JD v NSW Medical Board (No.2)

[2006] NSWADT 345

CITATION:	JD v NSW Medical Board (No.2) [2006] NSWADT 345
DIVISION:	General Division
PARTIES:	APPLICANT JD RESPONDENT NSW Medical Board
FILE NUMBER:	053030
HEARING DATES:	28/06/06
SUBMISSIONS CLOSED:	07/12/2006
DATE OF DECISION:	12/05/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - disclosure to third party
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	Cripps v G M Dawson Pty Ltd [2006] NSWCA 81 JD v NSW Medical Board [2005] NSWADT 247 NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 NZ v Director General, Department of Housing [2006] NSWADT 173 RD v Department of Education and Training [2005] NSWADT 195 Rummery and the Federal Privacy Commissioner and anor [2004] AATA 1221
REPRESENTATION:	APPLICANT In person RESPONDENT G Furness, Barrister
ORDERS:	Pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the NSW Medical Board is pay to the applicant damages of $7,500.

1 The applicant, JD, is a medical practitioner who is registered in NSW. His application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”) sought review of conduct by the NSW Medical Board (“the Board”). He contended that the Board’s conduct constituted a contravention of the Information Protection Principles set out in Part 2 of the Privacy Act.

2 The claim arose 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. A medical opinion of JD given by Dr Anthony Samuels (“Dr Samuels’ Report”) was recorded in that report.

3 In my decision in the substantive matter JD v NSW Medical Board [2005] NSWADT 247 I found that the Board has contravened sections 18(1) and 19(1) of the Privacy Act in disclosing JD’s personal information to the PSB. As a contravention was established, and in accordance with usual procedure, I adjourned the matter and made directions for a hearing in relation to the appropriate orders. JD’s application for damages and other orders was the subject of further hearing in the matter. At the conclusion of the hearing I reserved my decision. This decision addresses the issue of whether the orders sought are warranted.

Relevant Statutory Provisions

4 The Tribunal’s power to award damages is pursuant to section 55 of the Privacy Act. Section 55, in particular subsections 55(2) and (4), governs the Tribunal in this regard and provides:

“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 subsections (4) and (4A), 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 refrain 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 JD asserts that he has suffered financial loss and psychological harm because of the conduct of the Board. He seeks the following orders:

(a) nominal damages of $40,000 per breach;

(b) exemplary damages of up to $40,000 per breach for psychological harm he alleges that he has suffered because of the breaches.

(c) compensation for an indefinite period for expenses in consulting Dr David Brash (monthly at $180 per hour), his GP (3 monthly at $60 per hour) and his psychologist (3 monthly at $150 per hour); out of pocket expenses related to medication. (antidepressants at $25 per month and lithium at $20 per month); and the cost of blood tests at $200 per quarter.

(d) reimbursement of the amounts spent on obtaining a report from Dr Brash and the cost of Dr Brash attending the Tribunal as a witness.

(e) publication of an apology from the Board in the Board Newsletter; NSW Government Gazette; Australian Doctor newspaper; Medical Observer newspaper; and the Sydney Morning Herald newspaper. He also requests that notification be given to the Director General and the Minister for Health and that the Board recover the report from the PSB.

6 JD gave evidence on his own behalf and was cross-examined. His case is essentially that his personal information was handed over to the PSB and that there was no identifiable legitimate forensic purpose for doing so. He asserts that he was amazed and appalled to discover that this had happened and is still stressed by it. He concedes that he had previously suffered a depressive condition but he says that a Bipolar Disorder doesn’t always recur. It can have a single episode. He asserts that his recovery has been significantly set back as a result of the release of his personal information.

7 JD says that the Board compelled him to be examined by Dr Samuels and that if he had not done so he could have been declared as unfit to practice medicine. He therefore did not consult Dr Samuels on a voluntary basis and he fully expected that the Board would safeguard his privacy. He says that Dr Samuels misdiagnosed him as having a paranoid personality disorder and the fact of Dr Samuels’ misdiagnosis amplifies the breach of the Privacy Act.

