KJMW and National Disability Insurance Agency
[2023] AATA 2155
•18 July 2023
KJMW and National Disability Insurance Agency [2023] AATA 2155 (18 July 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/7631
Re:KJMW
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member Penelope Hunter
Date:18 July 2023
Place:Sydney
The Tribunal has determined to uphold the objections by the Applicant to the material produced by Appletree Family Practice outlined in the list at paragraph [31] and those produced by Toronto Private Hospital outline in the list at paragraph [32] as they are of no apparent relevance. All documents not pressed by the Respondent and identified at paragraphs [12], [13] and [14] and other documents not outlined in the list at paragraphs [31] and [32] are of apparent relevance and accordingly the Tribunal grants the Respondent leave to inspect all other documents.
………[SGD]……………
Member P Hunter
Catchwords
PRACTICE AND PROCEDURE – objection to inspection of summonsed material – where documents of a private medical nature – whether documents are of apparent relevance – some documents released for inspection.
Legislation
Administrative Appeals Tribunal Act 1975 ss 39(1), 40A, 40B
Administrative Appeals Tribunal Regulations 2015 Rule 17National Disability Insurance Scheme Act 2013 s34(1)
Cases
Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340
Re ZFCC and Comcare (Compensation) [2018] AATA 1358
Waind and Hill v National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 372MMMY and National Disability Insurance Agency [2022] AATA3236
REASONS FOR DECISION
The Applicant, KJMW, is a 28-year-old female diagnosed with Complex Post Traumatic Stress Disorder, Borderline Personality Disorder, Obsessive Compulsive Disorder, Obsessive Compulsive Personality Disorder, Major Depressive Disorder, Generalised Anxiety Disorder and Binge Eating Disorder. On 24 April 2019, the Applicant became a participant in the National Disability Insurance Scheme (NDIS).
The Applicant has sought merits review of a decision made by the National Disability Insurance Agency (the Respondent) to approve a statement of participant supports. The statement does not include several items that were originally sought by the Applicant. The remaining supports in issue as identified by the parties are:
(a)An assistance animal;
(b)Flotation therapy; and
(c)Esketamine therapy.
Summonsed Documents
In the course of these proceedings, the Respondent requested that the Tribunal, pursuant to s 40A(1) of the Administrative Appeals Tribunal Act (AAT Act), issue summonses to entities that have provided assistance or treatment to the Applicant. The Tribunal made orders on 22 November 2022 and 19 January 2023 that a total of four summons be issued to Appletree Family Medical Centre, Miracle Assistance Dogs, Lingard Private Hospital and Toronto Private Hospital.
On the return of the summonses and the production of documents, first access was given to the Applicant to inspect the documents pursuant to s 40B of the AAT Act. Access was then provided to the Respondent. On 23 December 2022, 20 January 2023, and again on 1 February 2023, with the consent of the Respondent, the Applicant was provided with additional time to inspect the documents.
The Applicant’s Objections to the Respondent Inspecting Certain Documents
On 10 February 2023, the Applicant advised that she would be lodging a formal objection to the Respondent being granted access to the material produced under summons by Appletree Medical Centre, Toronto Private Hospital and Lingard Private Hospital.
On 13 February 2023, the Applicant submitted to the Tribunal a schedule of objections to identified documents or part of identified documents produced under summons by Appletree Medical Centre, contained in Annexure A to the Objection.
On 15 February 2023, the Applicant sought an extension of time to lodge further objections to material produced by Toronto Private Hospital and Lingard Private Hospital. Time was extended for the Applicant, with the consent of the Respondent, until 1 March 2023.
On 1 March 2023, the Tribunal received the Applicant’s Objection to Summons for material produced by Toronto Private Hospital, Lingard Private Hospital and Miracle Assistance Dogs. The Applicant had provided a schedule of items, contained in Annexure B, Annexure C and Annexure D objected to in whole or in part each of the summons material. In summary, the Applicant claimed that the summons was extremely broad and the materials produced were extremely triggering and traumatic in nature. Consequently, the Respondent’s leave to inspect the documents was suspended.
