LN v Sydney South West Area Health Service
[2011] NSWADT 44
•03 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: LN v Sydney South West Area Health Service [2011] NSWADT 44 Hearing dates: 2-3 November 2009, 17 June 2010, 29 July 2010 Decision date: 03 March 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Tribunal determines to take no further action in this matter.
Catchwords: Privacy - information protection principle - personal health information - access - excessive delay Legislation Cited: Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998
Health Records and Information Privacy Act 2002
Freedom of Information Act 1989Cases Cited: Director General, Department of Education and Training v MT [2006] NSWCA 270
Mills v Meeking (1990) 169 CLR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154Category: Principal judgment Parties: LN (Applicant)
Sydney South West Area Health Service (Respondent)Representation: A Britt (Respondent)
LN (Applicant - in person)
File Number(s): 093024 Publication restriction: Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the applicant.
reasons for decision
In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs.
The history of this matter is an unhappy one. LN was a patient at a hospital ("the Hospital") operated by the Respondent. On 3 November 2008 she underwent scan at the Hospital's PET Department. She subsequently requested a copy of the PET scan report ("the scan report") and asserts that this request was refused.
She sought a review of the conduct of the Respondent under the Privacy and Personal Information Protection Act 1998 ('PPIP Act') and the Health Records and Information Privacy Act 2002 ("the HRIP Act") and she asserted a number of breaches of the Information Privacy Principles contained in the PPIP Act and the Health Privacy Principles contained in the HRIP Act by the agency.
LN contends that she initially lodged her complaint in a phone call to the Respondent on 13 November 2008. She subsequently attended at the Hospital on 24 November 2008 and she contends that her request for a copy of the scan report was again refused.
On 14 December 2008 LN wrote to the Respondent and complained "for breach the Freedom of Information Act' in regard to the failure to provide her with a copy of the scan report.
On 20 December 2008 LN formalised her complaint in a document headed "Privacy Complaint Internal Review Application". Her complaint was in the following terms:
"What is the specific Conduct I am complaining about?
I was planning to travel overseas on 22 November 2008, and I like to gather all my medical reports with me to continue the treatment there and let the doctors of overseas have a look at my reports and scans
As of 13th Nov. 08 I have requested [the Hospital] (PET Scan) to give me a copy of my scan report, but they refused saying "the rules of the hospital is not allowed to hand it to the patient) , I tried several times by phones, but unfortunately all ignorance I have been met.
Due to not obtaining this reports and the ignorance of the [the Hospital], I have compelled to cancel my pre-scheduled and paid booking and even I could not even postpone it as I have not gotten any dates of when can I get this copy. This booking was made on Etihad Airways on 22nd Nov. 08 and full air fare was paid before.
After cancellation of my booking, I wished to get the reports as soon as possible, but no one appreciate my situation, even I came to the hospital on 24th Nov. 08 to explain to them how much important to get it, and unfortunately they ignored me, so I was compelled to write a formal complaint letter dated 24th Nov. 08 (attached) and until now they refused to provide me with this reports.
I contacted Ms Ellene from medical Legal Dept. and explained to her the situation and referred me to patient's services Dept, then I followed it by sending a fax dated 14th December 08 ( as a formal) particularly Ms Ellene did not give any attention to my complaint.
Ms Shrine Martin contacted me through interpreter and I explained to her the situation again and said "the hospital is regret to what happened".. etc. and she promised to send the reports with apologize letter to me.
Until today nothing I have been yet received.
By this behaviour, it is causing the following damage to me:
this behaviour of ignorance has been affecting on my psychological health, particularly I was planning to go overseas to see my family, particularly I suffer serious disease and my psychological health is main factor in my treatment and other medication.
Cancellation of my flight which I was planning it before, and it caused to cancel all arrangements has been done overseas, particularly my sister who lives in other country has already travelled to see me there.
I cancelled pre-scheduled appointment with doctors and other herpes specialist at overseas to continue my treatment,
Travel agent refused to refund my air fare ticket as result of my cancellation and refused to refund air fare not before 10 weeks and will take 9% commission. (I raise this matter to Consumer Tribunal) which cost me legal fees.
