LN v Sydney South West Area Health Service

[2011] NSWADTAP 3

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

LN v Sydney South West Area Health Service [2011] NSWADTAP 3

Hearing dates:

26 August 2010

Decision date:

07 February 2011

Before:

S Higgins , Deputy President
R Wilson, Judicial Member
M Bolt, Non Judicial Member

Decision:

1. Appeal is dismissed.

2. Application for leave to extend to the merits not granted.

Catchwords:

PRIVACY - appeal - denial of natural justice - application decided on the papers - incorrect exercise of jurisdiction - application of incorrect health privacy principles - proper construction of the 'consent' exception to the use health privacy principle

REPRESENTATION - non lawyer agent - application for leave - objection

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Amendment Act 2008
Health Records and Information Privacy Act 2002
Information Privacy Act 2009 (Qld)
Information Privacy Act 2000 (Vic)
Privacy and Personal Information Protection Act 1998
Privacy Act 1988 (Cth)

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26
LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16
LN v Sydney South West Area Health Service [2010] NSWADTAP 36
LN v Sydney South West Area Health Service [2009] NSWADT 325
LN v Sydney South West Area Health Service [2009] NSWADT 278
MG v Director General, Department of Education and Training [2004] NSWADTAP 45
Minister for Immigration and Multicultural Affairs v Jia (2001) 2005 CLR 507
VZ v University of Newcastle [2009] NSWADT 18

Category:

Principal judgment

Parties:

LN (Appellant)
Sydney South West Area Health Service (Respondent)

Representation:

A Britt (Respondent)
LN (Appellant - in person)
TA (Appellant - being granted leave to speak to the notice of appeal and submissions filed by the appellant

File Number(s):

109017

Publication restriction:

S75 of the Administrative Decisions Tribunal Act applies

 Decision under appeal 

Jurisdiction:

9108

Citation:

LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38

Date of Decision:

2010-02-08 00:00:00

Before:

S Montgomery, Judicial Member

File Number(s):

093170

REASONS FOR DECISION

1. In April 2009, LN, a former patient of a hospital (the hospital), operated by the Sydney South West Area Health Service (the respondent) made an application to the respondent for internal review, under section 21 of the Health Records and Information Privacy Act 2002 (the HRIP Act) and section 53 of the Privacy and Personal Information and Protection Act 1998 ( the PPIP Act), of conduct by a number of officers of the hospital. It was LN's contention that these officers had breached her privacy contrary to the health privacy principles (HPP) and information protection principles (IPP) contained in the HRIP Act and the PPIP Act. Being dissatisfied with the respondent's internal review of that conduct LN sought external review, by the Tribunal, pursuant to section 21 of the HRIP Act and section 53 of the PPIP Act.

1. On 29 September 2009, the Tribunal heard the respondent's interlocutory (i.e. preliminary) application, that the Tribunal had no jurisdiction to hear and determine LN's application for review. At the conclusion of the hearing, the Tribunal gave an extempore decision. The Tribunal dismissed LN's application, for lack of jurisdiction, in so far as her application sought review of the conduct of the officers of the respondent, other than the conduct of Ms Whalan, Director Corporate Services of a hospital: see LN v Sydney South West Area Health Service [2009] NSWADT 278 (the Tribunal's dismissal decision). LN appealed this dismissal decision of the Tribunal. That appeal was determined by the Appeal Panel (differently constituted) on 28 April 2010: see LN v Sydney South West Area Health Service [2009] NSWADTAP 36.

This appeal

1. On 8 February 2010, the Tribunal dismissed LN's application for review of the conduct of Ms Whalan: see LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38 (the Tribunal's decision). At [74] to [76] of its decision, the Tribunal found that Ms Whalan's conduct did not amount to a breach of LN's privacy (i.e. the conduct did not breach a HPP or IPP under the HRIP Act or the PPIP Act). LN appealed this decision of the Tribunal on 11 March 2010. It is that decision that is the subject of this appeal, which was heard on 26 August 2010.

1. An appeal may be made in relation to any question of law (paragraph 113(2)(a) of the ADT Act, and may, with the leave of the Appeal Panel, be extended to the merits (paragraph 113(2)(b) of the ADT Act). LN contended that the Tribunal had erred in law, in several respects, in determining her application for review. She also applied for leave to extend to the merits.

