Hassan v Australian Health Practitioner Regulation Agency
[2014] QCAT 414
| CITATION: | Hassan v Australian Health Practitioner Regulation Agency [2014] QCAT 414 |
| PARTIES: | Dr Amen Hassan (Applicant) |
| v | |
| Australian Health Practitioner Regulation Agency (Respondent) |
| APPLICATION NUMBER: | GAR202-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 10 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the respondent is: (a) amended in respect of Document 1 to release the whole document save for the part between “Hassan” and “alleged” in paragraph 9 on page 3. (b) confirmed in respect of Documents 2, 3 and 4. 2. The un-redacted and redacted documents filed by the respondent under s 64 of the Freedom of Information Act be returned to the respondent after the expiration of the time for appeal. 3. In respect of the un-redacted and redacted documents filed by the respondent I make a non publication order. |
| CATCHWORDS: | FREEDOM OF INFORMATION – PUBLIC INTEREST – where respondent conducted an investigation into the conduct of the applicant – where investigation report contained names of patients – where investigator conducted an analysis of the evidence, made findings and recommendations – whether the investigation report is exempt under the Freedom of Information Act 1982 – whether sections 36 and 41 of the Act apply – consideration of public interest. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Re John Chandra (formerly known as Vinesh Raj) v Department of Immigration and Ethnic Affairs [1984] AATA 437; |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Dr Hassan is a registered medical practitioner specialising in orthopaedics. In 2009 the Health Quality Complaints Commission (‘HQCC’) received a number of complaints from patients about treatment they had received from Dr Hassan. As a result of those complaints, an investigation was undertaken by the Commission and ultimately it referred the matter to the Medical Board of Queensland, which in July 2010 became the Medical Board of Australia.
Dr Hassan subsequently made a written request for documents pertaining to the investigation to the Australian Health Practitioner Regulation Authority under the Freedom of Information Act 1982 (Cth). After processing Dr Hassan’s written request, the respondent agreed to release a large number of copies of documents to him but in respect of some documents, the Authority claimed an exemption. An exemption from release can be claimed under sections 36 and s 41 of the provisions contained in the former Freedom of Information Act 1982 (Cth) (‘FOI Act’). The Authority advised Dr Hassan of this decision.
Dr Hassan then applied to the Queensland Civil and Administrative Tribunal to review the Authority’s decision in respect of its claim for exemption. The application was listed for an on the papers hearing on 7 May 2014.
On 5 May 2014, the respondent wrote to the Tribunal to advise that the respondent and the applicant had agreed that the scope of the documents over which the exemption was claimed had narrowed considerably to just a few documents. The exemption is now claimed over parts of documents identified as:
Document 1 - AMH.001.001.0195 – 22 May 2012 – Performance and professional standards Committee agenda paper.
Document 2 - AMH.001.001.0222 – 27 September 2011 – APRHA investigation report no 134268,15285.
Document 3 - AMH.001.001.0504 – 27 September 2011 – Record of decisions and actions arising back – Hassan – Dated 27 September 2011.
Document4 - AMH.001.001.0506 – 27 September 2011 – Agenda paper – Performance and professional standards Committee – 27 September 2011.
In that same letter the respondent further advised that:
The applicant has agreed to confine his application for review to the parts of the documents that are exempt under section 36 of the Freedom of Information Act 1982 (FOI Act). The redactions to the documents have been made in accordance with the schedule of documents provided to the Tribunal. A further copy is attached to this letter.
To assist the Tribunal to produce the correct and preferable decision by way of a fresh hearing on the merits,[1] a copy of the un-redacted documents over which the exemption was claimed was filed in the Tribunal for my consideration under s 64 of the FOI Act. I also directed the respondent to file a copy of the redacted documents to enable a cross check with the schedule. The schedule has a number of columns that makes reference to the documents referred to above. The various columns have headings as follows:
·Column 1 - the document number;
·Column 2 - the document identification (e.g. AMH 001.001.0195 etc);
·Column 3 - the description of the document;
·Column 4 - the section relied upon for the exemption either s 36 or s 41;
·Column 5 - the review decision (partial release); and,
·Column 6 - sets out the parts over which the exemption is claimed.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20.
Therefore, the issue for me to decide on the review application is whether the exemptions claimed under ss 36 and 41 should apply to the parts of the documents that are referred to in the updated schedule. I include s 41 because the submissions of both parties are directed to this section despite what was is said in the letter of 5 May 2014 from the respondent. It is also relied upon in the schedule.
The provisions applicable to the exemption are unusually contained in the FOI Act before it was amended in 2010. I don’t think I can put how those sections come to apply more elegantly than that contained paragraph 23 of the respondents submissions filed on 14 February 2014 as follows:
The relevant version of the Freedom of Information Act1982 (FOI Act) is the compilation prepared on 10 June 2010 (this is the effect of the Health Practitioner Regulation National Law Regulation 2010), section 18 – the FOI Act applies as though the amendments made by the Freedom of Information (Reform) Act 2010 has not been enacted.