Plus
Ms Shrine Martin refused to tell me the contact details of Privacy Commission or send the necessary forms will I need to fill it down even the apologise letter she did not send it as she promised me. And I told her to start the internal review for my complaint as of 13th November 08, and today she said that I have to apply my complaint in formal. I think as far as I know the complaint must to raise to the Agency by either by phone (orally) or in formal. I complaint orally and then I followed it by formal particularly all ignorance I received.
Which of the following describes my complaint?
refusal to let me access or find out about my own personal/health information.
contravention of Health Privacy code of practice and Privacy and Personal Information Protection Act which give me the right to access my personal information held by agency and [the Hospital] must as the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. (unfortunately Ms Ellene told me in the phone conversation that I have to pay $30 to collect it, while Ms. Martin did not mention that.
...
What affect the conduct have on my?
Cancellation all prescheduled arrangement overseas, particularly scheduled appointment with doctors, herpes specialist, my meeting with my sister who came from other country to see me, and other arrangements; accommodation, etc.
My flight was on school holiday of my children, and it is very difficult to leave them while they are in school. (the cancellation is wasting golden opportunity to me) .
I disappointed as I wished to meet my family particularly I suffer illness which need mare psychological support to help my medication.
as result of cancellation my ticket, the travel agent refused to refund my ticket now, and needs 10 weeks to refund it, and not refund 100% he will deduct 9% of air fare which I raised it to Consumer Tribunal. and costing me legal fees.
Financial losses as result of the cancellation.
11. What affect might the conduct have on you in the future?
May I could not see my family again as result of my illness.
Could not I find same doctors at overseas which I have been arranged appointments with them again,
Could not help the advise of my specialist in getting recovery.
Others
What Would I like to see the agency do about the conduct?
Formal apologizes for not giving me this report when I requested.
Formal apologizes for the conduct of [the Hospital] with me
Damages paid as result of cancellation of my flight and subsequences the affects of that.
Expenses paid for Consumer Tribunal and fees of travel agency and arrangement done at overseas."
The Respondent undertook an internal review in regard to the complaint. The internal review concluded:
"5. FINDINGS
The process for determining access to health information allows for consideration of circumstances where access could adversely impact on the wellbeing of the patient. The PET Department procedure recognises this and the 'authorisation' form contains a written statement recommending that the patient contacts his/her referring doctor for advice and discussion as they might misinterpret the clinical (technical) information and explanations.
The Internal Review finds that there has not been a breach of the Health Privacy Principles HPP 7(1) as alleged by [LN].
In conducting the review, it has been noted that [LN]:
i) has not been provided with a personal copy of the scan report of 3 November 2008, as yet;
ii) requested the use of an Arabic interpreter with the lodgement of her complaint with the Patient Representative [Note: There is no record that [LN] requested an interpreter when she attended the PET Department for her scans];
iii) may have future scheduled visits to the PET Department.
The Reviewer was advised that [LN] was referred for a follow-up scan, by the same doctor who referred her for scans in 2008. It assumed that she has been in contact with him about her ongoing care and treatment and it is, therefore, concluded that [LN] has met the second criteria (point ii) below under which a personal copy of a scan report is provided to a patient;
A personal copy of the written report about the scan image(s), upon request, by one of three methods - to:
i) the referring doctor - so that the report can be picked up at the patient's follow-up visit;
ii) the patient, posting it to the patient's home address 2 weeks after the scan so that the patient has sufficient time to organise an appointment with his/her treating doctor; or
iii) a nominated doctor of the patient's choice (other than the referring doctor) .
Accordingly, a copy of the written report will be sent to [LN] in a letter dated 27 January 2009.
In addition, as [LN] may attend the PET Department again the following action will be taken, by way of correspondence (dated 27 January 2009) , to facilitate personal access to future reports:
i) [LN] will be provided with a copy of the form authorising provision of the document by one of the three accepted methods, translated into Arabic. ...
ii) [LN] will be reminded in writing that in order to obtain copies of written reports in the future, she will be required to comply with the PET Department's usual practice, as outlined on the 'authorisation' form.
