FKX v Southern NSW Local Health District

[2024] NSWCATAD 68

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FKX v Southern NSW Local Health District [2024] NSWCATAD 68

Hearing dates:

23 February 2023

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

1.   The Agency’s decision that the information described in item 2(d) of the access application is not held is set aside.

2.   In substitution for that decision, access to the information described in item 2(d) of the access application is refused.

3.   The reviewable decision is otherwise affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether overriding public interest against disclosure – prejudice the effective exercise by an agency of the agency’s functions – endanger or prejudice any system or procedure for protecting the life, health or safety of a person – expose a person to a risk of harm or serious harassment or serious intimidation.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 9, 55, 63

Civil and Administrative Tribunal Act 2012 (NSW) ss 49, 64

Government Information (Public Access) 2009 (NSW), ss 3, 4, 5, 9, 12, 13, 14, 15, 55, 80, 53, 58, 80, 100, 105, 107, Schedule 4

Government Sector Employment Act 2013 (NSW), ss 3, 23, Schedule 1

Health Services Act 1997 (NSW), ss 6, 9, 10, 17, Schedule 1

Health Records and Information Privacy Act 2002 (NSW), s 29

Mental Health Act 2007 (NSW), ss 12, 13, 14, 34, 35, 42, 44, 57, 58, 156

Cases Cited:

Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5

DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92

Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Texts Cited:

NCAT Procedural Direction 3: Expert Evidence

Category:

Principal judgment

Parties:

FKX (Applicant)
Southern NSW Local Health District (Respondent)

Representation:

FKX (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00123335

Publication restriction:

The following non-publication orders are made pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
(a) pursuant to s 64(1)(a), the disclosure of the name of the Applicant is prohibited.
Note: The name of a person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.
(b) pursuant to s 64(1)(b), the publication and broadcast of the transcript and sound recording of the confidential session of the hearing conducted on 23 February 2023 is prohibited.
(c) pursuant to s 64(1)(c) publication of the documents contained in the Agency’s confidential bundle filed on 7 November 2022 and the Agency’s confidential submissions filed on 7 November is prohibited.
(d) pursuant to s 64(1)(d) disclosure to the Applicant of:
• documents contained in the Agency’s confidential bundle filed on 7 November 2022,
• the Agency’s confidential submissions filed on 7 November 2022,
• the transcript and sound recording of the confidential session of the hearing conducted on 23 February 2023 is prohibited.

REASONS FOR DECISION

Introduction

1. This is an application by FKX (the Applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for review of a decision of the Southern NSW Local Health District (the Agency) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) in relation to an access application he formulated with the Agency’s assistance on 20 May 2022 which is designated a reviewable decision by s 100 of that Act. By that decision the delegate determined pursuant to s 58(1)(b) that information described in Item 2(d) of the access application was not held by the Agency and otherwise in accordance with s 58(1)(d) of the Act to refuse access to the information sought on the basis that there were three overriding public interest considerations against the disclosure of that information. This application was made to the Tribunal on 29 April 2022 (the application).

2. The Agency concedes that the decision that it does not hold the information described in item 2(d) of the access application is not correct. Subsequent to the decision that information has been identified. The Agency now submits with respect to that information that the correct and preferable decision is to refuse the Applicant access to that information on the same grounds as access has been refused to other information within the scope of the access application.

3. For the reasons set out following, I have accepted the Agency’s submission that the correct and preferable decision with respect to item 2(d) of the access application is to refuse access to that information. I have otherwise affirmed the Agency’s decision to refuse access to the whole of the information within the scope of the access request.

4. I acknowledge this is an extraordinary outcome, having regard to the objects and purpose of the GIPA legislative scheme. It means that the applicant, who at the material time had been an involuntary patient detained in a mental health facility under Part 2 of the Mental Health Act 2007(NSW) (MH Act) and was then subject to involuntary mental health treatment in the community under Part 3 of that Act is prevented from obtaining access to his medical records related to that treatment. Only the most exceptional circumstances could justify such an outcome under the GIPA Act regime in my view. However, those exceptional circumstances exist in this case. In short summary, I am satisfied on the Agency’s expert evidence that providing the Applicant with access to that information would prejudice the exercise of the Agency’s function of providing him with mental health care and treatment necessary for his own mental health and well-being, endangering his own health and safety, and the safety of others.

5. The outcome in this case should not be understood as establishing any general principle that a patient of a mental health service does not have a legally enforceable right to access to their medical records. This case turns on its own exceptional facts.

Non-publication order

6. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) confers power on the Tribunal to make various forms of non-publication orders in proceedings before it. In this respect it provides, relevantly:

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),

(b)   an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)   an order prohibiting or restricting the disclosure to some of all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

…

(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.

7. When the applicant filed his Application for administrative review, Registry assigned him a pseudonym. The applicant continued to be identified by a pseudonym throughout the proceedings up to the final hearing, apparently without comment or challenge by him or the agency. However, no non-publication order was made by the Tribunal. In its submissions, the agency applies for a non-publication order that would prohibit the disclosure of the documents in the confidential bundle of materials it filed on 7 November 2022 and its confidential submissions also filed on that date. I also note that part of the hearing was conducted as a Confidential Hearing (the confidential session) to the exclusion of the applicant in accordance with s 49(2) of the NCAT Act and s 107(3) of the GIPA Act.

8. The chapeau of s 64(1) of the NCAT Act provides that the Tribunal has discretion to make non-publication orders if it 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. This is obviously a broad discretion, but one which nevertheless must be exercised judicially, having regard to established principle.

9. In this respect the relevant considerations in the exercise of this discretion were articulated in detail in DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 at [6] to [11]. In short summary, the Tribunal is to have regard to the presumption in favour of open justice and the reality that personal embarrassment may be a necessary incident of that controlling value. Nevertheless, this does not prevent the Tribunal from making a non-publication order in the circumstances of a particular case so as to avoid a person associated with the proceedings being embarrassed. There must be good grounds for the making of a non-publication order on the material before the Tribunal. Where such an order is sought by a party, they bear a practical onus of establishing those grounds. The Tribunal is to have regard to the breadth of discretion conferred on it to make non-publication orders, the range of orders that may be made, and the breadth of purpose that may be served by such an order, which may relate to the public or a private interest.

10. In this case I am satisfied that it is desirable for a non-publication order to be made which prohibits the publication of the Applicant’s name. The material before the Tribunal discloses that he is a person who lives with a major mental illness. The subject matter of the proceedings is essentially the Agency’s assertion that the disclosure of the information sought by the Applicant is likely to lead to an exacerbation of his mental illness resulting in an unacceptable risk of serious harm to persons involved in his treatment and some others. That concern arises in a historical risk context of the Applicant committing homicide of a family member during the likely prodromal development of that illness. I am satisfied that this is highly sensitive personal information, not only of the Applicant, but also of his remaining family members, which justifies an order pursuant to s 64(1)(a) prohibiting the publication of the Applicant’s name in connection with the proceedings.

11. The agency’s confidential bundle contains the information that the agency has identified as being responsive to the Applicant’s access application which it contends should not be disclosed because of the considerations at clauses 1(f), 2(d) and 3(f) of the Table to s 14, and an Expert Report of Professor Greenberg. Professor Greenberg’s report is essentially an analysis of this information as the foundation for his opinion that its disclosure would result in an unacceptable risk of harm to the Applicant, his treating clinicians and others. The agency’s confidential submissions canvass this information and Professor Greenberg’s opinion. Whether the disclosure of this material should be prohibited pursuant to s 64(1) of the NCAT is a question ultimately connected with the substantive issue in the proceedings. That is, whether the Agency has discharged its onus of establishing an overriding public interest against the disclosure of the Applicant’s medical records. For the reasons I explain following I am satisfied that the agency has discharged that onus. I am therefore satisfied that non-publication orders should be made prohibiting disclosure of this information to any person, including the applicant.