That means, that the previous ss 36 and s 41 survive those amendments and they are in the following terms:
36An exempt document is a document that would disclose matter in the nature of or relating to opinion, advice, recommendation, consultation or deliberation occurring or recorded as part of the deliberative processes involved in the functions of an agency and be contrary to the public interest;
41(1)A document is exempt if its disclosure would involve the unreasonable disclosure of personal information about a person.
For convenience, and rather than deal with each specific claim I will try to generally consider the claims by reference to the most recent schedule provided by the respondent.
Document 1 (AMH.001.001.0196) – Performance and Professional Standards Committee Agenda Paper
With respect to this document column 5 of the schedule is blank. This would indicate that now no exemption is claimed either under s 36 or s 41. If this were the case then the document can be released in full. However when one has reference to the redated document, parts of it are blanked out suggesting that an exemption is indeed claimed.
This document is the agenda paper concerning Dr Hassan prepared for a meeting of the Performance and Professional Committee of the Queensland Board of the Medical Board of Australia. There are two redacted parts to the document. The first contains the investigators recommendations and reasons for the recommendation. The second refers the name of a patient who was treated by Dr Hassan.
The respondent’s submissions are unclear as to the basis of the exemption claimed. If s 36 applies, then the recommendations made by the investigators are not of themselves controversial nor is the reason for the recommendations. The Committee is simply invited to consider Dr Hassan’s submissions and adopt one of two courses open to it. The reasons given for this approach are favourable to Dr Hassan. The recommendations made are not part of the deliberative process as proscribed by s 36. I am of the opinion that this part of the documents should be released.
The exemption is claimed under s 41 to restrict release the name of the patient referred to on page 3. I note in paragraph 29 of the applicant’s submissions he does not require the release of personal information. Section 41 is there to ensure privacy. This part of the report will remain exempt.
Document 2 (AMH.001.001.0222) AHPRA Investigation Report No 134268,155285
This document is an investigation report prepared by an investigating officer, Mr Ziebath for consideration by the Queensland Board of the Medical Board of Australia.
The exemptions claimed in this document fall into three categories. The first is the names of patients who where treated by Dr Hassan and who were suspected of being subjected to surgical complications or questionable management. The second is the names of doctors who treated these patients subsequent to Dr Hassan’s treatment. The third category contains an analysis of the evidence by Mr Ziebath, his findings and recommendation.
Because of the concession made by Dr Hassan referred to above the exemption is upheld in respect to the names of the patients. As to the subsequent treating doctors, the exemption should also apply because the simple fact is that disclosure of the names of the treating doctors may easily lead to the identification of the patients. It is the balance of the document, the third category, that I have to consider. The applicant’s submissions specifically address pages 19 – 23 of the document.
The applicant contends that the respondent has failed to establish that the release of the material would be contrary to the public interest. He relies on a statement of Deputy President Hall in Re John Chandra (formerly known as Vinesh Raj) v Department of Immigration and Ethnic Affairs[2] where the Deputy President found that the integrity of the administrative process was not harmed by the release of the information the subject of that application. He said:
Yet there is no documented evidence of which I am aware that disclosure of such matters has been harmful to the administrative process or has placed unreasonable fetters upon the freedom of officers to express their views with candour and frankness.
On the contrary, such published comment as has come to my notice has been to the effect that, despite early doubts, about the likely impact of the new administrative law, the quality of decision-making has been improved and fears that candour and frankness would be impaired have not been realised.
[2][1984] AATA 437.
This passage of the judgment is not particularly helpful in the circumstances of this case. Chandra was a case involving some information held by the Department going back some 12 years. Some of it also related to the applicant’s conduct while a resident in Fiji and therefore, whether a deportation order should remain in force.
In that case, the Deputy President also said, at [51] whether a disclosure is ‘unreasonable’ requires a consideration of all the circumstances of the particular case including the nature of the information that was sought to be disclosed, the circumstances in which the information was obtained and the likelihood that the person who provided the information would not wish it to be disclosed. Public interest is also an important consideration as s 36 demonstrates.
This observation is supported by what was said in Murtagh and Commissioner of Taxation[3] where the Tribunal said:
Broadly speaking, s 36 can be seen as an attempt by the legislature to protect the integrity and viability of the decision-making process. If the release of documents would impair this process to a significant or substantial degree and there is no countervailing benefit to the public which outweighs that impairment then it would be contrary to the public interest to grant access.
[3](1984) 54 ALR 313.
