That was the entirety of the record.

8. The respondent failed to appear at the hearing. The Tribunal made numerous attempts over the course of approximately 45 minutes to try to contact the respondent. FFD indicated to the Tribunal that, given she had received the dental record, she may be prepared to withdraw the proceeding if the respondent offered an apology (as the PC report had recommended) and reimbursed her at least the $27 application fee in the Tribunal. I adjourned the hearing to 27 January 2022.

9. In subsequent email correspondence to the respondent from the Tribunal, the respondent was requested to provide an explanation for his absence and informed that he if failed to appear on 27 January, the matter would be determined in his absence. The Tribunal noted FFD’s indication to the effect that she may be prepared to withdraw the matter if she received an apology.

10. On 22 December 2021, Dr Randir Singh of the respondent sent an email apologising for his non-attendance at the hearing which he said was for the reason that an emergency patient had come in from quarantine who required significant medical management. Dr Singh also said that if the Tribunal required evidence it would need to “indemnify” him “against any patient confidentiality issues”. He also requested a non-publication order and requested that the matter be heard and determined in the respondent’s absence given “the applicant’s toxic nature” and the possible effect this may have on his clinical performance on his patients. He also denied the accusations of the applicant and alleged that the reason for the delay in FFD obtaining her clinical notes was due to her own choices: “She was not able to come in to take photos of her notes for free nor was she willing to pay $65 for the service.” Dr Singh said FFD “was on a power trip for her own ego”. He wrote as follows:

“Initially I wanted the process to be open and transparent for everyone but after reading The [applicant’s] Complaints emails I can see that she is capable of many ficticios (sic) claims and accusations which are fueled by her toxic mindset.

Therefore I would like to apply for the suppression order regarding this case so that she is not able to sabotage and harm my business, my professionalism or my reputation in the community.”

11. The applicant objected to the respondent’s application.

12. I refused the respondent’s application for non-publication and the reasons for that decision are set out further below.

Material before the Tribunal

13. The applicant provided the following material to the Tribunal:

1. Application form dated 4 November 2021 which attached the PC report and correspondence from NCAT as to the filing fee FFD paid for this application;

2. Correspondence from the Applicant setting out the factual context and background (including a copy of email correspondence from the respondent to FFD of 2 February 2021 and from Dr Singh to the Office of the Australian Information Commissioner (OAIC) on 3 June 2021).

3. Various other email correspondence from FFD.

14. Other than the email of 22 December 2021 referred to above and the dental record, the respondent did not provide any submissions or evidence to the Tribunal.

Background

15. The respondent is a dental practice in Seven Hills through which Dr Singh practises.

16. FFD attended the respondent on 18 May 2016 for a clean and polish.

17. On 1 February 2021, FFD contacted the respondent to request her clinical record. FFD was informed by the person on the phone that she could come to the clinic and take a photo of her record on the computer screen.

18. On 2 February, the respondent emailed FFD informing her that it required the payment of $65 as an “admin fee for the preparation [of the] report”. FFD sent an email informing the respondent that she did not want a report just her medical record and requesting that it be emailed to her as she lived 94km away which would be a three hour round trip to drive to the respondent’s premises. This request was refused.

19. FFD lodged a complaint to the OAIC. FFD and Dr Singh attended a telephone conciliation on 29 July 2021 but the matter was not resolved.

20. FFD closed her complaint with the OAIC and on 30 July 2021 raised one with the Privacy Commissioner. FFD claimed that the $65 fee to email a clinical note (of a few sentences) was excessive. In support of this complaint she said the cost would have had a detrimental financial impact on her family and that the alternative (travelling to the respondent’s premises to take a photo) given the distance she lived from the respondent, the fact that she has young children and limitations on her time, as well as the fact that the COVID-19 lockdown restrictions in New South Wales at that time prevented her movement, made it too difficult. FFD also said there had been excessive delays on the part of the respondent since she first requested her record. FFD requested that the fee be waived or reduced to no more than $30.