12. The material contained in the Agency’s Confidential Bundle and the contents of Professor Greenberg’s report were the subject of the confidential session conducted in the proceedings. For the same reason disclosure of these documents should be prohibited, a non-publication order should be made prohibiting the disclosure and publication of any transcript or sound recording of the confidential session.

Procedural history

13. The Application for administrative review the applicant filed with the Tribunal on 29 April 2022 related to conduct by a named medical practitioner at a mental health facility involving the applicant’s involuntary detention under the MH Act and the alleged refusal of the medical practitioner to provide him with information concerning that decision. Among the documents attached to the application form was a decision of 10 March 2022 of a delegate of the Southern NSW Local Health District which refers to an application made by the Applicant on 4 March 2022 for access to documents related to an ‘emergency presentation’ of the applicant to which access was refused in reliance upon s 29(a) and (b) of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). The applicant also attached to his application for administrative review two Determinations made by the Mental Health Review Tribunal dated 11 March 2022 which dismissed his Appeal for discharge under s 44 of that Act, and which determined under s 34 of that Act that he was mentally ill and must be discharged subject to a Community Treatment Order to be implemented by a nominated community based mental health facility.

14. Alongside his application for administrative review, the applicant filed an Application for Stays of both the Agency’s decision in respect of his request for access to his medical records under the HRIP Act and the Mental Health Review Tribunal’s decision to make a Community Treatment Order requiring him to accept mental health treatment from a community-based Mental Health Facility.

15. The application first came before the Tribunal, differently constituted, for a Case Conference on 17 May 2022. At that Case Conference the Tribunal dismissed the applicant’s Stay applications on the basis that NCAT had no jurisdiction to make the orders sought. It also appears that the parties had agreed prior to the Case Conference that several requests the Applicant had made to the Agency for his health information would be treated as an ‘access application’ to be dealt with in accordance with Part 4 of the GIPA Act. Having regard to that the Tribunal noted that the Agency would determine the outcome of that ‘access application’ by 3 June 2022. The proceeding was then adjourned to a Directions Hearing on 7 June 2022 ‘to consider the way forward in relation to this and possibly other applications’.

16. The application next came before the Tribunal, as constituted on 17 May 2022, for a Directions Hearing on 7 June 2022. On that occasion the Tribunal noted that on 6 June 2022 the Agency had determined that access application and that the Applicant disputed that determination. The Tribunal further noted that the parties agreed that this was now the ’reviewable decision’ for the purposes of the proceeding. A direction was made for the Agency to file and serve its documentary evidence by 5 July 2022. The proceeding was otherwise adjourned to a further Directions Hearing on 12 July 2022.

17. The application next came before the Tribunal, differently constituted, for Directions on 12 May 2022. At that listing the Agency advised that it was seeking to engage a Forensic Psychiatrist as an Expert Witness, however, it was not yet in a position to advise if such a person could be engaged, and if so, how long it would take to prepare an Expert Report. In light of that information, the Tribunal stood the matter over for a further Directions Hearing on 26 July 2022 at which time it was anticipated the Agency would be in a position to confirm its position.

18. The application next came before the Tribunal, differently constituted, for a Directions hearing on 26 July 2022. At that listing the Agency confirmed that it had engaged a Forensic Psychiatrist to provide an expert report, which it did not anticipate could be completed before 1 November 2022. In light of that information the Tribunal extended the date for compliance for the filing and exchange of the agency’s evidence to 1 November 2022 and adjourned the proceeding to a further Directions Hearing on 8 November 2022.

19. The application next came before the Tribunal, differently constituted, for a Directions Hearing on 8 November 2022. The Agency had filed its documentary evidence, including its Expert Report, by that date. The applicant advised that he did not propose to file any (additional) evidence in the proceedings but may make oral submissions at the hearing. The proceedings were adjourned for final hearing on 23 February 2023 on that basis.

Material considered and hearing

20. In reaching my determination I have considered the following material:

Applicant

1. Administrative review application filed 29 April 2022 and Annexures,

2. A report from Dr M J Mulcahy (Urological Surgeon) to Dr J Uruakpa dated 6 May 2022,

3. An informal statement addressed ‘To whom it may concern’ by R D Williams dated 28 July 2016,

4. Unsigned document authored by applicant titled ‘To whom it may concern’ dated 16 May 2022,

5. Email to NCAT Registry from the applicant dated 11 May 2022, which attaches the following articles:

1. Chang, SM, Cho, SJ, Jeon, HJ, Hahm, BJ, Lee, HJ, Park, JI and Cho, MJ, “Economic Burden of Schizophrenia in South Korea” J. Korean Med Sci 2008; 23; 167-75,

2. Stuckey, R, Walsh, W and Lambert, B, “The Effectiveness of Targeted Nutrient Therapy in Treatment of Mental Illness, A Pilot Study”, ACNEM Journal Vol 29 No. 3 November 2010 (Stuckey),

3. Barrett, S, “Orthmolecular Therapy”, 12 July 2000,

4. Lee, S, Grana, RA and Glantz, SA, “Electronic Cigarette Use Amongst Korean Adolescents: A Cross-Sectional Study of Markey Penetration, Dual Use, and Relationship to Quit Attempts and Former Smoking”, J Adolesc Health, 2014, June; 54(6): 684-690,

5. Ding, JB and Hu, K, “Cigarette Smoking and Schizophrenia: Etiology, Clinical, Pharmacological, and Treatment Implications”, Schizophrenia Research and Treatment Volume 2021 Article ID 7698030,

6. Harrow, M and Jobe, TH, “Factors Involved in Outcome and Recovery in Schizophrenia Patients Not on Antipsychotic Medications: A 15-Year Multifollow-up Study”, The Journal of Nervous and Mental Disease, Volume 195, Number 5, May 2007 (Harrow and Jobe),

7. Fazel, S, Gulati, G, Linsell, L, Geddes, JR, Grann, M “Schizophrenia and Violence: Systemic Review and Meta-Analysis”, PLoS Medicine, August 2009, Volume 6, Issue 8,

6. Email to the NCAT Registry from the applicant dated 12 May 2022 which attaches the following documents:

1. An article from The Canberra Times which the applicant describes as a ‘defamatory news article’,

2. A Pre-Sentence Report for the Supreme Court of the ACT prepared in relation to the Applicant by the ACT Department of Justice,

3. A Redfern Legal Centre pamphlet titled “Referrals for Tort Matters”.

7. Email to the NCAT registry from the Applicant dated 6 May 2022 which forwards correspondence between him and an officer of the Australian Health Practitioner Regulation Authority concerning a notification of a health practitioner he had made to that agency,

8. Email to the NCAT registry from the Applicant dated 12 May 2022 which attaches reports dated 11 May 2016, 21 May 2016, 8 February 2017, 26 April 2017, 16 October 2017 and 25 January 2018 prepared by various mental health clinicians in relation to the Applicant and his presentation to the ACT Civil and Administrative Tribunal in relation to applications for Psychiatric Treatment Orders. Also attached to this email is a copy of a ‘Notice of Revocation for a PTO or RO’ in relation to the Applicant dated 16 January 2018, and a ‘second opinion’ in relation to the applicant’s mental health diagnosis dated 6 December 2017 prepared by Dr Bree Wyeth, Psychiatrist,