In Hanes v Australian Health Practitioner Regulation Agency[4] the Tribunal said, in considering public interest:
(a)Protecting and maintaining the integrity of its investigative processes in relation to notifications. Importantly, the notification in investigation procedures exist to protect the public in ensuring that only suitable practitioners in various fields of the health profession are able to provide services to the public.
As AHPRA submits, the registration process is a lawful method for the protection of public safety, and the receipt, assessment and investigation by AHPRA of notifications about the health, performance and conduct of registered health practitioners are for the maintenance and enforcement of the National Scheme.
(b)Ensuring its ability to receive and investigate such notifications is not hampered by the disclosure of confidential information; or the use of information for purposes extraneous to AHPRA’ s functions;
(c)…
(d)Ensuring that advice, opinion and recommendations made in the course of the investigative process can be expressed directly and recorded;
(e)Avoiding the risk of mischief, misinterpretation and re-agitation of issues already determined that might result from the release of the documents.
[4][2013] VCAT 1270 at [67].
In this case, after all of the factual information had been gathered, the investigator conducted an analysis of that factual information and has expressed an opinion based on that analysis to the Committee. The investigators findings are not the Committee’s findings and it is up to the Committee to come to its own conclusions about the investigation. Similarly, the recommendation made by the investigator does not necessarily have to be adopted by the Committee it is a matter for it to consider with all of the other relevant information.
The investigator as an obligation to provide an unbiased and frank assessment of the evidence for the assistance of the Committee. If the Committee intends to take any further action, then no doubt the applicant will have access to the evidence relied on by the investigator.
Section 36 does exempt this type of document if it would be contrary to the public interest. The release of the information contained in the analysis, at the preliminary stage, would not, in my view, be in the public interest, because it may tend to undermine confidence in the health system particularly, at the hospitals referred to in the report. It could generally undermine confidence in the health profession particularly in the area of specialist orthopaedics.
I also rely on the evidence contained in the affidavit of Howard Ziebath who sets out the purpose of the agenda papers and the significance of the investigators reports. I accept his evidence that disclosure of the analysis might result in investigators being more circumspect in their preliminary findings that are expressed to the Board because of public scrutiny.[5]
[5]At [30]-[31].
He also supports the conclusion that if the matter is referred to a hearing before disciplinary Committee, all of the relevant information will be provided to the applicant to ensure procedural fairness.
I am therefore satisfied that the exemption in respect of this part of the document should be upheld.
Document 3 (AMH.001.001.0504) Record of decisions and actings arising back
The exemption claimed here relates to the deliberation of the Committee for the same reasons referred to above, there is no public interest in these deliberations being disclosed and therefore s 36 applies and they are exempt.
Document 4 (AMH.001.001.0506) Agenda paper – Performance and professional standards Committee
This document is in two parts, the first part includes the ‘Agenda paper’ for the meeting of 27 September 2011. Attached to the agenda paper is the investigation report. The report includes the very same content as that referred to in Document 2. In Document 2 apart from the section concerning the investigators analysis, findings and recommendation, which I described as category 3, the balance of the report is identical and has been disclosed, save for the patient names and their treating medical practitioners. That document having been disclosed, I simply cannot understand the basis upon which it is contended that the document which forms part of the agenda papers can be said to be exempt. There is no explanation for this in the submissions. The only basis I can see for the exemption is that it forms part of the agenda papers which were considered by the Committee. Insofar as this might be the case, the exemption is upheld, although in practical terms, this part of the report has been released in Document 3.
However, with respect to the agenda paper, part over which the exemption is claimed relates to ‘recommendations and a hypothesis formulated by Mr Ziebath at the conclusion of his investigation’. Once again, these documents are for the consideration of the Committee at a preliminary stage and form part of the adjudicative process. For the same reasons referred to above, these parts of the document over which the exemption is claimed is upheld. The balance of the document claims exemption over patient names which will also be upheld.
Conclusion
Therefore, I have come to the conclusion that in respect of Document 1, insofar as the exemption relates to the name of a patient is upheld otherwise the document should be released.
In respect of Document 2, the exemption claimed in relation to the patient’s names and subsequent treating medical practitioners is upheld. In addition the exemption n relation to the investigator’s analysis, findings and recommendations is upheld.
In respect of Document 3 the exemption in relation to the deliberation of the Committee is upheld.
As for Document 4 as I said, I am somewhat confused as to why an exemption is claimed over a document that is identical to the documents included in document 1. Because of this confusion and because the applicant has document 1 I will uphold the exemption. As for the ‘recommendations and a hypothesis formulated by Mr Ziebath at the conclusion of his investigation’ the exemption is upheld.
It follows then that the decision of the respondent should be confirmed save for the part in Document 1 relating to Recommendation and Reasons. I will make orders for the return of the documents filed by the respondent under s 64 and a non publication order pending their return.
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