HXJZ and National Disability Insurance Agency
[2022] AATA 826
•19 April 2022
HXJZ and National Disability Insurance Agency [2022] AATA 826 (19 April 2022)
Administrative Appeals Tribunal
| ADMINISTRATIVE APPEALS TRIBUNAL | ) |
| ) | No: 2021/9876 |
| NATIONAL DISABILITY INSURANCE SCHEME DIVISION | ) |
Re: HXJZ
Applicant
And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL: Member P Smith
DATE OF CORRIGENDUM: 2 May 2022
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application to conceal the name, address or any other information tending to reveal the identity of the Applicant.
.................................[sgd]..................................
Member P Smith
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/9876
Re:HXJZ
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P Smith
Date:19 April 2022
Place:Sydney
The Respondent may amend their summonses to Dr Sandra Choy and Dr Narelle Savage, to include the production of the Applicant’s clinical records relating to the Applicant’s treatment for Complex Post Traumatic Stress Disorder and chronic pain for the period commencing on 15 March 2017 to the present.
The summonses to Dr Sandra Choy and Dr Narelle Savage are not to include material which contains sensitive disclosures made by the Applicant that was identified by the Applicant’s solicitor at the Interlocutory Hearing on 22 March 2022.
The time for the production of documents in response to the summons to Dr Sandra Choy and Dr Narelle Savage is extended until 9:00am on 17 May 2022.
The Tribunal approves the issue of the summons to the Proper Office of the New South Wales Department of Community and Justice.
The time for the production of documents in response to the summons to the Proper Office of the New South Wales Department of Community and Justice is extended until 9:00am on 17 May 2022.
.....................................SGD...................................
Member P Smith
CATCHWORDS
PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – Objection to issue summonses to produce medical records and housing records – whether the documents sought in the summonses are relevant to the Tribunal’s determination of the substantive issues – documents containing details of sensitive disclosures made by the Applicant excluded from summons on the basis of relevance and concerns of re-traumatization of the Applicant
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), s33(2)
Administrative Appeals Tribunal Act 1975 (Cth), 40A
CASES
Abela v Australian Prudential Regulation Authority (2008) 102 ALD 301; [2008] AATA 397
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Attorney-General for NSW v Stuart (1994) 34 NSWLR 667
Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101
Australian Postal Corporation v Hayes (1989) 23 FCR 320 at [326]
Comcare v Maganga (2008) 101 ALD 68
Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432
Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation[1997] FCA 1504; (1997) 37 ATR 432
Hearne v Street [2008] HCA 36
Repatriation Commission v Farley-Smith (2007) 96 ALD 348
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Trade Practices Commission v Kimberley Homes (1989) 217 ALR 110
Steele v Comcare (2018) 74 AAR 327
WA Pines Pty Ltd vBannerman[1980] FCA 79; (1980) 41 FLR 175
SECONDARY MATERIAL
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020, rr 11, 12, 13, 14, 15, 17
REASONS FOR DECISION
Member P Smith
19 April 2022
INTRODUCTION
HXJZ (the Applicant) became a participant of the National Disability Insurance Scheme (NDIS) on 15 March 2017 on the basis of her primary diagnosis of Complex Post Traumatic Stress Disorder (CPTSD) and chronic pain. Secondary to these conditions, the Applicant also has a number of other medical conditions, including an Autoimmune Disorder (HLA-B27), Ankylosing Spondylitis, Endometriosis, daily migraines, jaw pain, and extreme dissociative symptoms.
The Applicant filed an application on 10 December 2021 to review a decision made by the National Disability Insurance Agency (the Respondent) on 12 November 2021 which confirmed a decision made by a delegate of the Chief Executive Officer of the Respondent on 21 October 2021 to approve a statement of participant supports (Plan) for the Applicant under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
In May 2021, the Applicant, amongst other things, made a request to receive support for Specialist Disability Accommodation (SDA) for the SDA Design Category of Fully Accessible Housing and Supported Independent Living (SIL) on the basis that the Applicant has an extreme functional impairment and has very high support needs within the meaning of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules). The Applicant also sought support for SDA and SIL because of the Applicant’s current public housing accommodation. The Applicant says that her accommodation is unsuitable and fails to meet her specific disability related needs and places her at risk of self-harm and/or suicide. The Applicant says since living in public housing she has witnessed a murder, incidents of domestic violence and other criminal acts. The Applicant says that these incidents have exacerbated her CPTSD.