7. An email to the NCAT Registry from the applicant dated 6 May 2022 which attaches copies of a number of the applicant’s primary health records related to his general health of various dates. The email includes hyperlinks to 6 publications related to ‘alternative treatments for children within Autism Spectrum’, ‘Orthomolecular treatment for Schizophrenia’, ‘health prostrate’, antibiotic treatment of prostatitis, ejaculation treatments, and antihistamines,

8. An email to the NCAT Registry from the applicant dated 11 May 2022 which encloses a synopsis for a book titled “The History of Madness”,

9. An email to the NCAT Registry from the applicant dated 11 May 2022 which attaches the following:

1. a character reference for the applicant given by Dawn O’Neill dated 28 February 2022,

2. a character reference for the applicant given by Dylan Roberts dated 28 February 2022,

3. a character reference for the applicant given by Owen Anderson undated,

4. a character reference for the applicant given by Michelle Windsor, dated 15 October 2013,

12. An email to the NCAT Registry from the Applicant which attaches the following:

1. telephone call records for the period 27 November 2021 to 7 May 2022,

2. telephone text message records for the period 11 December 2020 to 4 May 2022,

3. copies of a number of the Applicant’s primary health records related to his general health of various dates.

13. The following books and booklets filed by the Applicant:

1. Schachter, MB The Natural Way to a Healthy Prostrate, Keats Publishing Inc, undated,

2. Pfeifffer, CC Nutrition and Mental Illness, Healing Arts Press, 1987,

3. Alecson, DG Alternative Treatments for Children within the Autism Spectrum, Keats Publishing, 1999,

4. Hoffer, A Orthomolecular Treatment for Schizophrenia, Keats Publishing, 1999.

Agency

1. Open bundle of documents filed on 7 November 2022. This bundle contains:

1. Email exchanges between the Applicant and Mr Sherrington dating 18 to 20 May 2022 in which the scope of the Applicant’s access application was agreed,

2. Notice of Decision under the GIPA Act in relation to the information sought by the Applicant dated 6 June 2022,

3. A decision of the ACT Supreme Court in which the Applicant was found guilty of the unlawful homicide of this mother,

4. A decision of the ACT Supreme Court sentencing the applicant in relation to the unlawful homicide offence,

5. A subset of documents submitted to NCAT by the Applicant during the proceedings (each listed above),

6. A copy of the letter of instructions provided to Professor Greenberg dated 19 September 2022 and its annexures, being a copy of the table to s 14 of the GIPA Act and NCAT’s Procedural Direction 3: Expert Evidence,

7. Copies of 3 academic articles provided by the Applicant to Professor Greenberg, being Harrow and Jobe, Stuckey and Hoffer A (see above) and Prousky J, “Successful Treatment of Schizophrenia Requires Optimal Daily Doses of Vitamin B3” in Alternative Medicine Review (Vol. 13, No. 4),

8. A copy of an academic article relied upon by Professor Greenberg, being Rogier Hoenders HJ et al, “Natural Medicines for Psychotic Disorders: A Systematic Review” in The Journal of Nervous and Mental Disease (Vol. 206, No. 2).

2. Confidential bundle of documents filed on 7 November 2022. This bundle contains:

1. Copies of the Applicant’s medical records which are within the scope of his access application,

2. A summary of the Applicant’s condition prepared by his treating team, being a document referred to in the respondent’s decision, and

3. An Expert Report of Professor David Greenberg dated 30 October 2022.

3. Open submissions filed on 7 December 2022,

4. Confidential submissions filed on 7 December 2022.

21. The hearing was conducted by AVL. The Applicant attended the hearing, self-represented. The agency attended the hearing by its representative Mr Robert Sherrington, NSW Crown Solicitor’s Office. The Agency called as its Expert Witness, Professor David Greenberg. Dr Greenberg gave oral evidence under oath. The parties had the opportunity to present their respective cases, to ask questions of the Applicant and Professor Greenberg and to make final submissions to the Tribunal.

Material facts

22. The Agency is a body corporate constituted under s 17 and specified in Schedule 1 of the Health Services Act 1997 (NSW) (HS Act). It is an agency to which the GIPA Act applies because it is a ‘public authority’ within the meaning of paragraph (c) the definition of ‘agency’ contained in s 4 and clause 2(b) of Schedule 4 of the GIPA Act, being a body established for a public purpose under the provisions of a legislative instrument. The Goulburn Hospital Chisholm Ross Centre, Queanbeyan Hospital and the Queanbeyan Mental Health Services are each services conducted by the agency. They are “Declared Mental Health Facilities” within the meaning of Part 2, Division 1 of the MH Act.

23. The Applicant is 38 years of age. He has an ongoing relationship with his father and two sisters (the Applicant’s family). The Agency’s mental health clinicians have contact with the Applicant’s family. In these reasons where I refer to members of the Applicant’s treating team ‘and others’, the expression ‘and others’ is to be understood as including a reference to the Applicant’s family members. I take this approach having regard to my obligations under s 107(1) of the GIPA Act (as to which see further following).

24. In 2005, when he was 20 years old, the Applicant was involved in a violent incident with his mother at his mother’s home which resulted in her death. In the course of heated argument in which the Applicant’s mother was attempting to make him leave her home the Applicant took a knife from her and stabbed her 58 times. The Applicant had attended his mother’s home to demand she pay monetary compensation for abuse and neglect he apprehended he had suffered from his parents during childhood.

25. Immediately after this incident the applicant hid in ‘the bush’ for a week, then travelled to Queensland where he was eventually apprehended and extradited back to the ACT.

26. In early 2008 he was found by the ACT Supreme Court not guilty of murder but guilty of unlawful homicide in relation to that incident. The basis for that finding was the applicant’s ‘criminal negligence’. In short summary, the Court accepted that the Applicant apprehended that he was being assaulted by his mother, had been blocked in a room by her, and lacked real cognisance of the fact that he had a knife in his hand when he was punching back in attempted self-defence. No defence on the ground of mental illness or other diminished responsibility was considered during the trial.

27. I set this information out in some detail because there is an issue in this case as to whether there is any link between the homicide and any mental illness of the Applicant. The applicant is adamant that there is no connection citing the Court’s criminal negligence finding as proof of this. The Agency’s case is, in summary, that the applicant’s subsequent development of a major psychotic mental illness, now diagnosed as Schizophrenia, gives rise to a likelihood that the incident was prodromal to the full onset of this condition.

28. In this respect, it is said that the evidence is that the Applicant attended his mother’s home with fixed persecutory beliefs about his parents’ treatment of him during childhood, and a context where he had previously given explicit written indications to other persons that he intended to obtain revenge by several means including lethal violence. It is also noted that the Court refers to the general context of Applicant’s behaviour as being partly related to his diagnosis with Asperger’s Syndrome which it is said is also a likely indication of the prodromal development of psychosis.

29. In any event, later in 2008, the Applicant was convicted and sentenced to a maximum 5 years’ imprisonment with a non-parole period of 22 months provided he entered into a good behaviour order. His sentence was expressed to commence from the date of his detention on remand. As the Applicant had already been on remand for 22 months, this meant, effectively, that he was released on his date of sentence subject to a good behaviour order.

30. Although apparently not referred to at all during trial, in its remarks on sentence, the Court referred to what the Agency contends is the Applicant’s first major psychotic episode which occurred while he was in detention on remand in or about September 2007. That psychotic episode is associated with a highly lethal attempted suicide, where the Applicant climbed onto a sink and dived headfirst onto a concrete floor. From that date the Applicant had been receiving mental health care and treatment under the terms of a Psychiatric Treatment Order made under ACT mental health legislation. That circumstance was one of the factors that the Court considered as enabling to pass the sentence it did.

