LN v Sydney South West Area Health Service

[2009] NSWADT 278

CITATION:	LN v Sydney South West Area Health Service [2009] NSWADT 278
DIVISION:	General Division
PARTIES:	APPLICANT LN RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	093170
HEARING DATES:	29 September 2009
SUBMISSIONS CLOSED:	29 September 2009
EXTEMPORE DECISION DATE:	29 September 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy – information protection principle – personal information –Health information – health privacy principle - jurisdiction - internal review application out of time - Appointment of representative
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Rules 1998
CASES CITED:	Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 EM v NSW Department of Education and Training [2009] NSWADT 87 HV v Commissioner of Police [2009] NSWADT 100
REPRESENTATION:	APPLICANT TA, agent RESPONDENT A Britt, barrister
ORDERS:	1. The Tribunal has jurisdiction to hear that part of LN’s Application that is made in respect of the correspondence sent by Ms Jan Whalan to LN on 30 January 2009 2. The remainder of the Application is dismissed for want of jurisdiction.

1 In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as LN. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.

2 LN was a patient at a hospital (“the hospital”) operated by the respondent. In April 2009 she sought a review of conduct of the agency 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 (‘IPPs’) contained in the PPIP Act and the Health Privacy Principles (‘HPPs’) contained in the HRIP Act by the agency.

3 LN complained of the following conduct:

“1. Mr. Robert Harding collected my health information of me without asking me of this accuracy or not, disclosed it in unlawful purposes and without my consent.

2. Mr. Chris Leahy collected my health information of me without asking me of this for its accuracy and disclosed it without my consent. Plus he pretended that I told him that (it is not true).

3. Dr. George Nossar collected my health information in unlawful purpose, and disclosed it without my consent.

4. Mr. Hughes breached my freedom of information and human rights for asking me of the reason of why I came and put me on surveillance and monitoring without telling me in advance.

5. 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.”

4 LN identified the following matters as descriptions of her complaint:

- Collection of my personal/health information;

- Accuracy of my personal/health information;

- Use of my personal/health information;

- Disclosure of personal/health information; and

- Other.

5 On 29 May 2009 the Internal Reviewer wrote to LN and requested further information in relation to her complaints. In particular, she sought answers to a number of questions regarding the alleged conduct of Mr. Robert Harding, Mr. Chris Leahy and Dr. George Nossar and Mr. Hughes.

6 On 3 June 2009 LN wrote to the Internal Reviewer (“the 3 June 2009 letter”) and purported to amend the internal review request. She raised a further five issues which had not been raised in the internal review request. ). She did not respond to the specific questions asked by the Reviewer for further information about the allegations concerning Dr Nossar, Mr. Harding or Mr. Chris Leahy. She referred the Internal Reviewer to another application to the Tribunal (matter No 093024). Material filed in matter No 093024 included an application for Internal Review received by the Respondent on 3 September 2008 (“the 3 September 2008 application”) that was purportedly made on behalf of LN. As a consequence of that reference, the Internal Reviewer determined that LN had become aware of the conduct that was the subject of her complaints against Dr Nossar, Mr. Harding or Mr. Chris Leahy sometime between March and May 2008. LN asserts that she became aware of conduct in mid November 2008 however it is apparent that the author of the 3 September 2008 application was aware of the conduct between March and May 2008. It was also asserted in that application that LN had suffered “stress and depression” as a consequence of that conduct.

7 As the Internal Reviewer determined that LN had become aware of the conduct more than 6 months prior to her application for a review (received by the Respondent on 21 April 2009), this aspect of the matter was not considered to be a proper application. The Respondent did not extend LN any additional time and this aspect of the matter was not considered as part of the internal review.

8 The internal review was completed on 14 June 2009. The Internal Reviewer determined to take no further action in relation to LN’s complaints. LN received the internal review determination on about 22 June 2009. However, she had applied to the Tribunal for the review of conduct of the Respondent prior to receiving the determination.

9 The Respondent raised a question of jurisdiction with respect to the majority of LN’s complaints. I agreed that I should determine this as a preliminary issue and the matter was listed for hearing on 29 September 2009.