The letter and the associated attachments (the PET scan report and the authorisation form for the release of patient data [both in English and Arabic]) will be despatched via courier on 27 January 2009.
If [LN] does attend the PET Department and refuses to sign the form, a notation is to be made on the information sent to the referring doctor: i) informing him that [LN] may seek to have a personal copy of the written report; ii) confirming that the hospital has no objections to this request; and iii) seeking his assistance to provide access to the document, if requested.
6. RECOMMENDATIONS
Section 53(7) of the Privacy and Personal Information Protection Act sets out a range of options which can be recommended at the end of the internal review.
These are to:
i) take no further action on the matter;
ii) make a formal apology to the Applicant;
iii) take such remedial action as is appropriate (for example, the payment of monetary compensation to the Applicant);
iv) provide undertakings that the conduct will not occur again; and/or
v) implement administrative measure to ensure that the conduct will not occur again (for example, revision of relevant policies and guidelines, and privacy training for relevant staff.
In this case, the [LN] has sought:
a formal apology for not giving her the report when she requested it;
a formal apology for the conduct of [the Hospital] staff towards her;
damages paid as a result of the cancellation of her flight and the subsequent effects of that;
expenses for the Consumer Tribunal and fees of the travel agency and overseas arrangements.
Recommendations:
It is recommended that the hospital take no further action with respect to this matter given that:
i) [the Hospital] has not breached HPP 7(1) .
ii) There are unanswered questions around the timing of the travel and the request for the document - for example, if the travel date was 22 November, why wait until 24 November to attend the hospital to ask for a copy of the report?
iii) Access to the document was not refused; [LN] did not co-operate with staff to facilitate access as per usual PET Department procedures - procedures which were implemented in mid 2006 and which fall within the provisions of HPP 7.
iv) Access to the document was not refused under the FOI Act [the Freedom of Information Act 1989] - a valid application has not been lodged, as an application fee and proof of identification have not been received from [LN]. An FOI application is not considered necessary as [LN] has been provided with a copy of the PET scan report on 27 January 2009.
It is recognised that these recommendations may not meet the expectations of the Applicant.
LN was not satisfied with the outcome of the internal review and she has applied to the Tribunal for external review of the alleged conduct.
Relevant legislation
The HRIP Act makes provision for the protection of health records and information. The Act applies to every organisation (including a public sector agency) that is a health service provider or that collects, holds or uses 'health information': see subsection 11(1) of the HRIP Act. There is no dispute that the Respondent is a public sector agency to which the Act applies.
Subsection 11(2) of the HRIP Act provides that every organisation to whom the Act applies is required to comply with the health privacy principles contained in Schedule 1 of the Act. These principles govern the collection, access and amendment, retention, use (see clause 10) and disclosure (see clause 11) of 'health information' about an individual. It is the disclosure health privacy principle that is relevant to this application. This is discussed in more detail below.
'Health information' is defined in section 6 of the HRIP Act. It relevantly provides as follows:
Definition of "health information"
In this Act, health information means:
(a) personal information that is information or an opinion about:
(i) the physical or mental health or a disability (at any time) of an individual, or
(ii) an individual's express wishes about the future provision of health services to him or her, or
(iii) a health service provided, or to be provided, to an individual, or
(b) other personal information collected to provide, or in providing, a health service, or
(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or
(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of any sibling, relative or descendant of the individual, or
(e) healthcare identifiers,
but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.
The term 'personal information' is defined in subsection 5(1) of the HRIP Act. It relevantly provides as follows:
5 Definition of "personal information"
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
...
Principle 7 of the Health Privacy Principles provides in part:
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.
It is conceded that the Respondent is a health service provider as defined in section 4 of the HRIP Act. It is also conceded that a copy of the PET Scan Report is "health information" pursuant to the definition in section 6(a) of HRIP Act and "personal information" pursuant to section 5 of the HRIP Act. I agree with those concessions.