On 19 April 2023, the matter was listed for a directions hearing before the Tribunal during which the Respondent confirmed that they wished to oppose the Objections filed by the Applicant. The Respondent was ordered to file submissions by 3 May 2023 and the Applicant was given until 25 May 2023 to file any response in reply. The matter was then listed for a hearing on 30 May 2023.
The Respondent filed their submissions and set out the principles and case law relevant to inspection of summonsed documents, cited and discussed below. The Applicant sought and was granted a further extension of time until 16 June 2023 to respond. The 30 May 2023 hearing was vacated.
On 15 June 2023 the Applicant filed submissions in reply and an updated Objection to Summons in relation to all materials, and provided new Annexures A, B, C and D dated 14 June 2023 in relation to all of the summons material. The Applicant further served upon the Tribunal and the Respondent a redacted copy of all summons material. It was identified that the updated Annexures of the Applicant varied from her initial Annexures. The basis for her objections had also been updated and the remaining material was objected on two grounds. Firstly, where material made reference to third parties in a way that unduly intruded on their privacy, and secondly that parts of the material were highly sensitive in nature and were of no apparent relevance to the proceedings. The objections to inspection outlined in the Applicant’s initial submissions were identified as being arranged in the following five categories:
(a)Information relating to violence the Applicant has experienced, and her interaction with support services for victims and the justice system;
(b)Contact details for next of kin and third parties;
(c)Information about the Applicant’s family;
(d)Information about a former relationship; and
(e)Information about the Applicant’s physical health.
The matter was then listed for an interlocutory hearing on 20 June 2023. Both the Applicant and Respondent were represented at the hearing. During the hearing, the Respondent advised the Tribunal that in response to the Applicant updating all of her schedules of objections, contained in Annexures A, B, C and D dated 14 June 2023, it did not press any objection to the material produced by Lingard Private Hospital. Additionally, upon the undertaking by the Applicant’s representative that item 3, page 36 of Annexure B the Applicant Objections to documents produced by Miracle Assistance Dogs 14 June 2023, did not contain a reference to a treating practitioner, the Respondent did not press any opposition of the Applicant’s objections to the inspection of certain material in these documents.
In relation to the Applicant’s objections to documents produced by Toronto Private Hospital, contained in Annexure C of her submissions, the Respondent did not press the objections raised by the Applicant to the contact details of third parties, or the disclosure of details of the Applicant’s family members. As such, only the objections to the following documents were not pressed by the Respondent in Annexure C Applicant Objections to Toronto Private Hospital Documents dated 14 June 2023:
· Item 1 page 5/408
· Item 2 page 22/408
· Item 12 page 97/408
· Item 14 page 122/408
· Item 28 page 251/408
· Item 29 page 252/408
· Item 31 page 260/408
· Item 32 page 261/408
· Item 33 pages 278 and 279/ 408
· Item 34 page 318/408
· Item 35 page 319/408
· Item 37 page 324/408
· Item 38 page 325/408
· Item 39 page 328/408
· Item 40 page 330/408
· Item 41 page 352/408
With regard to Annexure A, Applicant objections to documents produced by Appletree Family Medical Centre of 14 June 2023, the Respondent again did not press the Applicant’s objections raised in relation to contact details or information regarding next of kin, identified redactions relating to the Applicant’s physical health, and certain material relating to the Applicant’s engagement with the justice system. Access was however pressed in relation to the remainder of the material objected to by the Applicant. The objections not pressed by the Respondent were the following documents:
· Item 1 page 163/2088
· Item 56 page 1572/2088
· Item 57 page 1593/2088
· Item 58 page 1628/2088
· Item 60 page 1647/2088 second redaction but not from the words “and uni”
· Item 61 page 1657/2088
· Item 62 page 1669/2088
· Item 63 page 1674/2088
· Item 64 page 1679/2088
· Item 65 page 1680/2088 first redaction only
· Item 67 page 1684/2088 first redaction only
· Item 68 page 1685/2088 first redaction only
· Item 69 page 1686/2088
· Item 71 page 1693/2088
· Item 72 page 1794/2088 second redaction only
· Item 74 page 1820/2088
· Item 76 page 1831/2088 first redaction only
