LB v Hunter New England Area Health Service

[2010] NSWADT 82

CITATION:	LB v Hunter New England Area Health Service [2010] NSWADT 82
DIVISION:	General Division
PARTIES:	APPLICANT LB RESPONDENT Hunter New England Area Health Service
FILE NUMBER:	093058
HEARING DATES:	11 September 2009
SUBMISSIONS CLOSED:	16 November 2009
DATE OF DECISION:	31 March 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy–health information–public sector agency-health privacy principle-collection and accuracy of health information-unsolicited health information
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86 LB v Hunter New England Area Health Service (No 2)[2009] NSWADT 132 OA v New South Wales Department of Housing [2005] NSWADT 233 Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 ZR v NSW Dept of Education and Training [2008] NSWADT 199
REPRESENTATION:	APPLICANT In person RESPONDENT A Johnson, solicitor
ORDERS:	Pursuant to subsection 55(2) of the Privacy and Personal Information Protection Act 1998 and for the reasons set out in these reasons for decision, the Tribunal has determined not to take any action in this matter.

REASONS FOR DECISION

Background

1 On 21 October 2008, LB made a written request to the respondent, the Hunter New England Health Service (‘the HNEHS’), for access to his health information under the Health Records and Information Privacy Act 2002 (‘HRIPA’). LB’s application was in the following terms:

‘This fax is my application under the above Act for the release of the following documents held by Hunter New England NSW Health.

Psychological report on me created by Dr Lattimore.9 page document dated December 2005.

Mental Health Triage Module. Dated 23 December 2005. (Partial copy supplied under FOI Application.)

I refer you to the following sections and items in the Act.

Part 1 Preliminary.
No. 3 Purpose and Objects.
No. 18 Does not authorise unauthorised activities.
Division 3 Access to health information. Item 26.
Schedule 1. items 1 & 2.
Schedule 1. item 7.
Schedule 1. item 9.’

2 In his request LB also asked that his request be given ‘immediate priority and fast tracked’.

3 The HRIP Act applies to every organisation that is a health service provider: see sub-section 11(1) of the HRIP Act. An organisation is defined in sub-section 4(1) of the HRIP Act to mean a public sector agency and a private sector person. Sub-section 11(2) of the HRIP Act provides that an organisation to whom the Act applies is required to comply with the Health Privacy Principles and with any health privacy code of practice or a provision of Part 4 that is applicable the organisation. Part 4 only applies to a private sector person and the effect of the provisions in this Part is that they modify specified Health Privacy Principles that are set out in Schedule 1 of the Act. Sub-section 11(3) prohibits an organisation from contravening the Principles, codes of practice and provisions in Part 4 that apply to the organisation.

4 The HNEAHS is a public sector agency that is a health service provider and each of the Health Privacy Principles set out in Schedule 1 of the HRIP Act apply to it. This includes principles in regard to the purpose for which health information may be collected (clause 1); that health information that is collected is relevant, not excessive, accurate and not intrusive (clause 2), an individuals right to seek access to his/her health information (clause 7) and the need for an organisation to check the accuracy etc. of health information before it is used (clause 9).

5 On 14 November 2008, the HNEAHS responded to LB by refusing him access to the documents requested.

6 LB had previously requested access to both documents under the Freedom of Information Act 1989 (‘the FOI Act’). The HNEAHS determined to refuse access to the psychological report by Dr Lattimore on the grounds it was an exempt document: see section 25(1)(a) of the FOI Act. LB was granted access to parts of the Mental Health Triage Module. However, the HNEAHS determined that the remainder of the Module was exempt on the same grounds. On external review of the decision of the HNEAHS under the FOI Act, the Tribunal affirmed that decision.

7 Being dissatisfied with this outcome, LB made the abovementioned request for the same documents under the HRIP Act. When he was again refused access to the documents, on 1 December 2008, LB made an internal review request. In that request he said:

‘[Your] decision to deny me copies of the documents requested is not accepted and I believe is incorrect when numerous sections of the Health Records & Information Privacy Act which clearly support my application and also clearly override the decision you have made.

Your reference to other decisions is completely incorrect as this is an application under the Health Records & Information Privacy Act which directly deals with medical reports and records of individual people. This is the Act that should have applied to previous applications. ...’

8 The HNEAHS treated LB’s request as a complaint under section 21 of the HRIP Act. It determined that there were 2 aspects to the complaint. The first, a complaint about the conduct of the HNEAHS refusing him access to the documents sought and the second, a complaint about the accuracy of his personal health information. In its internal review determination the HNEAHS found that there had been no breach of health privacy principle 7 (access to health information) or health privacy principle 9 (accuracy of health information). It is this determination that is the subject of this application of LB.

