JD v Director General, NSW Department of Health

[2006] NSWADT 353

CITATION:	JD v Director General, NSW Department of Health [2006] NSWADT 353
DIVISION:	General Division
PARTIES:	APPLICANT JD RESPONDENT Director General, NSW Department of Health
FILE NUMBER:	053301
HEARING DATES:	23/11/05, 09/06/06
SUBMISSIONS CLOSED:	06/09/2006
DATE OF DECISION:	12/12/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - accuracy - Privacy - information protection principle - disclosure to third party - Privacy - information protection principle - personal information - use
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Health Care Complaints Act 1993 Medical Practice Act 1992 Poisons and Therapeutic Goods Act 1996 Privacy and Personal Information Protection Act 1998
CASES CITED:	JD v Department of Health (GD) [2005] NSWADTAP 44 JD v Director General Department of Health [2004] NSWADT 7 JD v Director General NSW Department of Health (No.2) [2004] NSWADT 227
REPRESENTATION:	APPLICANT In person RESPONDENT K Thomas, solicitor
ORDERS:	1. The Department has contravened section 16 of the Privacy & Personal Information Protection Act 1998 that it used personal information it held about JD without taking such steps as were reasonable in the circumstances to ensure that, having regard to the purpose for which the information was proposed to be used, that the information was relevant, accurate, up to date, complete and not misleading; 2. The application is listed for further directions at 9.15 am on 1 February 2007.

REASONS FOR DECISION

Introduction

1 This is an application by JD, a medical practitioner, for review of conduct of the NSW Department of Health (‘the Department’) in connection with the use and disclosure of personal information the Department had collected and held about him. The conduct in question relates to an investigation and a report of that investigation dated 27 November 2002, by Mr Thomson, a pharmaceutical adviser of the Pharmaceutical Services Branch (‘PSB’) of the Department and the furnishing of that report to the NSW Medical Board (‘the Medical Board’) on 3 December 2002. The application was brought pursuant to the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’). That application was initially determined by the Tribunal on 8 October 2004: see JD v The Director General, NSW Department of Health (No.2) [2004] NSWADT 227 (‘the earlier decision’). Prior to this determination the Tribunal determined a preliminary jurisdictional issue: JD v Director General Department of Health [2004] NSWADT 7 (‘the jurisdiction decision’). This determination centred around whether JD’s initial request for internal review included conduct relevant to s.16 of the PPIP Act. The Tribunal found that it did.

2 JD appealed the earlier decision on numerous grounds, including the Tribunal’s failure to issue summonses to two former work colleagues of JD, Ms A. and Ms C. who had provided personal information about JD to Mr Thomson in the course of his investigation. Mr Thomson recorded that information in his report and JD asserted that it was inaccurate and incomplete. On 2 September 2005, the Appeal Panel allowed the appeal and remitted the application to the Tribunal for re-determination: see JD v Department of Health [GD] [2005] NSWADTAP 44 (‘the decision of the Appeal Panel’). In its decision the Appeal Panel set out its conclusions at [116] as follows:

‘116. We have identified two areas that we consider justifying having this application re-opened on a limited basis. The first is the omission of the Tribunal in relation to identifying the purposes for which the information is proposed to be used, and the possible effect it had on its consideration of what, if any, were the reasonable steps to check accuracy in the circumstances. The second is the denial of the opportunity to JD to produce evidence from Ms A. and Ms C.’
3 At [118] the Appeal Panel went on to say:
‘118. There should be a short further hearing, limited to receiving evidence from Ms A and Ms C. Mr Thomson may need to be recalled, if anything arises from that the Tribunal considers requires a response; or to assist in the Tribunal in its further consideration of the s.16 issue. While it is a matter ultimately for the Tribunal, we see no difficulty in leaving it to the parties to make written submissions as to the purposes for which the information was to be used, and the relevance to the standard required by s.16 of any new evidence.’
4 On 23 November 2005, Ms A. and Ms C. gave evidence in response to summonses that had been issued by the Tribunal at the request of JD following the decision of the Appeal Panel. Mr Thomson was also made available for further cross-examination by JD on that day. That cross-examination was limited to those matters raised by the evidence given by Ms A. and Ms C. At the conclusion of the hearing orders were made in respect to the Department and JD filing and serving further written submissions during January 2006 on the issue of purpose.

5 After these submissions were filed, on the application of JD, the Tribunal granted JD leave to re-open his application. That application was granted as it became apparent that Mr Thomson had in fact prepared two reports of his investigation, one being 16 pages long (‘the 16 page report’) and the other being 19 pages long (‘the 19 page report’). The 16 page report was the report that had been tendered into evidence by the Department at the initial hearing in April 2004 and it was on the basis of this report that the earlier decision was made and the decision of the Appeal Panel was made. It was not until earlier this year that it came to light that there was another report and it transpired that the content of that report was exactly the same as the 16 page report, with additional personal information about JD that Mr Thomson said he had obtained from by witness A. (he gave evidence at the initial hearing in April 2004), Ms. A and Ms. C. That additional information was about complaints that had been received from patients about JD’s conduct towards them. This additional information consisted of numerous allegations of JD having made highly inappropriate/offensive comments of an overtly sexual nature to his patients. The information had been recorded in Mr Thomson’s diary, a copy of which was before the Tribunal at the initial hearing. It is unnecessary, for the purposes of this decision, to repeat the actual contents of the alleged inappropriate/offensive comments.

6 Leave was granted to JD to re-open his application in respect to the additional report of Mr Thomson as there was a question about the circumstances in which that report and the 16 page report had been created, whether both or only one report had been forwarded to the Medical Board and the extent of the personal information about JD that had been used by the officers of the PSB. These questions were directly relevant to the conduct the subject of JD’s application. It was this issue that was heard on 9 June 2006.

7 This is the Tribunal’s decision on a re-determination of the issues in respect to alleged breaches of s.16 of the PPIP Act by the Department following the additional hearings on 23 November 2005 and 9 June 2006.