In support of her request to receive support for SDA, the Applicant provided the SDA Panel with evidence, including a copy of a report of Ms Zeta Leung, Occupational Therapist, dated 29 April 2021[1]. Ms Leung was engaged by the Applicant, on the recommendation of her then NDIS Support Co-ordinator, to conduct an independent functional capacity assessment of the Applicant and to provide a report so that the Applicant would have evidence to support her request to receive support for SDA. Ms Leung found that the Applicant has an extreme functional impairment and was a person with very high support needs[2].
[1] See T3C.
[2] See pp 19-21 of Ms Leung’s report dated 29 April 2021.
The Applicant’s request to receive support for SDA was refused by the SDA Panel on 20 July 2021. The Applicant’s new plan approved on 21 October 2021 and confirmed by the Respondent on 12 November 2021 did not include support for SDA or SIL.
Request to issue summonses
In the course of the proceedings, after the Applicant refused the Respondent’s proposal for the Applicant to attend an independent psychosocial assessment with a psychologist, the Respondent requested that the Tribunal issue three summonses for the production of documents to the Applicant’s treating General Practitioner, Dr Narelle Savage, treating Psychiatrist, Dr Sandra Choy and the Department of Communities and Justice. For reasons set out further below, the Applicant objects to the Tribunal issuing all three summonses.
At a Telephone Directions Hearing held before Member Thompson on 15 February 2022, a number of directions were made, including a direction that required the Applicant to provide the names and practise details of her treating General Practitioner, Psychiatrist and Occupational Therapist, and a direction that required the Respondent to send a request to the Tribunal on or before 22 February 2022 to issue summonses to the Applicant’s treating medical practitioners. The Applicant provided the names and practise details of her treating General Practitioner and Psychiatrist, as required, and in relation to the details relating to the Occupational Therapist, advised that she did not have one.
The Respondent emailed the Tribunal on 21 February 2022 and requested that the Tribunal issue summonses to Dr Choy and Dr Savage and Ms Leung however, they were subsequently withdrawn on 14 March 2022.
On 14 March 2022, after the Respondent withdrew their initial request to issue summonses, the Tribunal received a further request by email from the Respondent requesting that the Tribunal issue summonses to Dr Savage and Dr Choy to produce ‘complete records and files, including computerised records, records of treatment, notes of visits and interviews, patient’s notes, correspondence, copies of correspondence, patient history cards, referrals, reports, test results, or any other documentation’ in relation to the Applicant for the period commencing on 15 March 2017 to present.
10. The reasons given by the Respondent to issue summonses to Dr Choy and Dr Savage are set out in the Request to Issue Summons Form. The Respondent noting the evidence currently before the Tribunal is limited to a functional capacity assessment of the Applicant which was conducted by Ms Leung. The Respondent is of the view that the Tribunal would be assisted in making the correct or preferable decision to have evidence from an independent expert who can provide an opinion on the Applicant’s functional impairment relating to her psychosocial disorders. The Respondent is of the view that a review of the Applicant’s treatment records relating to her CPTSD and chronic pain would assist the independent psychologist with expertise in these areas in determining the Applicant’s disorders and level of functionality. The Respondent has proposed to the Tribunal and the Applicant that they intend on briefing an expert psychologist in PTSD and chronic pain so that the Tribunal is provided with evidence relating to the Applicant’s functional capacity and any support that may be required as a result of any impaired functioning.
