JD v Director General, NSW Department of Health (No 2)

[2007] NSWADT 256

CITATION:	JD v Director General, NSW Department of Health (No 2) [2007] NSWADT 256 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT JD RESPONDENT Director General, NSW Department of Health
FILE NUMBER:	053301
HEARING DATES:	22 May 2007
SUBMISSIONS CLOSED:	22 May 2007
DATE OF DECISION:	22 October 2007
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:	Medical Practice Act 1992 Poisons and Therapeutic Goods Act 1996 Privacy and Personal Information Protection Act 1998 State Records Act 1998
CASES CITED:	G.R. v Department of Housing (No.2) [2005] NSWADT 301 JD v Director General, NSW Department of Health [2004] NSWADT 7 JD v Director General, NSW Department of Health [2006] NSWADT 353 JD v NSW Department of Health [2007] NSWADT 219 JD v NSW Medical Board (No.2) [2006] NSWADT 345 March v Stramare Pty Ltd (1991) 171 CLR 506 N.W. v NSW Fire Brigade (No.2) [2006] NSWADT 61 R.B. v Department of Education & Training [2005] NSWADT 195 Rummery & The Federal Privacy Commissioner & anor [2004] AATA 1221
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	1. Pursuant to s.55(2)(g) of the PPIP Act, on or before 7 December 2007, the respondent is to make a written apology to the applicant for the contravening conduct that is the subject of this application.; 2. Pursuant to s.55(2)(d) of the PPIP Act, on or before 7 December 2007, the respondent is to delete or correct the personal information about the applicant in accordance with paragraph [35] of this decision. ; 3. Pursuant to s.55(2)(g) of the PPIP Act, on or before 7 December 2007, the respondent to notify, in writing, the Medical Board and the Health Care Complaints Commission of the tribunal’s decision and the deletions and corrections made in accordance with order 2 above and request that they amend their records accordingly.

1 The applicant, JD, is a medical practitioner who has sought review of conduct by the Pharmaceutical Services Branch (‘PSB’) of the NSW Department of Health (‘the respondent’) which he asserted contravened an information protection principle that applied to the respondent by reason of the provisions of the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’). The information protection principle was that contained in s.16 of the PPIP Act (i.e. the failure of the respondent to check accuracy of personal information it held about the applicant before it used it). The conduct in question related to personal information about the applicant collected by Mr Thomson, a pharmaceutical adviser of the PSB, in the course of an investigation about the prescribing practices of the applicant. It was the ‘use’ of that information, which included the preparation of an investigation report, dated 27 November 2002, which gave rise to the contravention. The investigation and report was initiated at the request of the NSW Medical Board following complaints that had been received about the applicant’s behaviour in the course of his practice of medicine.

2 At the request of the parties, the tribunal first determined the issue as to whether the conduct the subject of the application amounted to a contravention by the respondent of the ‘use’ information protection principle set out in s.16 of the PPIP Act. This issue was initially determined on 8 October 2004: see JD v Director General, NSW Department of Health (No.2) [2004] NSWADT 227 (‘the original decision’). The applicant appealed this decision and on 2 December 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 appeal decision’). Following two further hearing dates, on 12 December 2006, the tribunal re-determined the matter and found that the conduct of Mr Thomson and that of his supervisors at the PSB constituted a contravention of s.16 of the PPIP Act: see JD v Director General, NSW Department of Health [2006] NSWADT 353 (the decision on re-determination).

3 As the tribunal has determined that a contravention was established, the matter was adjourned and directions were made in relation to the additional orders which the applicant had sought in his application for review. A further hearing was conducted on 22 May 2007 and at that hearing, the applicant confirmed that the orders he sought were as follows:

(a) an order for compensation for psychological harm along the lines ordered by Judicial Member Montgomery in JD v NSW Medical Board (No.2) [2006] NSWADT 345. The applicant described this form of compensation as being ‘single nominal damages’. In his original submissions JD had submitted that the conduct of the respondent in these proceedings warranted on exemplary or exaggerated damages, however at the hearing he did not press such damages. The conduct was the respondent’s failure to disclose to the tribunal that Mr Thomson had prepared two reports, one which was 19 pages long and an additional 16 page edited version of that report;

(b) an order that the respondent apologise to the applicant in regard to the contravening conduct;

(c) an order that the respondent rectify its record and those of the Medical Board and Health Care Complaints Commission (‘the HCCC’) in so far as those records have been found by the tribunal to be either not relevant, inaccurate, out of date, incomplete and misleading.