9 The application first came before Deputy President Handley. The HNEAHS contended that the application should be dismissed as being ‘frivolous or vexatious or otherwise misconceived or lacking in substance’ and should be dismissed under sub-paragraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). After a short hearing, on 4 June 2009, the decision of Deputy President Handley was published: see LB v Hunter New England Area Health Service (No. 2) [2009] NSWADT 132. The decision of Deputy President Handley was as follows:

’22. The Respondents application to dismiss the proceedings pursuant to s. 73(5)(g)(ii) of the ADT Act is refused. However, the Tribunal declines to conduct an inquiry into the question of access to the two documents sought by LB because this has already been determined in prior decisions made by the Tribunal under the FOI Act.

23. The Tribunal notes it will be necessary to conduct a Directions Hearing with the parties after publication of this decision with a view to progressing that part of LB’s application in relation to the accuracy of health information concerning LB held and used by the health service. At the parties request, this Directions Hearing could be conducted by telephone.’

10 The effect of the Tribunal’s decision was to take no further action in regard to that part of LB’s application which related to the HNEAHS refusal to grant him access to the documents for which he had sought access to: see section 21 of the HRIP Act and section 55 of the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’). Accordingly, the matters remaining for the Tribunal to determine were the issues of collection (item 1 & 2) and accuracy (item 9) as raised in the abovementioned request of LB. Subsequent to the decision, Deputy President Handley made directions in regard to the filing and serving of evidence and submissions by the parties on the remaining outstanding issues and the application was listed for hearing on 11 September 2009.

11 I was subsequently allocated to hear and determine the application. Prior to the hearing LB requested that the Tribunal issue summonses for three persons to attend the hearing and to give evidence. The witnesses were Dr Lattimore, LB’s wife and Ms Dianne Sales, the HNEAHS officer who had initially determined LB’s request. The HNEAHS opposed the issue of the summonses. It contended that the witnesses could not give relevant evidence and that LB merely sought to have disclosed to him the content of the documents through the oral evidence of these witnesses.

12 In light of the objections raised by the HNEAHS to the issue of the summonses by the Tribunal, I heard argument from both parties on the hearing day prior to the hearing of the substantive application. I indicated to LB that if the Tribunal were to agree to the issue of the summonses the hearing of the application would be adjourned so as to hear from these proposed witnesses. I also said that I would not be re-opening the findings of Deputy President Handley in regard to LB’s request for access to the documents he sought.

13 Based on the arguments of both parties I determined not to approve the issue of the requested summonses. I made that decision on the basis that the proposed witness could not give relevant evidence to the matters in issue in this application. Ms Sales’ determination is of no relevance to this application as the Tribunal is vested with jurisdiction to determine LB’s application afresh. The Tribunal having determined to decline an inquiry into LB’s request for access to the documents he had requested, there was no apparent relevant evidence that LB’s wife or Dr Lattimore could give to the matters that remained in issue. While the accuracy of what was stated in the documents remained an issue, as I have already mentioned, the relevant health privacy principle (clause 9 of Schedule 1 of the HRIP Act) requires an agency not to use health information without steps that are reasonable to ensure that the information is ‘relevant, accurate, up-to-date, complete and not misleading.’ Accordingly, what is in issue is whether the HNEAHS did ‘use’ the health information in the documents LB had requested in contravention of clause 9 of Schedule 1 of the HRIP Act. Whether the documents were in fact accurate etc. was not an issue. On this basis I formed the view that the issue of summonses addressed to LB’s wife and Dr Lattimore would serve no useful purpose in determining the matters that were before the Tribunal.

14 In summary the matters remaining in issue in this application are:

(a) was the health information about LB in the Mental Health Triage Module/report, dated 23 December 2005, and the report Dr Lattimore, dated 30 December 2005, ‘collected’ by the HNEAHS?

(b) if the health information about LB was ‘collected’ by the HNEAHS, did the HNEAHS contravene Health Privacy Principles 1 and 2 in ‘collecting’ that information?

(c) did the HNEAHS contravened Health Privacy Principle 9 in ‘using the information in the documents without taking steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading’?

15 At the hearing the HNEAHS tendered into evidence a copy of LB’s request under the HRIP Act, the initial determination by Ms Sales, LB’s internal review request and the internal review determination. It also tendered into evidence a statement made by Peter Scollay, a clinical psychologist employed on a part-time basis with an entity under the control of the HNEAHS and a statement made by Dr Dinesh Arya, Area Director of the Mental Health and Clinical Lead Innovation and Re-Design Programme of the HNEAHS. Attached to the statement of Dr Arya were two confidential annexures. These annexures were full copies of the documents for which LB had sought access. In addition to these statements, the HNEAHS also tendered, on a confidential basis, a further confidential statement of Mr Scollay.

16 Dr Arya also gave oral evidence by telephone and was cross examined by LB. Mr Scollay was not available as he was on leave. He made mention of this in his statement which was filed on 4 August 2009.