21. On 3 September 2021, the Privacy Commissioner invited the respondent to provide information and materials to justify the cost to provide the record and to provide information in response to the complaint.

22. On 14 September 2021, the respondent indicated that he was no longer willing to accept $65 to provide the record. Despite previous indications that FFD could come to the surgery and access her record on the computer screen, Dr Singh now said that her record was stored offsite on a piece of paper.

23. Dr Singh informed the Privacy Commissioner that the charge for FFD to obtain her record would now be $345. This amount was justified by the respondent on the basis that it would take time to retrieve the records from storage offsite but he also alleged that FFD had made abusive calls to him, posted negative reviews on Facebook and his previous dealings with FFD justified the fee.

24. Dr Singh claimed that it would take more than 5 hours to obtain the record which included the time to drive both ways to the storage site, time to locate the file, time to scan it, print it and then return to the clinic.with it

25. FFD maintained that as Dr Singh remained willing to allow her to come to the clinic to take a photo of her record from the computer screen, he could just as easily arrange for it to be emailed to her; the fee he was requesting was excessive and he was presenting inconsistent versions to the Privacy Commissioner.

26. On 28 September 2021, the Privacy Commissioner provided a draft report to FFD and the respondent and both parties were given an opportunity to make submissions.

Privacy Commissioner’s finding and recommendations

27. On 27 October 2021, the Privacy Commissioner issued the PC report under s 47 of the Health Records and Information Privacy Act 2002 (NSW) (“HRIP Act’).

28. The Privacy Commissioner found that the respondent contravened Health Privacy Principle 7 (“HPP7”) because it failed to provide access to the health information requested by FFD without excessive expense. The Privacy Commissioner had regard to guidelines from NSW Health and the RACGP Handbook to conclude that the respondent’s original $65 charge is unlikely to be excessive but it was open for him to reduce it further given FFD’s personal circumstances. However, the charge of $345 was excessive given it was a one page document; the respondent had offered for FFD to come take a photo of the computer screen herself free of charge; and COVID-19 restrictions prevented FFD from travelling to the respondent’s premises.

29. The Privacy Commissioner did not find a breach in relation to failing to provide access to the health information requested without excessive delay on the basis that the delay was a result of the dispute.

30. The Privacy Commissioner recommended that the respondent:

1. Issue a written apology to FFD;

2. Review the charge for providing access in line with guidance on charges and the personal circumstances of FFD;

3. Consider alternative options for retrieving the record and providing access to it that had not been previously considered and offered to FFD, including the possibility of retrieving and providing access to the record electronically.

31. As at the date of the hearing, the respondent has not issued a written apology to FFD. However, the respondent has emailed the medical record to the applicant without charge.

The issue before the Tribunal

32. At the hearing, the applicant agreed that the issue for this inquiry is whether the respondent failed to comply with HPP7 by:

1. failing to provide access to the health information requested by FFD;

2. failing to provide access to the health information requested by FFD without excessive delay.

Applicable legislation

Health Privacy Principles

33. The HRIP Act facilitates access for individuals to their health information.

34. The stated purpose of the HRIP Act is found in s 3:

3 Purpose and objects of Act

(1)    The purpose of this Act is to promote fair and responsible handling of health information by—

(a)   protecting the privacy of an individual’s health information that is held in the public and private sectors, and

(b)   enabling individuals to gain access to their health Information, and

(c)   providing an accessible framework for the resolution of complaints regarding the handling of health information.

35. Section 11 of the HRIP Act requires a private sector person that is a health service provider or that collects, holds or uses health information (in this case the respondent) to comply with the 15 Health Privacy Principles (“HPP”) set out in Schedule 1 to the Act and the provisions of Part 4 of the Act.

Health Privacy Principles 7 and 11

36. Access to health information is a distinct health privacy principle (HPP 7), as set out below:

7 Access to health information

(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 information.