Background

8 It is unnecessary to repeat all the evidence that was put before the Tribunal on 28 April 2004 when the application was initially heard. That evidence is fully set out in the earlier decision at [18] to [37]. That evidence is also conveniently summarised in [5] to [13] of the decision of the Appeal Panel. However, in order to place the evidence that was given on 23 November 2005 and 9 June 2006 into its proper context it is necessary to repeat some of the events over which there is no dispute. These are as follows:

(a) on 4 November 2002, Mr Tadros, of the Medical Board wrote to Mr J. Lumby, Director of the PSB, requesting the PSB to conduct an urgent investigation into the prescribing practices of JD in order to ascertain whether he had been self-administering narcotics. In his letter Mr Tadros also made reference to the Board having recently received two complaints about JD and his behaviour: content of letter is set out at [5] of the decision of the Appeal Panel;

(b) unauthorised administration of a narcotic is a contravention of the Poisons & Therapeutic Goods Act 1996 and the Poisons & Therapeutic Goods Regulation 2002 (‘PTG legislation’) and the PSB is the public sector agency who has the responsibility to investigate and prosecute for such contraventions;

(c) Mr Battye, Principal Pharmaceutical Adviser and Manager of Inspections and Investigations of the PSB allocated responsibility for the Medical Board’s urgent request to Mr Thomson. Mr Thomson then commenced his investigation on 6 November 2002, by collecting what information was already held by the PSB concerning JD’s prescribing practices;

(d) between 11 and 18 November 2002, Mr Thomson conducted further investigations by ‘interviewing’ witness A, a former employer of JD, and the practice managers of the medical centre where JD had worked. These included Ms A., the former practice manager of the medical centre MA, and Ms C., the practice manager of medical centre in MB.

(e) at the conclusion of each interview, Mr Thomson recorded in his diary, in handwriting, his recollection of the conversation he had with the person he had ‘interviewed’;

(f) on 27 November 2002, Mr Thomson prepared a written report of his investigations which he provided to his supervisor for approval;

(g) Mr Thomson’s written report was forwarded to the Medical Board on or about 3 December 2003; and

(h) on 19 December 2002, the Medical Board suspended JD from practice following a hearing that day under s.66 of the Medical Practice Act 1992. The material before the Medical Board included a report of Mr Thomson dated 27 November 2002.

Additional Evidence

Evidence of Ms A.

9 In para [8] of the 16 page report attached to the affidavit of Mr Thomson, sworn on 26 March 2004, Mr Thomson described what he had been told by Ms A., on 11 November 2002, as follows:

She had worked with [JD] while he was employed by the practice;

She found the man to be eccentric, possibly hyperactive and prone to mood swings, however she felt his ability as a medical practitioner bordered on genius;

She had observed samples of “uppers and downers” in the drawers in [JD’s] consulting room. She believed that they had been samples supplied by the various manufacturers;

She had no evidence to suggest that [JD] had ever taken the medication or supplied it to patients;

She had witnessed [JD] remove pethidine from the drug safe for administration to patients and had witnessed any discard of unused pethidine.

10 As part of his investigation, Mr Thomson had also requested Ms A to provide him with photocopies of particular pages from the drug register of the practice for pethidine 100mg/2ml together with photocopies of JD’s prescribing record for particular patients. Details of these requests were set out in para [9] to [11] and para [16] and [17] of his report. At para [10] of his report Mr Thomson made the following observation in respect to the copy of the drug register Ms A had provided him with:
‘I noted under pethidine 100mg on 12/6/02 an entry that said “stock taken by [JD]”. I asked [Ms A.] what the entry meant and she told me that [JD] had requested the return of his doctor’s bag with stock including the pethidine, but he had never returned to collect it, so she had re-entered it into the register on 25/06/02.’
11 On 23 November 2005, Ms A. gave evidence by telephone as she was too unwell to attend in person.

12 In her evidence, Ms A said she recalled being spoken to by Mr Thomson about JD but she did not recollect exactly what was said as it was so long ago. She said that she did not believe that she had been ‘interviewed’ by Mr Thomson.

13 When those matters contained in Mr Thomson’s report as set out in para [9] above were put to Ms A she said that she did not specifically recollect saying these things. In some cases she went on to say that she would not have said what was contained in Mr Thomson’s report. For example, she said she did not recollect telling Mr Thomson that JD was ‘eccentric’ and while she remembered telling Mr Thomson that she had found samples of medication in JD’s desk drawer, she would not have referred to them as “uppers and downers”. She explained that she did not understand what was meant by these words.

14 During cross-examination, Ms A acknowledged that it was usual for doctors in the practice to have drug samples in their desk drawers. She also acknowledged that at the time JD worked at the practice he had shared his desk with another doctor and that after JD had ceased working at the practice another doctor had used the desk.

15 JD also questioned Ms A about the alleged additional information she had provided to Mr Thomson on 11 November 2002. As mentioned above, this information concerned numerous incidents inappropriate/offensive behaviour by JD towards his patients and which were recorded in Mr Thomson’s diary but not included in the 16 page report. However, on objection by Ms Thomas, on behalf of the Department, the Tribunal limited JD’s questioning of Ms A in regard to this additional information. That objection was upheld as the Department’s position was that this information was not used or relied on by Mr Thomson in preparing his report, as it had not been included in his 16 page report. This as it has transpired is not entirely correct.

Evidence of Ms C.

16 At para [15] of Mr Thomson’s 16 page report attached to his affidavit sworn on 26 March 2004, he described the information provided to him by Ms C. in the following terms:

[JD] spoke very quickly and appeared “agitated” and that he had done so since she had known him;

She had denied [JD] access to the drugs store because she was concerned that [JD] had many “drug addict friends” and that samples had gone missing.

17 In her oral evidence on 23 November 2005, Ms C acknowledged that she would have made comments along the lines recorded by Mr Thomson in his report. In particular, she recollected making a comment about JD having drug addict friends and the drug cupboard. In respect to access to the drug cupboard, she said that this applied to all the doctors at the practice not just JD.