The PPIP Act provides for the protection of 'personal information', and the protection of the privacy of individuals generally. The term 'personal information' is defined in subsections 4(1) and (2) in exactly the same terms it is defined in subsection 5(1) and (2) of the HRIP Act. However, with limited exceptions, information which is health information cannot be "personal information" for the purposes of section 4 of the PPIP Act (see section 4A of the PPIP Act)
Part 5 of the PPIP Act makes provision for the review of conduct of a public sector agency. Section 52 of the PPIP Act prescribes the conduct that can be reviewed under Part 5 of the Act.
Section 53 of the PPIP Act gives every person who is aggrieved by conduct of a public sector agency falling within the terms of section 52 a right to make an application (i.e. a complaint) to the agency concerned and request the agency to undertake an internal review of that conduct. If dissatisfied with the findings of, or action taken by the public sector agency, the person who made an application for internal review is given a right to seek external review of that conduct by the Tribunal: see section 55 of the PPIP Act.
Subsection 21(1) of the HRIP Act provides that conduct by a public sector agency, which is a contravention of a health privacy principle applying to that agency, is conduct to which Part 5 of the PPIP Act applies. Accordingly, complaints about a public sector agency having contravened a health privacy principle in regard to an individual's 'health information' is dealt with in the same manner as a complaint about an agency having contravened an information protection principle in regard to an individual's personal information.
It is conceded, and I agree, that LN has standing to make the application to the Tribunal.
The Respondent's case
The Respondent relies on the affidavit and oral evidence of:
(a) Jan Whalan;
(b) Professor Michael Fulham;
(c) Paula Bourne;
(d) Anne Sterrey;
(e) Jodie Brackenreg
(f) Shireen Martin; and
(g) Shout Lam Pan.
Each of the parties has provided written submissions in support of their case. In his written submissions, Mr Britt has summarised the affidavit evidence given on behalf of the Respondent as follows:
(a) LN had a PET Scan on 3 November 2008 (Affidavit of Ms Whalan at [7] and JW3);
(b) The scan report was prepared by one of the Respondent's clinicians and forwarded to the referring clinician on 3 November 2008 (Affidavit of Ms Whalan at [7] and JW3);
(c) Patients are provided with a copy of their scan on CD at the completion of their scan and before they leave the Department (Affidavit of Professor Michael Fulham at [12]);
(d) There is no record that LN did not receive a copy of her scan on 3 November (Affidavit of Professor Michael Fulham at 1121);
(e) There is no record of LN or her support persons telephoning the Respondent on 13 November or 14 November 2008 (Affidavit of Professor Michael Fulham at 16-91; Affidavit of Ms Bourne at [4-7]; Affidavit of Ms Sterrey at [4-7]; Affidavit of Ms Brackenreg at [4-7]);
(f) At about 10.50 am on 24 November 2008 LN and TA asked for a copy of her scan results (Affidavit of Ms Sterrey at [9]);
(g) Ms Sterrey asked LN whether her medical practitioner had gone over the report with her (Affidavit of Ms Sterrey at [9]);
(h) LN's husband told Ms Sterrey there was no time to see the doctor (Affidavit of Ms Sterrey at [9]);
(i) Ms Sterrey recommended that an appointment be made with the referring doctor or the GP to discuss the Report (Affidavit of Ms Sterrey at [9]);
(j) LN's husband then demanded the report under the Freedom of Information Act (Affidavit of Ms Sterrey at [9]);
(k) At about 10.55 am on 24 November 2008 Ms Bourne spoke to LN and asked her to sign a release form in order for Ms Bourne to obtain a release of her report (Affidavit of Ms Bourne at [9]);
(l) LN did not sign the release form (Affidavit of Ms Bourne at [9]);
(m) LN' husband requested plain paper to write on (Affidavit of Ms Bourne at [9]);
(n) LN then told TA that she wished to go (Affidavit of Ms Bourne at [10]);