8 JD says that four other more senior psychiatrists had stated that Dr Samuels had misdiagnosed him. He says that Dr Phillips, Dr Westmore and Dr Brash disagree with Dr Samuels’ diagnosis. Those doctors consulted with JD for at least 45 hours whereas Dr Samuels consulted with him for less than one hour.

9 JD says that he had stopped using all psychotropic medication in February 2003. This was just three months after he saw Dr Samuels. However, after he discovered that Dr Samuels’ Report had been given to the PSB, he became depressed and anxious again and he had difficulty sleeping until he restarted medication in early 2005. He recommenced taking anti-depressants after not needing them from the first quarter of 2003. He contends that disclosure of the breach lead to a deterioration of his condition and that this contributed to his inability to resume practice. Consequently he suffered a significant loss of income.

10 He says he suffered a material psychological injury that started immediately on his learning of the breach, and it then progressed. He says that the discovery of the breach was a clear precipitating factor in the deterioration of his health. He concedes that seven years of litigation has been an enormous stress on him but argues that the stress resulting from the breach is an additional factor causing the deterioration.

11 He says that the loss of his schedule 8 prescription rights is due directly to the Board’s conduct and that as a result of having read Dr Samuels’ Report, the PSB will always be unwilling to restore his schedule 8 prescription rights. Therefore, punitive damages should be awarded against the Board and this will act as a signal to the Board that this type of conduct, which vitiates the core principles of the Privacy Act, will not be sanctioned.

12 JD says that the Board should pay aggravated damages because of the Board’s refusal to acknowledge its breach of the Privacy Act; its failure to withdraw Dr Samuels’ Report from the possession of the PSB; its reckless indifference to his rights; and its misfeasance which he submits borders on malfeasance. JD says that Dr Samuels’ Report is libellous and that the Board has breached the Health Records and Information Privacy Act 2002 and demonstrated a lack of accountability and remorse. He says that his reputation and good standing with the PSB is permanently damaged and submits that he is entitled to significant compensation for the Board’s conduct.

13 He says that after March 2004 he applied unsuccessfully for various positions including that of a prison medical officer and as a sales rep for a drug company. He canvassed the possibility of employment in the Newcastle area but this was not successful because of his ongoing litigation and the need for supervision. He said that he tried to retrain as a teacher but was told that his medical degree was not satisfactory. He said that Dr Bruce Westmore, a psychiatrist who JD had seen at the request of the Board, had advised that he not to go back to work until his matter with the HCCC was completed. He agreed that he gave weight to Dr Westmore’s advice and this was an overarching reason for his failure to resume employment.

14 In a Statutory Declaration dated 18 May 2006 JD declared:

“I have suffered massive pecuniary loss since late April 2004, the date on which I “discovered” my confidential psychiatric history and diagnosis were revealed (unlawfully) to Pharmaceutical Branch (between $100,000 and $200,000 loss of income.)

There is an irrebuttable nexus between the deterioration in my mental state (after April 2004) and my failure to resume employment (after mid 2004) as full time registered practitioner. …

The severe stress of litigating against the Medical Board also contributed to my failure to resume work.”

15 He provided no further details with respect to his assertion of the amount of lost income.

16 JD says that there are many impaired practitioners working in the community. The fact that they are impaired does not mean they can’t work. He says that there is no way a member of the public can know whether a practitioner is impaired. If they were to inquire of the Board they would be told that the practitioner has ‘full registration with conditions’.

17 JD relies on a Statutory Declaration dated 18 May 2006 from Dr Brash in which Dr Brash stated:

“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 Registrants Panel. During the time I have seen him he has not returned to work as a doctor.

In April 2004, [JD] became aware that information from the Medical Board had been divulged to the Pharmaceutical Services Branch of the NSW Health Department without his knowledge. He has been experiencing a lot of stress since he has discovered this, such that he is being preoccupied about litigation with the Medical Board that has taken up much of his time and mental energy. I believe that this has been a significant factor in his inability to return to work.

At the time he made this discovery he was not on any medication and continued to cope for quite a number of months without any, despite feeling very stressed. However, in February 2005 he developed a clear cut depressive episode and had to go onto antidepressants and lithium to help control this. It is probable that this episode developed in the context of the prolonged stress and preoccupation with litigation arising from his discovery that his medical details had been made available to the Pharmaceutical Services Branch.”