· Item 84 page 1867/2088
· Item 86 page 1899/2088
· Item 87 page 1906/2088
· Item 88 page 1912/2088
· Item 89 page 1920/2088
· Item 90 page 1924/2088
· Item 92 page 1959/2088
· Item 99 page 2019/2088
· Item 103 page 2025/2088
· Item 112 page 2043/2088
The Respondent submitted that it was seeking access to the summons material for the purposes of obtaining an expert report from Dr Newnham. It was further submitted that the report would assist in clarifying any benefit the disputed supports would provide to the psychiatric conditions for which the Applicant has been diagnosed, for the purposes of addressing the criteria in s 34(1) of the National Disability Insurance Scheme Act (NDIS Act). In order to do so, the Respondent requested it have information that related to the Applicant’s relevant medical history, her treatment, trials of treatment and any stressors. It was also argued that her stressors were relevant to the extent that interaction with a stressor exacerbates the Applicant’s symptoms and her functional impairment. In their submissions the Respondent pressed that if a health practitioner had elicited information from the Applicant and recorded it, it may be assumed that the information has some relevance to either the Applicant’s conditions or her social history. Therefore, it may be information that the Respondent’s qualified specialist requires to form an expert opinion, and for this reason should not be excluded in the early stage of the proceedings. Furthermore, it was not for the Applicant to determine what was relevant and effectively confine the Respondent from potentially having a reasonable opportunity to present its case.
The Respondent gave examples where it was clear that the applicant’s attempts to have redactions were what it considered an overreach — such as Item 1154. Further 13 documents contained in the Applicant’s Objections to Summons documents produced by Appletree Medical Centre, Schedule A were completely redacted and prevented the Respondent from ascertaining the nature of the material.
In relation to the remaining material, the Applicant claimed that they were of no apparent to the issues before the Tribunal and would provide no assistance. With respect to the remaining information about the Applicant’s interaction with support services for victims and the justice system, information about her former relationship and information about her physical health, this was provided in confidence as a trusted part of her therapeutic relationship with practitioners and there was an objection to this confidence being infringed when there was no clear reason to do so. The Applicant submitted that all materials were highly personal and sensitive to the extent that, should the Respondent be granted access to the documents, the Applicant’s therapeutic progress to date may be undermined, causing her to be retraumatised.
Relevant Law
Section 39(1) of the AAT Act provides that the Tribunal must ensure the parties are given an opportunity to present their case and inspect documents to which the Tribunal proposes to have regard in reaching its decision, and to make submissions in relation to those documents.
Section 40A(1)(b) of the AAT Act provides that the Tribunal may summon a person to produce documents.
Sections 40B(1) and 40B(2) of the AAT Act relevantly provide that the Tribunal may give a party to a proceeding leave to inspect documents produced under a summons in relation to the proceeding.
The Tribunal has considered the case law cited by the Applicant and Respondent regarding the principles informing the giving of leave for the inspection of documents. It notes issues relevant to giving leave to a party to inspect documents produced under summons. In the matter of MMMY & National Disability Insurance Agency,[1] SM Connolly summarised the relevant caselaw law in paragraphs [17]–[19].
[1] [2022] AATA 3236.
With respect to concerns about privacy and inspection of personal medical information, in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340 (Panagiotou) Deputy President Forgie stated at [24]:
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
On the issue of inspection of medical records in Re ZFCC and Comcare (Compensation) [2018] AATA 1358 Deputy President Humphries stated:
[11] [When) [m]edical records are produced to the Tribunal, an applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the respondent to inspect and copy pursuant to s 40B, often for the purpose of commissioning a medical report from a doctor regarding the applicant’s condition. An applicant may object to the respondent inspecting and copying those records, but the acceptable grounds for such objection are limited, as these reasons will explain.
