LB v Lattimore

[2010] NSWADT 122

CITATION:	LB v Lattimore [2010] NSWADT 122
DIVISION:	General Division
PARTIES:	APPLICANT LB RESPONDENT Dr Glenda Lattimore
FILE NUMBER:	093254
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	17 November 2009
DATE OF DECISION:	26 May 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy-health privacy principles-complaint against private sector persons-jurisdiction
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002
CASES CITED:	LB v Hunter New England Area Health Service [2010] NSWADT 82 LB v Hunter New England Area Health Service (No. 2) [2009] NSWADT 132 LB v Hunter New England Area Health Service [2009] NSWADT 101
REPRESENTATION:	APPLICANT In person RESPONDENT M Raftos, solicitor
ORDERS:	The Tribunal does not have jurisdiction to hear and determine this application.

REASONS FOR DECISION

1 On 25 September 2009, the applicant, LB, lodged an application with the Tribunal for an original decision. In that application LB sought an order directing the respondent, Doctor Lattimore to:

‘Supply me with a copy of the ‘Psychological Report on Me’ She created on the 31/12/05.
As stated in writing the names of other people contained in the report can be deleted.’

2 LB’s application was made pursuant to section 48(1) of the Health Records and Information Privacy Act 2002 (the HRIP Act). That section provides as follows:

48 Application to Tribunal

(1) A person who has made a complaint to the Privacy Commissioner under Division 1 may apply to the Tribunal for an inquiry into the complaint, but only if the complaint was the subject of a report of the Privacy Commissioner under section 47.
Note: This section confers jurisdiction on the Tribunal to make an original decision. It does not confer jurisdiction to review a decision of the Privacy Commissioner .
(2) An application may only be made within 28 days after:
(a) the day on which the complainant received the report of the Privacy Commissioner, or
(b) the day (if any) recommended in the report of the Privacy Commissioner as the day after which an application may be made to the Tribunal,
whichever is later.

(3) However, a person cannot apply to the Tribunal if the person has made a complaint about the same subject matter to the Commonwealth Privacy Commissioner, or to an adjudicator under an approved privacy code within the meaning of the Privacy Act 1988 of the Commonwealth, and:
(a) the complaint has not been withdrawn, or
(b) the Commonwealth Privacy Commissioner has made a determination under section 52 of that Act, or
(c) the adjudicator has made a determination under a provision of the approved privacy code that corresponds to section 52 of that Act.

3 It is the contention of the respondent that the Tribunal has no jurisdiction to hear and determine LB’s application as LB’s complaint to the Privacy Commissioner has not been the subject of a report under section 47 of the HRIP Act. As identified above, the Tribunal’s jurisdiction to hear and determine LB’s application for original decision under sub-section 48(1) of the HRIP is subject to LB’s complaint having been the subject of a report by the Privacy Commissioner under section 47 of that Act.

4 It is LB’s contention that the Tribunal does have jurisdiction on the basis of section 3 (objects), and 38 (jurisdiction) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) and section 3 (objects and purpose) and clauses 1, 2, 3 and 4 (health privacy principles relating to the collection of health information about an individual) of Schedule 1 of the HRIP Act.

Relevant Legislation

The HRIP Act

5 Section 42 of the HRIP Act makes provision for complaints to be made to the Privacy Commissioner about an alleged contravention by a private sector person of (a) a health privacy principle (see Schedule 1 to the Act), (b) a provision of Part 4 of the Act, or (c) a health privacy code of practice (see Part 5 of the Act).

6 There is no dispute that Dr Lattimore, a registered psychologist, is a private sector person for the purpose of the HRIP Act (see section 4 of the HRIP Act).

7 The powers and functions of the Privacy Commissioner in dealing with a complaint that is made to him under section 42 are set out in sections 43, 44, 45, 46 and 47 of the HRIP Act. In summary, on receipt of a complaint under section 42, the Privacy Commissioner has two choices – he can conduct a preliminary assessment (section 43) or decide to deal with the complaint (section 44).