31. On his release from custody, the Applicant immediately experienced a psychotic episode which resulted in his admission to an ACT mental health facility. A further admission to this facility followed in quick succession in relation to an exacerbation of psychosis shortly after discharge. Between his release from custody and up to the end of 2018 the applicant was treated both in an acute mental health facility and by a community mental health facility in the ACT under successive Psychiatric Treatment Orders. He was discharged from a Psychiatric Treatment Order by ACT mental health services at the end of 2018 apparently on the ground that he was at that time willing to accept mental health care and treatment on a voluntary basis.

32. Sometime in 2019 the Applicant moved to Queanbeyan in NSW. He first came into contact with the Agency’s mental health clinicians and services on 1 August 2019. That contact has continued up to the present and it has involved:

1. periods of involuntary detention for assessment at Queanbeyan Hospital under Chapter 2, Part 2, Division 2 of the MH Act,

2. periods of involuntary detention and treatment under Chapter 3, Parts 2 and 3 of the MH Act at a Mental Health Facility in Goulburn Base Hospital, called the Chisholm Ross Centre,

3. periods of engagement with the Queanbeyan Community Mental Health Service, which has included periods in which that service has been the Mental Health Facility responsible for the Applicant’s involuntary treatment under a Community Treatment Order (CTO) made under Chapter 3, Part 3 of the MH Act.

33. The Applicant was involuntarily admitted to Queanbeyan Hospital and transferred to the Chisholm Ross Centre for assessment and treatment under the MH Act on or about 16 February 2022. He is particularly aggrieved about that admission and the circumstances in which it occurred. After arrival at the Chisholm Ross Centre, he made an application to the Authorised Medical Officer for discharge in accordance with s 42 of the MH Act, which was refused. He then lodged an Appeal against that decision with the Mental Health Review Tribunal in accordance with s 44 of that Act. That Appeal and a Mental Health Inquiry under s 34 of the MH Act were listed for concurrent hearing by the Mental Health Review Tribunal on 11 March 2022.

34. It was in the lead up to that hearing that the Applicant made a request to the agency on 4 March 2022 for access to medical records related to his admission which was dealt with by the agency under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). The Agency formally refused access to these records on 10 March 2022 citing ss 29(a) and (b) of the HRIP Act as its justifications for doing so. That is, it was asserted that providing access to this information would pose a serious threat to the applicant’s health or welfare and it would have an unreasonable impact on the privacy of other individuals.

35. At the Hearing on 11 March 2022 the Mental Health Review Tribunal dismissed the Applicant’s Appeal against discharge refusal and continued with a Mental Health Inquiry in relation to the Applicant. It determined, in the context of that Inquiry and in accordance with s 35 of the MH Act, that the Applicant was a mentally ill person and must be discharged from Chisholm Ross Centre subject to a Community Treatment Order (CTO) in accordance with terms and conditions contained in a treatment plan attached to the Order, which was to be administered by the Queanbeyan Mental Health Service. In brief outline those terms and conditions required the Applicant to accept periodic intramuscular injections of antipsychotic medication, present for periodic psychiatric review by a consultant psychiatrist, and present for more frequent periodic case management reviews with a psychiatric case manager. Section 57(1) of the MH imposed a duty on the Applicant to comply with that order. Failure to do so, would enliven the ‘breach’ provisions contained in s 58 of the MH Act, which could ultimately have resulted in the Applicant’s involuntary readmission to an acute mental health facility.

The reviewable decision

36. In its Notice of Decision the Agency sets out a description of the applicant’s access application and its formulation as follows:

1.   Summary of access application

On 29 April 2022, you commenced proceedings in the NSW Civil and Administrative Tribunal challenging the Southern NSW Local Health District’s (SNSWLHD) decision to refuse access to your medical records.

Subsequently, SNSWLHD agreed to treat your request for documents as an access application made under s 9of the Government Information (Public Access) Act 2009 (GIPA Act).

On 18 May 2022, you confirmed in an email to Robert Sherrington, A/Senior Solicitor, Crown Solicitor’s Office, that you sought access to the following information:

1.   Your whole NSW Health mental health file, for viewing only.

2.   Copies of the following documents:

a.   Record of a conversation between “Tad” and your father [name redacted] on 10 February 2022 at about 12:00pm and on 15 February 2022;

b.   Record of a subsequent conversation between Dr Own, “Tad”, and your father [name redacted] after you discharged from Chisholm Ross Centre;

c.   Reports of members of the community used to support mental health diagnoses and/or for CTO,

d.   Report of “Beate”, prepared for the Chisholm Ross Centre,

e.   Admission notes for the Chisholm Ross Centre, specifically including the Base-22 self-reporting tool;

f.   Records of your admission to Queanbeyan Hospital Emergency Department on or around 25 September 2019; and

g.   Records of your admission to Queanbeyan Hospital Emergency Department on or around 16 February 2022.

You also said in that email that you sought “a copy of the letter from Dr Sunita D’Souza”.

Subsequently, on 20 May 2022, you informed Mr Sherrington in another email that you no longer sought letters from Dr Mulcahy and Dr D’Souza.

I am accordingly treating items 1 and 2(a) to (g) as your access application under s 9 of the GIPA Act

37. The Agency’s decision in relation to the access application as described above is set out in the following excerpts of the Notice of Decision:

3.1   Notice of Decision

In respect of Item 2(d) of your access application, I have decided, under s 58(1)(b) of the GIPA Act, that the information you seek is not held by SNSWLHD.

In respect of the balance of your access application, I have decided, under s. 58(1)(d) of the GIPA Act, to refuse access to this information.

…

3.3   Information relied on

In determining your access application, I have relied on the following information:

1.   The records falling within the scope of your application that I have reviewed;

2.   Information provided to me by your treating team, including your treating psychiatrist, Professor Cathy Owen; and

3   Two judgements of the Supreme Court of the Australian Capital Territory [citations redacted].

The information provided to me by your treating team was in the form of answers to my questions matters relevant to your access application (sic). Where a member of your treating team has provided information or opinions to me, I have relied on that information or those opinions in making my decisions.

In general terms, your treating team outlined the following information:

1.   Your current diagnoses of schizophrenia, autism spectrum disorder and narcissistic personality disorder.

2.   Your conviction for the manslaughter of your mother in 2008 (the details of which I have confirmed by reading the judgements referred to above);

3.   The risk factors associated with your condition and current presentation;

4.   The history of your treatment by ACT and NSW mental health services, and particularly your treatment by services within SNSWLHD;

5.   Your current treatment plan, including that you are subject to a community treatment order (CTO) and were recently involuntarily admitted to a facility under the provisions of the Mental Health Act 2007.

I have identified the following public interest considerations against disclosure.

There is a public interest against disclosure because the information sought in Items 1, 2(a), 2(b), and 2(c) could reasonably be expected to have the effect of exposing a person to a risk of harm (s14 of the GIPA Act, Item 3(f)). Specifically, I consider, on the basis of your treating team’s opinion about your current presentation and the risk factors your condition presents, together with your history of violence and paranoid ideation in relation to your family, that there is a real risk that disclosing information provided by others about your will expose those persons to a risk of violence [sic].

There is a public interest against disclosure because all the information sought in your access application could reasonably be expected to have the risk of endangering the health or safety of any person, namely yourself (s 14 of the GIPA Act, Item 2(d)). I consider that risk arises because your treating team have expressed the view that the release of information is likely to cause an exacerbation in your condition.

