Hayward-Brown v Wentworth Area Health Service

[2000] NSWADT 46

CITATION:	Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT Helen Hayward-Brown RESPONDENT Chief Executive Officer, Wentworth Area Health Service
FILE NUMBER:	993173
HEARING DATES:	24/11/99
SUBMISSIONS CLOSED:	11/24/1999
DATE OF DECISION:	04/19/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	amendment to documents - Freedom of Information Act - amendment to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Bradford, Joeanne Marree and Director of Family Services [1998] ACTAAT 265 (16 July 1998) Morgan -v- Director-General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 (28 September 1999) Doelle -v- Legal Aid Office, Decision No 93005 (24 November 1993) Re Leverett (1985) 8 ALN N135 RE Resch and Department of Veterans' Affairs 9 ALD 380 Re Cox and Department of Defence 20 ALD 499 Re Jacob -v- Department of Defence 15 ALD 645 Re Francis and Department of Defence (unreported, AAT, Cth, 22 December 1995)
REPRESENTATION:	APPLICANT D Lowe, solicitor RESPONDENT P Newell, barrister
ORDERS:	1. The agency’s decision to amend its records in accordance with the application through the addition of a notation but refusing to amend its records by removing or otherwise deleting or striking through any of the text of its records is affirmed.

Reasons for Decision

1 On 30 March 1999, Ms Hayward-Brown made an application to the Wentworth Area Health Service (the agency) under the Freedom of Information Act 1989 (FOI Act). The application sought “amendment” to her daughter’s file held at Blue Mountains District Anzac Memorial Hospital at Katoomba (the Hospital). Ms Hayward-Brown alleged that statements made by Dr Allport, Dr Hardwick and nursing staff on this file were incorrect and misleading.

2 Ms Hayward-Brown attended the Casualty Section of the Hospital to seek treatment for her daughter on 21 August 1993 and 15 June 1998. On both occasions there was a disagreement between Ms Hayward-Brown and the medical staff as to the treatment that her daughter should receive. The amendments sought by Ms Hayward-Brown relate to entries on her daughter’s file following each visit.

3 Mr Geoff Murphy, Director Executive Support, of the agency, made a determination in relation to Ms Hayward Brown’s FOI application on 27 April 1999. He decided that the application should be granted to the extent that a copy of the applicant’s letter of 30 March 1999 and its attachment be filed adjacent to the relevant records. Mr Murphy also stated in the determination that he was not prepared to direct that any existing entries in the medical record be deleted or changed.

4 Ms Hayward-Brown applied for an internal review of Mr Murphy’s determination on 18 May 1999. By a follow up letter dated 24 May 1999 Ms Hayward-Brown referred to her request for “amendment/removal of offending documents” but she did not specify the manner in which she sought amendment by removal or otherwise. The internal review made on 3 June 1999 affirmed the original determination.

5 Ms Hayward-Brown applied to the Tribunal for a review of the agency’s decision on 21 July 1999. In submissions made to the Tribunal dated 19 November 1999, she sought amendments to her daughter’s file by “striking through” certain words and sentences so that they were crossed out but could still be read. In addition she sought the addition of two comments as notations on the file.

6 The agency was, and still is, prepared to add certain notations but refuses to strike through, delete or obliterate any part of the file.

Legislation

7 One object of the FOI Act set out in s 5(1)(b) is “to extend, as far as possible, the rights of the public to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.” This object is reflected in the Act in two ways. Firstly, under s 16, a person has a legally enforceable right to be given access to an agency’s documents, in accordance with the Act. Secondly, under Part 4, Division 1 of the FOI Act, an agency’s records can be amended. Section 39 provides that:

A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:
(a) if the document contains information concerning the person’s personal affairs; and
(b) if the information is available for use by the agency in connection with its administrative functions and
(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

8 On receiving an application for amendment of records, an agency may amend its records in accordance with the application. Alternatively, an agency may refuse to amend its records if, for example, it is satisfied that its records are not incomplete, incorrect, out of date or misleading (s 43(1) and s 44). If an agency refuses to amend its records, an applicant may require an agency to add a notation to those records (s 46). Section 61 of the FOI Act provides that “the burden of establishing that the determination is justified lies on the agency.” The Tribunal may affirm, vary or set aside the agency’s decision (s 63(3) Administrative Decisions Tribunal Act (1997 (ADT Act)).