17 In addition to this the HNEAHS tendered into evidence a copy of a fax cover sheet from Dr Lattimore addressed to Mr Greg Wilcox and dated 30 December 2005.

18 LB tendered into evidence 6 pages of a 15 page New South Wales Police Service COPS event report dated 23 December 2005. This document had been provided to LB under the Freedom of Information Act 1989. The document was provided with a number of deletions having been made to it. Each deletion identifies the particular exemption relied on by the Police Service in refusing LB access to this information.

19 The parties also filed written submissions for the purpose of the hearing. However, on 16 November 2009, LB made a further submission in regard to the facsimile cover sheet of Dr Lattimore that was tendered by the HNEAHS at the hearing. I have taken this submission into account and it is dealt with under the heading below.

Did the HNEAHS ‘collect’ the health information about LB?

20 In his statement Mr Scollay gave evidence about the use of the pro-forma Mental Health Triage Module/report generally and also about the circumstances which gave rise to him completing the form on 23 December 2005, when he received a call about LB.

21 Mr Scollay explained that the pro-forma Mental Health Triage Module/report was used to make a preliminary assessment of new referrals to the health facility where he worked. It was a form that was completed for use within the HNEAHS and was not otherwise distributed. The form lists a number of matters against which the psychologist or other health worker completing the form can enter the relevant details about the new referral. Mr Scollay went on to explain that he regularly worked on the roster for new referrals (i.e. intake roster) and when such a referral is made by telephone, his usual practice is to pick up the form and then go through each of the matters on the form with the person making the call. He said this is what he did, on 23 December 2005, when he received a telephone call from a person who said they were concerned about LB. The information about LB that Mr Scollay wrote on the form was that provided by the caller, the identity of which has not been disclosed to LB. He said he understood that the police visited LB but did not feel it was appropriate to bring him to the hospital so he sent the file he had created and the Mental Health Triage Module/report he had completed to the mental health team, who he expected would contact LB and ask him to come the Community Health Centre for an assessment.

22 In her evidence, Dr Arya explained that there were 4 points of referral to the Mental Health Services of the HNEAHS. One of these was a telephone referral made to any of the community mental health service. Dr Arya explained, that referrals of this nature can be and were made by the individual concerned, members of the individual’s family, friends of the individual, health professionals, police and other agencies. Dr Ayra also confirmed that a pro-forma Mental Health Triage Module/report is always completed when such a call is made so as to assess any risks and to determine what further action may be necessary. Options were to take no further action, to contact the person concerned and offer an assessment or to invoke the relevant provisions of the Mental Health Act 2007.

23 The word ‘collected’ is not defined in the HRIP Act. Accordingly, subject to any other provision relevant to ‘collection’ in that Act, the word should be given its ordinary meaning. As pointed out by the HNEAHS in its submissions, section 10 of the HRIP Act is a section relevant to ‘collection’. That section provides

‘10 Unsolicited information not considered “collected”

For the purposes of this Act, health information is not collected by an organisation if the receipt of the information by the organisation is unsolicited.’

24 The HNEAHS contends that the health information about LB in the Mental Health Triage Module/Report is information that was unsolicited by the HNEAHS.

25 In my opinion, their contention is correct. While the meaning of the word ‘unsolicited’ in the context of the HRIP Act has not previously been considered by the Tribunal, it is a word that has been considered by the Appeal Panel in the context of a provision in similar terms in the PPIP Act: see sub-section 4(1) of the PPIP Act and Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43.

26 In FM at [86] the Appeal Panel said the following:

‘As we conceive of the term ‘unsolicited’ it refers to information that an agency finds itself receiving (primarily meaning, Macquarie Dictionary, ‘not asked for’). A public sector agency is not bound by the Collection principles in that situation as it had no opportunity to define or set the parameters under which it was received.’

27 This reasoning has been followed by the Tribunal on a number of occasions: see OA v New South Wales Department of Housing [2005] NSWADT 233 and ZR v NSW Dept of Education and Training [2008] NSWADT 199.

28 In AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86 at [27] the Tribunal found that the health information the applicant had voluntarily provided to the University was not ‘collected’ by the university, but was ‘unsolicited’ information received by the University in accordance with section 10 of the HRIP Act. However, as pointed out by the Tribunal in that application, having received the unsolicited information, it nevertheless became information that was held by the University and the University was bound to act in accordance with those Health Privacy Principles that applied to health information it held.

29 In my opinion the Appeal Panel’s construction of sub-section 4(1) of the PPIP Act equally applies to the construction of section 10 of the HRIP Act. On that basis I find that the Mental Health Triage Module/report, dated 23 December 2005, and completed by Mr Scollay contains health information about LB that was unsolicited. On the material before the Tribunal the information about LB on the Triage report was not information that Mr Schollay requested it is a record of the information the caller had given him.