4 The tribunal’s power on reviewing conduct the subject of a PPIP Act application is set out in s.55 of that Act. For the purpose of the orders sought by the applicant the relevant provisions are those contained in s.55(2) to (4) which provide as follows:

“ 55 Review of conduct by Tribunal
(2) On reviewing the conduct of the public sector agency concerned, the tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a) subject to subsection (3), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to restrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 .

(4) The tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

5 The applicant relied on the findings of the tribunal in its determination of 9 December 2006 and 8 October 2004 to the extent these were not set aside on appeal. In addition to that he relied on the oral evidence that he gave during the course of the hearing, a short report by his treating psychiatrist, Dr Brash, and the oral evidence given by Dr Brash at the hearing.

6 In his report, dated 12 March 2007, Dr Brash stated the following:

“I have been treating [JD] since January 2003 after he came to the attention of the Medical Board because of unusual behaviour. I diagnosed that he was suffering from Bipolar Disorder and he has seen me since that time and has been under the Impaired Registry Panel. During the time I have seen him he has not returned to work as a doctor.

[JD] became aware that information, collected by Pharmaceutical Services Branch of the NSW Health Department, of a sexually explicit nature, was disclosed to the HCCC and then in turn was produced in evidence at his Medical Tribunal hearing. This was subsequently ruled by the ADT as unlawfully obtained. He has been experiencing a lot of stress since he has discovered this, and has been preoccupied with litigation with the Medical Board that has taken up much of his time and mental energy. I have read the information in question and I believe the content would have contributed to worsening his level of stress.

I believe that [JD] has suffered from additional psychiatric harm due to the disclosure of the above information to the HCCC and the NSW Medical Tribunal.”

7 In his oral evidence, Dr Brash said that he first saw the applicant on 17 January 2003. He said that when he first saw the applicant he appeared to be in a very agitated and distressed state about complaints his patients had made to the Medical Board. Dr Brash went on to say that it was not until the second or third visit that he ascertained that the applicant was bipolar. He explained that during the time he has been treating the applicant he has also undergone relationship difficulties, which have caused him stress, but the main and ongoing cause of the applicant’s distress was the applicant’s involvement with the Medical Board and the Health Care Complaints Commission (‘HCCC’), which included the disclosure of the sexually explicit material collected by the PSB. In the opinion of Dr Brash these events caused the applicant additional psychiatric harm. He said that a person who suffers from bipolar disorder is more susceptible to suffering additional psychiatric harm as a result of such stress.

8 In his oral evidence, the applicant stated that shortly after he discovered that Mr Thomson had, in his investigation, collected personal information about the applicant of a sexually explicit nature and that he had used this information and communicated it to the HCCC, he became extremely anxious and depressed. He suffered this angst and depression because of the inflammatory and defamatory nature of the personal information collected. He said he felt that it had absolutely destroyed his reputation as a good medical practitioner and he argued his otherwise good reputation had become illusory because of Mr Thomson’s conduct. It was as a result of this anxiety and depression that the applicant sought the assistance of Dr Brash who has treated him on a regular basis since January 2003. The applicant said that he continues to suffer from anxiety and depression because this information was collected, used and then disclosed by the respondent without ever having been verified as to its relevance, accuracy and completeness as was required by s.16 of the PPIP Act.

9 In addition to relying on his oral evidence, the applicant relied on those matters set out in his written submissions, filed on 16 March 2007, and his reply to the respondent’s submissions filed shortly before the hearing.

The Respondent’s Case

10 The respondent did not file or serve any evidence. Nor did it wish to cross-examine the applicant or Dr Brash. It primarily relied on its submissions filed in the tribunal on 9 May 2007. In those submissions the respondent submitted that the principle set out by the Appeal Panel in GR v Director General, Department of Housing [2004] NSWADTAP 26 at [38] applied in that s.55(4)(b) of the PPIP Act placed the applicant under a significant onus to satisfy the tribunal of the causal connection between the contravening conduct and his alleged psychological harm. This onus, the respondent contended, the applicant had failed to meet.

11 The respondent attacked the applicant’s claim for damages on several grounds. Its first argument was that the applicant’s evidence was that the ‘disclosure’ of his personal information as collected by Mr Thomson was the cause of his psychological harm. That is, it was the ‘disclosure’ of the information and not the ‘use’ of the information. As pointed out by the respondent, the findings of the tribunal related to a contravention of the ‘use’ of information protections principle in the PPIP Act: see s.16. It was not a finding that the conduct of the respondent in ‘disclosing’ this information amounted to a contravention: see s.18 of the PPIP Act. On this premise, the respondent argued that the applicant can- not succeed as he had failed to show that the respondent’s conduct in ‘using’ the information was the cause of his psychological harm.