Processes for responding to requests for information

37. Section 26(1) provides that an individual may request a private sector person to provide the individual with access to health information relating to the individual which is held by the private sector person.

38. Section 27 prescribes the way that private sector persons are to respond to requests for health information. This includes mandating a time frame of 45 days for responding to requests: s 27(1). Importantly, the requirement to respond within the stipulated time frame applies regardless of whether the private sector person decides not to provide access.

39. A private sector person responds by either providing or refusing access to the information: s 27(2).

40. Where refused, the private sector person must give a written reason for refusal of access, being a reason for refusal provided for by the Act: s 27(3).

41. If a private sector person fails to respond to the request as required, and within 45 days of the request, it is deemed to have refused access: s 27(6).

42. The HRIP Act provides that a complaint about alleged contraventions of a HPP may be made to the Privacy Commissioner. The Privacy Commissioner may make a written report as to any findings or recommendations in relation to a complaint can make an assessment: s 47 HRIP Act.

43. The Privacy Commissioner’s report is admissible in any subsequent proceedings before the Tribunal: s 47(3) HRIP Act.

44. The Tribunal’s jurisdiction to hold an inquiry into a complaint against the respondent and make orders is found in Division 2, Part 6 of the HRIP Act.

45. The Tribunal does not have jurisdiction to review the report of the Privacy Commissioner. Rather the Tribunal is to make an original decision (refer to the note in s 48(1) of the HRIP Act).

46. The Tribunal’s jurisdiction is only enlivened if the complaint is the subject of a report of the Privacy Commissioner under s 47 of the HRIP Act. The Privacy Commissioner’s jurisdiction to investigate a complaint and provide a report is found in Division 1, Part 6 of the HRIP Act. As previously noted, the PC’s report was provided to the applicant.

47. After holding an inquiry, the Tribunal’s powers are set out in ss 52, 53 and 54 of the HRIP Act. Under s 54, the Tribunal may decide not to take any action on the matter or it may make any one or more of the orders as set out in that section of the HRIP Act.

Did the respondent fail to comply with HPP7 of the HRIP Act?

48. The respondent’s implementation of the Privacy Commissioner’s recommendations (2) and (3) (albeit on the eve of the hearing date in December 2021) have bearing on my findings and order.

49. As the respondent has now provided the medical record to FFD, I find that there is not a failure on the part of the respondent to provide the health record to FFD under HPP7.

50. However, given the time that has elapsed, I find that the respondent has failed to provide FFD’s health record without excessive delay.

51. FFD first requested her medical record on 1 February 2021. The record was not emailed to FFD and the Tribunal until 16 December 2021. The respondent’s requests that FFD pay $65 and then $345 for access to her record was entirely unreasonable in circumstances where a photograph could have been taken of the medical record and emailed to FFD with very minimal or no cost. On the evidence before me, it was the respondent’s conduct that caused the delay.

52. Having found a breach of HPP7, the Tribunal is required to determine what, if any, orders should be made.

53. I have taken into consideration the following:

1. the Privacy Commissioner’s finding that $65 was not an excessive fee but that it could have been reduced given the circumstances of FFD; the nature of the document; and the COVID-19 restrictions;

2. the Privacy’s Commissioner’s finding that $345 was an excessive fee;

3. the respondent’s ultimate (but delayed) implementation of recommendations (2) and (3) made by the Privacy Commissioner.

4. FFD’s submissions and evidence;

5. the history of the dispute between FFD and the respondent including the evident antagonism between them and allegations each have made about the other; and

6. the overriding objective in s 3(d) of the NCAT Act for the Tribunal to resolve the real issue in proceedings justly, quickly, cheaply and with as little formality as possible.

54. FFD has paid a fee of $27 for the filing of the application before the Tribunal and seeks an order that she be compensated for this financial loss. FFD also contended at the hearing that she has suffered emotional stress as a result of the respondent’s actions but accepted she does not have evidence to quantify any damage to her other than the $27.