(o) LN's husband wrote on the blank paper and it was signed by LN (Affidavit of Ms Bourne at [11]);
(p) Ms Bourne asked LN to take a seat whilst she spoke to her manager (Affidavit of Ms Bourne at [12]);
(q) LN was told subsequently that Professor Fulham would speak to them shortly (Affidavit of Ms Bourne at [15]);
(r) LN's husband then asked for the letter he wrote which was then photocopied and returned to him (Affidavit of Ms Bourne at [16- 17]);
(s) LN was told that Professor Fulham will be out to see her shortly (Affidavit of Ms Bourne at [18]);
(t) LN's husband did not wish to see Professor Fulham and threatened to take the matter to the Health Commissioner. LN's husband also referred to an appointment with a doctor on that day (Affidavit of Ms Bourne at [18]);
(u) Ms Bourne informed LN and TA that she needed to sign a form and that the report could be faxed to her doctor (Affidavit of Ms Bourne at [18]);
(v) LN's husband again queried the need to discuss the results with a doctor (Affidavit of Ms Bourne at [18]);
(w) LN and TA left at soon after 11 am (Affidavit of Ms Bourne at [20-21])
(x) At about 11 am on 24 November 2008 Professor Fulham was going to go down to see LN but she had left (Affidavit of Professor Michael Fulham at [10- 11]);
(y) There is no record of LN contacting the Medico-Legal or record department at [the Hospital] on 25 November 2008 (Affidavit of Ms Pan at [4]) or at any time prior to 15 December 2008 (Affidavit of Ms Pan at [5]);
(z) On 15 December 2009 Ms Pan received a fax from LN dated 13 December 2008 (Affidavit of Ms Pan at [6] and EP1);
(aa) Ms Pan had a telephone conversation with LN on 16 December 2008 about her complaint (Affidavit of Ms Pan at [7]);
(bb) On 19 December 2009 Ms Pan received a copy of a complaint dated 14 December 2008 and a handwritten letter dated 24 November 2008 (Affidavit of Ms Pan at [8] and EP2 and EP3);
(cc) Later on that day LN called Ms Pan and Ms Pan had a conversation with a male friend of LN about the need to make payments pursuant to a FOI request (Affidavit of Ms Pan at [9]);
(dd) The male friend informed Ms Pan that LN no longer required the PET scans (Affidavit of Ms Pan at [9]);
(ee) On 19 December 2008 Ms Martin had a telephone conversation with LN through an interpreter. In this conversation LN claimed to have called the Nuclear Medicine Department four times from 13 November 2008 (Affidavit of Ms Martin at [5-6]);
(ff) In this conversation LN also claimed to have told staff she was travelling overseas (Affidavit of Ms Martin at [5-6]);
(gg) LN informed Ms Martin that she had told staff she was making a request under the Freedom of Information Act (Affidavit of Ms Martin at [5-6]);
(hh) On 29 December 2008 Ms Martin had a further conversation with LN and her friend allegedly called "David" (Affidavit of Ms Martin at [8-11]);
(ii) On or about 30 December 2008 Ms Whalan received a copy of a privacy complaint from LN dated 20 December (Affidavit of Ms Whalan at [4] and JW1) .
(jj) Ms Whalan conducted an investigation of this complaint (Affidavit of Ms Whalan at [5]);
(kk) On 27 January 2009 the Respondent provided LN with a copy of the Report (Affidavit of Ms Whalan at [6] and JW2);
(ll) On 30 January 2009 Ms Whalan completed her internal review and provided a copy to LN (Affidavit of Ms Whalan at [7] and JW3); and
(mm) The Respondent has good reasons for not providing a medical report without a consultation with a referring doctor or their local doctor (Affidavit of Professor Michael Fulham at [13-16]) .
In my view, Mr Britt's summary accurately reflects the Respondent's evidence. The Respondent's witnesses also attended the hearing, either in person or by telephone, and were cross-examined. The evidence was not varied in any significant respect as a result of the cross-examination.
The Respondent submits that since at all times it offered to provide a copy of the PET Scan Report to LN and in fact provided a copy to her own doctor on 3 November 2008 and to her by way of correspondence of 27 January 2009 the claim that the Respondent refused to provide a copy of the PET Scan report must on the evidence fail.
