LN v Sydney Local Health District (GD)

[2012] NSWADTAP 9

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

LN v Sydney Local Health District (GD) [2012] NSWADTAP 9

Hearing dates:

1 September 2011

Decision date:

23 February 2012

Before:

Judge K P O'Connor, President
C Huntsman, Judicial Member
M Bolt, Non-judicial Member

Decision:

1. Appeal allowed.

2. Leave granted to extend to the merits to the extent indicated in para [25] of these reasons.

3. Registrar to list matter for a directions hearing.

Catchwords:

HEALTH PRIVACY - Access Request - Whether Excessive Delay - Tribunal held not - Adequacy of Reasons - Appeal allowed - Health Privacy Principle 7

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:

Battenberg v The Union Club [2005] NSWADTAP 20
Beale v Government Insurance Office (1997) 48 NSWLR 430
Breen v Williams (1996) 186 CLR 71
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Category:

Principal judgment

Parties:

LN (Appellant)
Sydney Local Health District (Respondent)

Representation:

Counsel
A Britt (Respondent)
In person (Appellant)
GILD Insurance Litigation Pty Ltd (Respondent)

File Number(s):

119010

 Decision under appeal 

Jurisdiction:

9108

Citation:

LN v Sydney South West Area Health Service [2011] NSWADT 44

Date of Decision:

2011-03-03 00:00:00

Before:

General Division

File Number(s):

093024

REASONS FOR DECISION

1. The appellant, LN, underwent a PET scan at the nuclear medicine department of the Royal Prince Alfred Hospital ('the hospital') on 3 November 2008. She had been referred there for the scan by her treating clinician at the St George Hospital. After the procedure the hospital gave her a CD of the images of the scan. Later that day its staff prepared a report providing a professional assessment of the scan results. On 24 November 2008 the hospital commenced to deal with a request from the appellant for access to a copy of the report. On 27 January 2009 it gave her access. The issue is whether the delay was, in the circumstances, 'excessive' in contravention of the applicable law. The Tribunal held that the applicable law was not contravened. The appellant now appeals. The respondent party is the district health service with overall responsibility for the administration of the hospital (formerly known as the Sydney South West Area Health Service).

1. The hospital was, at the time, subject to three laws relating to access to its records: the Freedom of Information Act 1989 (FOI Act) (as it was an 'agency' within the meaning of the law), the Privacy and Personal Information Protection Act 1998 (PPIP Act) (as it was a 'public sector agency' within the meaning of that law) and the Health Records and Information Privacy Act 2002 (HRIP Act) (as it was an 'organisation' within the meaning of that law). There is no dispute that, as the information requested was 'health information' within the meaning of the HRIP Act, the HRIP Act's provisions were applicable to the request. The HRIP Act provides in Health Privacy Principle 7 (HPP 7):

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.

Note. Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

Access to health information held by public sector agencies may also be available under the Freedom of Information Act 1989 or the State Records Act 1998 .

(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 .

Basic Circumstances

1. The hospital's evidence was that once the report was prepared (later in the day on 3 November 2008) it was sent to the appellant's treating doctor, though the appellant disputed this. The appellant's evidence was that she approached the hospital directly for a copy of the report by making several telephone calls on 13 and 14 November 2008. The hospital's evidence was that it had no record of any such calls. It stated that it first became aware that she wished to have a copy of the scan report on 24 November 2008. On that day at around 10.50am the appellant attended the nuclear medicine department and, through a companion, asked for a copy of the scan report. The staff member asked she and her companion to sign a release form as a condition of access, and also advised that she would need to wait until a doctor was available who could hand over the report and provide any explanation or deal with any queries. The evidence is that she disputed the requirement to give a release, referred to her right to access, waited a few minutes but left before the doctor could attend on her.