[12] An objection may assert that the summonsed records include documents covered by legal professional privilege, or refer to another person (such as a family member) in such a way as to unduly intrude on that person’s privacy. Such an objection will often result in a refusal to grant access by the other party to parts of those documents. Sometimes an applicant will object to inspection on the basis that the records – or parts of them – are not relevant to the proceedings before the Tribunal. There are practical reasons however for caution in denying access on this basis and why, conversely, an eclectic approach should be taken to the question of a party inspecting medical records.
…
[17] The passing of intimate medical records to strangers in the course of proceedings like these can, of course, be distressing to an applicant. The Tribunal and the party to whom access is granted should be mindful of that distress, and take reasonable steps to minimise it. Ethical and legal constraints affect a respondent’s use of this material, and these constraints must be diligently applied in a respondent’s dealings with the records. Alternatively, the parties and the Tribunal may agree that the probative value of certain records is sufficiently low to warrant their exclusion from the proceedings. But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant.
As for the relevance of material, the Tribunal notes that in Waind and Hill v National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 (referred to by the Deputy President in Panagiotou) Moffitt P (Hutley and Glass JJA agreeing) held (emphasis added):
The crucial question in relation to the exercise of the discretion to permit inspection in the second step[2] is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed….
[2] The first step being compliance with the summons. Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340 at [20]
Consideration of Objections
The Tribunal takes into account the Applicant’s objections. As the Respondent has pressed its opposition to the Applicant’s objections to the remaining documents identified in the Applicant’s various schedules, the Tribunal has inspected the material itself to determine the relevance and identify for exclusion material which is apparently irrelevant to the issues before the Tribunal.
The Tribunal has had regard to the objections expressed by the Applicant, and it acknowledges that the disclosure of medical records to strangers in the course of proceedings can cause additional stress to a party. The Tribunal is cognizant of that distress and the desire to avoid unnecessary trauma to the Applicant. It has taken the opportunity to review the material several times with these considerations in mind. It is also aware that ethical and legal constraints will affect the Respondent’s use of this material; it is to only be used in the proceedings and these constraints must be diligently applied.
With respect to the Applicant’s concerns regarding privacy and her personal medical information being inspected, it is guided by the Deputy President in Panagiotou.[3] The Tribunal accepts that there is personal information included in the summonsed material, and that material was provided to her treating practitioners in confidence. It also accepts that disclosing the material to the Respondent may be distressing for the Applicant. However, that alone does not make the material irrelevant to the issues before the Tribunal; the material only needs to be of apparent relevance. To the extent that the incidents of violence perpetrated on the Applicant and her dealings with the justice and victims support services have contributed and impacted on her conditions for which she is seeking support, the Tribunal is not satisfied that they are without apparent relevance. They have required the Applicant to seek treatment and treatment has been delivered in response to them. The Applicant appears to have attempted an overreach in seeking to exclude all mention of these events, which could lead to an incomplete and inaccurate picture by any reporting practitioner of her medical and social history. A logical consequence of this is that it may also deprive the Tribunal of the opportunity to understand her need for the requested supports, or the potential benefits of these supports, thereby preventing the Tribunal from ultimately reaching a fair and balanced conclusion in the proceedings. Also going to their potential to be of apparent relevance is that many of these entries are not historical but are related to matters occurring since the Applicant commenced her review application. They are recent issues for which she has consulted with her medical practitioners.
[3] Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340
To the extent that the Applicant has objected on grounds that references are only incidental or transactional, the Tribunal has upheld those objections. However, overall, the Tribunal is not well placed to make what appears to be an arbitrary determination at this point in the proceedings as to what is of no apparent relevance. Furthermore, the Tribunal is mindful of the potential adverse consequences of excluding material that may be relevant to the determination of the substantive application.