18 Dr Brash attended the hearing and was subjected to cross-examination.

19 Dr Brash noted that he had observed that JD had been distressed about the matter before the Medical Tribunal and had adopted a litigious stance to his action against the Board. He also noted that JD was under stress from other factors including his relationship with his former wife, concern about his daughter’s behaviour, the breakdown of another relationship and the taking out of an AVO against him.

20 Dr Brash’s notes relating to consultations with JD are in evidence. His notes of 5 May 2004 indicate that JD discussed his matters before this Tribunal and his various other legal issues. He described JD as ‘Talkative but not overly hypomanic’. Similar comments were made in the notes of subsequent meetings during that year. Dr Brash had made a reference to the current proceedings in his notes on 7 November 2005.

21 His notes of 17 May 2006 refer to JD having become aware of the release of Dr Samuels’ Report on 28 April 2004. He stated that this had been previously mentioned but he had not recorded it in his notes. He conceded that if JD had indicated that he had been distressed about the release of Dr Samuels’ Report by the Board it would be expected that he would have recorded it in his notes. However he also agreed that his notes did not record details of all the discussions that had taken place during these consultations.

22 Dr Brash accepted that he could not say JD would have been in employment ‘but for’ the release of Dr Samuels’ Report but said that it was ‘a factor’ that would have affected JD’s ability to return to work. He agreed that it was not the most significant factor. He also agreed that JD would have had difficulty in obtaining employment because of the conditions imposed on his practice and that he had understood that JD had decided not to seek employment until his litigation was completed.

23 JD says that it is not in issue that he has suffered harm in the form of depression and anxiety. The release of Dr Samuels’ Report to the PSB was one factor that caused this harm. He submits that ‘psychological harm’ is not defined in the Privacy Act. He relies on the Macquarie dictionary as the basis of his submission that he has suffered psychological harm. He says that the test should be whether he would have suffered extra harm but for the Board’s conduct.

24 JD says that the gaps in Dr Brash’s notes do not contradict the oral evidence that he suffered harm. He says that his evidence must carry some weight and Dr Brash’s evidence must carry some weight. He says that the Tribunal can award damages on the basis of the evidence.

25 JD submits that the purpose of the provision in section 55(2) of the Privacy Act is to compensate persons who have suffered harm. The Tribunal has discretion and is not bound by other rulings or Appeal Panel precedents.

26 JD says that publication will let the whole world know of the breaches. The Tribunal should also recommend that when reports are passed between agencies the practitioner should be advised.

The Board’s case

27 The Board relies on the evidence of Mr Andrew Dix. Mr Dix, the Registrar of the Board, affirmed an affidavit on 30 March 2005 in which he outlined the steps taken by the Board following my decision in the substantive matter.

28 In February 2006 the Board wrote to the PSB, requesting that it return its copy of the section 66 Inquiry decision and any other copies that had been made. The PSB complied with this request. On 29 March 2006 Mr Dix wrote to JD indicating that the Board accepted my decision in the substantive matter and stated that:

“The Board apologises for and regrets any inconvenience or distress caused to you by its actions in this matter.”

29 The Board says that an apology from the Registrar is appropriate and that the timing of the apology does not call into question its genuineness.

30 Mr Dix stated that the Board was undertaking a comprehensive review of its practice and procedures with respect to the collection, use and disclosure of personal and health information in order to ensure that it exercises its functions in accordance with the provisions of the Privacy Act and the Health Records and Information Privacy Act.

31 Mr Dix referred to the outcome of a section 66 Inquiry in which it was determined to impose conditions on JD's registration. The extent of those conditions is not in dispute and it is common ground that the conditions came into effect on 6 August 2003. A copy of the conditions is annexed to Mr Dix’s affidavit.

32 Mr Dix stated that a decision was taken to refer a formal complaint concerning JD for prosecution by the Health Care Complaints Commission (“the HCCC”) before a Medical Tribunal. It is common ground that the HCCC served the brief of evidence in relation to the complaint on 7 January 2005 and that the matter was finally concluded on 5 June 2006. The Board says that the stress related to defending those proceedings was the major factor impacting on JD’s condition.