12 The respondent’s next argument was that the evidence of Dr Brash was also to the effect that it was the ‘use’ by the Medical Tribunal and the ‘disclosure’ to the Medical Tribunal and the HCCC of Mr Thomson’s investigation report which caused the applicant ‘additional stress’. This disclosure and use, the respondent contended, was not relevant to this application as these particular ‘uses’ or ‘disclosures’ were not conduct the subject of this application.

13 The respondent went on to say that the tribunal would be in error if it found that the subsequent disclosure of the 19 page report of Mr Thomson to the HCCC amounted to a breach of s.18 of the PPIP Act as such a finding would be inconsistent with the distinction the tribunal had drawn in its initial decision, which was approved by the Appeal Panel, between a ‘use’ of the information and a ‘disclosure’ of the information in question. It was also submitted that to make such a finding would be procedurally unfair as the respondent and the applicant had not been provided with an opportunity to be heard on this issue prior to the determination being made.

14 In respect to an order requiring the respondent to issue a written apology for its contravention of s.16 of the PPIP Act, the respondent indicated in its submissions that it was prepared to issue such a written apology.

15 Finally in respect to the application for an order that reports be corrected, the respondent concedes that the tribunal is given power to make deletions to the report under s.55(2)(c)-(e) of the PPIP Act. However, it went on to submit that destruction of Mr Thomson’s report was not appropriate in this application as the personal information of concern to the applicant represented a small part of the overall report. Furthermore, it was argued that the tribunal did not make a determination to the effect that the personal information in question was in fact inaccurate. The tribunal had merely found that the respondent had failed to take such steps as were appropriate in the circumstances to check the accuracy of the information.

16 The respondent also pointed to s.15 of the PPIP Act, which provides for the alteration of personal information where the information is in fact inaccurate. That section provides that information may be corrected, deleted or added to, and the respondent submitted that this did not go so far as destroying a document. In support of this argument the respondent relied on s.21 of the State Records Act 1998, which imposes an obligation on agencies to not abandon or dispose of state records. It was contended that the report of Mr Thomson came within the definition of a ‘state record’ in s.4 of that Act.

Consideration

Applicable Principles

17 The tribunal has considered the question of compensation under the PPIP Act on a number of occasions: see JD v NSW Medical Board (No.2) [2006] NSWADT 345; NW v NSW Fire Brigade (No.2) [2006] NSWADT 61, NZ v Director General Department of Housing [2006] NSWADT 173; GR v Department of Housing (No.2) [2005] NSWADT 301 and RD v Department of Education and Training [2005] NSWADT 195. Cited with approval in some of these decisions is the decision of the Commonwealth Administrative Appeals Tribunal in Re Rummery & The Federal Privacy Commissioner & Anor [2004] AATA 1221.

18 The principles set out in the abovementioned decisions and which are relevant to this applicant are:

(a) that damages are compensatory in that the applicant should be awarded such sums of money so as that he/she may be restored to the position that he/she would have been in but for the breach: see GR (supra) at [26] and Rummery (supra) at [32]. However, this must also be viewed in the context of the $40,000 limit as provided for in the PPIP Act;

(b) in measuring compensation the principles of damages as apply in tort law are a guidance but the ultimate guide is the wording of the PPIP Act and its objectives: see NW (supra) at [22];

(c) compensation should be assessed having regard to the complainant’s reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances: see Rummery (supra) at [46] as adopted in NZ (supra) at [35];

(d) ‘psychological harm’ in s.55(4) of the PPIP Act is intended to encompass situations where an individual suffered some impairment of the mental states and processes. These being conditions such as depression and anxiety: see JD v NSW Medical Board at [53]; and

(e) even where an applicant is able to substantiate loss or damage as a result of conduct that contravenes an ‘information principle’ under the PPIP Act, an award of damages under that Act remains a discretionary one: see NW (supra) at [23] and [24] and cf. Re Rummery (supra) at [32].

19 I accept the evidence given by JD and Dr Brash that JD has suffered psychological harm as a result of the disclosure of the report of Mr Thomson to the Medical Board and the HCCC. This fact does not appear, in general, to be disputed by the respondent. What is disputed is that this damage was caused by the contravening conduct of the respondent as found by the tribunal in its decision of 12 December 2006: see JD [2006] NSWADT 353 (supra).