1. The evidence is that the appellant called the hospital on 13 December 2008 pressing again for access to be given, and referring to her rights under right of access provisions of the FOI Act. Finally there was another demand made on 19 December 2008, and she filed a complaint on 20 December 2008, marked received by the hospital on 30 December 2008. That complaint referred to the rights given by the PPIP Act and the HRIP Act. The hospital's internal review officer assessed the complaint. On 27 January 2009, three days before issuing the internal review report, she forwarded the scan report to the appellant. On 30 January 2009 she issued the report. The report found that the hospital had not breached the law in its handling of the matter, the key issue being whether the delay had been excessive, and decided that no further action was required.

1. This history is dealt with in greater detail in the Tribunal's reasons.

The Appeal

1. The HRIP Act, s 21, provides that an appeal in relation to organisations which are public sector agencies (as here) is to be made under PPIP Act, s 56; and, as provided there, the scope of the appeal is governed by the Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113.

1. The appellant is a litigant in person, and her notice of appeal contains a number of general statements as to errors of law the Tribunal is said to have committed (e.g. 'misinterpreting the Act and Statutory Guidelines'), without particulars, and general references to the right to have her application for leave to extend to the merits considered without any error of law needing to be demonstrated. The appellant's written submissions in support are lengthy and difficult to follow at points.

1. The appeal challenges the Tribunal's ruling that the delay was not excessive, and the Tribunal's ruling that the time when the hospital should be seen as first receiving the request was 24 November, not 13 November as asserted by the appellant. The difference in the number of days has some marginal bearing on the view that might be formed as to whether the delay was excessive.

1. But it is critical to the strength or otherwise of the appellant's damages claim (made under PPIP Act, s 55(2)(a)). The appellant was due to fly overseas on 22 November 2008 to spend some time in her country of origin. Her evidence is that she wanted to have with her an up to date set of medical records. She asserts that, because her attempts to obtain the scan report on 13 and 14 November were unsuccessful, she was forced to cancel her flight and incurred financial losses as well as emotional distress. We deal later in these reasons with her appeal against the Tribunal's finding that the hospital first became aware of the access request on 24 November.

'Excessive Delay'

1. The Tribunal's principal reasons were as follows:

52 The Macquarie Dictionary online defines "excessive" as:

"exceeding the usual or proper limit or degree; characterised by excess"

53 The meaning of "excessive" in the online Oxford Dictionary is:

"more than is necessary, normal, or desirable; immoderate"

54 In order to determine whether a delay was "exceeding the usual or proper limit or degree" the Tribunal needs to consider all of the factors around the request.

55 In my view, it is improbable that LN requested a copy of her scan report prior to 24 November 2008. However, if I am wrong on that point I am satisfied that she did not manage to inform that Respondent's staff of the nature of her request prior to that day. There is no doubt that she did not make any written request for a copy of her scan report at that time.

56 As I have indicated above it is not in dispute that the Respondent provided LN with a copy of her scan report [sic] on 3 November 2008 and that a copy was sent to her referring specialist at about that time. It is also agreed that LN was provided with a copy of the scan report by letter dated 27 January 2009.

57 I am not agree [sic] with the Respondent's submission that it complied with Principle 7 by providing a copy of the scan report to LN's referring specialist. LN is entitled to obtain a copy directly. However, I am satisfied that it is probable that she was given a copy directly on 3 November 2008.

58 I accept the Respondent's evidence that when LN attended the hospital on 24 November 2008, she was informed of the Respondent's policy in regard to provision of scans directly to patients, rather than to a medically qualified person, and that she was asked to sign a release form acknowledging that advice. I also accept the evidence that when LN refused to sign the release form, she was asked to wait while Doctor Fulham could be contacted so that he could speak to her. I accept the evidence that the Respondent did not wait to speak to Doctor Fulham. LN also declined to provide the details of the doctor to whom the report could be sent.

59 The evidence provided by the Respondent indicates that the delay before Doctor Fulham could speak with LN would have been only a few minutes. The evidence also indicates that LN would have been given a copy of the scan at that time. I accept that LN did not advise the Respondent's staff that her request was urgent and that on 24 November 2008 she advised that she intended to proceed by way of FOI application. While that advice was given in writing, no formal FOI application was lodged.