There is a public interest against the disclosure because all the information sought in your access application could reasonably be expected to prejudice the effective exercise by the agency of the agency’s functions, namely the function of SNSWLHD to treat you (s. 14 of the GIPA Act, Item 1(f)). This risk arises because of the risk identified by your treating team that releasing information to you, whether redacted or not, is likely to increase conflict with staff, inflame your paranoia and suspicions, and exacerbate your fixations on the perceived wrongs by your treating team which will be prejudicial to their continued treatment of you.

I am required to weigh the public interest considerations in favour of disclosure against the public interest considerations against disclosure in deciding whether to release the information to you.

In weighing up the considerations, I have formed the view that the public interest in you having access to your medical records is a very important consideration in the circumstances of this case. I find that the other considerations favouring disclosure should be given less weight, because knowledge about the operations, policies, practices and accountability of SNSWHD are unlikely to be substantially enhanced by disclosing the medical records of a single patient.

In weighing up the considerations, I consider that the safety of other persons is a factor which I should give substantial weight, because it is a real risk, having regard to your history of violence, as well as risk which can give risk (sic, rise) to very serious consequences. That is a matter that I have taken into account in respect of the information sought in Items 1, 2(a), 2(b) and 2(c) only.

In weighing up the considerations, I also consider that your health, and relatedly the ability of SNSWHD to continue to treat you, are important public interest considerations. That is not only because of the effects on you of your mental health, but because of the effects of those around you. I am strengthened in giving significant weight to this factor by the existence of a CTO, which I consider is a recognition by the specialist Mental Health Review Tribunal of the importance of your continued treatment.

Having regard to all of these considerations, and the weight that I have given each of them, I have concluded that there is an overriding public interest against disclosure of all of the information sought in your access application. That is the reason that I have decided to refuse to provide access to the information under s. 58(1)(d) of the GIPA Act.

The Agency’s Expert Evidence

38. The Agency relies for its case on the evidence of an expert, Professor David Greenberg, which is in the form of a report dated 30 October 2022 (the Greenberg report), and oral evidence given under oath at the hearing. Professor Greenberg’s Abbreviated Curriculum Vitae is annexed to his report at page 115. In very short summary he is a forensic Psychiatrist working in private practice, the Clinical Director of the NSW Court and Community Liaison Service, and a Conjoint Professor of Forensic Psychiatry at the University of NSW. He has been in medical practice for 38 years. At page 113 of his report, Professor Greenberg acknowledges that he has read and has agreed to be bound by NCAT Procedural Direction 3: Expert Evidence.

39. Professor Greenberg’s report is 115 pages in length. In the preparation of his report, he interviewed the Applicant by AVL twice, on 21 and 24 October 2022, which he refers to as ‘psychiatric assessments’. The Agency also briefed Professor Greenberg with various documents which are identified in the Agency’s letter of instruction dated 19 September 2022 and in his report. These include the Applicant’s medical records held by Queanbeyan Hospital and Community Mental Health Service and Goulburn Hospital, Chisholm Ross Centre.

40. Professor Greenberg’s report includes a detailed chronology of events and a summary of assessments, treatment, and interactions between hospital based and community clinicians and the Applicant and other persons from August 2019 up to the date of his instructions. It makes extensive references to specific medical records.

41. Section 107(1) of the GIPA Act provides that the Tribunal, in determining an application for administrative review, is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. Having regard to this obligation, it is only possible to summarise Professor Greenberg’s evidence at a level of generality.

42. In this respect, I understand Professor Greenberg’s evidence to include the following conclusions and opinion:

1. That the Applicant is correctly diagnosed with Schizophrenia, which is a major psychotic illness, prone to recurrent relapse. This is a conclusion based on clinical assessments conducted since 2007 by multiple consultant psychiatrists attached to both ACT and NSW mental health services. In the Applicant’s case, relapse of this condition is typically characterised by paranoid and persecutory delusions, and on some occasions also by a serious disorder of thought form, and severe mood disturbance. The Applicant’s delusions include ‘misidentification’ delusions, also referred to as ‘Capgras’ delusions, which is a belief that a malign imposter has replaced a significant person in the patient’s life, such as a family member,

2. the Applicant has historical diagnoses of Autism Spectrum Disorder and Narcissistic Personality Disorder both of which Professor Greenberg considers ‘likely’ correct, but which he is unable to confirm clinically based on his limited observation,

3. the Applicant has ‘grossly impaired insight’, or anosognosia, in relation to his diagnosis of Schizophrenia and the need for ongoing treatment of that condition. In summary, the Applicant rejects this diagnosis, and believes it is the result of medical malpractice. He believes his involuntary mental health treatment generally, and specifically the administration of anti-psychotic medication by intramuscular injection, is victimisation of him by the ‘medical system’ in collaboration with drug companies motivated to profiteer from psychiatry, and human rights abuse,

4. Even when his mental state is stable (at ‘baseline’) the Applicant displays persistent and fixated (‘chronic’) anti-psychiatry beliefs, medically unorthodox beliefs about the causation and treatment of psychosis, and irritability and hostility towards mental health professionals engaged in his treatment. The Applicant’s ‘medically unorthodox’ views about the causation and treatment of psychosis include that it is caused by exposure to cigarette smoke, anti-psychotic drugs, and by Vitamin B3 deficiency, and that it can be successfully treated with Vitamin B3 supplements,

5. the applicant is a person of high function. He has undertaken tertiary studies and has at times been successfully employed in professional roles of a technical nature. The Applicant’s history indicates that even with active symptoms of mental illness, he retains executive functions that enable him to plan and carry out objectives,

6. the Applicant’s active symptoms of Schizophrenia are associated with serious risks of harm to him and others. His paranoid and persecutory delusions, disorder of thought form, and mood disturbance present serious risks of harm to his reputation (particularly in the context of personal relationships and employment) and a risk of misadventure, particularly should he act in accordance with beliefs not based in reality. His paranoid and persecutory delusions, to the extent that they relate to beliefs involving other persons, including treating professionals and others, are also a serious risk of violence towards those persons, should he act on those beliefs. In this respect his misidentification syndrome involves particularly significant risks of harm to others. The Applicant’s disorder of thought form is also associated with poor self-care, which has a consequential impact on his reputation because it affects the way that he presents socially, including in an employment context. There is one recorded instance of the Applicant making a lethal attempt at suicide while during an acute episode of psychosis,

7. the Applicant’s paranoid and persecutory delusions and fixated beliefs are associated with actual violence and the threat of violence. In this respect Professor Greenberg opines that the Applicant’s killing of his mother arose in the context of the prodromal development of Schizophrenia. The Applicant has initiated at least one other incident of actual violence likely also in the context of an altered mental state. He has made repeated serious threats of violence towards various treating clinicians, including a threat to one clinician to ‘cave his head in with a brick’ and to others, to ‘hunt them down and kill them’ once released from hospital, ‘away from security cameras’. There are numerous instances of the Applicant being seriously verbally abusive of clinicians. There are multiple historical and clinical factors which significantly increase the Applicant’s risk of future violence,

8. consistent with his belief that his diagnosis of Schizophrenia results from medical malpractice, he has made complaints about various members of his treating team to health regulation and authorities, including the Australian Health Practitioner Regulation Authority, the NSW Health Care Complaints Commission, and the Australian Human Rights Commission. Professor Greenberg characterises this conduct as ‘querulous’, ‘litigious’, and ‘vexatious’.