20 Before any findings can be made in this regard it is necessary to re-iterate some of the evidence and findings of the tribunal in its decision on re-determination of 12 December 2006 and the original of 8 October 2004. That evidence and findings are as follows:

(a) in the course of his investigation Mr Thomson collected personal information about the applicant following his interview with witness A, Ms. A and Ms. C: see [21] of the original decision. That information was collected in the form of interview notes made by Mr Thomson in his diary after he had interviewed these witnesses and it included personal information about the applicant of an explicitly sexual nature;

(b) Mr Thomson ‘used’ the information he had collected in the course of his investigation (including all personal information about the applicant from witness A, Ms. A and Ms. C) to prepare a 19 page report: see [21] of the decision on re-determination;

(c) Mr Thomson ‘used’ the same information he had collected to prepare a 16 page report: see [22] of the decision on re-determination. That report was the same as the 19 page report, with the personal information about the applicant of an explicitly sexual nature as collected by Mr Thomson from his interview with witness A, Ms. A and Ms. C being deleted;

(d) Mr Thomson’s ‘use’ of the personal information was found to be in contravention of s.16 of the PPIP Act in that he had failed ‘to take 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, the information was relevant, accurate, up to date, complete and not misleading’: see [45] of the decision on re-determination. It was found that the contravening conduct of Mr Thomson related to the use of the information he had collected in preparing both the 19 page report and the subsequent 16 page report;

(e) Mr Thomson and Mr Lumby were also found to have ‘used’ all the information collected by Mr Thomson in contravention of s.16 of the PPIP Act: see [46] of the decision on re-determination;

(f) Mr Thomson’s 16 page report was forwarded to the Medical Board on 3 December 2002: see [21(i)] of the original decision. That report and attachments were presented to the Medical Tribunal by the Medical Board during a hearing pursuant to s.66 of the Medical Practice Act 1992 (see JD v Director Genera, NSW Department of Health [2004] NSWADT 7 (‘decision on preliminary issue’));

(g) Mr Thomson’s 19 page report was forwarded to the HCCC on 20 January 2003: see [23] of the decision on re-determination;

(h) on 4 April 2006, Ms K Thomas of the respondent forwarded to the Medical Board a copy of the three pages which were included in the 19 page report but not included in the 16 page report: see [31] of the decision on re-determination;

(h) the personal information about the applicant, collected by Mr Thomson in his diary, in regard to the applicant’s access to drugs at practices where he worked and his prescribing practices for patients at these practices was inaccurate and incomplete: see [67] of the decision on re-determination; and

(i) Mr Thomson, Mr Battye and Mr Lumby each agreed that the personal information of alleged inappropriate/offensive comments of a sexual nature by the applicant, as collected by Mr Thomson was hearsay and unsubstantiated: see [69] of the decision on re-determination.

21 The main issue for determination in regard to the applicant’s application for an order for compensation is whether the psychological harm he has suffered was ‘caused’ by respondent’s contravening conduct. This is a factual issue to be determined from the circumstances of each case and by applying commonsense and value judgments involving ordinary notions of language: as to whether there is a physical connection between the respondent’s contravening conduct and the applicant’s injury: see March v Stramare Pty Ltd (1991) 171 CLR 506 at 516, 524 and 534; and Clerk & Lindsell on TORTS (Nineteenth Edition, Sweet & Maxwell 2006).

22 In my opinion the respondent’s approach to causation in this application is a very restricted one and the proper approach is to examine the sequence of events that immediately followed the contravening conduct and the damage.

23 The established facts are that Mr Thomson used all the personal information about JD that he had collected and his failure to check the accuracy and relevance of that information having regard to the purpose for which the information was to be used meant that he included in his 19 page report personal information about the applicant that he had collected which was incorrect and in some respects incomplete (see evidence of witness A and Ms. A) or irrelevant (i.e. the personal information about the applicant of an explicitly sexual nature). His 16 page report on the other hand only included incorrect personal information. Accordingly, the preparation of these reports must be viewed as being directly related to the s.16 contravention. The subsequent disclosure of the 16 page report to the Medical Board and the 19 page report to the HCCC in December 2002 and January 2003 must also be viewed as being directly related to the s.16 contravention. The fact that there has been no finding of a contravention in regard to these disclosures is in my opinion not material.

24 It was the submissions of Ms Thomas at the re-hearing of the application that the applicant had been furnished with a copy of Mr Thomson’s 19 page report by the HCCC and not the Medical Board. This would appear to be correct as during the original hearing of this application JD sought to ask questions of the witness in respect to the personal information of an explicitly sexual nature that had been collected by Mr Thomson. At that time the tribunal was unaware of the 19 page report and as these were not included in the 16 page report the proceedings were conducted on the basis that this information was not used by Mr Thomson. As it turned out, this was incorrect.