18 Ms C. said she had informed Mr Thomson of the falling out between herself and JD when he was working at the practise. She also recollected informing Mr Thomson about complaints that she had received from female patients about JD’s behaviour, in particular information of alleged inappropriate/offensive comments of an overtly sexual nature by JD. This additional information she explained was given to Mr Thomson in response to specific questions he had asked her about JD and his patients. In this regard, when JD put to Ms C one or two of the additional matters contained in Mr Thomson’s diary, she acknowledged that she had provided information of this nature to Mr Thomson. However, as with Ms. A, Ms Thomas again objected to this line of questioning and the Tribunal allowed the objection for the reasons set out in [15] above.

19 In her oral evidence, Ms C. also acknowledged that after Mr Thomson had completed his investigation, she had prepared a statement for Mr Thomson as she was concerned that some of the comments he had attributed to her in his report were incorrect and incomplete. She said she forwarded that statement to Mr Thomson and did not retain a copy. Mr Thomson, in his evidence, again denied any knowledge of receiving such a statement.

Additional Evidence in respect to Mr Thomson’s report

20 At the hearing on 9 June 2006, the respondent relied on the following affidavits which had been filed and served shortly before that hearing:

(a) affidavit of Kenneth George Thomson, sworn 18 May 2006;

(b) two affidavits of Ameer Tadros, solicitor employed by the New South Wales Medical Board, sworn on 27 April 2006 and 18 May 2006;

(c) affidavit of John Lumby, director of the PSB, sworn on 19 May 2006;

(d) affidavit of Bruce Lindsay Battye, Principal Pharmaceutical Adviser and Manager of Inspections and Investigations of the PSB, sworn on 19 May 2006;

Each of the abovementioned persons also gave oral evidence on 9 June 2006.
21 In an affidavit sworn on 18 May 2006, Mr Thomson explained that on or about 27 November 2002 having completed his investigation he prepared the 19 page report, signed it and provided it to Mr Battye, his immediate supervisor, for him to review. He said that this was in accordance with the usual practises of the PSB. A review of investigation reports is also generally made by Mr Lumby who, the Tribunal understands, has the final say. Mr Thomson went on to say that it was also the usual practice of the PSB that Mr Battye or Mr Lumby, on reviewing an investigation report that they request the investigator to make amendments to it. That procedure was followed in this case, when either Mr Battye or Mr Lumby requested Mr Thomson to make amendments to his 19 page report. Those amendments Mr Thomson described in para [29] of his affidavit as follows:
“29. I was told to remove the allegations that the applicant had made inappropriate sexual remarks to his patients and colleagues because PSB does not have the authority to investigate that type of matter. I am aware that the Health Care Complaints Commission does have that power to investigate that type of matter.”
22 Mr Thomson said that as requested he deleted, from his 19 page report, all reference to the information witness A, Ms A and Ms C had given him of alleged inappropriate sexual remarks by JD to his patients and it was through these deletions that his report of 16 pages came to be created. It was this report, as explained above, that was attached to his previous affidavit sworn on 27 November 2002.

23 Mr Thomson said that he retained the 19 page report with the file and on 20 January 2003, this 19 page report was forwarded to the Health Care Complaints Commission. In his evidence Mr Thomson described the 19 page report as a draft report even though it was signed by him and it was not marked ‘draft’. He said he had amended his report very quickly and in doing so he had not reconsidered his recommendations in light of the deletions he made. These, he acknowledged, remained the same. That is, he agreed that the conclusions and recommendations he had made in his 16 page report were based on all the information that he had obtained and it was not limited to the information contained in his subsequent 16 page report. Those conclusions and recommendations were in the following terms:

‘Conclusion:

In spite of a thorough search, no evidence was uncovered to suggest that JD was having any prescriptions dispensed in his name. The fact that he failed to collect the 5 x pethidine 100mg that allegedly belonged to him when he left Medical Centre MA would appear to confirm that JD was not self-administering drugs of addiction.

However, there appears to be sufficient to suggest that JD supplied drugs of addiction to a number of patients he knew, or ought to have known, were on the Methadone Program.

There also appears to be sufficient evidence to suggest that JD failed to make records of:

Every consultation for patients in his care.

The medication he prescribed for patients in his care.

The dose, strength, quantity and the number of repeats he ordered on prescriptions he issued to patients in his care.

Adequate clinical notes to support his prescribing for patients in his care.

Recommendation:

That a copy of my report be forwarded to the New South Wales Medical Board forthwith for the Board’s information.’

24 However in his 19 page report Mr Thomson had included the following paragraphs at the beginning of his ‘Conclusion’:

‘Conclusion :

The evidence provided by [Ms C], [Witness A] and [Ms A] during their interviews could only be regarded as hearsay and it is not within the charter of this Department to investigate their claims any further. However, it would seem that the seriousness of the allegations made by these people deserves the benefit of further investigation by officers of the Health Care Complaints Commission.

Fortunately these health professionals can recall the names of some of the patients who complained of [JD’s] allegedly inappropriate remarks.

It would also seem that the views expressed by [Ms C], [Witness A], [Ms X] and [Ms A] in relation to [JD’s] behaviour suggest that the behaviour complained of by [JD’s] patients was in fact relatively “normal” for this man.’

25 In his evidence, Mr Lumby said that when he received the 19 page report of Mr Thomson he recollected saying words to the effect ‘we cannot send this to the Medical Board but we have to consider whether we send the report to the Health Care Complaints Commission’. He said he expressed this view because there were a number of allegations which he believed could not be ignored. Mr Lumby said that he did not characterise the 19 page report as a draft and he acknowledged that the 19 page report was sent to the Health Care Complaints Commission. In cross-examination Mr Lumby also agreed that the information given by Witness A, Ms A. and Ms C. in respect to alleged inappropriate/offensive remarks of an overtly sexual nature by JD to his patients were not matters which came within the responsibilities of the PSB under the PTG legislation. However, he went on to say that as it was information provided to Mr Thomson in the course of his investigation and the allegations were of a serious nature, in accordance with the usual practise of the PSB, he decided it should be forwarded to the relevant agency, the Health Care Complaints Commission, for its investigation. In this regard, Mr Lumby said the following in his affidavit:
‘17. I directed the 19 page report be retained as I intended to send it to the Health Care Complaints Commission for its information and investigation if they saw fit to investigate the matter.