1. In summary, LN's Notice of Appeal identified the following errors of law:

(a) denial of natural justice/procedural fairness in that the Tribunal:

(i) did not allow LN to give oral evidence or cross-examine the witnesses of the respondent, whose evidence was given by affidavit;

(ii) refused to hear evidence from one of LN's proposed witnesses, Ms Hasnaa Arabei;

(b) bias;

(c) incorrect exercise of jurisdiction in that the Tribunal exercised its original jurisdiction under section 37 of the ADT Act and not its review jurisdiction under section 38 of that Act, and

(d) the Tribunal applied the incorrect health privacy principles in that it failed to consider the health privacy principle in clause 10(1)(h)(ii) of Schedule 1 of the HIRP Act.

1. As LN's appeal was lodged one or two days outside the 28 day time limit prescribed in paragraph 113(3)(a) of the Administrative Decisions Tribunal Act 1997 (the ADT Act), LN's Notice of Appeal also sought an order extending the time within which to lodge her appeal. At the commencement of the hearing of LN's appeal, after hearing from the parties, we made an order under paragraph 113(3)(b) of the ADT Act, extending the time within which LN could lodge her appeal.

1. After having made this order, LN handed to the Appeal Panel an application for TA to act as her agent during the hearing of her appeal. Mr Britt, counsel for the respondent, opposed the application. For the reasons set out below, we refused LN's application but allowed TA to speak, on her behalf, to the written submissions she had filed in this appeal.

1. We have now considered all the material placed before us on appeal and for the reasons set out below we find that LN has failed to establish any errors of law in the decision of the Tribunal that is the subject of this appeal. We also refuse LN's application for leave to extend her appeal to the merits.

LN's application for leave to be represented by TA

1. Section 71of the ADT Act makes provision for the representation of parties before the Tribunal and the Appeal Panel. It relevantly provides as follows:

71 Representation of parties

(1) A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an Australian legal practitioner, or

(b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or

(c) ...

(2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party's agent in the proceedings or in part of the proceedings.

(3) The Tribunal may:

(a) grant or refuse leave on an application made under subsection (2), and

(b) revoke any leave that has been granted.

(3A) The rules of the Tribunal may make provision for or with respect to the following matters:

(a) ...the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party,

(b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave

1. In regard to the granting and revoking of leave for an agent to represent a party in proceedings the Administrative Decisions Tribunal Rules 1998 provide as follows:

20A Granting and revocation of leave for agent to represent party

(1) This rule provides for the circumstances in which it is appropriate under section 71 of the Act for the Tribunal to grant, refuse or revoke leave for an agent to represent a party in proceedings, or part of proceedings, in the Tribunal.

Note. ...

(2) It is appropriate for the Tribunal to grant leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person has:

(a) a sufficient degree of competence to provide effective representation for the party, and

(b) the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings.

(3) It is appropriate for the Tribunal to refuse leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person does not have the qualities referred to in sub-rule (2).

(4) ...

(5) Nothing in this rule limits the matters that the Tribunal may take into account in deciding whether it is, or is not, appropriate for the Tribunal to grant, refuse or revoke leave for a person to represent a party as the party's agent in proceedings.

1. Mr Britt, counsel for the respondent, provided the Appeal Panel with a copy of a decision of the President in which his Honour refused a similar application, made by LN on January 2010 in the course of her appeal from the Tribunal's dismissal decision: see LN v South West Area Health Services (GD) [2010] NSWADTAP 16. At [18], the President said the following:

'18. In my view it is not likely to be in the interests of the orderly despatch of business in the Tribunal that persons who have been presently or recently involved in bringing their own cases against a respondent be permitted to represent other persons with cases against the same respondent. There is a real risk that they will bring to their role as agent the grievances which have led them to take personal action against the respondent. There is a real risk that they will use the case in which they appear as agent as a further platform for airing their grievances with the agency, rather than their 'client's' grievances. The agent may be 'using the litigant as a puppet': see Paragon Finance plc v Noueri (Practice Note) [2001] 1 WLR 235 at [56].'

1. His Honour went on to say, at [19], that there was a high risk that TA would bring to his role as agent his own personal grievances against the respondent. His Honour also referred to another decision of the Tribunal, made on 31 December 2009, in which the Tribunal had refused a similar application by LN in another application she had lodged seeking review of conduct: see LN v Sydney South West Area Health Service [2009] NSWADT 325. At [10] of that decision the Tribunal referred to its dismissal decision where it had noted the following:

' ... a representative in proceedings like these needs to have the ability to identify the conduct by the respondent that is allegedly in breach of the applicable legislation, adduce evidence in support of the allegations made and to understand the procedure whereby such allegations may be brought to hearing. The representative also needs to have the ability to be able to present argument in relation to the evidence and submissions put by the respondent (see HV v Commissioner of Police [2009] NSWADT 100 at paragraph [6]).'