Jurisdiction

9 The Tribunal has jurisdiction to hear this matter under s 53(1) of the FOI Act. That section states that:

A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

10 The determination in this case was made under s 43 which states that:

1) An agency shall determine an application:
(a) by amending its records in accordance with the application, or
(b) by refusing to amend its records.

11 The determination was to amend the records by adding the applicant’s letter of 30 March 1999 and its attachments adjacent to the relevant records. The determination included a refusal to amend the records in any way which involved removal of any records or any change to the original text.

12 Ms Hayward-Brown was aggrieved by the determination and has applied to the Tribunal to review it.

13 Under s 63(2) of the ADT Act the Tribunal is limited to exercising the “functions that are conferred or imposed . . . on the administrator who made the decision.” Because the administrator has the choice of deciding to amend the records in accordance with the application or refusing to amend the records, the functions of the Tribunal are similarly circumscribed.

14 In this case two preliminary issue are: whether the agency has refused to amend its records in accordance with Ms Hayward-Brown’s application and, if so, to what extent the Tribunal is limited in the orders it can make by the words “in accordance with the application” in s 43(1)(a).

Amendment in accordance with the application

15 In their written submissions, the agency stated that it “has not refused to amend its records, but has agreed to amend the records by annexing to them the documents provided by the applicant.” (See Respondent’s Submissions dated 10 September 1999 at paragraph 6.) Ms Hayward-Brown sought internal review and applied to the Tribunal for a review of this decision because she maintains that the agency has not amended the records in accordance with her application.

16 Ms Hayward-Brown’s original application for amendment under s 40 did not specify the precise manner in which amendment was sought. Significantly, section 40, which sets out the details that an application to amend an agency’s records must contain, does not require an applicant to state the manner in which the amendment is being sought. That section states that:

An application for the amendment of an agency's records:
(a) shall be in writing, and
(b) shall specify that it is made under this Act, and
(c) shall contain such information as is reasonably necessary to enable the agency's document to which the applicant has been given access to be identified, and
(d) shall specify the respects in which the applicant claims the information contained in the document to be incomplete, incorrect, out of date or misleading, and
(e) if the application specifies that the applicant claims the information contained in the document to be incomplete or out of date---shall be accompanied by such information as the applicant claims is necessary to complete the agency's records or to bring them up to date, and
(f) shall specify an address in Australia to which notices under this Act should be sent, and
(g) shall be lodged at an office of the agency.

17 Ms Hayward Brown’s original letter applying for amendment dated 30 March 1999 complies with all these requirements. Where an applicant complies with s 40 the agency must decide whether to amend the record “in accordance with the application.” The word “accordance” is defined in the Macquarie Dictionary (3rd edition, The Macquarie Library, 1997) to mean “agreement; conformity”. In my view s 43 should be interpreted as allowing the agency to make a determination which conforms with the substance of the applicant’s application. The substance of the application will generally be the information the applicant provides in response to s 40(d) and s 40(e) which are set out above at paragraph 16.

18 The agency may determine that only part of the applicant’s application justifies an amendment of the records. In these circumstances, even though the agency is limited to making an order “in accordance with the application” or refusing to make an order, it would frustrate the objects of the legislation if the application could only be dealt with as a whole.

19 In this case, the agency has amended its records in a way which conforms to some extent with the applicant’s application but the applicant is still aggrieved because that determination has not included any removal or other amendment to the text of the records. I am satisfied that the agency has acceded to part of the applicant’s application but has refused to amend its records in relation to that part of the application which implied that the text should be removed or altered in some way.

20 The second preliminary issue is to what extent, if any, do the words “in accordance with the application” in s 43(1)(a) restrict the Tribunal’s power to make decisions which amend the relevant records?

21 Ms Hayward-Brown specified the precise manner in which she sought amendment in submissions to the Tribunal. She stated, at paragraph 3 of her written submissions that “. . . the Applicant is seeking to amend the file in the manner set out in Appendix A.” However, at Appendix A the applicant is not so definitive. In relation to at least two passages, she quotes the disputed passage and then says that “The Applicant is seeking to amend this entry preferably by . . . “(emphasis added.) In summary, her submission was that certain words and passages should be struck through, leaving them legible and two notations be added to the files.