33 The Board argues that an award of damages can only be made if JD has suffered loss caused by the agency’s conduct. An applicant is not automatically given compensation. The Board argues that the "but for" test applies. i.e. whether but for the release, the harm would not have occurred. It relies on views expressed by Deputy President Hennessy in FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78 where she stated at paragraph 103 of her decision:

“103 The requirement that any loss or damage be "because of" the conduct reflects the common law requirement that the damage must be caused by the conduct in question. The "but for" test is generally applied to torts and is relevant to these proceedings. Pursuant to the "but for" test, the conduct caused the damage if that damage would not have occurred without (but for) it. ( March v Stramare (1991) 171 CLR 506.) In other words, did the conduct in question make any difference to the outcome?”

34 It is not in dispute that JD learned of the release of Dr Samuels’ Report on 28 April 2004. The Board says that JD must show some loss or harm took place after that date and that the harm would not have occurred "but for" the conduct in question.

35 The Board says that there is a lack of evidence that JD’s lack of employment was caused by its conduct. The Board does not dispute Dr Brash’s evidence that Lithium could cause mild cognitive problems but says that this would not prevent JD from obtaining employment. It says that JD’s practice is subject to onerous conditions and this would have affected his ability to obtain employment.

36 It says that the primary reason was that Dr Westmore had advised JD not to go back to work until his matter with the HCCC was completed i.e. after 5 June 2006. The Board says that it is clear from comments in the Medical Tribunal decision dated 5 June 2006 that JD took that advice. That decision states at paragraph 15:

“15. The practitioner elected not to practice medicine until the proceedings before the Tribunal had been concluded.”

37 The Board submits that the onus is on JD to prove that he has suffered loss or harm. There is no evidence of the amounts he would have expected to earn and therefore the Tribunal cannot reach a conclusion on JD’s assertion that he has suffered a financial loss through lost income.

38 With respect to JD’s claim for expenses in relation to consultations with Dr Brash the Board points to the conditions imposed on JD’s registration. It is a condition of JD’s registration that he attend a psychiatrist such as Dr Brash and that he take the medication prescribed by that psychiatrist. Therefore, it submits, there is no basis in these proceedings for claiming the cost of consulting Dr Brash or the cost of the medication that he prescribed. The Board says that the conditions on JD’s registration relate to JD’s own conduct and predate April 2004.

39 The Board also says that there is no evidence before the Tribunal, which identifies the psychologists or GPs who JD has attended, nor is there any evidence of the relevant dates or cost of those attendances. Therefore, it submits, that aspect of JD’s claim must also be rejected.

40 With respect to JD’s claim that he has suffered psychological harm, the Board says that this relates to a pre-existing illness. JD was diagnosed in 2003 as suffering from a Bipolar Disorder. The Board says that this is a recurring condition the treatment of which is antidepressants and mood stabilisers. JD was treated by Dr Brash and prescribed that type of medication. The Board says that the overwhelming evidence is that JD’s condition predates any action by the Board and that the medication he has taken is referable to that condition.

41 In any event, the Board says that JD was subject to significant stressors that impacted on his pre-existing illness until earlier this year. These included the Medical Board suspension; the onerous conditions on his practice; and the investigation by the HCCC and the possible outcomes of that matter. The Board says that the PSB has no discretion with respect to JD’s schedule 8 licence. The Medical Tribunal ordered the surrender of that licence. It also submits that the stress associated with the litigation is not psychological harm for the purposes of section 55(2) of the Privacy Act.

42 JD also had the stress of difficulties with his former spouse, an assault allegation, an AVO, the break-up of another relationship, the stress of being a single parent and concern about his daughter’s behaviour. Immediately prior to the resumption of his medication in 2005 were the break-up of a relationship, an assault allegation and the service of the HCCC brief.

43 The Board says that the ‘but for test’ is not satisfied. Many difficulties in JD’s life had caused him such difficulties that he resumed his medication. Dr Brash’s report dated 11 January 2006 states:

“There has been some fluctuation in his mental state and, in particular, his mood state during the past eighteen months. Some of this has been in direct response to various stressors in his life, in particular the complaints from the HCCC. However, what has been more consistent during the eighteen months is his distress about his appearing before the Medical Tribunal and having to represent himself.”