With respect to LN's assertion of excessive delay in providing the report, the Respondent submits that, in all the circumstances, the delay from 10.55 am on 24 November 2008 until the time Professor Fullham would have seen LN and explained the report to her was not an excessive delay. It further submits that it had in fact provided a copy of the report to LN through her referring Doctor on 3 November 2008 (i.e. prior to the request).
The Respondent submits that, to some extent, any delay was contributed to by LN in refusing to sign the relevant documents to release the Report or by refusing to wait at the Hospital for a relatively short period of time to get a copy, refusing to provide details of the doctor she was seeing later that day, by informing the Respondent, through "David", on 19 December 2008 that LN did not now seek the PET Scan Report and her actions concerning the FOI request. In any event, a copy of the Report was provided to LN by way of correspondence dated 27 January 2009.
The Respondent submits that support for its approach can be found in section 31(4) of the FOI Act which provided:
Documents affecting personal affairs
31. (1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
...
(4) If:
(a) an application is made to an agency for access to a document to which this section applies, and
(b) the document contains information of a medical or psychiatric nature concerning the Applicant, and
(c) the agency is of the opinion that disclosure of the information to the Applicant may have an adverse effect on the physical or mental health of the Applicant, and
(d) the agency decides that access to the document is to be given,
it is sufficient compliance with this Act if access to the document is given to a registered medical practitioner nominated by the Applicant.
...
The evidence of Professor Fulham sets out the reasons why such reports are not usually handed over to a person without some medical advice on hand. A copy of the report was provided to LN's treating doctor on 3 November 2008.
The Respondent submits that in all the circumstances the delay was not excessive and that the application should be dismissed.
LN's case
LN relies upon her own evidence and that of her daughter ("HT") and former partner ("TA"). She also relies on evidence of a friend ("HA"). Each provided statements that were admitted into evidence. The Respondent objected to much of LN's evidence on the basis that it is not relevant to these proceedings. While I agree with the Respondent that much of the evidence is not relevant, it was expedient to admit the evidence subject to weight.
I note that LN has filed a large amount of material. In my view most of that material is not relevant to the issues to be determined. I note that I had significant difficulty in understanding much of the material. I also note that I had significant difficulty in understanding most of LN's arguments in relation to the alleged breaches of the legislation.
From what I have been able to ascertain from LN's submissions and from the evidence, LN's case is essentially that she requested a copy of the scan report from the Respondent in accordance with principles 7 of the HRIP Act. She concedes that she was given a copy of her scan on 3 November 2008 and she does not dispute the Respondent's evidence that a copy was sent to her referring specialist.
There is conflicting evidence on behalf of LN with respect to whether or not she had spoken to her doctor after 3 November 2008.
LN contends that she made several unsuccessful attempts to obtain a copy of her scan report. It seems that she alleges that her request for a copy of the scan report was made in phone calls to the Respondent on about 13 and 14 November 2008. On 24 November 2008 LN attended the hospital in the company of TA. HT gave evidence that she also attended on that day however TA has disputed that evidence.
Both TA and LN gave evidence in relation to their attendance at the Hospital on 24 November 2008 and the interactions that they had with the staff on that occasion. They both dispute the Respondent's evidence in relation to the interactions, however the evidence given by TA and LN is not consistent.
It is common ground that LN requested a copy of her scan report on 24 November 2008. It is also common ground that the staff at the hospital requested that LN sign a release form before the scan would be released to her and that she refused to sign the release form.
LN denies that staff at the hospital informed her that they would contact Doctor Fulham and that he would come and speak to her about the Hospital's policy in relation to the release of scans. She also denies that TA advised the staff that they could not wait or that she refused to wait for Doctor Fulham.
She disputes the Respondent's evidence in relation to the sequence of events and also disputes the accuracy of the contemporaneous records kept by the Respondent.
LN says that she had booked a flight to travel overseas on 22 November 2008 and that she intended to take with her all available material concerning her health. LN says that as a result of her inability to obtain a copy of the scan report she had to cancel her trip. She says that she suffered a penalty in relation to the cost of the ticket and also suffered the loss of the opportunity to visit her family.