11. In relation to the request to issue the summons to the NSW Department of Community and Justice (DoCJ), the Respondent seeks that the Proper Office produce ‘all documents held by the local housing officer in respect of the following documents held by the Housing Department of NSW, specifically the housing contact centre, local housing offices, and any Land and Housing Commissioner information relating to’ the Applicant for the period commencing on 15 March 2017 to present:
a. All records or letters of offers;
b. All records or documents indicating a rejection of any letters of offer;
c. Any requests for an extension on her approval for temporary accommodation;
d. Any requests or complaints relating to transferring accommodation from [];
e. Any responses to the requests or complaints to transfer accommodation from [];
f. Any request or complaints relating to transferring accommodation from [];
g. Any responses to the requests or complaints to transfer accommodation from [];
h. All maintenance requests or tenant enquiries in respect of minor and major home modifications;
i. All documents relating to any decisions of the Housing Appeals Committee; and
j. Any information pertaining to a request to the NSW Ombudsman for review of a decision of the Housing Appeals Committee.
12. The Respondent’s reasons to issue the summons to the DoCJ is also set out in a Request to Issue Summons Form. The Respondent is of the view that the documents sought as set out at paragraph [11] go directly to the question that the Tribunal must consider on review, namely whether the support is appropriately funded under the NDIS and is not appropriately funded or provided by the NSW public housing scheme for the purposes of subsection 34(1)(f) of the NDIS Act.
The Applicant’s objection
13. The Applicant objects to the summonses being issued for several reasons, including:
1. the information requested is too generalised;
2. the Respondent has not articulated how the information sought will be relevant to the determination of the substantive issues on review;
3. the Respondent has not identified how the information obtained under each summons is relevant to s 34 of the NDIS Act and the SDA Rules;
4. The Respondent has not established a forensic or legitimate purpose for the production of the documents;
5. the Respondent’s requests amounts to a ‘fishing expedition’;
6. the release of the Applicant’s medical records may re-traumatise the Applicant as the records contain sensitive information that was disclosed in confidence by the Applicant to her treating practitioners; and
7. the summons to the DoCJ may result in the Applicant being evicted from her rental accommodation which is due for review on 15 May 2022.
14. An Interlocutory Hearing was held by telephone on 22 March 2022 to give the parties an opportunity to make any oral submissions in addition to their written submissions about whether the Tribunal should refuse to issue the summonses. The Applicant’s solicitor, Ms Draddy appeared at the hearing and made oral submissions. The Applicant’s support person, Ms Kline also appeared at the hearing. The Respondent’s solicitor, Ms Audsley appeared at the hearing and made oral submissions.
15. The Applicant submitted that the question relating to the issuing of the summonses should be addressed at a later time, either after the case conference or until such time as the Respondent articulates a case as to why they are opposed to the Applicant receiving support for SDA.
16. The Applicant submitted that given the acceptance by the Respondent that the Applicant’s CPTSD is permanent and will require ongoing treatment and support, the question for the Tribunal is to determine whether the Applicant meets the eligibility criteria and has an extreme functional impairment or very high support needs for the purposes of the SDA Rules. The Applicant submitted that the determination of the Tribunal on the substantive issues does not require the production of the Applicant’s ‘entire medical records’ from Dr Choy and Dr Savage.
17. The Applicant rejected the position taken by the Respondent, as set out in their Statement of Issues relating to whether an Occupational Therapist and a General Practitioner are suitably qualified to provide an expert opinion regarding the Applicant’s psychosocial functionality and her support needs. The Applicant submitted that this position is not sustainable in light of rules 12 to 14 of the SDA Rules. The Applicant submitted that a psychiatric review as proposed by the Respondent is not appropriate having regard to rules 12 to 14 and rules 15 to 17 of the SDA Rules, to provide expertise by way of report, on matters relating to the building type and its design.
18. In relation to the relevance of the qualifications regarding a General Practitioner, the Applicant questioned how the medical records held by Dr Savage are relevant to the substantive issues on review.