In relation to a proportion of the material about the Applicant’s family, this has been recorded by her treating practitioners as a relevant part of her relevant medical history, risk factors and stressors. While The Tribunal is satisfied that this information pertains to third parties or family members, it is not satisfied that all material in question has been recorded in in a way that unduly intrudes upon their privacy. It is also noted that, particularly in the documents produced by Toronto Private Hospital, the Applicant has adopted an inconsistent approach to this material, serving the Respondent with unredacted details of family history in documents 211/408 and 253/408 while simultaneously objecting to the same information later in those documents. A similar instance of inconsistency arises, for example, at pages 44/408 and 126/408.
As to the Applicant’s objection to material produced arising from her former relationship, to the extent that it is noted by her medical practitioners, is a part of her social history, and has an impact on her conditions, the Tribunal is not satisfied that it is of no apparent relevance. Caution has been exercised, and the Tribunal has not upheld the objection. Finally, regarding the Applicant’s general health, where it is not relevant to the supports in dispute, or the conditions where the Applicant seeks assistance, the Tribunal has upheld the objection.
It follows that with respect to the Applicant’s Annexure A – Documents produced by Appletree Medical Centre dated 14 June 2023, the Tribunal upholds the Applicant’s objection to the following material on the ground of relevance on the basis that they are: produced by third parties and not medical records are routine exchanges about certain processes; or they are related to the applicant’s physical or reproductive health and not the conditions for which she is seeking support.
· Item 31 page 932/2088
· Item 32 page 933/2088
· Item 33 page 935/2088
· Item 34 page 936/2088
· Item 35 page 937/2088
· Item 36 page 938/2088
· Item 37 page 956/2088
· Item 39 page 962/2088 in part from after the words “new solicitor” to “Sally?]” , then again from the words third indented paragraph – “The Solicitor” to “per se”
· Item 40 pages 969-974/2088
· Item 47 page 1065/2088
· Item 66 page 1683/2088
· Item 68 page 1685/2088
· Item 70 page 1689/2088 uphold in part, first line only
· Item 72 page 1794/2088
· Item 75 page 1829/2088
· Item 76 pages 1831/2088 uphold all redactions
· Item 79 page 1858/2088 uphold in part from the word “Happy” as refers to applicant’s reproductive health
· Item 80 page 1859/2088
· Item 82 page 1861/2088 uphold in part and remove names of third parties
· Item 98 page 2018/2088
· Item 105 page 2027/2088
· Item 106 page 2029/2088
· Item 108 page 2031/2088
· Item 109 page 2033/2088 uphold first redaction of email address only
· Item 110 page 2037/2088
· Item 111 page 2038/2088
· Item 113 page 2044/2088
· Item 115 page 2049/2088
· Item 116, page 2050/2088
· Item 122, page 2084/2088
In relation to the schedule produced at Annexure C Applicant’s Objections to documents produced by Toronto Hospital 14/6//2023, the Tribunal upholds the objections to the following items on the basis that they are transactional references to the applicant attending appointments outside the hospital during her period of admission or completing forms.
· Item 10 page 79/408
· Item 24 page 150/408 allowed in part from the words “groups,” to “application”, second objection allowed in full
· Item 26 page 163/408 allowed in part redact the following from “returned to ward” to “15:15”
It follows that the Respondent is refused leave to inspect the material outlined in paragraphs [31] and [32].
DECISION
The Tribunal has determined to uphold the objections by the Applicant to the material produced by Appletree Family Practice outlined in the list at paragraph [31] and those produced by Toronto Private Hospital outline in the list at paragraph [32] as they are of no apparent relevance. All documents not pressed by the Respondent and identified at paragraphs [12], [13] and [14] and other documents not outlined in the list at paragraphs [31] and [32] are of apparent relevance and accordingly the Tribunal grants the Respondent leave to inspect all other documents.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member P Hunter
.......................................[SGD].................................
Associate
Dated: 18 July 2023
Date of hearing: 20 June 2023 Representative for the Advocate: Ms S Dekker, Legal Aid New South Wales
Representative for the Respondent: Ms M Fisher, Counsel
Ms Isabelle Heath, Maddocks Lawyers
0
3
0