60 I note that section 31(4) of the FOI Act provides that where an agency is of the opinion that disclosure of information to an applicant may have an adverse effect on the physical or mental health of the applicant, it is sufficient compliance with the FOI Act if access to the document is given to a registered medical practitioner nominated by the applicant. However, there is no evidence to suggest that such a view was formed in relation to the effect that provision of the scan report might have had on LN. In my view, a general policy of providing scan report to a registered medical practitioner nominated by an applicant is not sufficient to satisfy that provision. A decision would be necessary in relation to each request.

61 I accept the evidence that on 19 December 2008 "David", who was apparently an agent for LN, informed the Respondent that LN no longer sought the scan report. However, I note that this advice from "David" is inconsistent with the contents of the formal complaint that was dated the following day.

62 I note that the Respondent has a procedure in place to deal with circumstances where a patient requests a copy of their personal information. I am satisfied that the Respondent was at all times prepared to provide LN with a copy of her scan report in accordance with that policy. Where an individual refuses to sign the release form, the policy required that the director, Doctor Fulham, be contacted so that an explanation could be given to that individual. I have no doubt that there are sound reasons for that policy. However, I note that the policy cannot override the entitlement provided to patients by the HRIP Act. The entitlement provided by principle 7 is unambiguous. The health information "must" be provided without excessive delay or expense.

63 Nevertheless, in the circumstances of this case I am not satisfied that the delay in providing the scan report to LN was excessive. It follows, in my view, that the Respondent has not acted in breach of Principle 7.

64 However, even if the Respondent's conduct was in breach of the principle, is my view that no further action should be taken. At all times LN was aware that a copy of the scan report had been provided to her referring specialist and she could have resolved the issue by contacting that specialist.

1. Factual Errors : The respondent accepts that the Tribunal wrongly stated at sentence 1 of para [56] and sentence 2 of para [57] that the appellant was given access to the scan report on the day of the scan. It is not disputed that she first received the scan report (as distinct from the CD of the images) by letter of 27 January 2009. It is clear that the body of the Tribunal's reasons proceed on the same assumption, and that the statements in paras [56] and [57] are inadvertent mistakes.

1. Consideration : The meaning to be given to the word 'excessive' is a matter of law. The Tribunal did not err as we see it in its understanding of the meaning to be given to that word. It is not a term of art or a technical term. The Tribunal referred to various dictionary definitions, in particular the meaning 'more than is necessary, normal, or desirable: immoderate': online Oxford Dictionary.

1. All that remains therefore is a judgment of fact. Clearly there is a degree of subjectivity involved in the making of an assessment as to whether conduct is 'excessive'. Ordinarily an Appeal Panel would not disturb a Tribunal finding on a factual issue of this kind.

1. On its face the delay was very long, nine weeks. The document was a simple one, one page long, which only referred to the appellant, and did not contain matter that might necessitate deletions. While at common law patients did not have a right of access to medical records recording professional assessments or opinions ( Breen v Williams (1996) 186 CLR 71), the statutory rights to medical records relevant to this case varied that position.

1. The Tribunal must give adequate reasons for decision: see generally, Beale v Government Insurance Office (1997) 48 NSWLR 430 (CA, Mason P, Meagher JA and Sheller JA), 441-444; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]-[66] per McColl JA; and Battenberg v The Union Club [2005] NSWADTAP 20 at [40]-[42].

1. In our view the Tribunal did not on this occasion explain adequately how it reached the conclusion that a delay of nine weeks was not excessive in the circumstances. It appears to have proceeded on the basis that the appellant behaved unreasonably in not waiting to be attended upon by the doctor or furnishing the release, and that in that sense she was responsible for the difficulties which then ensued. It appears to have treated the processing time that passed once the complaint was formally lodged as another mitigating consideration for the delay, and appears to have given some weight to the complexity of the access-to-records regime as it affects public sector hospitals.