8 If the Privacy Commissioner decides to conduct a preliminary assessment he must do so ‘for the purpose of deciding whether to deal with the complaint’: see sub-section 43(1) of the HRIP Act. In making his preliminary assessment the Privacy Commissioner is given power to decide not to deal with the complaint where he is satisfied of one or more of the matters listed in paragraphs 43(2)(a) to (f) apply. One such matter is where ‘the subject matter of the complaint relates to a matter permitted or required by or under any law’: see paragraph 43(2)(c) of the HRIP Act.

9 If the Privacy Commissioner decides to deal with the complaint, he must carry out an ‘assessment’ so as to determine whether there is a prima facie case that the respondent (i.e. the private sector person complained about) contravened a health privacy principle, a provision of Part 4, or a health code of practice. If the Privacy Commissioner is satisfied that there is a prima facie case, he must deal with the complaint in accordance with section 45. In dealing with a complaint, sub-section 45(1) of the HRIP Act gives the Privacy Commissioner power to either (a) endeavour to resolve the complaint by conciliation pursuant to section 46, (b) investigate the complaint further and make a report under section 47, or (c) decide that the complaint has been resolved to his satisfaction.

10 Section 47 of the HRIP Act provides as follows:

47 Reports and recommendations of Privacy Commissioner


(1) The Privacy Commissioner may make a written report as to any findings or recommendations by the Privacy commissioner in relation to a complaint dealt with by the Privacy commissioner under section 45 (1) (b).

(2) The Privacy Commissioner may give a copy of any such report to the complainant, the respondent and to such other persons or bodies as appear to be materially involved in matters concerning the complaint.

(3) A report under this section is admissible in subsequent proceedings under this Part relating to the complaint.

11 As mentioned in the note to section 48 of the HRIP Act, an application made to the Tribunal under that section, is an application for an original decision and not to review a decision. Conferral of jurisdiction to make such a decision is dealt with in section 37 of the ADT Act. That section provides as follows:

37 Conferral of jurisdiction to make original decisions

The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment.

12 The word ‘enactment’ is defined in section 5 of the ADT Act and it means any Act other than the ADT Act. Accordingly, the Tribunal’s jurisdiction to hear and determine an application for an original decision must be found in another Act. In this application the relevant Act is the HRIP Act.

Evidence

13 In the letter attached to his application to the Tribunal, LB explained that he had previously lodged an application under section 48 of the HRIP Act, on 23 December 2008. That application was dismissed by Deputy President Handley on grounds of lack of jurisdiction because LB had not made a complaint to the Privacy Commissioner under section 42 of that Act and the Privacy Commissioner had not made a report under section 47 of that Act.

14 In his letter, LB said that he had made the requisite complaint to the Privacy Commissioner on 17 February 2009. A copy of this letter and correspondence between LB and the Privacy Commissioner that followed were also attached.

15 LB’s letter of 17 March 2009 set out the circumstances in which 2 documents concerning him came into existence in December 2005 and which he sought access to. One document was a psychological report, written by Dr Lattimore, on 30 December 2005 that concerned LB. LB pointed out that Dr Lattimore was not his treating psychologist and that she had never seen him. The other document was a triage report of a mental health facility, of the Hunter and New England Area Heath Service, and completed on 23 December 2005. LB asserted that this triage report came into existence as a result of a complaint that Dr Lattimore had made about him. LB explained that he been unsuccessful in obtaining access to these documents through various other agencies. The Tribunal notes that some of these requests have been the subject of applications to the Tribunal: see LB v Hunter New England Area Health Service [2010] NSWADT 82, LB v Hunter New England Area Health Service (No. 2) [2009] NSWADT 132 and LB v Hunter New England Area Health Service [2009] NSWADT 101.

16 From the material provided, LB’s complaint to the Privacy Commissioner also included an assertion that Dr Lattimore had unlawfully collected health information about him and that her conduct was unprofessional.

17 The Privacy Commissioner responded to LB in a letter dated 27 March and 17 April 2009. A copy of each letter was included with LB’s application. In these letters, the Privacy Commissioner sought clarification from LB about his complaint. In the latter letter the Commissioner went on to say: ‘We are currently assessing your complaint to Privacy New South Wales under section 43(1) of the Health Records and Information Privacy Act.’