9. due to the Applicant’s beliefs about psychiatry, and his attitude to treatment, there is a real and persistent risk of relapse, even when he is subject to a CTO that requires him to continue medication. In this respect, there are recorded examples of the applicant seeking to substitute his anti-psychotic injection with a saline injection, and indicating an intention to relocate interstate to avoid the operation of an CTO made under NSW law,

10. providing a copy of the Applicant’s medical records to him, either generally, or by reference to specific records or categories of records, would be likely to disrupt or aggravate existing ongoing psychiatric treatment relationships with mental health services and clinicians and worsen his prognosis in the short to medium term. In interview, the Applicant stated that he wanted access to his medical records to “expose fallacies” about his mental illness and those responsible for the creation of these fallacies. He also stated that his object in obtaining these records was to stop all his psychiatric medication indefinitely. Providing the Applicant with access to his medical records is likely to fuel his persecutory and paranoid beliefs and his querulous and vexatious behaviour towards clinicians. That will also be the case if records were to be specifically identified and not disclosed, or partially disclosed with other information redacted. This is likely to cause the Applicant to speculate and attempt to discover the information to which access is not provided and the persons related to that information. This is likely to negatively impact his relationship with clinicians and others.

Contentions of the parties

Applicant

43. The Applicant’s central contention is to the effect that the Agency’s decision to refuse to provide him with access to his medical records is not correct or preferable and ought to be set aside. He submits that the Tribunal should substitute for that decision, a decision to release the whole of this information to him. He contends that it is vital that he have access to this information so that he is able to properly defend himself in proceedings before the Mental Health Review Tribunal, and to enable him to appeal to the Supreme Court against that Tribunal’s order that he be subject to a CTO. The applicant contends that he does not have Schizophrenia and does not require anti-psychotic treatment for that condition. He contends that the anti-psychotic medication he is compelled to accept under the CTO is causing serious adverse side-effects, including psychosis.

44. The Applicant rejects Professor Greenberg’s opinion that providing him with access to his medical records will likely lead to a relapse of psychosis and exacerbate a persecutory and paranoid belief system. He argues instead that it would strengthen his mental state by revealing the fallacies and malpractice that have led to his false diagnosis and coercive treatment. He submits that the decision to refuse access to this information has and will have the effect of intensifying his perseveration and negative beliefs about his treatment by perpetuating the mental health’s system’s injustice towards him.

Agency

45. The agency contends, with one exception, that the reviewable decision is the correct and preferable decision and ought to be affirmed by the Tribunal. The exception is in relation to the information described at Item 2(d) of the access application which the agency originally determined was not held. The agency now concedes that this information is held. It submits however the correct and preferable decision is to refuse access to that information on the same grounds as access to Items 1, 2(a), 2(b) and 2(c) has been refused.

46. With respect to Items 1, 2(a), 2(b) and 2(c) the agency submits that there are three overriding public interest considerations against the disclosure of this information, namely, that it would:

1. prejudice the effective exercise by the agency of its functions, being the mental health care and treatment of the Applicant (clause 1(f) to the Table to s 14),

2. endanger, or prejudice any system or procedure for protecting, the life, health or safety of persons, being mental health clinicians involved in the Applicant’s treatment and other persons with whom these clinicians may have contact in relation to the Applicant’s mental health care (clause 2(d) to the Table to s 14), and

3. expose a person to a risk of harm or of serious harassment or serious intimidation, being mental health clinicians involved in the Applicant’s treatment and other persons with whom these clinicians may have contact in relation to the Applicant’s mental health care (clause 3(f) to the Table to s 14).

47. The Agency relies upon Professor Greenberg’s evidence, as summarised above, to establish each of these public interest considerations.

Jurisdiction

48. Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under that Act of such a decision.

49. In this respect, section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include, relevantly:

80.   Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part –

…

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

(e)   a decision that government information is not held by the agency,

…

50. The Tribunal’s role in the conduct of an administrative review is prescribed in s 63 of the ADR Act:

63   Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   the applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

51. The Tribunal’s role in undertaking this administrative review is to reach its own conclusion as to what is the correct and preferable decision by conducting its own assessment of the factual issues and public interest considerations. This is, in essence, to do again what the original decision-maker did. In this respect the Tribunal stands in the shoes of the original decision maker for the review process. The Tribunal’s role is to make the correct and preferable decision on the material before it as it stands at the date of the hearing. This may include consideration of material that was not considered by the original decision maker: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Applicable law

52. The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states, relevantly:

(1)    In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

…

(b)    by giving members of the public an enforceable right to access government information, and

…

53. This object is amplified with a statutory command, contained in section 3(2), which provides:

(2)    It is the intention of Parliament –

(a)    that this Act be interpreted and applied so as to further the object of this Act, and

(b)    that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information.

54. Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information:

5   Presumption in favour of disclosure of Government Information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

55. Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1):

9   Access applications

(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

…

56. Part 4, Division 2 deals with public interest considerations governing the disclosure of government information. Section 12 in that Division provides that there is a general public interest in favour of the disclosure of government information:

12   Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purposes of determining whether there is an overriding public interest against disclosure of government information.

[Note: The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is disclosed.

(e)   Disclosure of the information would reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

…

57. Section 13 contains the ‘public interest test’ that is to be applied in determining if the public interest in favour of the disclosure of government information is outweighed by any overriding public interest against its disclosure:

13   Public interest test

There is an “overriding public interest against disclosure” of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

58. Section 14 sets out the overriding public interest considerations against disclosure of government information. It provides, relevantly:

14   Public interest considerations against disclosure

(1)   It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2)   The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

…

Table

[Note: 1 Responsible and effective government: There is a public interest against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (f) prejudice the effective exercise of the agency’s functions….]

[Note: 2 Law enforcement and security: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) endanger, or prejudice, any system or procedure for protecting, the life, health or safety of any person,…]

[Note: 3 Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: … (f) expose a person to a risk of harm or serious harassment or serious intimidation …]

59. Section 15 sets out principles that apply in determining the public interest with respect to the prospective disclosure of government information:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that the disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

60. Part 4, Division 3 of the Act sets out the process for dealing with access applications. Section 55 in that Division concerns consideration of personal factors of the application. It provides:

55   Consideration of personal factors of application

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the “personal factors of the application”) into account as provided by this section:

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

(2)   The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3)   The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)   An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5)   An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information, and for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6)   An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

61. Division 4 of Part 5 of the Act concerns administrative review of decisions by NCAT. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of the exceptions are relevant in this case.

62. Chapter 3, Part 1 of the MH Act sets out the requirements for the involuntary admission, detention, and treatment of persons in ‘Mental Health Facilities’. It provides, relevantly:

12   General restrictions on detention of persons

(1)   A patent or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that –

(a)   the person is a mentally ill person or a mentally disordered person, and

(b)   no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(2)   If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility the officer must refuse to detain, and must not continue to detain, the person.

…

13   Criteria for involuntary admission etc as mentally ill person or mentally disordered person

A person is a mentally ill person or a mentally disordered person for the purpose of –

(a)   the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or

(b)   determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility,

if, and only if, the person satisfies the relevant criteria set out in this Part.

14   Mentally ill persons

(1)   A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary –

(a)   for the person’s own protection from serious harm, or

(b)   for the protection of others from serious harm.

(2)   In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

63. Chapter 6 of the MH Act concerns the establishment and functions of the Mental Health Review Tribunal. Part 2 of that Chapter concerns the Tribunal’s procedure. This includes, in s 156 provisions related to the inspection of medical records by persons brought before the Tribunal. The section provides:

156   Inspection etc of medical records

(1)   A patient or person having any matter before the Tribunal is, unless the Tribunal otherwise determines, entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the patient or person.