10 LN was represented at the hearing by an agent (“TA”). Mr Britt, counsel for the Respondent objected to TA appearing on LN’s behalf and asserted that leave to appear should be refused pursuant to section 71(3)(a) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). The objection was made on the basis that leave should only be granted if the Tribunal is satisfied that TA has a sufficient degree of competence to provide effective representation for LN, and that TA has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings (see Administrative Decisions Tribunal Rules 1998 clause 20A).

11 Mr Britt argued that the Tribunal could not be satisfied TA has a sufficient degree of competence to provide effective representation for LN. In support of that submission he pointed to the material filed in the matter on behalf of LN and the submissions that TA had made in the matter.

12 I agreed generally with Mr Britt’s argument. As was observed by Judicial Member Wilson R in HV v Commissioner of Police [2009] NSWADT 100 at paragraph [6], 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. On the material already filed on behalf of LN, and the manner in which the proceedings have been conducted to date, I doubt that TA possesses all of these abilities. However, in light of the fact that all parties were present; that LN asserted that her health was such that she could not represent herself; that LN asserted that she wished to be represented by TA; and that an interpreter was present to assist LN, I agreed that TA could represent LN on that occasion. However, I advised LN that TA would not be permitted to represent her at further hearings in the matter.

13 At the conclusion of the hearing I determined that the Tribunal does not have jurisdiction with respect to all but one of LN’s complaints and I gave brief reasons for my decision.

14 LN has requested written reasons for my decision under section 89 of the ADT Act and these reasons are provided in response to that request.

LN’s Application to the Tribunal

15 LN’s application to the Tribunal is in significantly different terms to her application for the internal review and is somewhat confusing. She asserted that the Respondent had contravened an IPP and/or HPP and asserted the following disclosures and misuses of her health information:

“collected my health information done in unlawful purposes.

The agency did not get my consent to use it.

Not informing me of their conduct.

Excessive delay in access to my health record.

Excessive fees in accessing to my health record.

Making research without referring to research Ethics Committee for their consideration or getting my consent.

Forcing me to make consent.

Forcing me to make consent.”

16 LN provided the following description in regard to how the Principle was alleged to have been contravened:

Mr. Robert Harding, Mr. Chris Leahy and Dr. George Nossar collected, disclosed and misused my health information in a matter I am not involved, without my consent.

Mr. Hughes breached my privacy by asking me of why and where I go, when I visited to the hospital. (I have a right to be alone)

Ms. Jan Whalan intimidated me and encouraged other staff to breach my privacy and freedom of information.

They made research on my case, without referring to Research Ethics committee or consent from me.

Pet Scan department forced me to sign a form without my approval.

17 LN also asserted that the Respondent contravened a Code of Practice and alleged:

“[The Respondent] ignored to acknowledge receipt of my application.

Excessive delay in accessing to my Personnel and Health file.

Imposing fees for accessing to my personnel and health information.

Collected my health information through their record not from me directly. And misused it.

Disclosed my health information without consent from me.

Misused my health information in unlawful purpose and I am not involved in it.

Failure to make an Internal Review. I requested for an internal review on 21/4/09 although the agency acknowledges me with the receipt and provided him with more details.

Breach of my Freedom of Information by putting me on loudspeaker when I or they talking with me for these issues, and when I visited the hospital, I have asked of where will go and the reasons. (Ms. Jan Whalan directed staff to do that), and Mr. Ross Hughes breached my privacy.

Excessive delay in accessing to my personnel and health information.

Breach of my freedom of information.”

18 LN provided the following description in regard to how she alleged that the Code of Practice had been contravened:

“I sent two requests to agency to acknowledge receipt, but they ignored to reply, and emailed them using my daughter email and also ignored it. Then I compelled to send by registered mail.

They failed to let me access to the file promptly without delay, and they imposed fees of $30 for a copying of three pages.

As I am patient in this hospital, they accessed my health record and misused it in purpose I am not involved in it.

[The hospital] made a research on my case.

The Respondent's Submissions on Jurisdiction

19 Mr Britt filed written submissions in support of the Respondent’s application for dismissal of the majority of LN’s application. Mr Britt also made oral submissions at the hearing.

20 It is common ground that the reference to correspondence from Ms. Jan Whalan to LN that is the subject of the application was dated 30 January 2009 and not 30 January 2008 as stated in the April 2009 application for internal review. The Respondent submits that the only part of the application to the Tribunal that is within jurisdiction is that part that concerns the conduct of Ms Jan Whalan i.e. the allegations that:

“Ms. Jan Whalan sent a letter to me on 30 January [2009] 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.”