18. Prior to PSB organising to send the 19 page report to the Health Care Complaints Commission an officer from the Health Care Complaints Commission wrote to PSB requiring PSB to furnish the Health Care Complaints Commission with all investigation reports and material PSB had in relation to [JD].’

26 In cross-examination, Mr Lumby said that at no time did he ask Mr Thomson to seek verification of these allegations or to advise those who had provided the information to furnish it directly to the Health Care Complaints Commission.

27 Mr Battye, in his evidence said that where investigators obtained information not relevant to the enforcement of the provisions of the PTG legislation, but which raised matters of serious concern, the practice of the PSB was to pass that information on to the relevant agency. He said this was done as, in his opinion, complainants saw the PSB as being the conduit for such information. In his affidavit, Mr Battye who supervises all investigations undertaken by the PSB said the following:

‘16. I do not and have never directed an inspector employed by PSB to investigate complaints that relate to breaches of legislation other than poisons and therapeutic goods legislation.

17. At no time has an inspector employed by PSB under my supervision ever conducted an investigation under the Medical Practice Act 1992.

18. No inspector employed by PSB is authorised to conduct investigations under the Medical Practice Act 1992 or regulations made under that Act.

19. In my 12 years of experience as Principal Pharmaceutical Adviser and Manager of Inspections and Investigations I can say that PSB has not received any complaints or reports referred from the NSW Medical Board concerning anything other than alleged inappropriate storage, supply, prescribing, recording or self-administration or prescription medicines.

…

24. Although investigations and inspections conducted by PSB inspectors may be conducted following the receipt of a specific complaint, investigations from time to time may also be initiated or widened in scope to address particular compliance issues that come to attention during the course of an investigation.

25. In relation to the widening of the scope of a PSB investigation that I refer to above, in my extensive experience of the management of investigations and inspections conducted by PSB, no investigation or inspection has ever been widened to address issues or potential breaches of legislation outside the domain of the poisons and therapeutic goods legislation.

26. If, in the course of an investigation or inspection undertaken by one of the inspectors, information is uncovered that indicates that legislation other than the poisons and therapeutic goods legislation has been breached, meaning legislation under the portfolio of another government agency may have been breached, that information may be noted and recorded by the Pharmaceutical Adviser. Later, when the investigation is complete, consideration is given to whether that information is referred on to the relevant government agency for their consideration.

27. When an inspector completes their investigation they compile a report containing the issues raised by the complaint, the processes of the investigation, the information obtained during the investigation and the conclusions reached, together with their recommendations for further action or no further action, depending on the circumstances.

28. I review all the said reports compiled by inspectors.

29. I also give consideration to whether their recommendations and findings are appropriate.

…

43. I can say that as a general matter, where serious allegations are raised about a health practitioner during an investigation that involves potential breaches of legislation outside the direct jurisdiction of the PSB, those allegations are brought to the attention of the appropriate investigating body, such as, for instance, the NSW Police Service or the Health Care Complaints Commission.

44. On those occasions where complaints are made or allegations are raised against a medical practitioner outside the direct jurisdiction of the PSB, the full internal (PSB) report will be amended by the inspector, so that if there was a need to send a report to the NSW Medical Board, only an amended report would be sent to the Board, with the full report sent to the Health Care Complaints Commission.’

28 Mr Battye, who signed the 19 page report of Mr Thomson on 2 December 2002 also made a notation on the report stating ‘Agreed’. However, in his affidavit he states that he could not recollect the circumstances in which that report was amended. He only recollected it being amended.

29 In his affidavit, sworn on 27 April 2006, Mr Tadros gave evidence of the Medical Board having received the 16 page report of Mr Thomson on 9 December 2002. He went on to say that attached to the report was further material including copies of patient files and computer generated prescribing profiles concerning a number of patients. He said that on 12 December 2002 the Medical Board wrote to JD advising him that the Medical Board would conduct an enquiry under s.66 of the Medical Practice Act 1992, on 19 December 2002 in regard to his practise as a medical practitioner. A copy of that letter was annexed to the affidavit of Mr Tadros and it is noted that the letter listed numerous documents that were enclosed with the letter. This list included a report of Mr Thomson, dated 27 November 2002, and the drug register pages and prescribing records that had been obtained by Mr Thomson. Also attached to the affidavit of Mr Tadros was a copy of a Statutory Declaration that attested to the service, on JD, of the letter from the Medical Board, together with the enclosed documents, on 16 December 2002.

30 Mr Tadros went on to say that on 19 December 2002 he attended the enquiry by the Medical Board and that the 16 page report of Mr Thomson was part of the documentation considered by the Medical Board at the hearing. He went on to say ‘no other investigation report or version of the investigation report under the hand of PSB was tendered, taken into consideration or available for consideration at the enquiry.’

31 Mr Tadros then said that on 4 April 2006, the Medical Board was provided with copies of pages of typed notes marked 1, 3, 4, 5 and 16 by Ms Karen Thomas, the solicitor acting for the Department in this application. Copies of those pages were annexed to his affidavit. These pages are from the 19 page report and include the information of the alleged inappropriate/offensive sexual remarks by JD to patients and deleted by Mr Thomson from that report to make his 16 page report. It is noted that these particular pages have handwriting on them which appear to be that of JD. Mr Tadros said that prior to receiving a copy of these pages he and the Medical Board had not seen them previously.

Issues for Determination

32 The personal information that is the subject of this application is the information that Mr Thomson recorded in his diary, the 16 page report and the 19 page report as being information he was told by witness A, Ms A and Ms C. And it is the alleged failure by the Department to check the accuracy of that information before it used it as required by s.16 of the PPIP Act. In particular, as mentioned in the introduction, the following issues have been remitted by the Appeal Panel for redetermination:

(a) what was the purpose for which the PSB officers proposed to use the personal information about JD that it had collected and held? and

(b) whether it was reasonable in the circumstances, having regard to the purpose for which the personal information about JD was to be used for Mr Thomson, or Mr Lumby to take no steps to ensure that the information complained of by JD was relevant, accurate, up to date, complete and not misleading.