30 I make a similar finding in regard to the report of Dr Lattimore. I make this finding on the basis of the terms of the facsimile cover sheet of Dr Lattimore, the confidential statement of Mr Schollay and the evidence of Dr Ayra. While LB asserts that the facsimile cover sheet is evidence of Mr Wilcox, or one of the other HNEAHS persons stated to have been provided with a copy of the facsimile and the report, having requested Dr Lattimore to prepare and provide the report, in my opinion, this is not necessarily so. The facsimile is addressed to Mr Wilcox and states: ‘As discussed, please find enclosed a brief psychological report re: [LB].’ Had she been requested to prepare the report one would have expected Dr Lattimore to have used the words ‘as requested’. This she did not do. In the absence of any record of Dr Lattimore having been requested to provide a report and on the basis of the confidential evidence I am satisfied that the report was not ‘collected’ by the HNEAHS and that it was received on an unsolicited basis. It is also difficult to imagine that a request would have been made for a report by a health professional who has not personally examined the person to whom the report relates. This does not mean that such circumstances may not arise. However, on the material before the Tribunal there is no basis from which this could be inferred.

31 As I have already mentioned, Health Privacy Principles 1 and 2 concern the ‘collection’ of health information by an organisation.

32 As I have found that the health information in both documents was ‘unsolicited’ these principles have no application in regard to the two documents in question.

Did the HNEAHS contravene Health Privacy Principle 9?

33 Health Privacy Principle 9 provides as follows:

‘ 9 Accuracy
An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

34 This principle applies where an organisation wishes to ‘use’ health information that it holds. Section 16 of the PPIP Act is in similar terms.

35 In its written submission, the HNEAHS suggested that this principle does not apply where the health information is found to be ‘unsolicited’. In my opinion that cannot be correct. Such a finding would be contrary to the purpose of the Act which includes the promotion of fair and responsible handling of health information by protecting the privacy of an individual’s health information ‘held’ in the public and private sector: see paragraph 3(1)(a) of the HRIP Act.

36 It is the contention of the HNEAHS that there was no ‘use’, by the agency, of the information in Dr Lattimore’s report. The only information that was ‘used’ was that contained in the Mental Health Triage Module/Report prepared by Mr Scollay and this was the information used by Mr Wilcox when he telephoned LB on 4 January 2006. The Tribunal did not hear from Mr Wilcox but it is clear that a copy of Dr Lattimore’s report was faxed to him on 30 December 2006, which was prior to him telephoning LB. Accordingly, I have assumed that he had the report when he telephoned LB.

37 It was the contention of HNEAHS that the telephone call that Mr Wilcox made to LB on 4 January 2005 was in accordance with the standard follow-up procedure following a telephone referral that had not been assessed for action under the relevant provisions of the Mental Health Act. That follow-up Dr Arya said was based on the information contained in the Mental Health Triage Module/report completed at the time the call was made. The explanation given by LB as to the circumstances in which Mr Wilcox called him does not contradict this. This does not mean that Mr Wilcox had read the report of Dr Lattimore. However, what is clear is that this was not the basis on which the call was made – it was made on the basis that someone had made a telephone referral about LB some 10 days earlier. That is, Mr Wilcox telephoned LB for the purpose of asking him if he wished to undergo an assessment. He did not use the information in either document as being an assessment of LB or as being a basis on which LB should have an assessment or was in need of an assessment. When LB said he did not need to be assessed Mr Wilcox took it no further.

38 In my opinion, in the circumstances and having regard to the purpose for which Mr Wilcox used LB’s health information there was no breach of Health Privacy Principle 9. The information was clearly only used so as to give LB an opportunity to participate in an assessment if he so desired. The same procedure is used for all telephone referrals, which are assessed for follow-up action. As Dr Arya explained a follow-up call was always made just in case the person the subject of the referral did need assistance and wanted to be assessed.

39 LB was critical about the delay in calling him if his mental wellbeing was in fact a concern. He said the fact was that he had no mental issues and in this respect the Mental Health Triage Module/Report and the report of Dr Lattimore were inaccurate. However, this is not how Health Privacy principle 9 is to be applied. The question in this case is whether Mr Wilcox, in using LB’s health information, did take ‘such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.’ As I have said the HNEAHS has satisfied me that it did and hence there was no breach of the accuracy Health Privacy Principle.

40 LB also raised other issues as a result of the telephone call he received from Mr Wilcox. These issues are relevant to the issue of access and not those relating to collection and accuracy. Accordingly, I have not dealt with these any further.

41 For the reasons stated above, I find that the HNEAHS has not contravened Health Privacy Principles 1, 2 and 9. Accordingly, the appropriate order is that, pursuant to subsection 55(2) of the Privacy and personal Information Protection Act 1998 and for the reasons set out in these reasons for decision, the Tribunal has determined not to take any action in this matter.