19. The Applicant submitted that the Respondent’s position in relation to the capacity and expertise of an Occupational Therapist not being suitably qualified in such circumstances is incorrect. This includes the referral for and commissioning of the functional assessment report of Ms Leung, prepared specifically, for the Applicant’s request to receive support for SDA, was by the Applicant’s NDIS Support Co-ordinator.
20. The Applicant, noting the relevant SDA Rules, submitted that the Respondent’s request to issue summonses to Dr Choy and Dr Savage to produce documents does not establish a legitimate forensic purpose and is thus a fishing expedition. The Applicant submitted in their original and internal review decisions that the Respondent did not exercise the power given to them under section 36 of the NDIS Act. This was in order to request information and reports or require the Applicant to undergo a medical and/or psychiatric assessment for the purposes of assessing whether the Applicant has an extreme functional impairment or very high support needs. The Applicant submitted that the decisions of the Respondent not to request information under section 36 demonstrates that the current request for information sought in the summonses is a fishing exercise.
21. The Applicant submitted that the Respondent has not in their Statement of Issues provided a basis for their decisions to refuse the Applicant’s request for support as they relate to Part 2, Division 2, rules 11 to 14 of the SDA Rules. The Applicant submitted that there are only further information requests, some of which are improper as they relate to evidence going to credit and not the substantive issues to be determined by the Tribunal, and therefore no proper rationale has been established by the Respondent for the summonses to be issued to Dr Choy and Dr Savage. At the hearing the Applicant was asked to explain the reference to the evidence going to credit. It is noted that the Applicant appeared to argue that the Respondent was challenging or contesting the Applicant’s diagnosis and conditions for which the Respondent has confirmed they accepted when the Applicant became a participant of the NDIS.
22. The Applicant submitted that the Applicant does not know the basis of the Respondent’s opposition to her receiving support for SDA as they have not specifically set out their case in their Statement of Issues. Therefore, the Applicant argues that she is disadvantaged in these proceedings.
23. The Applicant submitted that the Respondent has not established an appropriate or satisfactory case. The Applicant submitted that the Respondent’s Statement of Issues fails to outline their case insofar as the Respondent has claimed that they did not have a copy of Ms Leung’s report. This is despite that the report was included in the T-Documents and provided to the Respondent on 25 February 2022 with a number of other reports and documents that were provided to Ms Leung to assist her in conducting the functional capacity assessment of the Applicant.
24. The Applicant submitted that the internal review decision failed to make findings of material facts, referring to the evidence or other material on which those findings were made and failed to give sufficient weight to the report of Ms Leung which the Applicant argues supported the Applicant’s request to receive support for SDA.
25. The Applicant submitted that the report of Ms Leung and the reports and documents that were provided to her to assist her to conduct her assessment of the Applicant is sufficient evidence to assist the Tribunal to determine the Applicant’s request to receive support for SDA.
26. The Applicant submitted that the release of the Applicant’s medical records will most likely re-traumatise the Applicant if they are disclosed to third parties as the records contain sensitive information that was disclosed in confidence by the Applicant to her treating practitioners. The Applicant submitted that it was extremely difficult to disclose those details to her treating medical practitioners and when she did so, it was done on the basis that those disclosures would remain confidential and protected. The Applicant submitted that since becoming aware of the Respondent’s request to obtain her medical records by way of summons, her health has deteriorated. The Applicant has provided a letter from Dr Choy dated 8 March 2022 supporting the Applicant’s submissions that the production of records that contain sensitive material should not be disclosed to third parties as this would most likely have an adverse impact on the Applicant’s mental health.
27. While acknowledging that the documents held by the DoCJ may be relevant to the substantive issues, the Applicant submitted that the reason for her objection to the issuing of the summons to the DoCJ is based on two reasons. The first reason is that the Applicant has a fear that she will be evicted or ‘thrown’ out of her current public housing residence. The Applicant submitted that NSW housing has a waiting list of approximately 100,000, and that the DoCJ evict tenants without due cause. The Applicant’s second reason for objecting to the summons to the DoCJ is because the Respondent has not established a forensic or legitimate basis for the summons to be issued nor have they articulated a case for opposing the Applicant receiving support for SDA.