33 In his written submissions, JD raised the lawfulness of Mr Thomson’s collection of the personal information about him. That is, he contended that Mr Thomson was at all times acting for the Medical Board and the Health Care Complaints Commission, when he was only authorised to collect information so far as it pertained to breaches under the PTG legislation. He raised these not in the context of a breach of s.8 of the PPIP Act but in the context of purpose for which the information was proposed to be used. Accordingly, I have dealt with them in that context.

34 My findings in respect to the evidence of Ms. A and Ms. C are dealt with in the context of the reasonableness of steps taken to check accuracy of the information about JD.

35 There are two additional issues that need to be determined in light of the evidence of Mr Thomson having prepared two reports. The first issue is the ‘conduct’ of the Department, through its officers, that is relevant to this application. In particular, does the relevant conduct include:

(a) the provision of the 19 page report of Mr Thomson to the Medical Board?; and/or

(b) conduct, if any, associated with the PSB furnishing information obtained by Mr Thomson to the Health Care Complaints Commission?.

36 The second issue is the extent of the ‘use’ or ‘proposed use’ of personal information about JD by Mr Thomson, Mr Battye and Mr Lumby of the PSB.

Consideration

Relevant conduct of the Department

37 I accept the evidence of Mr Thomson, Mr Battye, Mr Lumby and Mr Tadros that the only report forwarded by the Department to the Medical Board, in December 2002, was Mr Thomson’s 16 page report. As mentioned above, Ms Thomas, the solicitor acting for the Department in this application, has now more recently provided the Medical Board with a copy of the personal information concerning JD that was contained in the 19 page report but excluded from the 16 page report. This I find to have been an extraordinary step for Ms Thomas to have taken. To furnish another agency with personal information about a third party for the purpose of ascertaining whether that agency had previously received that information suggests a complete lack of understanding of the requirements of the PPIP Act. However, the conduct of Ms Thomas is not relevant to the conduct for which JD sought review. His application was limited to conduct that occurred in 2002.

38 That Mr Thomson prepared two reports is not disputed and in my opinion, the circumstances surrounding the preparation of these two reports was conduct relevant to this application and JD’s internal review application. From his initial internal review application it was apparent that JD was concerned about conduct of the PSB in collecting personal information about him and the use it made of that information: see [39] and [40] of JD v Director General Department of Health [2004] NSWADT 7. The fact that Mr Thomson had prepared an initial 19 page report of his investigation and that the report was considered by Mr Battye and Mr Lumby, in my opinion, is conduct that was relevant to JD’s application. From the material before the Tribunal I do not accept that it was a ‘draft’ report and even if it was the preparation of such a draft was relevant conduct. The fact that the 19 page report was not furnished to the Medical Board was irrelevant. The conduct of Mr Thomas and Mr Lumby in respect to the creation and consideration of the 16 page report was not done in isolation, it was as a result of conduct relating to the 19 page report. Nor can it be said that the two reports are independent of each other as the latter is merely an edited version of the former. Accordingly, I find that the conduct relating to the creation and consideration of the 19 page report was conduct that should have been put before the Tribunal.

39 It is regrettable that the conduct concerning the preparation and consideration of the 19 page report only came to light following JD’s persistence that Mr Thomson or someone else at the PSB had provided the Medical Board with all the information recorded by Mr Thomson during his investigation, including the information about alleged inappropriate/offensive comments by JD to his patients. As mentioned above, the Tribunal finds that JD’s allegation in so far as it related to the Medical Board having been provided with the information of the alleged inappropriate/offensive comments was misconceived, however, in the absence of full disclosure by the Department of all relevant conduct, his misconception is understandable.

40 While the conduct in the preparation and consideration of the 19 page report are relevant to this application, the Department’s conduct in disclosing this report to the Health Care Complaints Commission is not relevant as it was not conduct for which JD sought review. In so far as disclosure of his personal information was concerned, JD only sought review of conduct relevant to the disclosure of Mr Thomson’s report to the Medical Board.

41 Although the Department’s failure in disclosing all the conduct relevant to this application has resulted in the application being unnecessarily protracted, the Tribunal accepts the evidence of Mr Thomson and Mr Lumby that they at all times believed that evidence surrounding the creation and consideration of the 19 page report was not relevant to these proceedings as it had not been provided to the Medical Board. This mistaken belief may have arisen as the internal review request of JD and his subsequent submissions only expressed concern about the PSB failing to check the accuracy of the information it had used and given to the Medical Board: see JD v Director General Department of Health [2004] NSWADT 7 at [26] to [28]. However, JD’s request and submissions were based on what he understood the relevant conduct to be in regard to the PSB’s ‘use’ or ‘proposed use’ of the personal information it had collected about him. It was the Department and not JD who had the knowledge of the entire conduct relevant to this issue and to limit the conduct to what was known by JD would in my opinion circumscribe the objectives of the PPIP Act. In these circumstances it is incumbent on the agency to consider all the conduct relevant to the internal review request.

‘Use’ and ‘proposed use’

42 As discussed in the earlier decision and as set out in the decision of the Appeal Panel, there are two information protection principles in the PPIP Act relating to ‘use’ of personal information held by an agency. These are ss16 & 17. Section 17 prescribes the circumstances in which a public sector agency is able to ‘use’ personal information that it holds and s.16 prescribes what must be done before such information is used. Accordingly, the requirements of s.16 are predicated on the information actually being used. For completeness I repeat the requirements of s.16:

‘16. Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

43 In regard to the meaning of the word ‘use’ in the context of the PPIP Act and its application in the earlier decision, at [41] to [43] of the decision of the Appeal Panel the following comments were made:
41 In the Act ‘use’ is differentiated from other activities such as ‘collection’, ‘access’ and ‘disclosure’. Importantly the standards which apply to the ‘use’ of information are separated from the standards that apply to the ‘disclosure’ of the information.