22 In my view the Tribunal is not limited to accepting or rejecting the precise manner in which the applicant seeks amendment to the records in written submissions. Section 43 refers to amendment of records “in accordance with the application” not in accordance with written submissions. The Tribunal has the power to make any order which conforms with the substance of the applicant’s application, or part of that application.

23 This conclusion is further supported by practical considerations. If the Tribunal was limited to amending the relevant records in the precise manner requested by an applicant, it would have no option but to make an order which had the effect of refusing to amend the records if it did not find the applicant’s formulation to be justified.

24 In making such an order the Tribunal should keep in mind the relevant object of the Act set out in s 5(1)(b) “to extend, as far as possible, the rights of the public to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.”

Documents in dispute

25 Ms Hayward-Brown set out in Annexure A to her submission dated 19 November 1999, the notations she wishes to be added and the manner in which she is seeking amendment to her child’s medical file. She requested that a notation be added to two entries in the file. They are Dr Allport’s First Entry (dated 15 June 1998) and Dr Allport’s Third Entry (dated 16 June 1998). Dr Allport’s First Entry reads as follows:

Mother was insistent that Richard Hart be contacted, therefore I contacted Robert Hardwick (Paediatrician on call); after discussing situation he advised me to contact Richard Hart.”

26 The annotation Ms Hayward Brown requests is as follows:

Richard, Hart, the patient’s paediatrician, had left instructions that he was to be contacted, if available, should the patient be presented to Casualty.

27 The second annotation requested is to Dr Allport’s Third Entry dated 16 June 1998. That entry reads as follows:

Child has hardly coughed since salbutamol nebuliser.

28 The annotation Ms Hayward Brown requests is as follows:

Child’s mother observed the no cessation in the child’s coughing.

29 Amendments are requested to the following three entries:

Dr Hardwick’s Entry dated 21 August 1993:

Parents hostile and angry re perceived lack of care and attention on my part (no doubt stems from their chronic anxiety about Elisabeth and her serial illnesses and father’s previous allegations against my willingness &/or ability to care for his child.

Ms Hayward-Brown is seeking to amend this entry by ruling through the words “hostile and” and the word “chronic”, in a manner allowing the original entry to remain legible.

Dr Allport’s Second Entry (dated 15 June 1998):

This is a situation of grave concern that is very difficult to address. Elisabeth’s mother position/attributes towards the health & well being is quite likely to engender anxiety in her. This ongoing conflict (mother v doctors/nurses) must be very stressful for Elisabeth. Is there any way we could work together to try to improve this situation? I have grave concerns about the long term impact on Elisabeth.
Ms Hayward-Brown is seeking to amend this entry by ruling through each line in the entire paragraph, in a manner allowing the original entry to remain legible.

Nursing Entry dated 16 June 1998:

Mother unhappy re treatment of daughter by RMO. She felt he ‘patronised her’ and accused her of ‘making her child ill’. I didn’t feel that RMO had patronised Mrs Hayward-Brown, but only tried to explain his treatment and the reasons he felt Elisabeth was able to go home.
Ms Hayward-Brown is seeking to amend this entry by ruling through the words “and accused her of ‘making her child” and the words “and the reasons he felt Elisabeth was able to go home” in a manner allowing the original entry to remain legible.

Issues

30 Having decided the preliminary issue in relation to the Tribunal’s powers, the substantive issues in these proceedings can be summarised as follows:

• does the information concern Ms Hayward-Brown’s personal affairs?
• should the records be amended in accordance with Ms Hayward-Brown’s application?

31 There was no dispute between the parties as to whether the other limbs of s 39 had been complied with, that is, whether the information is available for use by the agency in connection with its administrative functions or whether the information is, in the person’s opinion, incomplete incorrect, out of date or misleading.

Concerning personal affairs

32 Section 39(a) of the FOI Act cited at paragraph 7 above provides that a person to whom access to an agency’s document has been given, may apply for an amendment to the agency’s records if the document contains information concerning the person’s personal affairs. The agency submitted that to have standing, Ms Hayward Brown should have brought the application on behalf of her daughter as the information relates to her daughter’s personal affairs and not to her own.