44 Dr Brash’s records show that there was no reference to the forwarding of Dr Samuels’ Report to the PSB until May 2006. Dr Brash’s evidence was that prior to February 2005 JD was upset, irritable and angry as a result of the litigation. The Board says that this does not constitute psychological harm. Any psychotic reaction 14 months after discovery was not referable to the Board’s conduct.

45 For the purposes of section 55(2) of the Privacy Act the relevant event was the Board’s conduct in forwarding a report to the PSB. The Board says that compensation is not available for each breach of the Privacy Act. While the breaches are not disputed, the Board says that the conduct should not attract punitive damages. It says that it was entitled to defend the case; there is no evidence of mala fides; an apology has been issued and its procedures have been reviewed. It further submits that the Tribunal only has power to order compensation, not punitive damages.

46 The Board says that the Tribunal decision to award damages in RD v Department of Education and Training [2005] NSWADT 195 is distinguishable as in that matter there was no apology and the error was not followed up. Here, the Board says that it was acting in a protective jurisdiction; Dr Samuels’ Report was provided to another closely related agency with a protective role; and it was an appropriate, proper administrative action with respect to protecting the public. Therefore, there is no basis for an award of aggravated damages.

47 With respect to JD’s claim for a public apology without reference to his name, the Board says that this would serve no purpose whatsoever. The Board says that the Tribunal should take no action or, alternatively, it should order an extremely small amount and no order for publication.

Findings and Conclusions

48 JD has asserted that he has suffered both financial loss and psychological harm because of the Board’s conduct. The expression ‘psychological harm’ is not defined in the Privacy Act.

49 In GR v Department of Housing (No 2) [2005] NSWADT 301 Judicial Member Robinson recognised the applicant's depression as ‘psychological harm’. He stated at paragraph 23:

23 On any view of the medical evidence, I am satisfied that the conduct of the respondent’s officer, … was a direct and relevant cause of the psychological harm (a depressive disorder – DSM IV category) that ensued, and which continues to this day. I am satisfied that the evidence established this causal connection. It is not to the point that the applicant was particularly fragile, vulnerable or even that he was pre-disposed to injury of this kind. The respondent had to take its tenant as it found him in this regard.

50 In RD v Department of Education and Training [2005] NSWADT 195 the Tribunal’s President considered that an applicant who had become very anxious and depressed had suffered ‘psychological harm’.

51 The Macquarie Dictionary Fourth edition Macquarie University NSW 2005 defines the relevant terms:

“ harm ” is defined as “injury; damage; hurt”.

“damage” is defined as “injury or harm that impairs value or usefulness”.

“injury” is defined as “wrong or injustice done or suffered” and “the infringement of a right”.

“psychological” is defined as “of or relating to psychology” and “relating to the mind or to mental phenomena, especially as the subject matter of psychology”.

“psychology” is defined as “the systematic study of the mind, or of mental states and processes; the study of human nature” and “the mental states and processes of a person or of a number of persons, especially as determining action”.

52 JD has referred me to the NSW Court of Appeal decision in R v P [2001] NSWCA 473 where various provisions the Evidence Act 1995 were considered. Section 126A(1) provides that for the purposes of Division 1A - Professional confidential relationship privilege, "harm" includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). While I note that the definition is consistent with the Macquarie Dictionary definition, I do not consider that the definition in section 126A(1) of the Evidence Act 1995 is relevant to these proceedings.

53 The authorities suggest that the use of the expression ‘psychological harm’ in section 55(4) of the Privacy Act is intended to encompass a situation where an individual suffers some impairment of their mental states and processes. In this matter, JD has suffered from depression and anxiety. In my view, depression and anxiety fall within the scope of the expression.

54 It is therefore necessary to determine whether JD has suffered that ‘psychological harm’ because of the Board’s conduct and if so whether an award of damages is warranted. It is also necessary to determine whether JD has suffered financial loss because of the Board’s conduct and if so whether an award of damages is warranted for that loss.

