LB v Hunter New England Area Health Service
[2009] NSWADT 132
•4 June 2009
CITATION: LB v Hunter New England Area Health Service [2009] NSWADT 132 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
LB
Hunter New England Area Health ServiceFILE NUMBER: 099002 HEARING DATES: 26 May 2009 SUBMISSIONS CLOSED: 26 May 2009
DATE OF DECISION:
4 June 2009BEFORE: Handley R - Deputy President CATCHWORDS: Dismissal of application – frivolous vexatious misconceived or lacking in substance LEGISLATION CITED: Health Records and Information Privacy Act 2002
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Privacy and Personal Protection Act 1998CASES CITED: LB v Hunter New England Area Health Service [2009] NSWADT 101
McGuirk v Director General, Attorney General’s Department [2008] NSWADT 326REPRESENTATION: APPLICANT
RESPONDENT
In person
F Berglund, barristerORDERS: The Respondent’s application to dismiss the proceedings pursuant to s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 is refused. However, the Tribunal declines to conduct an inquiry into the question of access to the two documents sought by LB under the Health Records and Information Privacy Act 2002 because this has already been determined in prior decisions made by the Tribunal under the Freedom of Information Act 1989.
1 LB has applied to the Tribunal for an inquiry into his complaint about the Hunter New England Area Health Service (‘the Health Service’) under the Health Records and Information Privacy Act 2002 (‘the HRIP Act’) (1) to deny him access to two documents containing his personal health information: (i) a psychological report prepared by a private psychologist, Dr G Lattimore, dated December 2005, and (ii) a Mental Health Triage Module, dated December 2005, created by the Hunter New England Mental Health Service, a unit of the Health Service; and (2) and in relation to the accuracy of personal health information held about him by the Health Service.
2 This decision is made in response to an application by the Health Service to dismiss LB’s application pursuant to s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) on the ground “that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance”.
Background
3 LB’s application to the Health Service under the HRIP Act for access to the documents, dated 1 December 2008, was refused and LB sought an internal review. In his report in response to LB’s application, the Review Officer found that the application related to ‘personal health information’ about LB and that the Health Service was the appropriate agency to deal with the complaint. The Review Officer found that there were two “points of conduct” that LB had requested be reviewed: (1) the Area Health Service’s decision to deny him access to the two documents requested; and (2) the accuracy of personal information held about him by the Health Service.
4 The Review Officer found, with regard to the first part of the complaint, that there had been no breach of Health Privacy Principle (‘HPP’) 7, ‘Access to personal health information’. He noted in relation to the first document sought by LB, the report prepared Dr Lattimore, that this had already been the subject of a review by the Tribunal, which, in June 2008, found the report to be an exempt document pursuant to the Freedom of Information Act 1989 (‘FOI Act’), a decision upheld by the Appeal Panel. The Review Officer noted that the second document sought by LB, the Triage Module, had been the subject of a separate review by the Tribunal (differently constituted), which, in November 2008, found the Module to be partially exempt pursuant to the FOI Act. The Review Officer recommended that access to the documents sought by LB should continue to be refused.
5 With regard to the second part of the complaint, the Review Officer found no breach of HPP 9, ‘Accuracy of personal health information’. The Review Officer said that any errors or inaccuracies in the two documents could have been addressed if LB had attended for assessment as requested by the Mental Health Service, but he had declined to attend. “Additionally, while the medical records cannot be deleted, the applicant’s comments or any additional medical reports could have been attached as an addendum to his medical report.” The Review Officer said LB “is still welcome to provide any additional information that he may want added to his medical report”. He said the actions taken by the Health Service “are considered reasonable steps to confirm the accuracy of the information collected”.
6 On 2 March 2009, LB applied to the Tribunal for an inquiry into his complaint about the Health Service. I conducted a planning meeting with the parties on 24 March 2009 at which Ms Johnson raised, as a preliminary issue, the application of s 22 of the HRIP Act, which provides that nothing in the Act affects the operation of the FOI Act and, in particular, does not operate to modify any exemption under that Act. I therefore set a timetable for the exchange of submissions on the preliminary issue of the Health Service’s application to dismiss LB’s application to the Tribunal pursuant to s 73(5)(g)(ii) of the ADT Act on the ground “that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance”. I set this preliminary matter down for hearing on 26 May 2009.
7 By letter dated 26 March 2009, addressed to the Registrar, LB requested that I “be removed from dealing with any further matter” he has before the Tribunal. On LB’s letter being referred to me, I arranged a Directions Hearing on 5 May 2009 to discuss LB’s application. LB asked me to disqualify myself on the ground of bias. He referred, in particular, to a hearing on 17 October 2008 in relation to the second document, the Triage Module, which I subsequently found to be an exempt document pursuant to the FOI Act. After considering submissions from the parties, I refused LB’s application that I should disqualify myself: LB v Hunter New England Area Health Service [2009] NSWADT 101.
The Relevant Legislation
8 At the hearing on 26 May 2009, I heard submissions from the parties on the Health Service’s application that I should dismiss LB’s application to the Tribunal pursuant to s 73(5)(g)(ii) of the ADT Act. This provides that the Tribunal:
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
...(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...
9 Section 22 of the HRIP Act states:
22 Freedom of Information Act 1989 not affected
(1) Nothing in this Act affects the operation of the Freedom of Information Act 1989.
(2) In particular, this Act does not operate:
(a) to modify any exemption under the Freedom of Information Act 1989, or(b) to lessen any obligations under that Act in respect of a public sector agency.
(3) Without limiting the generality of subsection (1), the provisions of the Freedom of Information Act 1989 that impose conditions or limitations (however expressed) with respect to any matter referred to in HPP 6 (Information about health information held by organisations), HPP 7 (Access to health information) or HPP 8 (Amendment of health information) are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.