25 Leaving this aside, the question is whether the disclosure of the incorrect personal information in the 16 page report or the incorrect and irrelevant personal information in the 19 page report triggered the applicant’s psychological harm. In my opinion this is not an easy question to answer as it must be answered having regard to all the relevant circumstances.

26 As pointed out by the respondent, the incorrect and irrelevant personal information in these reports was only part of the personal information collected by Mr Thomson and used by him to prepare the reports. It was this other personal information that made up the substantial part of the report and the collection and use of this information was not found to be contrary to the provisions of the PPIP Act. Yet the applicant in his internal review request did question the collection and use of all material contained in the report (see JD v Director General, NSW Department of Health [2004] NSWADT 7 at [19] - decision on preliminary issue). On this basis it would appear that what triggered the applicant’s psychological harm was the disclosure of the entire 16 page report and the following 19 page report to the HCCC.

27 This does not mean that the respondent’s contravening conduct was not causal of the applicant’s psychological harm. In my opinion, it is unnecessary to form a final view in this regard as I am of the view that in this application I should not exercise my discretion and make an order for damages. My reasons for this are two fold. The first reason is that the applicant has recently been granted an award of damages in the sum of $4,500 in respect to the disclosure of the personal information of an explicitly sexual nature that had been collected by Mr Thomson. The second reason is that what appears to be of greatest concern to the applicant is the fact that this information and the incorrect information continues to form part of the respondent’s administrative records and the administrative records of the Medical Board and the HCCC. In the circumstances alteration of the respondent’s records in regard to this information is, in my opinion, the most appropriate remedy. These deletions are more fully set out below.

28 In the even I am incorrect in my approach I would have found that an order for $4,500 damages was the appropriate order.

Apology

29 In light of the respondent’s concession it is unnecessary to consider this further.

Alteration of personal information

30 I note that s.15(1) of the PPIP Act makes provision for an individual to request and agency to amend its records in so far as they relate to that persons personal information to insure that they are ‘accurate’, ‘having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading’. That sub-section also provides that these amendments can be in the form of corrections, deletions or additions.

31 I also construe the tribunal’s power of ‘correction’ in s.55(2)(d) of the PPIP Act to incorporate the forms of amendment set out in s.15(1) of the Act, namely correction, deletions or additions. The only difference being that the tribunal cannot make orders unless the information sought to be amended/corrected has been disclosed.

32 I do not accept the respondent’s arguments that in amending/correcting records, the tribunal cannot make an order deleting a document as s.20(4) of the PPIP Act specifically provides that the provisions of s.15 apply notwithstanding the provisions of the State Records Act 1998.

33 I note that Acting Deputy President Handley has already made orders in respect to the respondent deleting all references to personal information contained in the report of Mr Thomson that is irrelevant, inaccurate, out of date or misleading and to request the Medical Board to do the same in regard to the copies of Mr Thomson’s reports it holds.

34 In general I agree with these orders. I also believe that the orders should extend to the relevant entries in Mr Thomson’s diary and that the respondent be required to notify not only the Medical Board but also the HCCC of the alterations and request that they make similar deletions in the copies of the Mr Thomson’s report that are held by it.

35 In light of the history of this matter, it is also appropriate to specify those portions of Mr Thomson’s reports which are to be deleted. Similar deletions are to be made to Mr Thomson’s diary entries. The deletions are as follows:

(a) interview with witness A – the last 3 dot points in [4] of the 19 page report, with a similar deletion of the relevant dot point in the 16 page report;

(b) interview with Ms. A – the 3rd and last dot point in [8] of the 19 page report, with a similar deletion of the relevant dot point in the 16 page report; and

(c) interview with Ms. C – the 2nd, 3rd, 4th and 5th dot point in [20] of the 19 page report, with a similar deletion of the relevant dot point in the 16 page report.

36 For the reasons set out above the tribunal makes the following orders:

1. Pursuant to s.55(2)(g) of the PPIP Act, on or before 7 December 2007, the respondent is to make a written apology to the applicant for the contravening conduct that is the subject of this application.

2. Pursuant to s.55(2)(d) of the PPIP Act, on or before 7 December 2007, the respondent is to delete or correct the personal information about the applicant in accordance with paragraph [35] of this decision.

3. Pursuant to s.55(2)(g) of the PPIP Act, on or before 7 December 2007, the respondent to notify, in writing, the Medical Board and the Health Care Complaints Commission of the tribunal’s decision and the deletions and corrections made in accordance with order 2 above and request that they amend their records accordingly.

29/11/2007 - Paragraph 35 required amendment. Inserted "4th". - Paragraph(s) 35