55 In NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 the Tribunal’s President gave a warning about applying common law principles in this context. He stated:

“22 Some care should be taken, as I see it, in drawing strict analogies with the common law principles as they have developed in the law of torts and the law of contract.

23 In my view the award of statutory damages in Privacy Act matters remains a discretionary one even where a causal link sufficient to satisfy s 55(4). That the position under this statute is less automatic is reflected, I consider, in the language of the opening words of s 55(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’ (Emphasis added).
24 These words do not preclude the possibility that the Tribunal might find a contravention, might find a causal link between the contravention and harm suffered and make no order. The matter of what to do after reviewing the conduct is left entirely to the Tribunal. Then if it is minded to make an order involving payment of damages the rule in s 55(4)(b) comes into play. It does not follow that if a causal link to satisfy s 55(4)(b) is found that the Tribunal must award damages. It still remains a discretionary matter. As I see it, there is no ‘right’ to compensation in the way that might be the case under common law principles in tort and contract.”

56 The Tribunal’s President undertook a detailed review of the appropriate principles in relation to making an award of damages under section 55(2) of the Privacy Act in his decision in the matter of NZ v Director General, Department of Housing [2006] NSWADT 173. In paragraph 35 of that matter he adopted the approach taken in the Commonwealth Administrative Appeals Tribunal decision, Rummery and the Federal Privacy Commissioner and anor [2004] AATA 1221 (Downes J (President), Constance SM, Miller M). At paragraph 46 the President stated:

“46 In my view, at most only an aspect of the applicant’s current state of health can be attributed to the particular event that is the subject of these proceedings. I accept, in general, the view expressed in Rummery that the errant agency must take the individual harmed as he or she presents, and it is the impact on the victim that is to be assessed (similar to the ‘egg shell skull’ theory of tort law: see Bourhill v Young [1943] AC 92 at 109-110 per Lord Wright; Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 857 per Herron CJ; Havenaar v Havenaar [1982] 1 NSWLR 626 at 631 per Glass JA). Some people will have a more severe reaction to an event than others.”

57 I agree with that conclusion. It is similar to the view expressed by Judicial Member Robinson in GR v Department of Housing (No 2) to which I have referred above.

58 In the present matter, I am satisfied that a causal link is established between the revelation to JD that Dr Samuels’ Report had been given to the PSB, and the fact that he became depressed and anxious again and recommenced taking anti-depressants. The evidence given by Dr Brash and JD’s own evidence supports this conclusion.

59 As was the case in NZ, only an aspect of the deterioration in the state of JD’s health can be attributed to the Board’s conduct. I agree with the Board’s argument that many other stressors were also contributing factors. The overwhelming stress that JD suffered was due to the ongoing litigation. It is probably that the service of the HCCC brief on 7 January 2005 was the factor that finally resulted in JD’s need to recommence medication. Nevertheless I accept that the discovery of the release of Dr Samuels’ Report was a precipitating factor. He had difficulty sleeping until he restarted medication in early 2005 after not needing it from the first quarter of 2003. The deterioration of his health is related to the discovery.

60 As the President observed in NZ, the difficulty lies in assessing the extent to which the Board’s conduct can be said to have contributed to, or exacerbated, JD’s condition and any impact it might have had on his ability to return to employment.

61 JD has asserted that there is a direct link between the discovery of the release of Dr Samuels’ Report and his inability to obtain employment. While I accept that there may well be some connection between these issues, it is my view that it is unlikely that JD would have been able to obtain employment as a medical practitioner until the HCCC proceedings were finalised. In any event, I have no evidence on which I could assess any loss that JD might have incurred as a result of his inability to return to employment. I have no evidence of his previous income or the income associated with any of the positions for which he had applied.

62 In the circumstances I do not consider that any more than nominal damages are warranted in relation to JD’s failure to return to employment. I have formed this view notwithstanding my finding that there may be ‘a causal link between the contravention and harm suffered’.