42 We agree with the Tribunal that ‘use’ normally bears the connotation of employing information for a purpose. Mere access or retrieval would normally not be enough: see further, R v Brown [1996] 1 AC 543 (dealing with the term ‘use’ as found in the UK data protection statute). In our view, if an agency merely retrieves information in its possession and discloses that to an external person or body, there is no ‘use’ involved. The action is governed by the standards relating to the ‘disclosure’ of information. Similarly, there may be situations in which the agency ‘uses’ information and then ‘discloses’ the information. In such a situation, we agree with the Tribunal (at [62]) that both s 16 and s 18 (limitations on disclosure and any related exemptions) would apply.

43 We agree with the Tribunal that the first ‘use’ by the Department of the various pieces of information occurred when Mr Thomson brought all his records together and commenced to compile his report. He made findings of great significance in relation to their possible impact on JD. This was the critical ‘use’ of the information in the circumstances. Mr Lumby, in effect, simply adopted the work done by Mr Thomson. There was a ‘use’ of the information again when it fell to be considered by Mr Lumby. We would not go so far as the Tribunal did, and describe this use as merely ‘technical’.’

44 The Appeal Panel then went on to say the following as to how the term ‘use’ is to be interpreted in s.16 of the PPIP Act:
‘44 We agree with the submissions of the Privacy Commissioner (submissions to Tribunal filed 22 April 2004) that the mischief that s 16 is intended to address involves an agency taking action on the basis of information it holds about an individual and in a way which is adverse to the interests of that individual without taking reasonable steps to ensure the information is accurate and not incomplete, irrelevant, out of date or misleading. The Privacy Commissioner submitted, and we agree, that it is only possible to give effect to s 16 if use is interpreted as the process of considering, assessing or weighing up personal information so as to make a decision or adopt a further course of action.’
45 Having regard to all the evidence that is now before the Tribunal I find that the first ‘use’ of the personal information about JD as collected by Mr Thomson in the course of his investigation was when Mr Thomson commenced preparation of his 19 page report. I also find that this use included the use of the information of the alleged inappropriate/offensive comments of an overt sexual nature by JD to his patients. This information was not merely noted in by Mr Thomson in his report, he actually made findings in regard to that information (see para [23] and [24] above).

46 I also find that there was a further ‘use’ of that information by Mr Battye and Mr Lumby, when they considered Mr Thomson’s 19 page report. Mr Battye used this information when he agreed to the contents of the report and Mr Lumby used the information in instructing Mr Thomson to:

(a) retain the 19 page report; and

(b) to delete information of alleged inappropriate/offensive comments by JD to his patients from that report to create a new report.

47 Whether the preparation and consideration of the 16 page report is a distinct use in the circumstances is more difficult. The evidence of Mr Thomson is such that he did not re-consider the information he had obtained or the conclusions he had reached. What he did was fairly mechanical in that he deleted material which related to the information of alleged inappropriate/offensive comments by JD that were in his original report. That is there was no fresh assessment or weighing up the personal information he had obtained and he did not make a decision or adopt a further course of action in creating the amended report.

48 In my opinion it is unnecessary to make a conclusive finding in this regard as even if I were to find that this was a separate use the circumstances were such that this use was based on all the information he had obtained including the allegations of inappropriate/offensive comments by JD. I make the same findings in respect to Mr Lumby’s consideration of the 16 page report.

49 Accordingly, my earlier findings (see [63] of the earlier decision) need to be revised in that the use of personal information about JD by Mr Thomson, Mr Battye and Mr Lumby included the personal information obtained by Mr Thomson of alleged inappropriate/offensive comments of an overtly sexual nature by JD to his patients.

Purpose for which the information was proposed to be used

50 At [45] of its decision, the Appeal Panel pointed out that the concept of ‘purpose’ is ‘an overarching consideration in the scheme of [the PPIP Act] …’. In this regard the Appeal Panel went on to state that ‘“purpose limitation” and “purpose specification” are key concepts’ in the PPIP Act legislative scheme and went on to specifically refer to the importance of ss.8 and 10 in that scheme. Section 8 provides that a public sector agency must not collect personal information unless it is for a lawful purpose that is directly related to the agency’s functions or activities and the collection of that information is reasonably necessary for that purpose and section 10 requiring ‘an individual affected by a collection of personal information be made aware, to the extent practicable, of “the purpose for which the information was collected.”’: see at [46].

51 In respect to s.16 of the PPIP Act, the Appeal Panel said that the requirement of this section focused on the ‘purpose’ for which the information was proposed to be used and held that in determining what those purposes might be, s.17 was relevant: see at [47]. After referring to the requirements of s.17 and the exceptions thereto as set out in that section and ss.23(4) and 24, the Appeal Panel stated the following at [51]:

51 Read together, s 16 must refer to the same principal purpose that s 17 refers to (i.e. the purpose of collection), and covers any other purpose permitted by the exceptions to s 17 (or granted elsewhere in the scheme of the Act, which could include directions approved by the Privacy Commissioner).
52 As I understand the decision of the Appeal Panel, when considering the ‘purpose’ for which personal information was proposed to be used, regard must be had to the purpose for which the information was collected and whether it was a lawful purpose as this will also prescribe the ‘proposed use’ of personal information held by a public sector agency. That proposed use also being subject to the exceptions set out in ss.17, 23(4) and 24 of the PPIP Act.

53 After considering the evidence of Mr Lumby and Mr Thomson as to the role of PSB in regard to its functions of investigating breaches of the PTG legislation, the Appeal Panel at [58] agreed that the PSB had wide investigatory or auditing powers to ascertain compliance with the provisions of this legislation. At [60] it went on to say that an agency with such wide powers was not confined in an investigation triggered by a request to the terms of that request.