1. In its dismissal decision (supra [2009] NSWADT 278) at [12], the Tribunal had said it doubted that TA had the abovementioned abilities and informed LN that TA would not be permitted to represent her at further hearings in that matter.

1. We agreed with the reasoning of the President and the Tribunal as to the factors relevant to the issue of granting leave for a person to act as an agent of a party. On the basis of the material filed by LN in this appeal, we had similar concerns about TA's ability to act as an agent and on this basis refused LN's application. However, in light of LN's circumstances and her wish to have her appeal heard that day, we granted her leave for TA to speak on her behalf so long as he did not depart from the contents of LN's Notice of Appeal and her written submissions. We also limited the time in which TA could speak. The respondent was also subject to the same time limits.

Ms Whalan's conduct the subject of LN's complaint

1. It is necessary to briefly set out the conduct, the subject of LN's complaint and reviewed by the Tribunal below.

1. The terms of LN's complaint about Ms Whalan's conduct were set out by the Tribunal, at [3] in its dismissal decision, as follows:

'Ms. Jan Whalan sent a letter to me on 30 January 08 (sic) admitted that she was aware that I will come on (due date) to [the hospital], so that she accessed to my health information to know when and where will I get to [the hospital] for PET Scan.'

1. Ms Whalan's letter of 30 January 2008 was a response to a complaint LN made to the hospital, on 30 December 2008, about the PET/Nuclear Medicine Department (the PET Department) of the hospital refusing to give her a copy of her PET Scan and PET report. LN had request these as she was going overseas for treatment and she wanted to take her scan and report with her.

1. In her letter, Ms Whalan said she had dealt with LN's complaint as an internal review request under the HRIP Act and PPIP Act. Ms Whalan explained that the internal review had been conducted and a preliminary report and findings had been forwarded to Privacy NSW and once Privacy NSW had provided its comments the report and findings would be forwarded to LN. Ms Whalan then went on to say the following:

'[I] am aware that you want a personal copy of the report written following the PET scan which was conducted on 3 November 2008.

It is usual practice for the PET Department to provide a copy of the doctor's written report to a patient, by one of the following means:

1. to the referring doctor so that the report can be picked up at their follow up visit.

2. to the patient's home address (after they have had time to organise a follow up visit with a doctor, so that they can discuss the scan results and their care and treatment).

3. to another doctor of the patient's choice.

Patients are required to nominate by which one of these three means they want to obtain a copy of the report; and to sign a form to authorise the method of providing the report. I am aware that you have not signed this "authorisation" form to obtain a copy of the written report for ... However, as part of my investigation into your complaint, I have become aware that you may attend the hospital for a follow-up appointment at the end of January 2009 . As the doctor is the same doctor who referred you for scans in ... 2008, I assume that you have been in contact with him about your ongoing care and treatment. I have, therefore, concluded that you have met the second criteria (point 2. above) under which a scan report is provided to a patient. Accordingly I enclose a copy of the scan report that was sent to the referring doctor. If you have any questions about the written report you are to contact your treating doctor, who makes your referring doctor who is caring for you - this is usual practice.

...' (bold and italics added)

1. In its decision, at [5], the Tribunal categorised LN's complaint about Ms Whalan's conduct as follows:

'5 The Applicant appears to allege a disclosure and misuse of health information. I agree with the Respondent's interpretation of LN's complaint being in the following two parts:

(a) That Ms Whalan sent a letter to LN in which Ms Whalan disclosed to LN that she is aware that LN will attend the hospital at the end of January 2009 for a follow up appointment; and

(b) Ms Whalan accessed LN's health information in order to know that LN would attend the hospital for a follow-up appointment.'

1. LN has not taken any issue with this formulation of the nature of her complaint.

Grounds of Appeal

1. It is convenient to deal with each of the grounds of appeal separately.

Denial of Natural Justice/Procedural Fairness

1. No hearing - in her written submissions at paragraphs 33 to 34, LN states that she did not receive any direction that the Tribunal would determine her application, insofar as it related to Ms Whalan's conduct, on the papers. She said she intended to cross-examine the respondent's witnesses and that she wanted to 'extract more orally evidences from my witnesses'.

1. The Tribunal's power to determine an application on the papers is found in section 76 of the ADT Act. That section relevantly provides that 'the Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.' We note that LN has not questioned the discretion that is vested in the Tribunal under this section.