18 The Privacy Commissioner again wrote to LB on 17 July 2009. In that letter the Commissioner explained to LB that he had no power to deal with complaints about alleged professional misconduct. The letter went on to say that as ‘part of our assessment of your complaint under section 43’ of the HRIP Act he would write Dr Lattimore’s solicitors and seek Dr Lattimore’s views on granting him access to the 2 documents he had identified. The Privacy Commissioner went on to point out and explain legal grounds on which Dr Lattimore may rely in deciding not to give him access to these documents (i.e. section 126A of the Evidence Act 1995 and clause 11 of Schedule 1 of the HRIP Act). At the conclusion of his letter the Privacy Commissioner said that these arguments (grounds), if raised by Dr Lattimore:

‘… [are] likely to mean that I will decide not to deal further with your complaint because “the subject matter of the complaint relates to a matter permitted or required by or under any law “ (section 43(2) (the) of the HRIP Act).’

19 Following some email exchanges between LB and the Privacy Commissioner, on 29 July 2009, the Privacy Commissioner wrote to LB advising him that Dr Lattimore’s solicitors had pointed out that Dr Lattimore did not have a copy of the Triage report and that as her psychological report was made during the confines of a doctor/patient relationship with a person other than LB, it was confidential and Dr Lattimore was not legally able to disclose it to LB. The Privacy Commissioner went on to say that he was of the view that Dr Lattimore’s denial of access was ‘required or authorised by or under any law’ and he advised:

‘I am now informing you that I have decided not to deal with your complaint because “the subject matter of the complaint relates to matter permitted or required by or under any law” (section 43(c) of the HRIP Act) that is the Psychologist Act and its Code of Professional Conduct.’

20 There was further correspondence between LB and the Privacy Commissioner after this date. The content of which is of no relevance to the issue of the Tribunal’s jurisdiction to hear and determine this application by LB for an original decision, other than to note that the decision of the Privacy Commissioner did not change.

Consideration

21 The Tribunal does not have any jurisdiction to review decisions made by the Privacy Commissioner under Part 6 of the HRIP Act. As set out above, the Tribunal’s jurisdiction in conducting an inquiry into a complaint under section 48(1) of the HRIP Act lies within its jurisdiction to make an original decision: see section 36(1)(a) of the ADT Act. By reason of section 37 of the ADT Act, jurisdiction to make such decisions does not arise by reason of section 36 or any other provision of the ADT Act. Jurisdiction to make such a decision must be found under another Act. In this application, the relevant Act and section is section 48 of the HRIP Act. However, to be ceased of jurisdiction each of the matters referred to in that section must also be satisfied.

22 The objects as set out in the HRIP Act and the ADT Act do not operate to extend the jurisdiction of the Tribunal. These provisions must be read within the bounds of those provisions that do vest jurisdiction on the Tribunal.

23 In this application, there is no dispute that LB made a complaint to the Privacy Commissioner under section 42 of the HRIP Act and that the complaint is the subject of his application to the Tribunal.

24 The issue is whether, LB’s complaint was also the subject of a report of the Privacy Commissioner under section 47 of the HRIP Act.

25 It is clear from the correspondence of the Privacy Commissioner to LB, that at no time did he deal with LB’s complaint under sections 44 and 45 of the HRIP Act. That is, he did not carry out an assessment to determine whether there was a prima facie case. Nor did he investigate it. Consequently, at no time was LB’s complaint the subject of a report under section 47 of the HRIP Act. Such a report only arises where the Privacy Commissioner has conducted an investigation pursuant to paragraph 4(1)(b) of the HRIP Act.

26 No such investigation was undertaken. Instead, the Privacy Commissioner conducted a preliminary assessment under sub-section 43(1) of the HRIP Act and on doing so determined not to deal with the complaint. The Privacy Commissioner’s correspondence to LB makes this expressly clear, including the grounds on which he decided not to deal with the complaint. In such circumstances, the HRIP Act or the ADT Act, do not provide LB with a right of appeal or review to the Tribunal.

27 Accordingly, the Tribunal must find that it has no jurisdiction to hear and determine LB’s application.