It is not in dispute that LN had cancelled her ticket prior to 24 November 2008 or that she did not have a valid ticket at the time she visited the hospital on that day. LN's evidence is that she intended to rebook once she had obtained a copy of her scan report.
LN filed a copy of her travel itinerary. However I am not aware of any evidence to support the assertion that she suffered a penalty in relation to the cost of the ticket. HA provided evidence in support of LN to the extent that she recounted an interaction with LN on about 14 November 2008 in which she was told about a dispute between LN and a travel agent in regard to the penalty she had been told to pay because she had cancelled her ticket.
LN's evidence is that as a result of her illness she has difficulty recalling specific dates. It is also clear that she has limited ability to read and understand English. To a large extent she has relied on others to prepare her evidence. In particular she has relied on a group of people who she met at her local library, on TA and on HT.
There are significant discrepancies in the material on which LN has relied. It seems that the material that contains those discrepancies was prepared on her behalf and that it was mostly prepared by TA after discussion with LN. LN's evidence is that she read some of the material but not all of it.
One particular discrepancy appears in a complaint document dated 13 December 2008 which LN maintains was sent to the Respondent on that day. The discrepancy is that LN asserts that the document was sent with an annexure. The annexure refers to a fax said to have been sent on 14 December 2008. LN was unable to explain why the annexure referred to an event which had not yet taken place.
Discussion
As I have indicated above, I have had significant difficulty in understanding LN's evidence and submissions. LN was an uncooperative witness. Some of the evidence that she gave conflicted with that given by both TA and HT. LN was unable to explain discrepancies within documents on which she relies. Similarly, both TA and HT were uncooperative witnesses.
In contrast to LN's evidence, the Respondent's staff maintained contemporaneous notes of their dealings with LN and TA. In my view where there is conflict between the evidence given by LN, TA or HT and that given on behalf of the Respondent, the Respondent's evidence is to be preferred.
In my view, the issue to be determined is whether there was "excessive delay" on the part of Respondent in not providing LN with a copy of the scan report at the time of the request. All of the other issues raised by LN are outside the scope of the application.
Neither the HRIP Act nor the PIPP Act prescribe a time within which access to personal/health information is to be given. Nor is the term "excessive delay" defined in those Acts or in the principles. I agree with the Respondent's submission that in determining whether there has been excessive delay the facts and circumstances surrounding the request should be taken into account. Thus, what might be a reasonable delay in an ordinary application, may be excessive with respect to a request for health information, which is said to be required urgently to enable a decision to be made about recommended medical treatment.
Both the PPIP Act and the HRIP Act are examples of beneficial legislation designed to accord rights to individuals with respect to personal information. Beneficial legislation should be interpreted liberally and with due regard to its aims and objectives, however this principle does not override all other considerations. That does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature: Director General, Department of Education and Training v MT [2006] NSWCA 270 at paragraphs [49]-[50] (citing Rodriguez v United States 480 US 552 (1987) at 525 - 526.
In his judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 at [7], Weinberg J said:-
"It goes without saying that this focus upon a purposive approach does not authorise the courts to legislate a meaning to promote the purpose or object underlying a statute unless that meaning can properly be discerned from the words of the Act itself."
Crocker J commented in Mills v Meeking (1990) 169 CLR 214 that:
"...if the language is not ambiguous or uncertain, a Court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously not intended."
It is clear from the use of the expression "excessive delay" in Principle 7 that some delay is envisaged in regard to compliance with the principle.
The Macquarie Dictionary online defines "excessive" as:
"exceeding the usual or proper limit or degree; characterised by excess"
The meaning of "excessive" in the online Oxford Dictionary is:
"more than is necessary, normal, or desirable; immoderate"
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.
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.
As I have indicated above it is not in dispute that the Respondent provided LN with a copy of her scan report 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.
I am not agree 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.
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.
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.
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.
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.
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.
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.
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.
Order
The Tribunal determines to take no further action in this matter.
**********
Decision last updated: 08 March 2011
3
4