1. In his written submissions, Mr Britt, said that the respondent's recollection was that the Tribunal had made a decision to determine LN's application on the papers during a planning meeting on 6 October 2009. He said the Tribunal informed the parties what was involved in determining an application on the papers and it was the respondent's recollection that LN had agreed to the matter being dealt with in this way after the parties had filed and served their respective material. He also said LN agreed with the Tribunal's orders as to the filing of material (i.e. evidence and submissions) by the parties. At no time subsequent to this did LN indicate to the respondent that she wanted to cross-examine its witnesses or that she wanted to adduce further evidence from her witnesses.

1. Our examination of the Tribunal's file supports the contentions of the respondent.

1. We note that following the dismissal decision of the Tribunal (i.e. the decision of 29 September 2009), LN's application in so far as it related to her complaint about Ms Whalan's conduct was listed for a planning meeting on 6 October 2009. The Tribunal's result sheet for that planning meeting identifies LN and TA as being in attendance. The orders made on that day are recorded as (a) the applicant [LN] to file and serve any further material by 30 October 2009, (b) the respondent to file and serve any further material by 23 November 2009, and (c) LN to file and serve any further material by 30 November 2009. The result sheet also records that LN's application was adjourned for 'Hearing on papers (Tribunal to decide the application on the written information given to it by the parties without having a hearing)'.

1. In response to orders that were made on 6 October 2009, LN filed and served a bundle of material on 12 October 2009. The covering letter, addressed to Mr Britt, stated the following:

'With reference to the direction of the Tribunal, for the above matter, concerning the conduct of Ms. Whalan.

I am sending my statement attached with Exhibit marked documents.

Should you seek any further explanation, please don't hesitate to contact me by mail, and I look forward to receive your comments in order to make my reply according to the direction of the Tribunal within specific period determined by the Tribunal.

1. In the attached statement, at paragraph 3 and 4, LN said the following:

' 3- The Tribunal decided to divide the case into two matters and two decisions; one for jurisdiction for first four allegations, and one for the sixth allegation concerning conduct of Ms. Whalan to be reviewed separately.

4 - The Tribunal decided that, it will take its decision upon the documents are available and submit to the Tribunal.'

1. The respondent filed and served its material on 24 November 2009 (i.e. affidavits of Ms Whalan and Ms Charlotte Roberts and its written submissions). On 11 December 2009, LN, through her agent (we understand this to have been her daughter), filed and served a large bundle of documents. That bundle of documents contained; LN's comments on the affidavits of Ms Whalan and Ms Roberts, an affidavit of TA and LN's outline of submissions. In the outline of submissions LN set out the history of her application for review before the Tribunal. In regard to her application concerning the conduct of Ms Whalan, at paragraph 18, LN said as follows:

'18. The Tribunal decided that there were no needs for a hearing date, and made the direction to each party to submit their submissions and to outline their argument each party is relying on.'

1. Having regard to the content of the Tribunal's result sheet for the planning meeting of 6 October 2009 and the material filed by LN, or on her behalf, in response to the orders made by the Tribunal on 6 October 2009, we find that LN's claim that she was not notified of the Tribunal's decision to determine her application for the review of the conduct of Ms Whalan on the papers, is disingenuous. It is apparent from the material LN filed that she had a clear understanding of the orders that had been made by the Tribunal, including the decision that the Tribunal would determine this part of her application for review on the papers.

1. We appreciate that LN was not legally represented and that English is not her first language. However, she and TA are now familiar with the procedures of the Tribunal as they have each prosecuted a number of external review applications and appeals before the Tribunal. Had LN wanted to cross-examine the respondent's witnesses, or have one of her witnesses give further oral evidence, she had ample opportunity to raise this with the Tribunal, or the respondent. Instead she responded to the respondent's evidence in writing and that response was comprehensive.

1. Accordingly, we find that LN has failed to establish her contention that the Tribunal failed to give her an opportunity to give oral evidence or to cross-examine the respondent's witnesses.

1. Refusal to hear evidence from a witness At [37] to [64] of its decision, the Trib unal set out LN's case on review of her complaint about Ms Whalan's conduct. At [37], the Tribunal said LN was relying on her written submissions in reply to the respondent's evidence and submissions and the affidavit by TA (as noted in paragraph 29 above, these were filed on 11 December 2009). LN made no mention of this paragraph, in her Notice of Appeal, as being an incorrect reflection of the material she had relied on in regard to her complaint about Ms Whalan's conduct. In her Notice of Appeal she only made reference to Ms Hasnaa Arabei having given 'her affidavit and was available at the hearing, but the Tribunal refused to hear from her, although I afforded her expenses to come.'

