JD v NSW Medical Board - [2005] NSWADT 247

CITATION: JD v NSW Medical Board [2005] NSWADT 247

DIVISION: General Division

PARTIES: APPLICANT
JD
RESPONDENT
NSW Medical Board

FILE NUMBER: 053030

HEARING DATES: 23/05/05

SUBMISSIONS CLOSED: 05/23/2005

DATE OF DECISION:
11/03/2005

BEFORE: Montgomery S - Judicial Member

APPLICATION: 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
Poisons and Therapeutic Goods Regulation 2002

CASES CITED: BY -v- Director General, Attorney General's Department (No. 2) [2003] NSWADT 37
FM v Vice Chancellor, Macquarie University [2003] NSWADTAP 43
JD v Department of Health (GD) [2005] NSWADTAP 44
KD v Registrar, NSW Medical Board [2004] NSWADT 5
McDonald -v- Commissioner of Police, NSW Police Service [2003] NSWADT 111
Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11

REPRESENTATION: In person
G Furness, barrister

ORDERS: 1. I find that the NSW Medical Board has contravened sections 18(1) and 19(1) of the Privacy & Personal Information Protection Act 1998 in disclosing JD’s personal information to the Pharmaceutical Services Branch of the NSW Department of Health; 2. The matter is to be listed for a planning meeting to allow the further conduct of the matter to be addressed.

1 This is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”). The applicant, JD, seeks review of conduct by the NSW Medical Board (“the Board”), which he contends constituted a contravention of the Information Protection Principles (“IPPs”) set out in Part 2 of the Privacy Act. In particular, he alleges that the Board contravened Privacy Principles 11 and 12 contained in sections 18 and 19 of the Privacy Act.

2 The claim arises from the Board forwarding a report to the Pharmaceutical Services Branch of the NSW Department of Health (“the PSB”). That Report was prepared by delegates of the Board pursuant to section 66 of the Medical Practice Act 1992 (“the MPA”), A medical opinion of JD given by Dr Anthony Samuels was recorded in that report.

3 JD originally sought orders for compensation for damage allegedly caused to him by way of the disclosure of personal information concerning him by the Board to the PSB and for and rectification of information that was said to be wrong. The application for rectification was subsequently abandoned.

4 I note that on the day of hearing of this matter there was no appearance by JD. Enquiries by the Tribunal’s registry revealed that JD had made no record of the fact that the matter had been listed for hearing. JD requested that the matter be adjourned to a later date however this application was refused. The matter was adjourned to later on the same day to allow JD time to attend.

Background

5 The facts in this matter are, in virtually all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWADT 247
Decision Date: 11/03/2005

CaseChat Overview and Summary

The case of JD v NSW Medical Board involved a dispute between a medical practitioner, JD, and the NSW Medical Board. JD sought to challenge the Board's disclosure of personal information to the Pharmaceutical Services Branch of the NSW Department of Health. The crux of the case revolved around whether the Board's actions were in breach of specific provisions of the Privacy & Personal Information Protection Act 1998 (NSW).

The central legal issues before the court were whether the NSW Medical Board had contravened sections 18(1) and 19(1) of the Act by disclosing JD's personal information without proper authority. JD argued that the disclosure was not in line with the statutory requirements, which protect individuals from unwarranted invasion of their privacy. The Board, on the other hand, contended that the disclosure was justified under the provisions of the Act.

In examining the statutory provisions, the court found that the NSW Medical Board did not comply with the Act's requirements for disclosing personal information. The court held that the Board's disclosure of JD's personal information to the Pharmaceutical Services Branch was not in accordance with the Act's stipulations, and thus, it constituted a breach. Consequently, the court ruled in favour of JD, finding that the NSW Medical Board had indeed contravened sections 18(1) and 19(1) of the Privacy & Personal Information Protection Act 1998.

Orders

Orders of the court

1. I find that the NSW Medical Board has contravened sections 18(1) and 19(1) of the Privacy & Personal Information Protection Act 1998 in disclosing JD’s personal information to the Pharmaceutical Services Branch of the NSW Department of Health; 2. The matter is to be listed for a planning meeting to allow the further conduct of the matter to be addressed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	JD v NSW Medical Board [2005] NSWADT 247
DIVISION:	General Division
PARTIES:	APPLICANT JD RESPONDENT NSW Medical Board
FILE NUMBER:	053030
HEARING DATES:	23/05/05
SUBMISSIONS CLOSED:	05/23/2005
DATE OF DECISION:	11/03/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	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 Poisons and Therapeutic Goods Regulation 2002
CASES CITED:	BY -v- Director General, Attorney General's Department (No. 2) [2003] NSWADT 37 FM v Vice Chancellor, Macquarie University [2003] NSWADTAP 43 JD v Department of Health (GD) [2005] NSWADTAP 44 KD v Registrar, NSW Medical Board [2004] NSWADT 5 McDonald -v- Commissioner of Police, NSW Police Service [2003] NSWADT 111 Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	In person G Furness, barrister
ORDERS:	1. I find that the NSW Medical Board has contravened sections 18(1) and 19(1) of the Privacy & Personal Information Protection Act 1998 in disclosing JD’s personal information to the Pharmaceutical Services Branch of the NSW Department of Health; 2. The matter is to be listed for a planning meeting to allow the further conduct of the matter to be addressed.