Haex and National Disability Insurance Agency

[2023] AATA 174

Haex and National Disability Insurance Agency [2023] AATA 174 (15 February 2023)

Division:                  NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3672

Re:Peter Haex

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member I Thompson

Date:15 February 2023

Place:Adelaide

For the reasons set out below, the Tribunal decides that:

1. The Tribunal disallows Associate Professor Metzer’s objection to the issue of the summons to produce referrals, reports, clinical notes, correspondence or any other documents regarding any attendance on, or treatment of the applicant, Mr Peter Haex;

2. The Tribunal orders pursuant to s 35(4) of the AAT Act that:

   (a)the provision of raw clinical data from psychometric assessment of the applicant be produced in a sealed envelope or a password protected electronic file; and

   (b)subject to any subsequent order of the Tribunal, the disclosure of the raw clinical data is limited to the Presiding Member of the Tribunal (and any member of staff nominated by the Presiding Member)

   .........[sgnd].............................

   Member I Thompson

   Catchwords

   PRACTICE AND PROCEDURE – National Disability Insurance Scheme – objection to compliance with summons – documents including psychological test material – whether documents contain information of apparent relevance to the issues before the Tribunal – summons to be satisfied

   Legislation

   Administrative Appeals Tribunal Act 1975 (Cth)

   Cases

   Comcare v Maganga [2008] FCA 285

   Huchatz and Australian Capital Territory [2020] AATA 4237

   Panagiotou and TNT Australia Pty Ltd [2011] AATA 565

   REASONS FOR DECISION

   Member I Thompson

   15 February 2023

3. The substantive application concerns Mr Haex’s request to become a participant in the National Disability Insurance Scheme (“NDIS”). He lodged an application to the Tribunal for a review of an internal review decision of the National Disability Insurance Agency (“the Agency”) made on 19 April 2022, which affirmed the original decision that he does not meet the criteria in in the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”) for access to the scheme. His application to the Tribunal claims that he does meet the access criteria with regard to his disability from spinal and post-traumatic stress disorder.

4. On 18 October 2022, the Agency requested that a summons be issued to Associate Professor Jacques Metzer at PsychMed for referrals, reports, clinical notes, correspondence or any other documentation regarding attendance and treatment of Mr Haex. The reason for the request was that the documents have a bearing, specifically on the assessment of whether Mr Haex’s conditions have the requisite permanency to satisfy the access criteria in ss 24 and 25 of the NDIS Act.

5. On 19 October 2022, the Tribunal issued a summons to Associate Professor Metzer to produce the documents, returnable on 4 November 2022. By letter dated 27 October 2022, Associate Professor Metzer objected to the production of the documents and requested that the summons be withdrawn. Consequently, an interlocutory hearing was listed on 20 December 2022, and in accordance with directions the Tribunal issued at the interlocutory hearing, the Agency provided written submissions. In response, on 31 January 2023, Associate Professor Metzer provided written submissions.

6. A further interlocutory hearing was held on 8 February 2023. The Tribunal heard oral submissions from Associate Professor Metzer and from Ms Carnell who represented the Agency.

7. In his two letters, Associate Professor Metzer objected to the summons on grounds which can be addressed in two categories.

8. In  one category, Associate Professor Metzer  submitted that the Agency’s request for the specified records is a “phishing expedition”, which is expensive to amass administratively, an affront to reasonable requests for expert opinion and an unwieldy and unnecessarily cumbersome practice for merely gathering information, a broad net potentially harvesting much irrelevant information, a process that undermines the therapeutic trust relationships of practitioners and exposing clients, in this case Mr Haex, to potential deterioration,  of their psychological condition.

9. The other category concerns objection to the release of “raw clinical data” because the interpretation of that data can only be carried out by clinical psychologists.

10. The Agency submitted that the request to issue the summons was made in good faith, the information sought is relevant and likely to assist the Tribunal in the determination of the substantive application with particular relevance to the question of the permanence of Mr Haex’s impairments (s 24 (1)(b) of the NDIS Act), there is no basis for asserting that the request for the summons is a phishing expedition, and that the Tribunal must take a cautious approach in considering objections to summonses for medical records.

11. Section 40A(1)(b) of the Administrative Appeals Tribunal Act (“the AAT Act”) provides that the Tribunal may summon a person to produce documents.

12. Sections 40B(1) and 40B(2) of the AAT Act provide that the Tribunal may give a party to a proceeding leave to inspect documents produced under a summons in relation to the proceeding.

    Legal principles

13. In relation to private and personal, medical information, in Re Panagiotou and TNT Australia Pty Ltd[1] [(“Panagiotou”), Deputy President Forgie stated:

    The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.[2]

    [1] [2011] AATA 565; 127 ALD 340.

    [2] Ibid at [24].

14. In Comcare v Maganga[3], the Federal Court stated the principle regarding the scope of documents which can be produced under a summons in Tribunal proceedings as follows:

    … The test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings… the Court may allow documents to be inspected If they are apparently relevant or are on the subject matter of the litigation.[4]

    [3] [2008] FCA 285.

    [4] Ibid at [37].

