Lowe and National Disability Insurance Agency

[2023] AATA 1599

Lowe and National Disability Insurance Agency [2023] AATA 1599 (9 June 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/1984

Re:Lachlan Rowe

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date: 9 June 2023

Place:Adelaide

For the reasons set out below, the Tribunal has determined that the Respondent is granted leave to inspect all documents under summons issued to the:

(a)Practice Manager, Territory Medical; and

(b)Practice Manager, Palmerston Medical Clinic.

.............[sgnd]........................

Member I Thompson

Catchwords

PRACTICE AND PROCEDURE - objection by the Applicant to the Respondent’s inspection of material produced under summonses – relevance of the material produced under summonses to the issues raised by the reviewable decision – objections disallowed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Comcare v Maganga [2008] FCA 285

MMMY & National Disability Insurance Agency [2002] AATA 3236

REASONS FOR DECISION

Member I Thompson

9 June 2023

1. On 4 January 2022, the applicant, Mr Rowe, made a request to access the National Disability Insurance Scheme, pursuant to s 18 of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”). On 2 February 2022, the National Disability Insurance Agency (“the Agency”) refused the applicant’s request. On 10 March 222, the Agency’s refusal was affirmed on internal review. Mr Rowe lodged an application to the Administrative Appeals Tribunal for review of the internal review decision.

2. In the access request form, Mr Rowe listed his disabilities as attention deficit hyperactivity disorder – combined type (“ADHD”), sensory processing disorder and complex post-traumatic stress (“PTSD”).

3. In its reasons for the decision on internal review, the Agency accepted that Mr Rowe has impairments of ADHD, delayed sensory processing and PTSD. However, the Agency was not satisfied that the impairments are or are likely to be permanent. Hence, the Agency determined the disability requirements in s 24 (1)(b) of the NDIS Act and the early intervention requirements in s 25 (1)(a) of the NDIS Act were not met. In his application to the Tribunal, Mr Rowe submitted that the Agency’s decision is incorrect in the application of the access criteria outlined in ss 24 and 25 of the NDIS Act.

SUMMONSES

1. The Agency requested summonses to be issued to, Mr Henry Kwiatkowski of EASA, Dr Zelko Mustac of Dokotela, the Practice Manager at Territory Medical, with reference to Dr Hong Liu and the Practice Manager at Palmerston Medical Clinic, with reference to Dr Roy Abraham.

2. In each one of the requests to issue summonses, the Agency sought “referrals, reports, clinical notes, correspondence or any other documents regarding any attendance on or treatment of the Applicant”. The reasons for the requests included an identical assertion in each request, specifically that the summonsed documents “have a bearing specifically on the assessment of whether the Applicant’s conditions have the requisite permanency to satisfy the criteria in ss 24 and 25 of the Act.”

3. The Tribunal directed that the summonsed material be produced in response to each one of the requests. The records were produced in accordance with the Directions.

4. Pursuant to section 40B (1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), Directions were made providing each party leave to inspect the documents produced under the summonses. In relation to the documents produced by the Palmerston Medical Clinic and Territory Medical, Mr Rowe’s leave to inspect commenced on 13 December 2022, and the Agency’s leave to inspect commenced on 23 December 2022. Mr Rowe provided written submissions in which he set out and explained his objections to the Agency inspecting both sets of documents. The objections did not extend to the material produced under summonses by Dokotela and by EASA.

5. In a submission dated 4 November 2022, Mr Rowe set out three grounds for objecting to inspection of the material, which are as follows:

   ·He submitted that his specialists and treating team professionals had considered this material and made the necessary recommendations and treatment plans;

   ·He submitted that the Agency would not derive any assistance from additional information contained in the documents; and

   ·He asserted that the Agency had fallen into error in its interpretation of access criteria.

6. By email dated 13 October 2022, Mr Rowe had commented that Territory Medical and Palmerston Medical Service were not specialists, and the requested documents would include medical history that is not relevant to his NDIS application and would be a breach of his privacy. He commented that Dokotlea is the specialist agency with the relevant information.

10.The Agency’s initial submission filed on 12 December 2022, pointed out that the requested documents concern treatment by Mr Rowe’s general medical practitioners and are relevant to the critical question of the permanency of Mr Rowe’s impairments.[1] In considering the evidence relevant to those criteria, it was submitted that GP medical records may assist the Tribunal in deciding whether all “known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the impairment”, as required by NDIS Rule 5.4. The submission referred to the test of apparent relevance of the documents sought to be inspected in the context of a real possibility that they may assist in resolution of the issues.[2]

[1] See ss 24(1)(b) & 25(1)(a) of the NDIS Act; Rule 5. 4 of the National Disability Insurance Scheme (Becoming a Participant) Rules).