21 The Respondent submits that it is clear that the Tribunal does not have jurisdiction with respect to those parts of LN’s application to the Tribunal that were not part of the internal review. The Respondent submits that this excludes the following allegations:

- Not informing me of their conduct.

- Excessive delay in access to my health record.

- Excessive fees in accessing to my health record.

- Making research without referring to research Ethics Committee for their consideration or getting my consent.

- Forcing me to make consent.

- Ms. Jan Whalan intimidated me and encouraged other staff to breach my privacy and freedom of information.

- They made research on my case, without referring to Research Ethics committee or consent from me.

- Pet Scan department forced me to sign a form without my approval.

- Ignored to acknowledge receipt of my application.

- Excessive delay in accessing to my Personnel and Health file.

- Imposing fees for accessing to my personnel and health information.

- Breach of my Freedom of Information by putting me on loudspeaker when I or they talking with me for these issues,

- Excessive delay in accessing to my personnel and health information.

- Breach of my freedom of information.

- I sent two requests to agency to acknowledge receipt, but they ignored to reply, and emailed them using my daughter email and also ignored it. Then I compelled to send by registered mail.

- They failed to let me access to the file promptly without delay, and they imposed fees of $30 for a copying of three pages.

- [The hospital] made a research on my case.

22 The Respondent conceded that some of the allegations with respect to the conduct of Mr Robert Harding, Mr Chris Leahy and Dr George Nossar formed part of the internal review application. The concession extends only to the following allegations as set out in the application:

Collected my health information through their record not from me directly. And misused it.

Disclosed my health information without consent from me.

Misused my health information in unlawful purpose and I am not involved in it.

As I am patient in this hospital, they accessed my health record and misused it in purpose I am not involved in it.

23 The Respondent also conceded that in her application for internal review LN had alleged that Mr. Robert Harding, Mr. Chris Leahy and Dr. George Nossar had disclosed her health information to a third party without her consent.

24 However, the Respondent submits that the Tribunal will only have jurisdiction in respect to these matters if it first determines that LN only became aware of the conduct within 6 months of lodging the application for the internal review (see EM v NSW Department of Education and Training [2009] NSWADT 87 at [14] – [16]). It further submits that this would require that the Tribunal find that the 3 September 2008 application, which was purportedly made on behalf of LN, was dishonest and that it was made on behalf of LN without her knowledge or consent.

25 In regard to the 3 June 2009 letter, the Respondent submits:

“Alleged Amended Complaint

20. Even if the correspondence from the Applicant of 3 June 2009 (attachment 3 to the Review) to the Internal Reviewer was an amendment to the internal review by the Respondent dated 21 April 2009, which is denied, the five issues which are raised cannot be considered by the Tribunal. Of those matters found at part A of the correspondence of 3 June 2009, the Respondent submits as follows:

(a) the complaint alleged against Ms Whalan post dates the original application for an internal review so it is not an amendment to the original complaint and does not relate to health information as defined in s6 of the HRIP Act;

(b) this matter is subject to a complaint already in the Tribunal by the Applicant in File No 093024;

(c) this complaint does not fall within the jurisdiction of the Tribunal under the HRIP Act;

(d) this complaint does not fall within the jurisdiction of the Tribunal and the complaint concerning 14 March 2008 is out of time … ; and

(e) the complaint alleged against Mr O'Sullivan post dates the original application for an internal review so it is not an amendment to the original complaint”

26 The Respondent also raised a number of other jurisdictional objections. These are in the following terms:

“21. The alleged failure to provide the Applicant with the results of the internal review is not itself a breach of the HRIP Act (or PPIP Act). The Review needs to be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the Applicant is entitled to make an application under s55 to the Tribunal for a review of the conduct concerned (see s53(6)). Once the review is complete then as soon as practicable (or in any event within 14 days) after the completion of the review, the Respondent must notify the Applicant in writing of the findings of the review (and the reasons for those findings)(see 53(6)).

22. The failure to complete a review within 60 days merely affords the Applicant with an opportunity to make an application under s55 of PPIP Act for a review of the conduct concerned i.e. the conduct in the original application for an internal review and not a review at large (see EM v NSW Department of Education and Training [2009] NSWADT 87 at [13]).