10 The relevant HPPs in Schedule 1 of the HRIP Act are as follows (omitting the ‘Notes’):
7 Access to health information
(1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.
(2) An organisation is not required to comply with a provision of this clause if:
(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
8 Amendment of health information
(1) An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information:
(a) is accurate, and(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
(2) If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.
(3) If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation.
(4) An organisation is not required to comply with a provision of this clause if:
(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
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.
The Health Service’s Submissions
11 Ms Johnson said the Tribunal has already considered the substance of LB’s application for access to the two documents and has made decisions on his review applications made under the FOI Act, confirming Dr Lattimore’s report to be exempt and the Triage Module to be partially exempt pursuant to the exemptions in Schedule 1 of the FOI Act. Ms Johnson referred to cl 2(b) of HPP 7, which provides for non-compliance to a request for access to health information where this is permitted by an Act such as, for example, the FOI Act. She also referred to s 22 of the HRIP Act, which, she said, makes it explicit that the FOI Act continues to apply, recognising the complexities of the FOI Act and the need for the Government to maintain the confidentiality of certain documents. Section 5 of the Privacy and Personal Information Protection Act 1998 is in similar terms.
12 Ms Johnson noted that s 22 of the HRIP Act does not seem to have been judicially considered. She submitted that “[t]he ordinary meaning of s 22 and, in particular s 22(3), is that the exemptions that apply to applications under the FOI Act are incorporated into the HRIP Act and any application for access to documents made under HPP 7”. She submitted that as a matter of judicial comity, the Tribunal should follow the decisions of the earlier Tribunals that have already considered the question of access to the two documents in issue.
13 Ms Johnson referred to other decisions where the Tribunal has held that where an applicant brings a fresh application which raises a claim that has already been decided by the Tribunal, then it is appropriate to dismiss the applicant’s fresh application. (See, in particular, McGuirk v Director General, Attorney General’s Department [2008] NSWADT 326, especially at [16] - [17]). Ms Johnson noted that the two earlier decisions in respect of the two documents in issue were recently handed down so that the underlying facts are unlikely to have altered significantly. In any event, in both decisions, the Tribunal relied upon more general propositions about the importance of confidential sources of information to the effective operations of agencies. Furthermore, LB has not raised any new grounds upon which he might be granted access to the documents. Ms Johnson said LB appears to be under the misapprehension that he has an unrestricted right of access under the HRIP Act as opposed to a qualified right under the FOI Act. For the reasons outlined, his understanding is wrong and the exemptions that apply under the FOI Act also apply to applications under the HRIP Act.
14 In oral submissions, Ms Johnson acknowledged that LB also appears to be concerned with the accuracy of the two documents and the application of HPP 9, a matter that was addressed in the internal review. If this is the case, this is not an issue that can be dismissed under s 73(5)(g)(ii) of the ADT Act.
Applicant's Submissions
15 In his written submissions, LB said he has always pressed the points contained in HPP 7 as to accuracy. The Health Service has never taken steps to ensure this requirement is met. In oral submissions, he referred to the remedies that may be ordered by the Tribunal pursuant to s 54(1) of the HRIP Act, including damages for any loss or damage suffered because of the conduct, which he intends to claim.
16 LB noted that the purpose and objectives of the HRIP Act are completely different from those of the FOI Act and deliberately designed to deal directly with health records and information, which the FOI Act does not do, and to protect and assist members of the general public.
17 LB said the Registrar and staff of the Tribunal should have a responsibility and duty of care to ensure that all applications are filed under the appropriate legislation. When he made applications to the Tribunal under the FOI Act, he should have been advised to resubmit his application under the HRIP Act. He only found out about the HRIP Act when he read the NSW Ombudsman’s report on the FOI Act.
18 LB said it is the government agencies involved which have been frivolous and vexatious and his application should be allowed to proceed so that his application can be decided “on facts, evidence, proof, justice, common sense and truth”. He has been frustrated by bad advice and considers the two ADT decisions made in respect of the documents to be incorrect.
Consideration
19 The Health Service has applied for LB’s application to be dismissed pursuant to s 73(5)(g)(ii) of the ADT Act on the ground that the application is frivolous or vexatious or otherwise misconceived or lacking in substance. Ms Johnson contends that the Tribunal should dismiss LB’s application because the question of access to the two documents in issue has already been the subject of two earlier Tribunal decisions – one in respect of each document – in which the Tribunal was satisfied that the exemptions claimed under the FOI Act applied, and s 22 of the HRIP Act and HPP 7(2)(b) preserves the application of those exemptions.
20 It is clear from the ordinary meaning of s 22 that nothing in the HRIP Act affects the operation of the FOI Act, or modifies exemptions under that Act, and, relevantly, conditions or limitations (however expressed) imposed by the FOI Act with respect to access to health information are not affected by the HRIP Act and continue to apply. HPP 7, Access to health information, also allows for non-compliance to a request for access to health information where non-compliance is otherwise permitted under an Act or any other law (HPP 7(2)(b)). Thus, in my view, LB cannot succeed in his application for access to the two documents in the light of the previous decisions of the Tribunal in which the Tribunal was satisfied that exemptions in Sch 1 of the FOI Act applied.
21 However, as Ms Johnson acknowledged, this does not prevent LB from pursuing his application in relation to the accuracy of the health information in the two documents and how that information has been used. While LB will be unable to access the two documents for the purpose of establishing whether the health information contained in those documents is accurate, the Tribunal will be able to do so and, pursuant to s 54(1) of the HRIP Act, has broad powers to make such orders as it considers it appropriate.
Decision
22 The Respondent’s 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.
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