LEGAL PRINCIPLES
28. The Tribunal has the power under section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to summons a person to give evidence or to produce documents.
29. Subsection (1) provides that for the purpose of a proceeding before the Tribunal, the President, an authorised member, or an officer of the Tribunal may summon a person to do either or both, on the day, and at the time and place, specified in the summons, appear before the Tribunal to give evidence or produce any document or other thing specified in the summons.
30. Subsection (2) provides that the President or an authorised member may refuse a request to summon a person.
31. Subsection (3) provides that a person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless the summons or another summons requires the person to appear before the Tribunal, or the Tribunal directs the person to appear before the Tribunal.
32. The general principles that apply to the issue of subpoenas by a Court also apply to the issue of summonses by the Tribunal[3].
[3] Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432.
33. Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence[4].
[4] Hearne v Street [2008] HCA 36 at [105]-[109].
34. A party to a proceeding is not entitled to compel the production and inspection of a document by issuing a summons, unless the reasons for needing the documents is for a legitimate forensic purpose[5]. Moreover, the documents sought must have some apparent potential relevance to the matters in dispute[6]. In addition, the documents sought must be ‘sufficient ... to ground a suspicion that the party applying ... has a good case’[7]. However, it is not necessary to establish that the material sought has substantial or direct relevance to the proceedings[8].
[5] Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at [681]-[682].
[6] Abela v Australian Prudential Regulation Authority (2008) 102 ALD 301; [2008] AATA 397 at [27]; Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101.
[7] WA Pines Pty Ltd vBannerman[1980] FCA 79; (1980) 41 FLR 175 at 181.
[8] Comcare v Maganga (2008) 101 ALD 68 at [36].
35. In exercising the summons power, the Tribunal must afford each of the parties to the proceedings, procedural fairness, including a reasonable opportunity to present their case and a requirement to allow a party to test the evidence of a witness. A reasonable opportunity to present his or her case requires the Tribunal to apply notions of procedural fairness[9].
[9] Repatriation Commission v Farley-Smith (2007) 96 ALD 348 at [54]; Australian Postal Corporation v Hayes (1989) 23 FCR 320 at [326].
36. If the material sought could reasonably be expected to throw light on some of the substantive issues in the proceedings, then the relevance of the summons will be established[10].
[10] Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103.
37. 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 those issues in the proceedings or for any legitimate forensic purpose[11].
[11] Comcare, at [37].
38. The Tribunal has the power to set aside a summons if it is oppressive or an abuse of process if it requires the production of documents which are manifestly irrelevant to the issues between the parties[12].
[12] Trade Practices Commission v Kimberley Homes (1989) 217 ALR 110; Steele v Comcare (2018) 74 AAR 327.
39. A summons for an improper purpose such as a ‘fishing expedition’ is not authorised[13]. The expression ‘fishing expedition’ used in the law means that a person who has no evidence that fish a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not[14].
[13] Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation[1997] FCA 1504; (1997) 37 ATR 432.
[14] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254.
DISCUSSION
40. The immediate issue for the Tribunal to determine is whether the Respondent’s request to issue the three summonses identified above at paragraphs [9] and [11] should be refused under subsection 40A(2) of the AAT Act.
41. The substantive issue for the Tribunal to determine in the principal proceedings is whether the Applicant is eligible to receive support for SDA and SIL as set out in the SDA Rules, and whether those supports are reasonable and necessary within the meaning of section 34 of the NDIS Act.
42. The Applicant’s preference would be for the summons not to be dealt with now, but in the future, if at all. She has submitted that the Tribunal should make its decision after a case conference or wait until such time as the Respondent has articulated their case. The Tribunal has given careful consideration to the Applicant’s submission relating to the issuing of the summonses.