23. This alleged failure cannot be reviewed by the Tribunal since it could not be part of the original s53 application (see 55(1) of PPIP Act).

24. However the evidence in this matter demonstrates that the Applicant's complaint was received on 21 April 2009 and the review was completed on 14 June 2009. That is, the review was completed within 60 days.

25. In these circumstances the Tribunal has no jurisdiction to determine this matter.

...

26. The alleged conduct of Mr Hughes in asking the Applicant what she was doing and where she was going even if it did occur is not conduct which would amount to:

(a) the contravention by the Respondent of an information protection principle that applies to the Respondent;

(b) the contravention by the Respondent of a privacy code of practice that applies to the Respondent; or

(c) the disclosure by a public sector agency of personal information kept in a public register.

27. The Respondent submits that such conduct cannot be subject to a review under s52 of the PPIP Act.

28. In addition such requests are not health information as defined in s6 of HRIP Act. Further, such a request is not:

(a) a contravention of a Health Privacy Principle that applies to the Respondent; or

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

29. This matter was not accepted for internal review by the agency.

30. In these circumstances the Respondent submits that the alleged conduct of Mr Hughes cannot be conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies (see s21(1) of HRJP Act).

31. In these circumstances the Tribunal has no jurisdiction to determine this matter.”

27 The Respondent submits that pursuant to section 52(1) of HRIP Act the Application should be dismissed, in part, by deleting any reference to the following allegations:

(a) Mr Robert Harding, Mr Chris Leahy and Dr George Nossar collected, disclosed and misused the Applicant's health information without her consent;

(b) Mr Hughes breached the Applicant's privacy by asking the Applicant of why and where she went when she visited the hospital;

(c) Ms Jan Whalan intimidated the Applicant and encouraged other staff to breach her privacy and freedom of information;

(d) The Respondent made research on the Applicant's case, without referring to Research Ethics committee or consent from the Applicant;

(e) The PET scan department forced the Applicant to sign a form without the Applicant's approval;

(f) The Respondent ignored to acknowledge receipt of the Application;

(g) Excessive delay in accessing to the Applicant’s Personnel and Health file;

(h) Imposing fees for accessing to the Applicant's personnel and health information;

(i) Collected the Applicant's health information through their record and not from the Applicant directly;

(j) Failure to make an Internal Review;

(k) Breach of the Applicant's Freedom of Information by putting the Applicant on loudspeaker;

(l) Excessive delay in accessing to the Applicant's personnel and health information;

(m) Breach of the Applicant's freedom of information;

(n) The requests by the Applicant that the Respondent acknowledge receipt;

(o) Failed to let me access to the file promptly without delay and they imposed a fee of $30 for copying of 3 pages; and

(p) [The hospital] made a research on the Applicant's case.

28 The Respondent submits that the only part of the Application within jurisdiction is the complaint made in respect the correspondence of Ms Whalan that was sent on 30 January 2009 and that this is the only matter that should be investigated by the Tribunal.

LN's Submissions on Jurisdiction

29 As indicated above, TA represented LN at the hearing on 29 September 2009. TA filed written submissions in response to those filed on behalf of the Respondent. In the most part, those submissions are of no assistance with respect to the jurisdictional issues that the Respondent has raised. The points raised are either confusing, factually incorrect or irrelevant to the issue to be determined.

30 LN asserts that the 3 June 2009 letter was an amendment to the internal review request and therefore any issue raised in that correspondence were within jurisdiction. She also says that in that correspondence she provided the Respondent with all the information that she had available.

31 LN asserted that the 3 September 2008 application, which was purportedly made on her behalf, was in fact made without her knowledge or consent. She asserted that she did not become aware of the conduct attributed to Mr Robert Harding, Mr Chris Leahy and Dr George Nossar until November 2008. She submits that the application was brought within the six-month period provided for by section 42 of the HRIP Act and section 45 of the PPIP Act. She submits that the fact that the author of the 3 September 2008 application was aware of the alleged conduct between March and May 2008 is not relevant to this matter.

Discussion

32 I agree with the arguments presented on behalf of the Respondent and, for the reasons argued by Mr. Britt, it is my view that with a single exception, LN’s application should be dismissed.