(2)   A representative of a person having any matter before the Tribunal is entitled, at any time before or during the consideration of that matter by the Tribunal, to inspect or otherwise have access to any medical records in the possession of any person relating to the first mentioned person.

(3)   Subject to any order or direction of the Tribunal, in relation to an inspection under subsection (2) of, or other access under that subsection to, any medical record relating to a person –

(a)   if a medical practitioner warns the representative of the person that it may be harmful to communicate to the person, or any other person, specified information contained in those medical records, the representative is to have full and proper regard to that warning, and

(b)   the representative is not obliged to disclose to the person any information obtained by virtue of the inspection or other access.

Consideration

64. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADAP 19 at [24 -25] (Camilleri) an Appeal Panel of the former Administrative Decisions Tribunal determined that the correct approach to determining whether there is an overriding public interest against disclosure involves two steps. First, the agency case must identify the Table to s 14 consideration it contends justifies the refusal of access to information. Then, second, the Tribunal’s task in accordance with s 13 is to weigh that case against the factors favouring disclosure, mindful of the injunctions that appear in both ss 12 and 15.

65. Each of the clauses 1, 2 and 3 of the Table to s 14 considerations relied on by the agency in its decision to refuse the Applicant access to his medical records requires an assessment of whether the disclosure of the information could “reasonably be expected” to have the relevant effect The term “could reasonably be expected” was the subject of consideration in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25], where it was held, having regard to relevant authority under similar legislation, that these words have their ordinary meaning. The test to be applied is an objective one, approached from the viewpoint of the reasonable decision-maker. Something which could reasonably be expected is something which is more than a real possibility, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary, or contrived. This is to be determined on the civil standard of proof, which is the balance of probabilities: Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [42].

Item 2(d) of the access request

66. As set out above, the delegate originally determined that the information described at item 2(d) of the access request was not held by the Agency. The Agency now concedes that decision is not correct in the circumstances set out following (quoting from the Agency’s Open Submissions, footnotes omitted):

40.   The information described in Category 2(d) was found by the decision-maker not to be held by the respondent. The reason for this decision is that, after enquiries, the decision-maker was informed the identified person (Beate Zanner, Consumer Advocate) had “never prepared a formal report” and that no such document existed in the applicant’s mental health record.

41.   On 12 July 2022, Ms Zanner was in attendance at a directions hearing in this matter to assist the applicant. On that occasion, she was able to clarify that she had read out a progress note to the applicant, which was the document he had referred to as a report. Ms Zanner subsequently provided a copy of the progress note to which she understood the applicant was referring to as her “report”.

42.   Based on these clarifications of the access application (after the access application decision was made), the respondent concedes that its decision with respect to Category 2(d) was not the correct and preferable one. However, it submits that its decision in respect to Category 2(d) should be substituted with a decision that there is an overriding public interest against disclosure of that information, conformably with the respondent’s refusal of the balance of the access application.

67. Having regard to those submissions it is clear that the Agency’s decision with respect to item 2(d) of the access application ought to be set aside. I will return to the question of what decision should be substituted below.

The whole of the access application (including the information described in item 2(d))

68. The agency submits, in effect, that for the purpose of applying the public interest test there should be no differentiation between the categories of information sought by the Applicant and that the Applicant’s mental health records should be considered in globo (as a whole).

69. The three public interest considerations against disclosure of Applicant’s mental health records to him that form the basis of the agency’s case are set out above. These are identified with precision (Step 1).

70. Moving to step 2, the Applicant (in substance or in effect) and the Agency (expressly) submit and I accept:

1. there is a general public interest in the disclosure of this information pursuant to s 12 of the GIPA Act,

2. there is a specific public interest in the disclosure of this information to the Applicant because it is his personal information which is also his ‘health information’ within the meaning of the HRIP Act,

3. there is a specific public interest in the disclosure of this information because it could reasonably be expected to inform the Applicant, as a member of the public, about the operations, policies and practices of the Agency,

4. there is a specific public interest in the disclosure of this information because it could reasonably be expected to enhance the accountability of the Agency to the Applicant as a member of the public.

71. I give significant weight to each of these public interest considerations in favour of disclosure of the information sought by the Applicant.

72. There are clearly personal factors of the access application in this case which should be considered. These may be identified as follows:

1. the information sought is the Applicant’s personal health information,

2. the Applicant seeks access to this information, in part, to enable him to expose what he asserts to be medical malpractice towards him,

3. the Applicant seeks access to this information, in part, to enable him to correct what he asserts to be false information in his medical records,

4. the Applicant seeks access to this information, in part, to enable him to Appeal to the Supreme Court from a decision of the Mental Health Review Tribunal which made him subject to a CTO,

5. The Applicant is a person with a major mental illness characterised, when active, with paranoid and persecutory delusions which involve treating clinicians. There are historical and clinical risk factors which are indicative of a serious risk of future violence (in this respect I accept Professor Greenberg’s evidence for the reasons stated following).

73. I have found consideration of these personal factors challenging. As a matter of general principle, the fact that the information sought by the Applicant is his personal health information is a personal factor that weighs significantly in favour of its disclosure to him. However, I accept Professor Greenberg’s expert evidence that disclosure of this information to the Applicant in this case is likely to have the following effects:

1. it will likely hinder his treating team’s efforts to establish a therapeutic rapport with the Applicant and exacerbate his existing avoidance and conflict behaviour,

2. it will likely cause the Applicant to perseverate on the information potentially triggering the onset of psychosis,

3. it has the potential to expose past and present treating clinicians to a serious risk of violence.

74. Having regard to these considerations, and not without some reluctance, I reach the conclusion that the personal factors of the application weigh significantly against disclosure of the information insofar as they are relevant to the clause 2(d) and 3(f) considerations in the Table to s 14. I do not take this into account with respect to the clause 1(f) consideration relied upon by the Agency.

75. The Applicant’s stated intention of using the information to found an Appeal to the Supreme Court against the decision of the Mental Health Review Tribunal requires separate mention. A desire to obtain information to assist in the assertion of a legal right is a personal factor of the application that should be given significant weight in favour of the disclosure of such information.

76. I turn now to consideration of the Agency’s asserted public interest considerations against disclosure of the Applicant’s mental health records.

77. With respect to clause 1(f), the Agency’s ‘functions’ for the purposes of this review are to be found generally in the HS Act (ss 6, 9 and 10) which provide relevantly:

6   What is the public health system?

For the purposes of this Act, the public health system consists of –

(a)   all the local health districts, …

…

9   Primary purposes of local health districts

The primary purpose of a local health district in its area are as follows –

(a)   to provide relief to sick and injured persons through the provision of care and treatment,

(b)   to promote, protect and maintain the health of the community.

10   Functions of local health districts

The functions of a local health district are as follows –

(a)   generally to promote, protect and maintain the health of residents of its area,

(b)   to conduct and manage public hospitals, health institutions, health services and health support services under its control,

…

78. More specifically, these functions are to be found in the MH Act. That is because the information sought by the applicant was generated by three Declared Mental Health Facilities under that Act.