63 I accept the Board’s argument that it is a condition of JD’s registration that he attend a psychiatrist such as Dr Brash and that he take the medication prescribed by that psychiatrist. Therefore, I do not accept that JD is entitled to recover the cost of attending consultations with Dr Brash. I accept that there is a causal link between the Board’s conduct and JD’s need for medication. However I consider that the Board’s conduct was only one of many factors that resulted in the need for medication. I have no evidence on which I can determine the extent to which it was a contributing factor or the cost of medication that JD has incurred. Similarly, there is no evidence that identifies the psychologists or GPs who JD has attended, nor evidence of the relevant dates or cost of those attendances. Nor is there evidence of the other expenses that JD asserts he has incurred. The onus is on JD to prove any loss he has incurred and he has not done so.

64 In the circumstances I do not consider that JD is entitled to recover the cost of attending consultations with psychologists or Dr Brash or the cost of the medication or other medical expenses that JD asserts he has incurred. Notwithstanding my view that there may be ‘a causal link between the contravention and harm suffered’ I make no order in regard to this issue.

65 JD has sought reimbursement of the amounts spent on obtaining Dr Brash’s report and Dr Brash’s attending the Tribunal as a witness. This is an application for costs and is governed by section 88 of the Administrative Decisions Tribunal Act 1997. Section 88(1) provides that the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

66 The meaning of "special circumstances" has been considered in a number of decisions of this Tribunal. The Court of Appeal considered the issue in Cripps v G M Dawson Pty Ltd [2006] NSWCA 81. Santow JA (with whom Mason P and Brownie AJA agreed) stated at paragrpah 60:

“For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “serious unfairness” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.”

67 In the circumstances of this matter it is my view that the requirements for an order pursuant to section 88 have not been met. The circumstances were not out of the ordinary such as to amount ‘special circumstances’ that could be relevant to the question of costs. Accordingly, the appropriate order is that each party should bear its own costs.

68 JD has sought an order that the Board publish an apology in a range of newspapers and other publications. The evidence shows that Mr Dix wrote to JD on 29 March 2006 and apologised for and expressed regret for any inconvenience or distress caused to him by its actions in this matter. In my view, that apology was warranted and is appropriate. I do not consider that publication of a further apology is warranted.

69 I note that the Board recovered the copy of Dr Samuels’ Report that had been sent to the PSB and that it undertook a comprehensive review of its practice and procedures with respect to the collection, use and disclosure of personal and health information. In light of that review I do not consider that any order is warranted in relation to the Board’s practice and procedures.

70 It remains to be determined whether JD is entitled to damages for the psychological harm he alleges that he has suffered because of the breaches. As I have noted above I consider that there is a causal link between the contravention and the harm suffered. In my view this is a case where there should be an award.

71 In GR v Department of Housing (No 2) Judicial Member Robinson quoted from submissions made by the respondent’s counsel on the issue of quantum of damages. This seems to me to be the correct approach. The Judicial Member stated:

“26 On the quantum of damages issue, the respondent’s counsel submitted, inter alia:
"The general principle is that damages are compensatory. The plaintiff or applicant should be awarded such sums of money so that he may be restored to the position that he would have been in but for the breach, so far as money can do this (eg. Cullen v Trappell (1980) 146 CLR 1, 11; Todorovic v Waller (1981) 150 CLR 402, 412, 427, 442, 463). In addition, the plaintiff may not recover more than he has lost (eg. Harris v Commercial Minerals Limited (1995-6) 186 CLR 1,18). Therefore, such damages that may be awarded are limited to what may be necessary to restore [GR] to the admittedly imperfect condition that he was in immediately prior to the unlawful disclosure. I do not say that quantifying such damages is easy. I merely say that the Tribunal should do the best that it can."
27 I consider the amount of $20,000 to be excessive. The evidence does not justify such an order for compensation. Doing the best I can, were I to go on to make a formal determination of the quantum of damages in the matter, I would have ordered the respondent to pay the applicant a sum that took the total amount to $15,000.”

72 In determining the amount of the award I have already taken account of all the factors that have been raised by the parties, including the special impact of the disclosure on JD and the fact that several more senior psychiatrists have disagreed with the opinion expressed by Dr Samuels that was contained in the report forwarded to the PSB, and I have had regard to the various considerations canvassed in Rummery. In my view, an appropriate award for the financial loss and psychological harm caused to JD by the conduct of the Board is $7,500.

Orders

Pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the NSW Medical Board is pay to the applicant damages of $7,500.