33 It is well established that the Tribunal has no jurisdiction to consider matters that were not the subject of the application for internal review. See for example Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 where the Appeal panel stated at paragraphs [16] – [17]:

16 The leading statement of principle in the Tribunal is found in the Appeal Panel decision, KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56, the Appeal Panel said:
‘13 … In our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency’s examination of the application. Unless there is some widening of the application within that process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal. It is plain from the scheme of the Act that the Parliament intended that the agency have the first opportunity, always, to deal with the matters of complaint. Except in the case where the agency fails to respond to the application for internal review, the scheme of the Act contemplates that the internal review report and its outcomes will be among the material that is placed before the Tribunal. We will not, on this occasion, deal at length with these questions. In addition to the authorities noted by the Tribunal [which included Department of Education and Training v GA (No.3) [2004] NSWADTAP 50], we refer also to recent statements on this matter by the President in NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 213; and OA v New South Wales Department of Housing [2005] NSWADT 233 [5]-[7].

14 The question of what is the scope of the application, reasonably construed, is one of fact but, as we have indicated, affecting jurisdiction. Its determination is not driven, in any significant way, in our view by any recitation of Information Protection Principles that may appear in the applicant’s application. Often there will be no recitation of Information Protection Principles. Sometimes there will be a detailed recitation seeking to bring into play many, or every one, of the Principles. The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles.’

17 In Department of Education and Training v GA (No.3) , cited above, the Appeal Panel had said:
‘7 The Tribunal has jurisdiction to review “the conduct that was the subject of the application” under s 53. Consequently, the Tribunal cannot review any conduct that was not the subject of the application to the agency. That conduct may be more accurately or specifically identified in subsequent correspondence or discussions between the applicant and the agency.’

34 In my view it is clear from the face of the 3 June 2009 letter that it was intended to be an amendment to the internal review request. However, it is equally clear that it refers to alleged conduct that is said to have occurred after the internal review request.

35 I agree with the argument presented by the Respondent in regard to the 3 June 2009 letter as set out at paragraph [25] above. For the reasons argued there, it is my view that the Tribunal has no jurisdiction to consider the issues that were raised in the 3 June 2009 letter.

36 I also agree with the argument presented by the Respondent in regard to the other jurisdictional issues as set out at paragraph [26] above. For the reasons argued there, it is my view that the Tribunal has no jurisdiction to consider those issues.

37 With respect to the allegations concerning the conduct of Mr Robert Harding, Mr Chris Leahy and Dr George Nossar as set out at paragraph [22] above, it is my view that LN became aware of the conduct more than 6 months before lodging her application for the internal review.

38 I note that the 3 September 2008 application was expressed to have been made on behalf of LN. The 3 September 2008 application asserts that LN had suffered as a result of the alleged conduct of Mr Robert Harding, Mr Chris Leahy and Dr George Nossar. Clearly, LN could not have suffered “stress and depression” as a consequence of conduct unless she had been aware of that conduct.

39 LN asserts that the application was made without her knowledge or consent. That may well be true. However, it does not follow that if she was unaware of the 3 September 2008 application she was also unaware the conduct referred to in that application.

40 I have no basis on which I could to conclude that the 3 September 2008 application was made dishonestly. I accept that LN suffered “stress and depression” as was asserted in that application. I therefore find as a fact that LN must have become aware of the alleged conduct of Mr Robert Harding, Mr Chris Leahy and Dr George Nossar prior to the lodgement of the 3 September 2008 application. That being the case, the Tribunal has no jurisdiction in respect to the matters referred to in paragraph [22] above.

41 I agree that the allegations concerning correspondence dated 30 January 2009 from Ms. Jan Whalan to LN were the subject of the April 2009 application for internal review. I also agree with the Respondent that submits that the Tribunal has jurisdiction to determine that aspect of LN’s Application.

42 It follows that the only part of LN’s Application that is within jurisdiction is the complaint made in respect of the correspondence of Ms Whalan that was sent on 30 January 2009. The remainder of the Application should be dismissed for want of jurisdiction.

Orders

1. The Tribunal has jurisdiction to hear that part of LN’s Application that is made in respect of the correspondence sent by Ms Jan Whalan to LN on 30 January 2009.

2. The remainder of the Application is dismissed for want of jurisdiction.