79. Section 105 of the of the MH Act confers additional objectives on the NSW public health system which assist in clarifying the agency’s ‘functions’ for the purpose of clause 1(f):

105   Objectives of New South Wales public health system

The objectives of the New South Wales public health system under this Act in relation to mental health services are to establish, develop, promote, assist and encourage mental health services that –

(a)   ensure that provision is made for the care, treatment, control and rehabilitation of persons who are mentally ill or mentally disordered, and

(b)   promote the establishment of community mental health services for the purpose of enabling the treatment in the community wherever possible of persons who are mentally ill or suffering from the effects of mental illness or who are mentally disordered, and

(c)   develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering with other forms of illness, and

…

(f)   permit appropriate intervention at an early stage of mental illness, and

(g)   assist patients to live in the community through the provision of direct support and provide for liaison with carers and providers of community services.

80. Regard must also be had to ss 12 to 14 of the MH Act when considering the Agency’s functions. In summary the effect of those sections is to empower the agency to provide involuntary mental health treatment to mentally ill persons in circumstances where their mental illness presents a serious risk of harm to themselves or other persons or both.

81. The Applicant is a person with mental illness who resides in the Local Health District of the Agency. He is the involuntary recipient of mental health services under the control of the Agency which have as their objective his care, treatment, and control, among other things. I am thus satisfied that these agency functions are engaged by the Applicant’s access request.

82. The agency bears the onus of establishing that disclosure of the Applicant’s medical records, in globo, would prejudice the exercise of these functions; that is, in summary, its ability to provide the Applicant with mental health care and treatment, and to protect the applicant and others from serious risks of harm that are associated with his mental illness.

83. I am satisfied that the Agency has discharged that onus on the basis of Professor Greenberg’s expert evidence. In this respect I consider the following based on that evidence,

1. there is a real likelihood that disclosure of this information would discourage other persons from communicating with the Agency in relation to the Applicant’s mental health. That is because those persons may be at serious risk of harm if the Applicant learns of the nature and detail of that contact,

2. there is a real likelihood that disclosure of this information would discourage clinicians from engaging in the Applicant’s care and treatment because those persons may be at serious risk of harm if they are identified by reference to their names and clinical observations and opinions,

1. although the Applicant is already subject to a coercive order which compels his acceptance of treatment, the Agency’s clinicians seek to build a therapeutic relationship with him. There is a real likelihood that exposure of their clinical observations and opinions would exacerbate the difficulties in attempting to build that relationship,

2. there is a real likelihood that the potential for the Applicant to obtain access to his medical records would inhibit the degree to which appropriate written records related to his care and treatment would be made by clinicians, potentially compromising care co-ordination,

3. these difficulties can not be overcome by the redaction of specific information, because there is a real likelihood that this would result in the Applicant perseverating on the redactions, and risk triggering or exacerbating his paranoid and persecutory belief system (that is, him speculating or seeking to discover who or what lies behind the redaction),

84. I give each of these considerations significant weight.

85. With respect to the clause 2(d) consideration relied upon by the Agency a threshold question is whether the Applicant’s mental health care and treatment falls within a general category of “law enforcement and security”.

86. The words ‘law enforcement’ and ‘security’ are not defined in the GIPA Act. On a common-sense basis ‘law enforcement’ should be taken to mean functions related to discovering, deterring, and punishing the violation of legal rules. These are functions of agencies such as police, courts, and corrections, not health care agencies.

87. However, also on a common-sense basis the term ‘security’ has a broader meaning. It is the state or condition of being free from danger or threat. Having regard to ss 12 to 14 of the MH Act I am satisfied that the Agency’s Declared Mental Health Facilities do carry out security functions; they exist to protect mentally ill persons from serious risks of harm to themselves and others. Clause 2(f) of the Table to s 14 is thus engaged.

88. It thus falls to the agency to discharge its onus of establishing that disclosure of the Applicant’s mental health records would reasonably be expected to have the effect of endangering or prejudicing its systems of involuntary patient care in hospital and community based mental health facilities.

89. Consideration of any Table to s 14 public interest consideration should generally be examined at “the broader operational level of the relevant agency” Camilleri at [26]. However, the chapeau to clause 2 specifically directs the decision maker to have regard to whether the consideration is made out “in a particular case or generally”.

90. I would not be prepared to accept on the evidence before me, as a general proposition, that disclosure of the medical records of a mental health patient to that person would endanger or prejudice the provision of involuntary patient care per se.

91. In this respect, I note by way of analogy, the terms of s 156 of the MH Act. While that section has no direct application here, it embodies a principle formulated by the legislature in relation to an involuntary patient’s access to medical records in proceedings before the Mental Health Review Tribunal. In short summary, a patient should have access to that information unless there is a compelling medical reason why they ought not. In such case their legal representative is to have access to this information on the basis that the representative’s usual fiduciary obligations to disclose all relevant information to their client are modified to protect the patient from harm.

92. Consistent with that principle, I am prepared to consider that the Agency’s system of involuntary patient care of the Applicant could reasonably be expected to be prejudiced by the disclosure of his mental health records. In this respect I accept Professor Greenberg’s evidence to the effect summarised at paragraph 83 i. to v. of these reasons.

93. I give this public interest consideration significant weight.

94. With respect to the clause 3(f) consideration relied upon by the Agency there can be no issue that a question of individual rights is engaged on the facts of this case. It therefore falls to the Agency to discharge its onus of establishing that disclosure of the information sought by the applicant could reasonably be expected to expose a person to a risk of harm or of serious harassment or intimidation.

95. I am satisfied on Professor Greenberg’s evidence that the Agency has discharged that onus. In this respect, I accept:

1. there is a real likelihood that the disclosure of the Applicant’s medical records to him would result in a relapse or exacerbation of his mental illness. This would constitute harm to him,

2. there is a real likelihood that the disclosure of the Applicant’s medical records to him would result in a serious risk of harm to past and current clinicians involved in his mental health care and treatment and other persons with whom his clinicians communicate. In this respect, there is a real likelihood that it would exacerbate the Applicant’s existing avoidant, hostile and combative relationship with clinicians. There is also a real likelihood that it would result in the Applicant becoming fixated on particular clinicians whose written clinical observations and opinions he disputes. That would occur in a context where the Applicant has a history of lethal violence associated with his mental health condition, has made repeated threats of violence towards clinicians, and is frequently seriously verbally abusive towards clinicians involved in his care.

3. these difficulties can not be overcome by redaction of information for the reasons stated above.

96. I give this consideration significant weight.

97. Having reached these conclusions, I must now weigh the competing public interest considerations for and against disclosure of the Applicant’s medical records and determine where the balance lies.

98. Ordinarily a patient of a health care agency would be entitled to access to their own health information. The fact that it is personal health information would outweigh any other consideration. Similarly, the fact that a person seeks information to exercise a legal right would ordinarily weigh heavily in favour of the disclosure of information.

99. However, in the exceptional circumstances of this case, I am satisfied that the balance lies with the three public interest considerations against disclosure the Agency relies upon to refuse access to this information. For the reasons set out above, I am satisfied that if the Agency were to disclose this information to the Applicant its capacity to exercise its functions would be suffer serious prejudice. It would prejudice the system of involuntary care and treatment the Agency has in place to protect the health and safety of the Applicant and other persons. It would also expose the Applicant and others to a serious risk of harm.

100. I consider this an extraordinary result having regard to the policy of the GIPA Act. It is an outcome only explained by the exceptional circumstances of the case. The result should not be understood as standing for any general principle that a mental health patient is not entitled to access to their medical records.

Orders

101. For the foregoing reasons I make the following orders:

1. The Agency’s decision that the information described in item 2(d) of the access application is not held is set aside.

2. In substitution for that decision, access to the information described in item 2(d) of the access application is refused.

3. The reviewable decision is otherwise affirmed.

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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: 12 March 2024