1. While the conditions that the hospital policy placed on the grant of access and the mode of access may be seen as having a good foundation in the norms of clinical practice, there is nothing in the HRIP Act which endorses any general restrictions of these kinds. While the Tribunal recognises this point in its reasons, it should, we think, have proceeded on the basis that the hospital had been adequately notified of the request on 24 November. It should not be afforded any concession in relation to the occurrence of the delay, and whether it was 'excessive', by reference to reliance on such a policy.

1. While the appellant may have been a difficult person to deal with, it is not appropriate in our view to take into account her behaviour in not remaining in the waiting room, when she had clearly expressed her dissatisfaction over the restrictions and, in particular, the requirement that she sign a release.

1. At [64] of its reasons, the Tribunal would appear also to have regarded as a mitigating factor the hospital's evidence that it engaged in its usual practice of sending the report to the referring clinician and the appellant's ability to have got the report from that source. The Tribunal continues that ' she could have resolved the issue by contacting that specialist'. It did not refer to the appellant's explanation as to why that did not occur.

1. In her material (see lengthy submission filed 18 August 2010) the appellant does state that she signed a consent form on 3 November for it to go to the clinician. She then states that she contacted the St George Hospital (where the clinician was located). At point 40 she states that she was advised that they did not receive the report. We note that she goes on to state that she was told when she queried this with the hospital that it had gone to the 'Sutherland' hospital (she gives no date when this was said to her), and acknowledges that had she known this she would have travelled there and got it, 'without making further query or complaint against [the respondent]'.

1. The presence of three potentially relevant regimes, we recognise, complicates the process of administration of requests for access to personal information. It also provides an explanation to the way in which both parties, the appellant and the Hospital, referred at different times to each of the Acts as the relevant one for dealing with the request. Nonetheless this regulatory complexity does not, as we see it, furnish any reasonable justification for the delay in this case.

1. In our view, the Tribunal provides no persuasive explanation as to why a delay that extended from 24 November 2008 to 27 January 2009 could be regarded as not excessive in circumstances where the relevant document had been in existence from around 3 November, the request was undoubtedly made on 24 November, the request was repeated on two occasions in December, and was raised again by means of a formal internal review application dated 20 December (marked received 30 December 2008). The relevant document was a short one. It was expressed in a technical form. The recipient, of course, could request an explanation of technical content, but there is nothing in the scheme of any of the access laws to suggest that an organisation may defer access on the basis of technical content or a perception of harm to the patient (unless s 30(4) of the FOI Act was invoked; there is no evidence that this was such a case).

1. In our view, the decision under appeal should be set aside.

The finding in relation to when the hospital first became aware of the access request

1. As to the further point of whether the decision was in error in treating the date of the making of a request for access as 24 November not 13 November, we do not think the finding should be disturbed. There was a conflict in the evidence. The appellant referred to calls she said she made on or about 13 November. The hospital could find no record of them. It was open in these circumstances for the Tribunal to adopt the view it did, that the appellant first made the hospital practically aware that she was asserting a right to be provided with access to the scan report on 24 November.

Extension to the Merits

1. Accordingly, we consider that the appeal should be extended to the merits, but confined only to the issue of whether a finding of contravention should be entered in relation to compliance with HPP 7, and what further action, if any, should be required of the hospital. In that regard, we see no basis for continued pursuit of a case seeking the recovery of compensation in relation to the abandoned travel plans. The Tribunal's finding has not been disturbed that the relevant date when the hospital first became aware of the request was 24 November, after the flight plans had been cancelled.

1. We note that in her internal review application the appellant, apart from applying for financial compensation, asked for formal apologies of various kinds for the failure to provide her in due time with the report. It may be that there can be some resolution of this case along those lines. In the interests of bringing this dispute to finality, the Appeal Panel will deal with the remainder of the proceedings, rather than refer them back.

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Decision last updated: 23 February 2012