33 Ms Hayward-Brown submitted that the health and well-being of a child is the parent’s personal affair. She quoted Bradford, Joeanne Marree and Director of Family Services [1998] ACTAAT 265 (16 July 1998) where Professor Curtis, President of the ACT Administrative Appeals Tribunal, stated that:

It seems to me that information about the welfare of a child, particularly a child of tender years, could properly be said to be information relating to the personal affairs of the child's mother, at least where she retains some contact with the child. The welfare of her child is also her concern. It is a matter of personal concern to her in a very real sense. . . . Furthermore, information about the relationships between the child and the mother, whether provided by the child or by a third person, is information about the personal affairs of the mother. At the same time, the information is, of course, also information about the personal affairs of the child.

34 Ms Hayward Brown submitted that the entire medical record of her daughter concerns her personal affairs. In addition, she notes that several entries in the medical record refer to her, and these entries clearly concern her personal affairs.

35 The test I have to apply is whether “the document contains information concerning the person’s personal affairs” (s 39(a)). The test is not whether the individual passages in dispute concern the person’s personal affairs. The document in this case is the Progress Notes relating to Elisabeth Hayward-Brown held by Wentworth Area Health Service. I am satisfied that this document contains information concerning Ms Hayward-Brown’s personal affairs. Several entries record observations and opinions relating to her alleged behaviour.

36 Even if the test is confined to the passages in dispute, all but one of the disputed entries relate to observations about Ms Hayward-Brown. Dr Hardwick’s Entry states, in part, that “parents hostile and angry”; Dr Allport’s Entry states, in part, that “Mother was insistent . . .”; Dr Allport’s Second Entry states, in part, that “Elisabeth’s mother position/attributes towards the health & well being is quite likely to engender anxiety in her”; and the Nursing Entry states, in part, that “Mother unhappy re treatment of daughter.”

37 There is one entry in dispute which does not relate directly to Ms Hayward-Brown, namely Dr Allport’s third entry. It states that “Child has hardly coughed since salbutamol nebuliser.” This information concerns the child’s personal affairs. I am also satisfied that the health and well being of a child concerns the personal affairs of the parent because of the close relationship between parents and children and the sensitivity of such information. Even if I am wrong about this, applying the test in the legislation that the document must concern the person’s personal affairs, I am satisfied that Ms Hayward Brown has standing to bring this application.

Onus of proof

38 The onus is on the agency to establish that their determination is justified, however the applicant has an initial or preliminary burden. In Morgan v Director- General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 (28 September 1999) the Tribunal said at [38] that:

Although the ultimate burden of establishing justification for a determination rests with the agency or Minister, where the agency or Minister has released the document and an applicant seeks amendment of it, it seems appropriate that the applicant bears an initial or preliminary burden to provide evidence in support of the application for amendment. I agree with the approach taken by the Information Commissioner of Queensland in Doelle v Legal Aid Office , Decision No 93005 (24 November 1993) at [18]:

"Pursuant to s 81 of the FOI Act, [the agency] has the onus of establishing that its decision is justified. ... [W]hile on a review ... the ultimate legal onus remains on [the agency], a practical or evidentiary onus shifts to [the applicant] to provide evidence to support his entitlement to relief ... on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading."

Reasoning process in amendment applications

39 In determining whether a record should be amended, the provisions of s 44 of the FOI Act are relevant. That section sets out the circumstances in which an agency may refuse to amend its records in accordance with an application:

An agency may refuse to amend its records in accordance with an application:
(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect; or
(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect; or
(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

40 The use of the word “may” in this provision means that the agency has a discretion to refuse to amend a document in certain circumstances. For example, under 44(a) if the agency is satisfied that the information is not incomplete, incorrect, out of date or misleading it may refuse to amend its records. However, this provision does not prevent an agency from amending a record even if it is not satisfied that it is incomplete, incorrect, out of date or misleading. Neither does it require an agency to amend its records if it is satisfied of those facts. Of course, the Tribunal has to examine all the relevant factual material including the reasons for making such a determination before deciding whether the agency had come to the correct and preferable decision.