43. The Tribunal is satisfied that the Respondent has, essentially, articulated its case as follows.
a. The Respondent notes that the report of Ms Leung which provides an opinion arising out of an independent functional capacity assessment.
b. The Respondent argues that there is a requirement for an independent psychosocial assessment of whether the Applicant has an extreme functional impairment or has very high support needs from a psychologist.
c. For an expert or independent report as to the applicant’s psychosocial impairments, the Respondent contends that further information is required in the form of:
i.an independent report of a psychologist with expertise in CPSD and chronic pain.
ii.clinical records relating to the treatment the Applicant receives from her treating General Practitioner and her treating Psychiatrist so that those records can be provided to the independent psychologist for the purposes of providing an opinion by way of report on whether the applicant has an extreme functional impairment or very high support needs.
44. In relation to the summons to the DoCJ, the Respondent contends that the reports and complaints made directly to the DoCJ by the Applicant and the responses to those reports and complaints should be provided so that an assessment can be made about whether the Agency or the DoCJ is the most appropriate Agency to provide the type of accommodation the Applicant is seeking.
45. The question of whether the Applicant is entitled to receive support for SDA and/or SIL, and whether those supports are reasonable and necessary, cannot be assessed until the Tribunal has all the evidence that has the potential to be materially relevant to the substantive issues. The Tribunal is mindful of the Applicant’s present circumstances and considers there to be no utility in delaying the proceedings unnecessarily.
46. The Tribunal has considered the Applicant’s submissions that the summonses are too generalised.
47. The Tribunal accepts that the summonses to the two doctors are, as currently drafted, too generalised as they do not specifically say what they are asking for. However, in their submissions, the Respondent specifically identify the nature of the documents they seek and the reasons why. The Tribunal is satisfied that the request is nevertheless appropriate. However, because it is somewhat generalised, the Tribunal directs that the Respondent may request that each practitioner produce only copies of their clinical records of the treatment the Applicant has received but limited to the treatment she has received from 15 March 2017 to the present, for CPTSD and chronic pain.
48. In relation to the summons to the DoCJ, the Tribunal has considered the Applicant’s submissions that this summons is also too generalised. The Tribunal does not accept this submission. The request is particularly specific. It identifies the nature of the documents it is seeking which relates directly to her public housing tenancy. The Applicant has been living in public housing since 2017. She has told the Tribunal, and the Respondent, that she has reported or raised directly with the DoCJ issues she has with her public housing, which includes her safety and the suitability of the premises in her particular circumstances. These documents have significant potential relevance in assisting the Tribunal in determining the question arising under subsection 34(1)(f) of the NDIS Act.
49. The Tribunal has considered the Applicant’s submission that the Respondent’s request for further information somehow challenges or questions the Applicant’s credit in terms of her diagnosed conditions and the permanence of those conditions. The Tribunal has reviewed the material on file. There is nothing in the material to suggest that the Respondent’s request for further information challenges or questions the Applicant’s credit in terms of her diagnosed conditions and the permanence of those conditions. In any event, that is not the question on review.
50. The Tribunal has considered the Applicant’s submission that a General Practitioner and an Occupational Therapist may be qualified and suitable experts to provide an opinion about the Applicant’s psychosocial functionality and the building type and design that would be suitable for the Applicant. Ms Leung has provided an independent functional capacity assessment report. A General Practitioner typically manages an Applicant’s specialist treatment. Relevantly in this case, that would include referral to and the management of psychiatric treatment. Treatment records held by the Applicant’s treating General Practitioner and Psychiatrist are requested by the Respondent for the purpose of conducting an independent psychosocial assessment to address the question of whether the Applicant has an extreme functional impairment or very high support needs as a result of her psychosocial disorders. The question of the building type or design that may be suitable for the applicant is not a question that the psychologist is being asked to give an opinion on.
51. The Tribunal has considered the Applicant’s submissions that the Respondent’s request to issue the summonses is without a legitimate forensic basis and is a fishing expedition because the Respondent has had the power to request the information all along and are only requesting it now. The Tribunal does not accept this submission. It is not uncommon for a Respondent in proceedings before the Tribunal to take a different position on issues relating to the case. The information that is being sought is for a legitimate purpose and it cannot be said that the request for further information is a fishing exercise especially when the Respondent’s objective for requesting the information has been clearly set out.