1. In its written submissions, the respondent said that LN had filed an affidavit of this witness on 9 September 2009 and that it was not relied on by LN, nor were its contents of any relevance to the issues before the Tribunal 'in the hearing'.

1. On further questioning during the hearing before the Appeal Panel, it became evident that LN had made this witness available to give evidence when the Tribunal heard the respondent's dismissal application, on 29 September 2009. In light of this and our finding that LN at all times was aware of the Tribunal's decision, of 6 October 2009, to determine her application concerning the conduct of Ms Whalan on the papers we find that this ground of appeal has not been made out. For completeness we also note that the written submissions filed by LN before the Tribunal, on 11 December 2009, made no reference to the affidavit evidence of Ms Arabei.

1. For the reasons set out above, we find that LN has failed to establish that the Tribunal had erred in law in that it denied her natural justice or procedural fairness in determining her application for review of Ms Whalan's conduct.

Bias

1. It is well accepted that bias, actual or apprehended, is a departure from the fundamental principle that the Tribunal be independent and impartial. Actual bias is established where it is shown that the decision maker's state of mind 'is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may present it': see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532.

1. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] to [8] said the following regard to the apprehension of bias principle:

'The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. '

1. The High Court in re Ebner emphasised that the test for apprehended bias was an objective one and required a real possibility of apprehended bias.

1. In her Notice of Appeal LN asserted that the Tribunal Member 'was comprehensive bias toward the barrister of the respondent'. In her written submissions LN did not elaborate on this assertion other than to say, at paragraph 35, that she had seen the 'Respondent (Counselor), in break time, talks with the Tribunal member, in the other case.'

1. In our opinion, the fact that the Judicial Member may have been seen to speak with counsel for the respondent does not, on its own, give rise to a finding of actual or apprehended bias by the Judicial Member.

1. We have assumed, from the tenor of her written submissions, that LN may be contending bias on the basis of the Judicial Member having accepted the submissions of the respondent when making its decision. If our assumption is correct, then LN's contention is misconceived. It is evident from the Tribunal's reasons for decision that the Judicial Member had regard to the evidence and written submissions of both parties in coming to his decision. The fact that a Judicial Member prefers the contentions of one party does not evidence actual bias or an apprehension of bias. In our view there is nothing in the decision of the Tribunal, which evidences actual bias or an apprehension of bias of the Judicial Member. On the contrary, the decision of the Tribunal accords with the power vested in the Judicial Member under section 63 of the ADT (the relevant parts of this section are set out in paragraph 57 below).

1. Accordingly, we find that LN has failed to establish this ground of appeal.

Wrong Exercise of Jurisdiction

1. As pointed out by LN in her submissions, the Tribunal has jurisdiction to review a reviewable decision of a government agency (see section 38 of the ADT Act) and jurisdiction to make original decisions (see section 37 of the ADT Act).

1. In her Notice of Appeal, LN said that the Tribunal had made its decision pursuant to section 37 of the ADT Act. In this regard LN asserted, the Tribunal had made an 'original decision' and failed to 'review' the 'original decision of the Administrator which was relied only on Principle (10)(1)(h) and (ii)': see at paragraph C) on page 2 of LN's Notice of Appeal.

1. In her Notice of Appeal, LN went on to say: 'D) Health Principles 10(1)(a), 10(1)(b), 10(1)(j) and 10(5) must not be applied in these cases.' It was LN's contention that the only applicable health privacy principle was clause 10(1)(h)(ii) of Schedule 1 of the HRIP Act as this was the principle relied on by the respondent in its decision on LN's internal review request.

1. In our opinion, for the reasons set out below, these assertions demonstrate LN's (and TA if he prepared the Notice of Appeal on her behalf) lack of understanding of the Tribunal's merit review jurisdiction.

1. Section 38 of the ADT Act confers jurisdiction on the Tribunal to 'review' a 'decision' of an administrator where an enactment, other than the ADT Act, provides that applications may be made to the Tribunal to 'review' such 'decisions'.

1. Section 37 of the ADT Act confers jurisdiction on the Tribunal to act as 'the primary decision' maker where an enactment, other than the ADT Act, provides that applications may be made to the Tribunal for such decisions.