[2] Referring to Comcare v Maganga [2008] FCA 285 at [37]-[38].

LEGAL PRINCIPLES

11.In MMMY & National Disability Insurance Agency,[3] the Tribunal, summarised the relevant law as follows:

[3] [2002] AATA 3236 (Senior Member Connolly).

“Section 39(1) of the AAT Act provides that the Tribunal must ensure the parties are given an opportunity to present their case and inspect documents to which the Tribunal proposes to have regard in reaching its decision, and to make submissions in relation to those documents.

Section 40A(1)(b) of the AAT Act relevantly provides that the Tribunal may summon a person to produce documents.

Sections 40B (1) and 40B (2) of the AAT Act relevantly provide that the Tribunal may give a party to a proceeding leave to inspect documents produced under a summons in relation to the proceeding

……

With respect to concerns about privacy and inspection of personal medical information, in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340 (Panagiotou) Deputy President Forgie stated at [24]:

The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.

Also on the issue of inspection of medical records in Re ZFCC and Comcare (Compensation) [2018] AATA 1358 (ZFCC) Deputy President Humphries stated:

(When) medical records are produced to the Tribunal, an applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the respondent to inspect and copy pursuant to s 40B, often for the purpose of commissioning a medical report from a doctor regarding the applicant’s condition. An applicant may object to the respondent inspecting and copying those records, but the acceptable grounds for such objection are limited, as these reasons will explain.

An objection may assert that the summonsed records include documents covered by legal professional privilege or refer to another person (such as a family member) in such a way as to unduly intrude on that person’s privacy. Such an objection will often result in a refusal to grant access by the other party to parts of those documents. Sometimes an applicant will object to inspection on the basis that the records – or parts of them – are not relevant to the proceedings before the Tribunal. There are practical reasons however for caution in denying access on this basis and why, conversely, an eclectic approach should be taken to the question of a party inspecting medical records.

...

The passing of intimate medical records to strangers during proceedings like these can, of course, be distressing to an applicant. The Tribunal and the party to whom access is granted should be mindful of that distress and take reasonable steps to minimise it. Ethical and legal constraints affect a respondent’s use of this material, and these constraints must be diligently applied in a respondent’s dealings with the records. Alternatively, the parties and the Tribunal may agree that the probative value of certain records is sufficiently low to warrant their exclusion from the proceedings. But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant.

With respect to the relevance of material, the Tribunal notes that in Waind and Hill v National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 (referred to by the Deputy President in Panagiotou) Moffitt P (Hutley and Glass JJA agreeing) held (emphasis added):

The crucial question in relation to the exercise of the discretion to permit inspection in the second step^[1] is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed....”[4]

[4] As above at [13]-[19].

CONSIDERATION

12.In its subsequent, detailed written submissions on 27 January 2023, Counsel for the Agency elaborated on the points previously made that the supporting evidence filed in these proceedings has not included sufficient reference to treatment of Mr Rowe’s impairments. Thus, there is a real possibility that the requested documents will assist, as they have apparent relevance and are likely to provide further material to assist in the Tribunal’s determination of the issues. Counsel also pointed out that Mr Rowe had agreed to participate in an independent psychiatric assessment by Dr Hundertmark. This assessment was arranged by the Agency and the medical notes and records may be relevant to the discharge of the psychiatrist’s duty to the Tribunal in the provision of expert opinion evidence.

13.Mr Rowe agreed to participate in the independent assessment by a psychiatrist, Dr Hundertmark, who provided a report dated 22 December 2022. He previously argued that the Agency would not gain assistance from the summonsed material as it would simply result in the Agency standing by its original decision, or alternatively the additional information which the Agency sought would be provided by the independent assessment. Of course, Mr Rowe was not obliged to participate in the psychiatric assessment, and it might seem unfair to him that, having agreed to the assessment, then to have the GP records subsequently inspected and provided to the psychiatrist. However, it is unhelpful to speculate in that way. It is more helpful to refer to Deputy President Humphreys’ detailed remarks, quoted above about the purpose, relevance, and use of medical records.