41 The agency’s decision was to refuse to amend its records, except by adding certain notations. The reasons given for this refusal were firstly that the information is not incomplete, incorrect, out of date or misleading. Secondly, the agency submitted that medical records were in a particular class which meant that they should not be removed, deleted or obliterated in any way. Thirdly, the agency submitted that even if medical records could properly be removed, deleted or obliterated, there is no medical evidence to support the proposition that the existing medical records should be amended in that manner.

42 The agency’s first submission was that the information is not incomplete, incorrect, out of date or misleading. As stated above, s 44(a) provides that one basis on which an agency may refuse to amend its records is if it is satisfied that they are not incomplete, incorrect, out of date or misleading in a material respect.

43 Ms Hayward-Brown asserted in her written submissions that various entries were incorrect, incomplete or misleading. She did not give oral evidence and was therefore not subject to cross-examination. Neither did she summons any of the doctors who wrote the disputed entries.

44 Each entry will be examined to determine whether the Tribunal can be satisfied that they are incorrect, incomplete or misleading in a material respect. After coming to a view on this issue I must then go on to determine whether to make a decision which has the effect of amending or refusing to amend the document.

Dr Hardwick’s Entry - 21 August 1993

45 In relation to Dr Hardwick’s First Entry the initial question is whether it was incorrect or misleading to describe the applicant and her partner as “hostile” and their anxiety about their daughter as “chronic”. I am not satisfied that the use of the words “hostile” and “chronic” are incorrect or misleading. These words express the author’s personal opinion, rather than a medical opinion because they were not made in the context of a doctor/patient relationship with Ms Hayward-Brown.

46 Opinions may be misleading if, for example, they are based on incorrect or incomplete facts or are based on a misunderstanding of those facts. (See Re Leverett ((1985) 8 ALN N135 at N 136); Re Resch and Department of Veterans’ Affairs 9 ALD 380; Re Cox and Department of Defence 20 ALD 499; and Re Jacob v Department of Defence 15 ALD 645 at 649.) The submissions Ms Hayward-Brown made in relation to these opinions was that in her opinion she was not hostile and her anxiety was not chronic. She went on to say that Dr Hardwick was not qualified to give a medical opinion of this kind.

47 Since I have found that the opinions expressed were personal opinions and not a medical diagnosis, the only relevant evidence is that Mrs Hayward-Brown disagreed with Dr Hardwick’s personal opinion. She has not satisfied me that those opinions are based on incorrect or incomplete facts, that they are based on a misunderstanding of those facts or that they are incorrect or misleading for any other reason. All she has done is express a different view of her behaviour from that recorded by the doctor. This is not sufficient evidence for me to be satisfied that Dr Hardwick’s first entry is incorrect or misleading.

48 Even if I accept for the purposes of this analysis that these descriptions are incorrect or misleading, it is relevant to consider whether they are incorrect or misleading in a material respect (s 44(a)- emphasis added). “Material” is defined in the Macquarie Dictionary (3rd edition, The Macquarie Library, 1997) as “of substantial import or much consequence”. While the inclusion of the words “hostile” and “chronic” paint a more extreme picture of the applicant’s behaviour than would otherwise be the case, they do not of “substantial import” or “much consequence”. They relate to a question of degree only, not to any material considerations.

49 In determining the correct and preferable decision I am not bound to make an order which has the effect of refusing to amend a document even if I am satisfied that the record is not incomplete, incorrect, out of date or misleading in a material respect (see s 44(a)). One relevant submission which the applicant made on this point was that “in an emergency, where time is of the essence, a misunderstanding of the Applicant’s daughter’s condition may arise with potentially fateful consequences.” The agency’s response to this submission was that “the only possible risk which could arise to her daughter’s health would be from incomplete records.”

50 I do not accept that refusing to amend this entry by removing the words “hostile” and “chronic” could affect a person’s understanding of Elisabeth’s condition.

51 The agency’s determination to amend the document by adding a notation, but by refusing to amend its records by removing or otherwise deleting or striking through any of the text, is the correct and preferable decision in this case. Ms Hayward-Brown’s views differ from those of the doctor and it is consistent with the provisions and objects of the FOI Act that these differences are noted (see s 46 and s 5(1)(a)).