54 And at [66], the Appeal Panel said the following:

‘66 Normally s.16 would apply to situations where the “purpose for which the information is proposed to be used” relates to a matter where the agency is intending to take administrative action of its own in relation to the information. However, there may be cases where it is evident that the agency shares responsibility for certain functions with another agency. It may be that the “purpose for which the information is proposed to be used” is a type of “purpose” which the agency is itself not capable of fully executing. In the present case the evidence is that the PSB, quite understandably, undertakes functions and activities which relate to the maintenance of professional standards. In this instance the PSB was, effectively, the investigation arm of the Medical Board when it came to allegations relating to misuse of poisons and drugs of addiction. The purposes for which it uses information can include, as we see it, the purpose of providing investigative assistance to the Medical Board. In terms of s.17 this would constitute a purpose directly related to the purpose of collection .’ (my emphasis)
55 In determining the purpose for which the personal information was proposed to be used, paragraph 21 of Mr Thomson’s 19 page report is also relevant. That paragraph does not appear in the 16 page report and states the following:
‘I told [Ms.C] that she could probably expect a visit from an officer from the Health Care Complaints Commission in relation to [JD] and that it would be beneficial if she could remember the names of some of the patients who had complained about [JD] as all she had told me could only be regarded as hearsay evidence.’
56 Applying the abovementioned principles set out by the Appeal Panel to the evidence in this application I find that there were several purposes for which Mr Thomson, Mr Battye and Mr Lumby proposed to use the personal information that Mr Thomson had obtained about JD. These were as follows:
(a) to determine whether JD’s prescribing practises of narcotics contravened the PTG legislation, in particular self-administration, and what action should be taken by the PSB if he had contravened that legislation; and

(b) to provide investigatory assistance to the Medical Board; and

(c) to provide the Health Care Complaints Commission with assistance in furnishing it with information, for further investigation as it saw fit, about alleged incidents of serious inappropriate/offensive conduct of a sexual nature by JD towards his patients and other alleged inappropriate conduct by JD in regard to his practices as a medical practitioner.

57 I am not persuaded by the Department’s submissions that there was only one purpose, namely to determine whether JD had contravened the PTG legislation. The 19 page report of Mr Thomson and the evidence generally does not support such a conclusion. Had this been the case, Mr Thomson would have restricted his consideration of the information he had obtained to that information which was relevant to such contraventions. In his evidence Mr Thomson also said that while the information he had obtained disclosed some breaches of the PTG legislation, in his opinion, these were minor in comparison to more serious matters arising from the information he had obtained and which came within the responsibility of the Medical Board. As can be seen from the additional paragraphs in his 19 page report, Mr Thomson had formed the same view in respect to the information of alleged inappropriate/offensive comments by JD, which came within the responsibility of the Health Care Complaints Commission. In my opinion, the evidence and the procedures adopted by the PSB in conducting this investigation and investigations generally supports the conclusion that there was not a single purpose in the proposed use of the information as submitted by the Department.

58 In respect to the contentions of JD that Mr Thomson at all times acted for the Medical Board and the Health Care Complaints Commission, I find that there is no evidence to support that contention. The evidence is that Mr Thomson conducted his investigation in accordance with the usual practices of the PSB in that he sought information about JD’s prescribing practices. In the course of such an investigation it is reasonable that questions are asked about a practitioner’s behaviour as this may be indicative of conduct that contravenes the PTG legislation. It is also understandable that there will be occasions where a PSB investigating officer receives personal information which indicates possible criminal contraventions or unprofessional conduct or professional misconduct for which the PSB has no responsibility but which fall within the responsibility of another public sector agency. And if they do receive such information this does not mean that the recipient agency is prevented from disclosing that information to the agency responsible for such matters, so long as that disclosure is in accordance with the law, including the provisions of the PPIP Act: see s.18 PPIP Act.

59 I also note that under the provisions of the Health Care Complaints Act 1993, the PSB is given power to lodge a complaint about the conduct of a health professional, including a medical practitioner, with the Health Care Complaints Commission: see s.8. Complaints can also be lodged by individuals through an agent, but that is not what has happened in this application.

60 It should be noted that I have made no determination in respect to the use of the information of which JD complains in light of the information protection principle set out in s.17 of the PPIP Act. This was not a matter which was remitted to the Tribunal for re-determination nor was it a matter raised by the parties.

Reasonableness of steps taken

61 At [62] the Appeal Panel held that once the purpose or purposes for which the information is ‘proposed to be used’ has been determined, the question of accuracy as required by s.16 of the PPIP Act ‘is to be judged having regard to’ this finding. The Appeal Panel went on to state at [69] and [70] the following in regard to the ‘reasonableness of steps taken’ by an agency to check the accuracy etc. of the information:

‘69 As we have indicated a primary consideration in examining this question is what is the purpose(s) for which the information is proposed to be used. What is reasonable in the circumstances will vary with the significance of the purpose to which the information is to be put, and may be affected by the urgency of the situation. It may be that no additional steps are necessary, as the Tribunal concluded in this case.

70 Having regards always to ‘the purpose for which the information is proposed to be used’ the critical question is what steps were ‘reasonable’ in the circumstances. The circumstances will include, we think:

(a) the gravity of the information, taking account of the context;

(b) impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s.16;

(c) how recently the information was collected;

(d) the experience and competence of the author of the information;

(e) the significance of the information in the context;

(f) the extent to which it was possible to check back the information with the providers of the information, or the subject;

(g) whether check back is unnecessary, because for example, of the known reliability of the source system;

(h) whether check back is impractical because of operational issues, such as time constraints or needs to do with maintaining the confidentiality of the process;

(i) whether particular recording methods might have been used that militate against error (such as a tape recording in an interview setting); and

(j) whether there are other steps that may be taken before any final action is taken in relation to the information, and whether they are likely to occur soon.

62 There is no dispute that prior to Mr Thomson, Mr Battye or Mr Lumby ‘using’ the personal information about JD neither took any steps to ensure that the information was relevant, accurate, up to date, complete and not misleading.

63 The personal information about JD that is the subject of his concerns in this application is the information that Mr Thomson recorded as having been provided to him by witness A, Ms. A and Ms. C. Mr Thomson, Mr Battye and Mr Lumby had notionally divided this information into two categories; the first category relating to the information about drugs held by the two practices where JD worked and JD’s access and supply of these to his patients and the second category relating to the alleged complaints by patients of JD’s inappropriate/offensive comments of an overt sexual nature.