52. The Tribunal has considered the Applicant’s submission that the Respondent has not set out their case and as a result of this, she is disadvantaged. The Applicant is represented by a qualified legal practitioner and has the benefit, on review, of a fresh opportunity to put her case for SDA and SIL support, including objecting to or providing further submissions to any evidence adduced by the Respondent that she feels would be disadvantageous to her case.
53. The Tribunal has considered the Applicant’s submissions about the Respondent not outlining their case in their Statement of Issues insofar as it relates to Ms Leung’s report. Ms Leung’s report, already referred to, was provided to the Respondent in May 2021. The Respondent at one point claimed that they did not have Ms Leung’s report for reasons that are not entirely clear. However, the Respondent have now realised that they did receive Ms Leung’s report. This matter has now been corrected for the record.
54. The Applicant claims to have provided medical records to Ms Leung for the purpose of her independent functional capacity assessment. Copies of those documents were provided to the Respondent. On this basis, the Applicant submits that no further medical evidence is necessary as it has been requested relating to the summonses. The documents that the Applicant claims were provided to Ms Leung and the Respondent have not been provided to the Tribunal, nor has a list of the documents been provided. The Applicant has not identified the documents she is referring to specifically, so it has not been possible for the Tribunal to make an assessment of whether the documents the Applicant is referring to are or would be covered by the summonses or whether there is sufficient evidence relating to the question of whether the Applicant has an extreme functional impairment or very high support needs.
55. The Tribunal has considered the Applicant’s submissions that the internal review decision made no material findings of fact, failed to give sufficient weight to Ms Leung’s report relating to the Applicant’s claims. The Tribunal, standing in the shoes of the original decision maker, makes its own a decision about the substantive issues, and will have regard to all information evidence and facts relevant to the material issue on review, de novo.
56. The Tribunal has considered the Applicant’s submissions relating to the release of the Applicant’s sensitive medical records. The Tribunal is aware of the information that was disclosed at the hearing and the sensitivity of it. There is no reason why the information needs to be disclosed in the current matter and the Tribunal proposes to direct that the Respondent may amend the summonses to Dr Choy and Dr Savage to ensure that the sensitive disclosures are excluded.
57. The Tribunal has considered the Applicant’s submissions regarding her fears that she will be evicted if the summons to the DoCJ is issued. It has been submitted by the Applicant that the DoCJ evicts tenants without due cause, and she worries that this could happen to her. It seems that this is the basis of her concerns. The issue here is which Agency should provide the type of accommodation the Applicant is requesting. The information that it is sought in the summons is relevant to this material issue on review. Without this information, it is difficult to see how a proper assessment could be made as to the Applicant’s accommodation needs.
DECISION
58. The Respondent may amend their summonses to Dr Sandra Choy and Dr Narelle Savage, to include the production of the Applicant’s clinical records relating to the Applicant’s treatment for Complex Post Traumatic Stress Disorder and chronic pain for the period commencing on 15 March 2017 to the present.
59. The summonses to Dr Sandra Choy and Dr Narelle Savage are not to include material which contains sensitive disclosures made by the Applicant that was identified by the Applicant’s solicitor at the Interlocutory Hearing on 22 March 2022.
60. The time for the production of documents in response to the summons to Dr Sandra Choy and Dr Narelle Savage is extended until 9:00am on 17 May 2022.
61. The Tribunal approves the issue of the summons to the Proper Office of the New South Wales Department of Community and Justice.
62. The time for the production of documents in response to the summons to the Proper Office of the New South Wales Department of Community and Justice is extended until 9:00am on 17 May 2022.
| I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith |
.................................SGD.......................................
Associate
Dated: 19 April 2022
| Date of hearing: | 19 April 2022 |
| Solicitors for the Applicant: | Ms J Draddy, Draddy Legal |
| Solicitors for the Respondent: | Ms B Audsley, Australian Government Solicitor |
2
0
0