Dr Allport’s First Entry - 15 June 1998

52 The substance of Ms Hayward-Brown’s application in relation to this entry is that it is incomplete and misleading because “it fails to detail the reasons why the Applicant insisted on Dr Hart being called and implies that the Applicant was acting in an irrational manner and without justification.” (See applicant’s written submissions dated 19 November 1999 at paragraph 39.)

53 I am not satisfied that the entry is incomplete or misleading. In Re Francis and Department of Defence (unreported, AAT, Cth, 22 December 1995) the Administrative Appeals Tribunal defined “incomplete” to mean “not complete; lacking some part; not fully formed; unfinished; not whole and thorough; lacking something.” Failure to explain precisely why a parent was insisting on a particular course of action does not make this record incomplete. It is not practical or necessary for progress notes about a parent’s behaviour to contain a complete explanation for that behaviour. In addition it is not misleading because, contrary to the applicant’s submission, it does not imply that she was acting in an irrational manner or without justification. The phrase “Mother was insistent that Richard Hart be contacted . . . ” is a factually correct assertion and is not incomplete.

54 Even if I accept for the purposes of analysis that this entry is incomplete or misleading, it is not incomplete or misleading in a material respect. The addition of an explanation as to why Ms Hayward-Brown was insistent would provide more information but it would not change the “substantial import” of the entry. or be of “much consequence”.

55 Neither party put before me any additional material or argument which would suggest that despite this finding I should nevertheless make a decision which has the effect of amending the record. Consequently my determination in relation to this entry is that the agency made the correct and preferable decision by amending its records in accordance with the application through the addition of a notation but by refusing to amend its records by removing or otherwise deleting or striking through any of the text.

Dr Allport’s Second Entry - 15 June 1998

56 In relation to Dr Allport’s Second Entry the initial question is whether the entire paragraph is incorrect and misleading. The relevant paragraph, which is set out above a paragraph 29, expresses Dr Allport’s concern about the effect on Elisabeth of what he perceives as ongoing conflict between Ms Hayward-Brown and staff of the hospital. Ms Hayward-Brown submitted that Dr Allport was angry when making this entry and that it is not a medical diagnosis. She also submitted that the entry was vague and that Dr Allport was in no position to observe any “ongoing” conflict. In the applicant’s view any conflict could have been avoided if Dr Allport had treated her daughter in accordance with Dr Hart’s instructions at the outset.

57 The agency submitted that there is insufficient evidence to justify amending the entry as suggested. The agency added that “. . . a qualified doctor who treated a patient has expressed in writing concerns about the possible long-term effects of certain circumstances on that patient’s health.”

58 This entry expresses opinions about the impact of Ms Hayward-Brown’s attitudes on her daughter’s health. These opinions are not intended as a medical diagnosis of Ms Hayward-Brown as it is apparent that the comments were not made in the context of doctor/patient relationship with Ms Hayward-Brown.

59 I am not satisfied that this entry is incorrect or misleading in any material respect. The fact that Dr Allport was angry does not, of itself, make his opinion incorrect or misleading. Apart from Ms Hayward-Brown’s assertions, there is no evidence of the facts on which Dr Allport’s reference to “ongoing conflict” was based. This reference may have been based on other information on the file or comments from other hospital staff. There is simply no direct evidence of the basis on which he assumed that the conflict was ongoing. Whether or not the conflict was totally or partially a result of Dr Allport’s behaviour does not make his opinion incorrect or misleading. In summary, there is not sufficient evidence for me to be satisfied that Dr Allport’s second entry is incorrect or misleading.

60 Even if I accept for the purposes of analysis that these descriptions are incomplete or misleading, they are not incomplete or misleading in a material respect. Both parties agree that there was conflict. Whether or not any conflict is ongoing is not material. Neither is the extent to which Dr Allport contributed to any conflict. In addition, I do not accept that people reading the file would be misled in any material respect by Dr Allport’s allegedly vague language. The meaning is clear enough, that is that Ms Hayward Brown’s attitude to her daughter’s health is likely to make her daughter anxious.

61 There is no material before me which would satisfy me that the passage should be amended in any way apart from by the addition of a notation.

62 Consequently my determination in relation to this entry is that the agency made the correct and preferable decision by amending its records in accordance with the application through the addition of a notation but by refusing to amend its records by removing or otherwise deleting or striking through any of the text.