15. In Panagiotou,[5] Deputy President Forgie provided further clarification about the approach to be taken on the grounds of relevance of personal records in accordance with the particular stage reached in the proceedings. She relevantly stated:

    What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.[6]

    [5] [2011] AATA 565; 127 ALD 340.

    [6] Ibid at [25].

    Consideration

16. One component of Mr Haex’s access request to the NDIS relates to psychosocial impairment. The Tribunal will be required to consider the evidence with regard to the criteria of permanence in the NDIS Act and the NDIS (Becoming a Participant) Rules. The criteria in the NDIS Rules about the permanence of impairments and the criteria about reduction in an applicant’s functional capacity require a detailed and practical assessment of the evidence about the impairments and the ways in which those impairments affect an applicant.

17. Mr Haex has consulted with Associate Professor Metzer for at least 4 years and also with practitioners in the same psychology practice. The Tribunal considers that the requested records and notes are of apparent relevance. There is a real possibility that they will shed light on the issues to be determined in this review and assist the Tribunal in its consideration of the evidence and the determination of the correct or preferable decision. Associate Professor Metzer’s submissions raise concerns about the burdensome prospect of collating and analysing large quantities of possibly irrelevant information and the delays that may be associated with those tasks.  In considering the submissions made by both parties in the context of the evidence currently available and the issues to be decided in the substantive application, the concerns which he raises are outweighed by the factors in favour of production of the material. That material is not irrelevant, and it is not unrelated to the issue to be decided on the substantive review. Accordingly, the Tribunal considers that issuing the summons has a legitimate forensic purpose. The Tribunal does not accept that the request for the summons was not made in good faith or that it amounts to a phishing expedition.

18. Additionally, the Tribunal must consider the submissions concerning the “raw clinical data” in the psychology records. The Agency suggested provision of that material to the Tribunal be in a sealed envelope or a password protected electronic file. Associate Professor Metzer confirmed that this clinical data is the data produced and analysed   through psychometric assessments, of which five such assessments are mentioned in a report he wrote in May 2017. Professional and policy considerations are uniquely important and specific to the methodology of these psychology assessments and the personal data which they generate. Associate Professor Metzer wrote in his letter to the Tribunal dated 27 October 2022, that his agency’s policy “is not to submit to requests for release of raw clinical data, since their interpretation can be done only by professional clinical psychologists, who must undergo specific and accredited education and training, lasting at least 6 years at university level before undergoing further AHPRA supervised early professional work”.

19. This issue is similar to the issue which the Tribunal, comprising Deputy President Pascoe, addressed in Huchatz & Australian Capital Territory (Compensation)[7]. In that case, a consultant clinical neuropsychologist objected to produce certain material under summons. The material included neuropsychological test data reports and notes. The objection rested on grounds that the material should be subject to interpretation only by practitioners properly trained and professionally competent to assess it. In addition, if the material became more widely available beyond its immediate profession, its integrity and usefulness could be undermined. The concerns which were expressed in that case are equally applicable to this case and so are the comments of Deputy President Pascoe, specifically where he states:

    “In proceedings before the Tribunal, it is important that integrity of process is maintained and assured to the benefit of all parties and for expert witnesses who provide the Tribunal with the benefit of their skill and expertise, particularly when the hearings before the Tribunal involve serious and/or complex medical issues. In this regard, any request for confidentiality needs to be weighed against the wider public interest in open justice.”[8]

    [7] AATA 4237.

    [8][8] Ibid at [12].

20. The Tribunal agrees with the approach which counsel for the Agency proposed. The initial step at this stage of the process is that the raw clinical data should be produced to the Tribunal in a sealed envelope, or a password protected electronic file. This would ensure the quarantining of that data to the Presiding Member of the Tribunal (and any member of staff nominated by the Presiding Member) with the immediate effect that it is not available to anyone else, including the Agency and its representatives.

21. Subsequent to production of the summons material further consideration will be necessary in relation to inspection while noting at this stage the expressed concern that inspection should be restricted to a clinical psychologist, and inspection should not be available to a registered psychologist, a psychiatrist or any other medical practitioner or allied health practitioner. It would be envisaged, and it is seemingly not controversial that the file containing the clinical data be returned to Associate Professor Metzer when the proceedings are finalised. These are matters which may require further consideration in the context of any requests for leave to inspect documents under s40 B of the AAT Act

    Conclusion

22. The Tribunal disallows Associate Professor Metzer’s objection to the issue of the summons to produce referrals, reports, clinical notes, correspondence or any other documents regarding any attendance on, or treatment of the applicant, Mr Peter Haex,

23. The Tribunal orders pursuant to s 35(4) of the AAT Act that:

    (a)the provision of raw clinical data from psychometric assessment of the applicant be produced in a sealed envelope or a password protected electronic file; and

    (b)subject to any subsequent order of the Tribunal, the disclosure of the raw clinical data is limited to the Presiding Member of the Tribunal (and any member of staff nominated by the Presiding Member).

    I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

    .................[sgnd]..................................

    Associate

Date of Decision:

15 February 2023

Date of Hearing:

8 February 2023

Counsel for the Applicant:

Self-represented

Solicitor for the Respondent:

Ms Emma Carnell

HWL Ebsworth Lawyers