1. It was not disputed that LN's complaint about Ms Whalan's conduct was made under sub-section 21(1) of the HRIP Act. That section relevantly provides as follows:

21 Complaints against public sector agencies

(1) The following conduct by a public sector agency is conduct to which Part 5 (review of certain conduct) of the PPIP Act applies:

(a) the contravention of a health privacy principle that applies to an the agency,

(b) the contravention of a health privacy code of practice that applies to the agency.

(2) ...

1. There was no dispute that Ms Whalan's conduct was conduct in the exercise of her duties as an officer of the respondent and that the respondent was a public sector agency, subject to the provisions of the HRIP Act, including a requirement to comply with the HPP's contained in Schedule 1 of the HRIP Act: see section 11.

1. Part 5 of the PPIP Act relates to the 'review of certain conduct'. The nature of that conduct is defined in sub-section 52(1) of that Act. It includes conduct by a public sector agency that contravenes an IPP applying to that agency. The IPPs are set out in Division 1 of Part 2 of that Act (i.e. sections 8 to 19) and relate to the collection, storage, use and disclosure of 'personal information' about an individual.

1. The legislative scheme for the 'review of conduct' by a public sector agency under Part 5 of the PPIP Act, gives every person who is aggrieved by conduct to which that Part relates a right to seek internal review of that conduct by the agency concerned: see section 53 of the PPIP Act. If not satisfied with the findings, or the action taken by the agency concerned, the person is given a right to make an application to the Tribunal for external review of that conduct: see section 55 of the PPIP Act.

1. By reason of sub-section 21(1) of the HRIP Act, conduct by a public sector agency that contravenes a HPP applying to that agency is also conduct that falls within the terms of Part 5 of the PPIP Act and the review of that conduct also falls within the terms of sections 53 and 55 of the PPIP Act.

1. It is well established that an application for review of conduct of a government agency under section 21 of the HRIP Act and section 55 of the PPIP Act are applications that are made under the Tribunal's jurisdiction to review a 'reviewable decision': see GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 at [35] and MG v Director General, Department of Education and Training [2004] NSWADTAP 45 at [6]. This was made abundantly clear in 2008, when sub-section 8(2) was inserted into the ADT Act by the enactment of the Administrative Decisions Tribunal Amendment Act 2008. That sub-section expressly provides that for 'avoidance of doubt' a 'reviewable decision' includes 'conduct of an administrator'.

1. Accordingly, applications to the Tribunal under section 21 of the HRIP Act and section 55 of the PPIP Act are review of conduct by an administrator.

1. Section 63 of the ADT Act sets out the role of the Tribunal in reviewing a reviewable decision (including a review of conduct under the PPIP Act and the HRIP Act). That section relevantly provides as follows:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) ...

1. Accordingly, the Tribunal sits in the shoes of the administrator and considers the matter the subject of review a fresh: see generally Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; (179) 24 ALR 22. In considering the matter a fresh, the Tribunal makes its own findings of fact from the material before it and also has regard to any relevant and applicable law. It is not bound by the findings of the administrator, or the law as applied by the administrator.

1. In our opinion, it is clear from the Tribunal's reasons for decision, when read with its earlier dismissal decision, that it was exercising its review jurisdiction in that it was reviewing the conduct LN had complained about in her internal review request made pursuant to section 21 of the HRIP Act and section 53 of the PPIP Act: see at [2] of the Tribunal's decision and at [2] and [33] of the Tribunal's dismissal decision. As we have already said, in exercising its review decision it was open to the Tribunal to make its own findings of fact as to whether the conduct of Ms Whalan, as identified by LN in her internal review request, did or did not contravene a HPP applying to the respondent. Having made such findings did not mean that the Tribunal was exercising its 'original' jurisdiction as defined in section 37 of the ADT Act.

1. Accordingly, we find that LN has failed to establish this ground of appeal.

Application of incorrect health privacy principles

1. In regard to this ground of appeal, we understand LN to assert that paragraphs 10(1)(a), 10(1)(b), and 10(1)(j) and sub-clause 10(5) of Schedule 1 of the HRIP Act were of no relevance to her review application before the Tribunal and even if they were relevant, the Tribunal had misapplied them.

1. Clause 10 of Schedule 1 of the HRIP Act sets out the HPP principle as to the 'use' of health information about a person that is held by an organisation, including a public sector agency. Sub-clause 10(1) provides that an organisation that holds health information must not use the information for a purpose (a secondary purpose ) other than the purpose (the primary purpose ) for which it was collected; unless it was used for a purpose prescribed in paragraphs (a) to (k) of that sub-clause.