64 It is JD’s contention that the information of which he complains were either not said or were said, not because they were true but as a result of animosity towards him. He also alleged that the information was incomplete. At all times he has strongly denied that there was any truth in what had been said. He pointed out that the information, if accepted as being accurate raised serious concerns about who he associates with, his behaviour towards his patients and the manner he dispenses drugs of addiction. Such an acceptance he said had a significant impact on his career as a medical practitioner, his privacy and reputation interests, particularly as the information was proposed to be used to assist or inform those agencies responsible for taking disciplinary action.

65 It is the Department’s contention that the evidence establishes that Mr Thomson correctly recorded what he had been told by witness A, Ms A and Ms C. It also contends that in light of the circumstances in which Mr Thomson had conducted the investigation, namely an urgent investigation, and the fact that he had formed the view that there was no evidence of JD self administering narcotics it was reasonable for Mr Thomson, Mr Battye and Mr Lumby to take no steps to check the accuracy etc. of the information in question.

66 However, as pointed out by the Appeal Panel in determining the reasonableness of steps the starting point is to determine, in the circumstances of this application and having regard to the purpose the information was to be used, whether the fact that no steps were taken to check the accuracy etc of the information was in fact reasonable. As mentioned above, I have found that there were three purposes for which the information was to be used. Ultimately, each of these purposes related directly or indirectly to possible disciplinary action of JD in respect to his alleged improper conduct as a medical practitioner by the Medical Board and the Health Care Complaints Commission.

67 In summary, the information of concern to JD coming falling within the first category of information; (a) witness A had to modify the amount of valium tablets held at the practice due to concerns that JD was supplying them inappropriately, (b) Ms A had seen ‘uppers and downers’ in the drawers of JD’s consulting room and (c) Ms C had denied JD access to the drug storage as she was concerned that JD had many drug friends only formed part of the information that was used or proposed to be used in respect to the determination to administer drugs. I find that this information as recorded by Mr Thomson was not entirely accurate or complete in that witness A did not say that he had to modify the amount of valium due to concerns about JD, Ms A made reference to ‘drugs’ and not uppers and downers and Ms C had denied access to the drug store to all doctors not just JD. If this was the only information of concern to JD I would have been inclined to confirm my earlier findings (see para [69] of the earlier decision) that in light of the urgency of the investigation and the fact that Mr Thomson quickly formed the view that there was no evidence of JD self-administering, these were circumstances in which it was reasonable for no steps to be taken to check the accuracy of this particular information. However, this finding was based on the assumption that the only information used or proposed to be used by Mr Thomson and Mr Lumby was that relating to JD’s supply of narcotics to his patients. The evidence has revealed this not to be correct.

68 Having regard to the circumstances I am also not persuaded that the evidence supports a categorisation of the information as put forward by the Department is correct. While in this case there were several purposes for which that information was proposed to be used these were all carried out at the same time and for this reason it is appropriate to consider all the information of which JD has complained together in determining whether the steps taken were reasonable in the circumstances. There is a further reason to consider the information together because the information, although different in detail, all relate to JD’s professional conduct as a medical practitioner.

69 In respect to the information of alleged inappropriate/offensive comments by JD Mr Thomson, Mr Battye and Mr Lumby acknowledged that this information was hearsay and therefore unsubstantiated. Yet they understood the serious nature of the allegations if true.

70 As mentioned above, JD was prevented from fully testing the accuracy of what Mr Thomson had recorded witness A, Ms A, and Ms C had told him. In cross-examination Ms C acknowledged that she had provided information to Mr Thomson along the lines he had recorded. However, this evidence only supports the correctness as to what she had said to Mr Thomson, it does not support the the correctness etc of the facts on which Ms C had based her opinion and the correctness etc of the content of what she had been told. In any event, for the purposes of complying with the requirements of s.16 it is unnecessary to find that the information was accurate etc. What is in issue in this application is whether it was reasonable in the circumstances to take no steps to check the accuracy etc. of the information that had been provided. However, the accuracy etc of the information will be relevant to any orders that are sought under s.55(2) of the PPIP Act.

71 Having regard to all the material before the Tribunal, I agree with JD that the information of which he complains, in the context of the purposes for which it was used or proposed to be used were significant and the impact on his privacy, reputation and career as a medical practitioner could cause substantial harm if the allegations were not accurate etc. For these reasons, I find that in the circumstances it was not reasonable for Mr Thomson, Mr Battye and Mr Lumby, to take no steps to check the accuracy etc. of the personal information of JD of which he complained before they used that information. While I accept the evidence of Mr Thomson that he conducted his investigation in a short time frame and that he determined fairly quickly that there was no evidence to support a finding of self administration of narcotics by JD, the difficulty in this application was the fact that Mr Thomson used all the information he had obtained for the purposes set out above. Mr Battye and Mr Lumby did the same. Had their purpose of the proposed use of information been limited to determining whether JD had contravened the PTG legislation and in making their determination only that information relevant to this question was considered, these may have been circumstances in which taking no steps to check accuracy of information was reasonable. This as mentioned above does not mean that the PPIP Act restricts the PSB investigators in their enquiries in performing their functions under the PTG legislation. However, the Tribunal suggests that the PSB examine its procedures as to the information it collects and then proposes to use to ensure that the requirements of the PPIP Act are observed.

Conclusions and Orders

72 For the reasons set out above I find that the Department has contravened s.16 of the PPIP Act in respect to the personal information about JD that is the subject of this application.

73 JD’s application is now ready to proceed on the next aspect of his application, namely the orders sought by JD under s.55(2) of the PPIP Act. To progress this aspect of the application it is appropriate to list the matter for further directions early next year.

74 The Tribunal orders:

1. The Department has contravened section 16 of the Privacy & Personal Information Protection Act 1998 that it used personal information it held about JD without taking such steps as were reasonable in the circumstances to ensure that, having regard to the purpose for which the information was proposed to be used, that the information was relevant, accurate, up to date, complete and not misleading.

2. The application is listed for further directions at 9.15 am on 1 February 2007.