Dr Allport’s Third Entry -16 June 1998

63 The substance of Ms Hayward-Brown’s application in relation to Dr Allport’s third entry was that the “entry is incorrect and misleading because the Applicant remained with her daughter throughout the whole period in question.” Ms Hayward-Brown asserts that there was no significant reduction in her daughter’s coughing.” (See applicant’s written submissions dated 19 November 1999 at paragraph 47.)

64 There is insufficient evidence to satisfy me that the statement that “Child has hardly coughed since salbutamol nebuliser” is incorrect and misleading. Ms Hayward-Brown takes a different view of the facts on the basis that she was with her daughter for the entire period. Ms Hayward-Brown accepts that “at the particular moment Dr Allport attended upon her daughter, there may have been a brief interlude in her daughter’s coughing, which was unrepresentative of her condition at that time.”

65 Even if I accept for the purposes of analysis that these descriptions are incorrect or misleading, they are not incorrect or misleading in a material respect. There is a significant difference in Ms Hayward-Brown and Dr Allport opinions. One says “there was no significant reduction in coughing” and the other says Elisabeth has “hardly coughed”. I do not accept that this difference is material in the sense that it could adversely affect the treatment Elisabeth may receive in the future.

66 There is no material before me which would satisfy me that the passage should be amended in any way apart from by the addition of a notation.

67 Consequently my determination in relation to this entry is that the agency made the correct and preferable decision by amending its records in accordance with the application through the addition of a notation but by refusing to amend its records by removing or otherwise deleting or striking through any of the text.

Nursing Entry dated 16 June 1998

68 The final entry in dispute is the Nursing Entry. That entry is set out above at paragraph 29. Ms Hayward-Brown alleged that this entry was incorrect and misleading. She denied making any comment to the nursing staff about being the recipient of accusations from Dr Allport. She also denies that Dr Allport made any suggestions that her daughter should go home. She also said that the nursing staff could not have known how she “felt” about the situation.

69 I am not satisfied that these passages are incorrect or misleading. The only evidence I have is the record itself and Ms Hayward-Brown’s submission. With no way of testing this evidence I have no basis for concluding that one version is correct and the other is not.

70 Even if I accept for the purposes of analysis that the relevant phrases are incorrect or misleading, I am not satisfied that they are incorrect or misleading in a material respect. I do not consider it material whether Dr Allport accused the applicant of making her child ill or whether Dr Allport suggested that Elisabeth should go home. These issues are not material to Elisabeth’s diagnosis or future treatment.

71 There is no material before me which would satisfy me that the passage should be amended in any way apart from by the addition of a notation.

72 Consequently my determination in relation to this entry is that the agency made the correct and preferable decision by amending its records in accordance with the application through the addition of a notation but by refusing to amend its records by removing or otherwise deleting or striking through any of the text.

73 Having come to these conclusions there is no need for me to consider the agency’s other submissions in relation to medical records.

Comments on amendment by striking through

74 Since the applicant’s submission was that certain passages be struck through so that they were still legible, it may be useful to make a comment on this practice. There is no guidance in the FOI Act as to the manner in which records should be amended. Some support for amending records by striking through can be found in the NSW Premier’s Department guidelines entitled FOI Procedure Manual - Third edition, 1994 at p 114 which states that:

It is usually sufficient to rule through the words to be amended and a side note added indicating the nature of the problem with the information and where details were to be found.

75 The applicant also cited the Information Privacy Code of Practice (Second edition, NSW Health, December 1998) which states that:

To ensure that the health record is accurate and complete:
• alterations or deletions should not be made; original incorrect entries should not be erased but lined through so the original entry remains readable, and such action should be explained and signed. (10.4.1)

76 The agency’s submission on striking through was that it sends a confusing message to the reader. The reader does not know whether the information is wrong or half wrong or whether it should be taken into account or ignored.

In my view, amending the records by striking through certain words and passages without adding any explanation or annotation would generally add to any confusion or misunderstanding that already exists in relation to those passages. Apart from highlighting the passages which are in issue, it does not perform any other useful purpose that I am aware of and it may lead to confusion about the status of those passages. Even if a notation is added, there is no reason to strike through the relevant words. The words in dispute could be underlined so that they could be identified.