1. As the respondent had conceded that the information that LN would be attending the hospital for a follow-up appointment was health information, about LN, falling within sub-paragraph 6(a)(iii) of the HRIP Act (see at [7] of the Tribunal's decision) and that Ms Whalan had used this information to respond to LN's internal review request (see at [22] of the Tribunal's decision). Accordingly, the only matter in issue before the Tribunal in regard to the 'use' HPP was whether Ms Whalan's use of LN's health information fell within one of the secondary purpose exceptions in paragraphs 10(1)(a) to (k) of Schedule 1. In our view, on the material before the Tribunal, the exceptions in 10(1)(a), 10(1)(b), and 10(1)(j) (as extended by the operation of and sub-clause 10(5)) of Schedule 1 of the HRIP Act were clearly an applicable law that was open to the Tribunal to have regard to. As we have already said, the Tribunal was not limited to having regard to or applying the law that had been applied by the respondent on review (i.e. the exception sub-paragraph 10(1)(h)(ii)).

1. The exceptions in 10(1)(a), 10(1)(b), and 10(1)(j) (as extended by the operation of sub-clause 10(5)) of Schedule 1 of the HRIP Act), provide as follows:

' 10 Limits on use of health information

(1) An organisation that holds health information must not use the information for a purpose (a secondary purpose ) other than the purpose (the primary purpose ) for which it was collected unless:

(a) Consent

the individual to whom the information relates has consented to the use of the information for that secondary purpose, or

(b) Direct relation

the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to use the information for the secondary purpose, or

Note. For example, if information is collected in order to provide a health service to the individual, the use of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose

(c) ..

(j) Investigative agencies

the use of the information for the secondary purpose is reasonably necessary for the exercise of complaint handling functions or investigative functions by investigative agencies, or

(k) ...

(5) The exemption provided by subclause (1) (j) extends to any public sector agency, or public sector official, who is investigating or otherwise handling a complaint or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.

1. Paragraph 10(1)(a) consent - at [74] of the Tribunal's decision, the Tribunal accepted the respondent's argument that 'consent of a person may be implied by the circumstances of the matter.' In her written submissions LN argued that for there to be consent under this exception the consent had to be 'express'. In support of her argument LN pointed to the HPP in clause 4 and 15 of Schedule 1 of the HRIP Act, which required the 'express' consent of a person.

1. The word 'consent' is not defined in the HRIP Act, or the PPIP Act. Accordingly, it is a question of statutory construction as to whether the 'consent', as used in a particular legislative context, requires 'express' consent, or it includes 'express' as well as 'implied' consent.

1. In our view on its proper construction, 'consent' as used in paragraph 10(1)(a) includes both express and implied consent.

1. The fact that Parliament has used 'express' consent in clause 4 and 15 of Schedule 1 of the HRIP Act suggests that Parliament did not intend to limit paragraph 10(1)(a) in a similar way. We note that paragraph 11(1)(a), the consent exception to the disclosure HPP, is in the same terms as paragraph 10(1)(a). That is, consent in that paragraph has also not been limited to 'express' consent.

1. We are also of the view that the HPPs in clauses 4 and 15 are distinguishable from those in clauses 10 and 11.

1. Sub-clauses 4(1) and (2) concerns the matters an organisation is required to make an individual aware of when it collects 'health information' about that individual. These matters include the name of the organisation and its contact details, the fact that the individual is able to request access to that information and the purpose for which the information is collected. These are all matters relevant to the underlying purpose of the HRIP Act; namely individuals being in a position to gain access to their 'health information': see paragraph 3(1)(a).

1. Sub-clause 4(4) prescribes the circumstances where an organisation is not required to comply with the matters prescribed in sub-clauses 4(1) and (2). One exception is where the individual has 'expressly' consented to the organisation not complying with the requirements of sub-clause 4(1): see paragraph 4(4)(a). In light of the significance, to an individual, of the requirements prescribed in sub-clauses 4(1) and (2) it is understandable that Parliament provided for the 'express' consent of the individual.

1. Clause 15 concerns the inclusion of health information, held by an organisation, on a health records computerised linkage system. It prohibits an organisation from including such information on such a system, or disclosing such information for the purpose of inclusion in such a system, without the 'express' consent of the individual. In our view this HPP is similar to that contained in sub-clause 4(1) and (2) and for the same reasons it is understandable that Parliament provided for the 'express' consent of the individual.