55. The filing fee would not have been required if the respondent had implemented the Privacy Commissioner’s recommendations prior to FFD making this application. Consequently, FFD should be compensated for the financial loss of $27 she has suffered in the circumstances where I have found the respondent was in breach of HPP7.

56. FFD also sought an order that the respondent apologise to her. While one of the recommendations in the PC Report was that the respondent apologise, he has made no attempt to do so. This was despite FFD communicating on 17 December that she might withdraw the proceeding in the Tribunal if the respondent gave a short apology. Had he done so and the proceeding subsequently been withdrawn, it would have alleviated the time and cost of the Tribunal.

57. Ideally, the respondent would have recognised that his behaviour has been unacceptable and in breach of HPP7. He should have made a genuine and concerted attempt to assist FFD to obtain the very simple medical record in his possession without excessive delay.

58. However, having regard to the history of antagonism between the parties and with a view to bringing finality to this dispute, I do not consider it appropriate to make an ancillary order under s 57 of the HRIP Act to the effect that the respondent apologise to FFD. In any event, the applicant did not direct me to any authority for the proposition that such an order would fall within the “ancillary order’ provision.

Non-publication

59. As noted above, shortly prior to the hearing, the respondent requested that an order be made anonymising the respondent.

60. The general rule in the Tribunal is that hearings are open to the public: s 49 of the NCAT Act. Publication of the names of parties is important because it facilitates open justice.

61. Section 64 of the NCAT Act gives the Tribunal power to make an order prohibiting the disclosure of the name of any person involved in proceedings. The relevant parts of s 64 are set out below.

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

…

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

62. An equivalent provision to s 64 has been the subject of close analysis by the Appeal Panel of the Administrative Decisions Tribunal. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (“Dezfouli”), the Appeal Panel was considering the meaning of s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW). After a comprehensive analysis of the statute and the case law the Tribunal drew attention to the following points relevant to its decision in that case:

“81   … (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.”

63. The first principle mentioned by the Appeal Panel, “the presumption in favour of open justice”, is a common law principle. Kirby P explained the principle in the following terms in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 (citations deleted):

“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.”

64. The importance of the common law principle of open justice when exercising the discretion was highlighted by the Appeal Panel in Dezfouli [at [61]:

… it is unthinkable that the word ‘desirable’ in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

65. The Appeal Panel’s discussion of the applicable law at [46] to [80] of that decision and the principles distilled at [81] above apply equally to s 64 of the NCAT Act.

66. There must be “good grounds for making the order”: Dezfouli at [81]. Ordinarily, the prospect of damage to reputation of a participant in the proceedings will not provide sufficient grounds for a suppression order.

67. After identifying the reason for the application, the next step is for the Tribunal to take into account any other relevant considerations, particularly the presumption in favour of open justice. The principle of open justice means that “the power contained in s 64 should be exercised sparingly”: Carroll v Tokdogan [2015] NSWCATAD 200 at [8].

68. It has been held that information about the identity of an applicant is of “considerably lower” public interest than ensuring that hearings are conducted in public and evidence is available for public scrutiny: Re VC and Australian Federal Police (1985) 8 ALD 587 at [18].

Consideration

69. The respondent seeks an order prohibiting the disclosure of its name on the following ground: “so that [FFD] is not able to sabotage and harm my business, my professionalism or my reputation in the community.”

70. The respondent has not put before the Tribunal any evidence that supports his application and assertions.

71. I am not satisfied that the respondent has established any “special or exceptional circumstances” for the order he seeks: Walton v Momot [1997] NSWSC 143.

72. While the respondent desires its name anonymised, this is a matter of considerably lower public interest than that of open justice.

73. On this basis, the respondent’s application was refused.

Orders

1. The respondent is to pay $27 to the applicant.

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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: 08 February 2022