KT v Sydney Local Health Network - [2011] NSWADT 292

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: KT v Sydney Local Health Network [2011] NSWADT 292
Hearing dates: 9 and 10 February 2011 and 8 and 9 June 2011
Decision date: 09 December 2011
Jurisdiction: General Division
Before: P Molony, Judicial Member
Decision:
1. Conditional upon KT confirming in writing to the agency within 28 days that he wishes to withdraw his consent to the Agency using his health information for the primary purpose for which it was collected, and that he understands that the effect of this will be that those treating him in the future will be unable to access his medical records, order the Agency to note that withdrawal of consent on both his hard copy and electronic medical records.
2. Otherwise the Tribunal determines to take no action with respect to this matter.
3. The Applicant shall file and serve any further submissions on costs by 30 January 2012, and the Agency by 28 February 2012.

Catchwords: Privacy and Personal Information Protection Act - collection - disclosure - use - access to - withdrawal of consent
Legislation Cited: Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998
Industrial Relations Act 1997.
Cases Cited: JD v Department of Health (GD) [2005] NSWADTAP 44
Department of Education and Training v GA (No.3) [2004] NSWADTAP 50,
KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18
Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44
Department of Education and Training v PN) [2006] NSWADTAP 66
EY v Department of Corrective Services (GD) [2009] NSWADTAP 25
KT v Sydney Local Health Network [2011] NSWADT 171
KT v Sydney South West Area Health Services [2010] NSWADT 94
JD v New South Wales Medical Board [2008] NSWADT 67
PT v Medical Board (NSW) [2010] NSWADT 107
PN v Department of Education and Training (GD) [2010] NSWADTAP 59
LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38
Texts Cited: Privacy Manual - NSW Health
Category: Principal judgment
Parties: KT (Applicant)
Sydney Local Health Network (Respondent)
Representation: Counsel
A Britt (Respondent)
KT (Applicant in person)
Sydney Local Health Network (Respondent)
Privacy Commissioner

File Number(s): 103094

REasons for decision

Introduction

GENERAL DIVISION, P H Molony, Judicial Member

On 7 February 2011 KT made an application to the Sydney Local Health Network (the agency) in which he requested that it conduct an internal review of conduct under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). The agency was previously known as the Sydney South West Area Health Service (SSWAHS). He alleged -

"1. Mr Ross Hughes had taken some personnel photos for me while I was in Emergency Department of RPAH lying on the bed, when l was injured. And took photos of my injury. He took these photos without my permission. I have not given him or any RPAH staff the permission to get photos for me. Contravening the Privacy legislations and…

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: [2011] NSWADT 292
Decision Date: 09 December 2011

CaseChat Overview and Summary

In the matter of KT v Sydney Local Health Network, the dispute revolves around the Sydney Local Health Network's collection, disclosure, use, and access to KT's personal health information without his consent. The case was heard and decided by the Privacy and Personal Information Protection Tribunal of New South Wales. The applicant, KT, sought relief under the Privacy and Personal Information Protection Act 1998 (NSW), arguing that the Sydney Local Health Network had breached his privacy by using his personal health information without his consent.

The legal issues before the Tribunal included whether the Sydney Local Health Network had properly collected, used, and disclosed KT's personal health information and whether KT had effectively withdrawn his consent for the use of his health information. The Tribunal had to determine if the Sydney Local Health Network had complied with the provisions of the Privacy and Personal Information Protection Act 1998 (NSW) regarding the handling of personal health information. Furthermore, the Tribunal had to assess whether the Sydney Local Health Network had the necessary consent from KT to use his personal health information for the purposes outlined.

The Tribunal considered the evidence presented by both parties and the relevant statutory provisions. The Tribunal found that the Sydney Local Health Network had not acted in accordance with the Privacy and Personal Information Protection Act 1998 (NSW) when it used KT's personal health information without his consent. The Tribunal concluded that KT had effectively withdrawn his consent for the use of his health information, and the Sydney Local Health Network should have respected this withdrawal. However, the Tribunal also noted that if KT confirmed in writing his intention to withdraw consent, the Sydney Local Health Network should note this withdrawal on both his hard copy and electronic medical records. The Tribunal determined that the effect of this withdrawal would be that future treating medical practitioners would be unable to access KT's medical records.

Ultimately, the Tribunal ordered the Sydney Local Health Network to note the withdrawal of consent on KT's medical records, conditional upon KT providing written confirmation within 28 days. Otherwise, the Tribunal decided to take no further action. The Tribunal also set deadlines for the parties to file and serve any further submissions on costs.

Orders

Orders of the court

1. Conditional upon KT confirming in writing to the agency within 28 days that he wishes to withdraw his consent to the Agency using his health information for the primary purpose for which it was collected, and that he understands that the effect of this will be that those treating him in the future will be unable to access his medical records, order the Agency to note that withdrawal of consent on both his hard copy and electronic medical records.

2. Otherwise the Tribunal determines to take no action with respect to this matter.

3. The Applicant shall file and serve any further submissions on costs by 30 January 2012, and the Agency by 28 February 2012.

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.

Medium Neutral Citation:	KT v Sydney Local Health Network [2011] NSWADT 292
Hearing dates:	9 and 10 February 2011 and 8 and 9 June 2011
Decision date:	09 December 2011
Jurisdiction:	General Division
Before:	P Molony, Judicial Member
Decision:	1. Conditional upon KT confirming in writing to the agency within 28 days that he wishes to withdraw his consent to the Agency using his health information for the primary purpose for which it was collected, and that he understands that the effect of this will be that those treating him in the future will be unable to access his medical records, order the Agency to note that withdrawal of consent on both his hard copy and electronic medical records. 2. Otherwise the Tribunal determines to take no action with respect to this matter. 3. The Applicant shall file and serve any further submissions on costs by 30 January 2012, and the Agency by 28 February 2012.
Catchwords:	Privacy and Personal Information Protection Act - collection - disclosure - use - access to - withdrawal of consent
Legislation Cited:	Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Industrial Relations Act 1997.
Cases Cited:	JD v Department of Health (GD) [2005] NSWADTAP 44 Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 Department of Education and Training v PN) [2006] NSWADTAP 66 EY v Department of Corrective Services (GD) [2009] NSWADTAP 25 KT v Sydney Local Health Network [2011] NSWADT 171 KT v Sydney South West Area Health Services [2010] NSWADT 94 JD v New South Wales Medical Board [2008] NSWADT 67 PT v Medical Board (NSW) [2010] NSWADT 107 PN v Department of Education and Training (GD) [2010] NSWADTAP 59 LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38
Texts Cited:	Privacy Manual - NSW Health
Category:	Principal judgment
Parties:	KT (Applicant) Sydney Local Health Network (Respondent)
Representation:	Counsel A Britt (Respondent) KT (Applicant in person) Sydney Local Health Network (Respondent) Privacy Commissioner
File Number(s):	103094