1. On the other hand, clauses 10 and 11 concern an organisation's use and disclosure of 'health information' about an individual, which is 'held' by that organisation. That is, information that has already been collected by, or otherwise obtained by the organisation from the individual concerned or another person. To infer a requirement of 'express' consent by the individual in every case where an organisation proposes to use or disclose 'health information' about that individual for a purpose other than the purpose for which it was collected, in our view, could, in some circumstances, be unnecessarily onerous and inconvenient for the individual concerned and the organisation (for example see VZ v University of Newcastle [2009] NSWADT 18 at 20). This can be seen from the examples that are provided in the 'Privacy Manual (Version 2) - NSW Health', published by the Department of Health, in regard to the concept of consent.

1. The Manual deals with the concept of 'consent' at paragraph 54.4. Under this heading it deals with 'implied consent' and 'express consent': see paragraphs 5.4.2 and 5.4.3. It is noted in paragraph 5.4.3 that there are only two circumstances in the HRIP Act where 'express consent' is required. These being clause 4 and 15. In regard to Implied consent, the Manual relevantly states as follows:

5.4.2 Implied consent

Implied consent generally means that a person has not explicitly, either verbally or in writing given their agreement, but through their conduct or behaviour have "implied" consent, or by consenting to one action, they have impliedly consented to a range of other activities. The application of consent is limited. It will generally only arise in situation where a person's consent to treatment, can be implied to include consent to other uses and disclosures of information, necessary to provide the care.

Example : A patient provides a detailed consent to medical treatment. This consent includes consent to a range of pathology tests required to be performed as part of the episode of care. In doing so, the patient is also giving implied consent for any information necessary to have the test performed to be provided to the pathology service provider.

Example: A prisoner contacts the Justice Health Information Help Line to make a complaint regarding the health services provided to him whilst in prison, requesting that some action be taken to improve services available to him. By contacting the Help Line and requesting that some action be taken, the prisoner/patient is giving implied consent for the Help Line to contact Justice Health and access any personal health information about him which is necessary to deal with the complaint. ...

1. In regard to the latter example the Manual suggests that the prisoner/patient should be informed about the necessity to access his personal health information in order to respond to his request. In our view whether this is necessary would depend on the circumstances of each case. U ltimately, whether a person has given consent (express or implied) for his/her health information to be used, or disclosed for a secondary purpose is a question of fact, determined from the particular circumstances of each case.

1. We note that the Commonwealth Privacy Act 1988, which was the model on which the HRIP Act and PPIP Act were based, contain no such limitation in the consent exceptions to the use and disclosure IPPs and National Privacy Principles under that Act (see section 6 where 'consent' is defined to mean 'express consent or implied consent'). The term 'consent' is also defined in the same terms in the Queensland Information Privacy Act 2009 (see Schedule 5 Dictionary) and the Victorian Information Privacy Act 2000 (see section 3).

1. In Breen v Williams (1996) 186 CLR 71 Gummow J said, at 129, the following in regard to the obligation, in equity, of a medical practitioner not to disclose confidential information about a patient:

'A medical practitioner has been said to be under an obligation in equity not to disclose confidential information concerning a patient which is learned in the course of professional practice, an obligation from which the medical practitioner may be released only with the express or implied of the patient: W v Egdell [1990] Ch 359 at 389, 415, 419; Gurry, Breach of Confidence (1984) at 148-9'

1. Accordingly, we find that LN has failed to establish this ground of an alleged error of law.

1. Paragraph 10(1)(b) direct relation - the matters raised by LN in regard to this exception were factual in nature and not alleged errors of law.

1. Paragraph 10(1)(j) investigative agencies - again the matters raised by LN in regard to this exception were factual in nature and not alleged errors of law.

1. For the reasons set out above LN has failed to establish this ground of appeal.

Leave to Extend to the Merits

1. The reasons identified by LN for her appeal to be extended to the merits, primarily rely on the errors of law identified in her Notice of Appeal. For the reasons set out above, we have found that there is no error of law as alleged. Furthermore, we find that the Tribunal adequately dealt with all the matters in issue before it. It is evident from its reasons for decision that it considered all the material placed before it and also applied the relevant law. In our view, the conclusions reached by the Tribunal were conclusions open to it on the material before it. The fact that the Tribunal made findings that LN disagrees with is not a basis on which to extend the appeal to the merits. As has been said on a number of occasions, there is a need for finality in litigation. Accordingly, we are not persuaded that there is a basis for extending this appeal to the merits.

Conclusion

1. On the basis of our findings that LN has not identified any error of law in the Tribunal's reasons for decision and that there is no basis to extend the appeal to its merits the appropriate order is for the appeal to be dismissed.

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Decision last updated: 28 February 2011