14.Mr Rowe’s helpful and detailed written submissions, after his initial submissions, commented that there is already sufficient information about his impairments in the documents and supporting evidence that he lodged. That contention has additional weight in view of his voluntary participation in the recent psychiatric assessment, which resulted in a comprehensive psychiatric report. However, Mr Rowe’s proposition that “the genesis or treatments” of his impairments are not central to the proceedings is contentious. Also contentious is the proposition, which he made, that “these ancillary documents, which reach back as far as 2004, provide no aid to the Tribunal Member in making the determination regarding access to the NDIS.”

15.Mr Rowe’s access request was accompanied by a supporting evidence form which was completed by a registered psychologist, Mr Kwiatkowski. Mr Kwiatkowski wrote that Mr Rowe’s primary impairment is ADHD – combined type which was present from birth. He wrote that another impairment with a significant impact for Mr Rowe is delayed sensory processing (aural and proprioception), which has been present since birth. In relation to the question whether Mr Rowe has any other impairments, Mr Kwiatkowski wrote that Mr Rowe has PTSD from childhood and recent domestic violence trauma. From that documentation alone, it is clear enough that evidence about the presence of the relevant impairments in childhood is apparently relevant to the issues before the Tribunal, including the question of the permanence of the impairments.

16.Further to Mr Kwiatkowski’s observations, the Tribunal notes that the specialist medical evidence comprises two reports by psychiatrist, Dr Mustac dated 23 November 2020 and 21 October 2021. Those reports were sent to his general medical practitioner, the earlier report was sent to Territory Medical, and the later report was sent to Palmerston Medical clinic. The first report includes a summary of early family history following a consultation which Mr Rowe initiated after his child was diagnosed with ADHD. This led to Mr Rowe’s recognition that his child’s behaviour is like his own at the same age. That observation seems to provide further confirmation that historical medical notes may shed light on issues relating to Mr Rowe’s impairments dating back over many years and potentially into childhood. While Mr Rowe’s concerns are genuine and properly articulated, it must be acknowledged that it is on his own case that his ADHD and delayed sensory processing, according to Mr Kwiatkowski, have been present since birth, and the PTSD from childhood and recent domestic violence trauma. Accordingly, it follows that there is a real possibility the GP medical notes may assist in resolving the issues in the substantive proceedings.

17.The Tribunal is satisfied that the summonsed material meets the threshold of apparent relevance. Of course, that is not the threshold which might be applied later in the proceedings concerning the admissibility in evidence of materials that are directly relevant. At this stage, however, a broader view, not a narrower one, must be taken to the question of relevance.

OTHER MATTERS

1. Mr Rowe requested the Agency to produce documents relating to his matter. He described those documents as:

   (a)all agency file notes relating to my access request, internal review, and AAT Appeal;

   (b)all logs of calls with myself and the agency regarding my access request, internal review, and AAT appeal;

   (c)any decision-making matrices, rubrics or other documents used to determine the outcome of the original access application;

   (d)the same of   the above for the internal review decision; and

   (e)all agency correspondence internally and any other parties relating to my access request, internal review, and AAT appeal.

2. In relation to those documents Mr Rowe added: “I don’t believe these have been supplied in the T documents and would find them necessary moving forward.” The Agency indicated that it would consider Mr Rowe’s request. On 10 February 2023. its solicitors provided a written submission together with copies of documents, which it submitted are relevant to the substantive application.

3. In that written submission, Counsel for the Agency confirmed that there are no documents in Mr Rowe’s requested categories (c) and (d) outlined in paragraph 18.

4. In relation to the documents which Mr Rowe requested in categories (a), (b), & (e), Counsel submitted that the Agency’s file notes, internal correspondence and external correspondence are not relevant to the decision under review in the substantive application. The “additional documents” which were attached to its written submission comprised several pages of notes concerning interactions between the Agency and Mr Rowe in the period between 4 January 2022 and 10 March 2022. Accordingly, it was submitted that the Tribunal should not make an order under s 37(2) of the AAT Act requiring the respondent to produce the requested documents as all the relevant documents have now been produced.

5. Both parties provided oral submissions at the telephone directions hearing on 10 February 2023. As Mr Rowe did not have an opportunity to consider the Agency’s written submissions and attachments prior to the directions hearing, his suggestion that he would need time to read and assess the material was entirely reasonable.  This matter may require further consideration at a subsequent direction hearing to enable Mr Rowe to make submissions, should he elect to do so, regarding the Agency’s submission that there is no need for the Tribunal to make any further order for production of documents.

   CONCLUSION

23.In relation to the summons inspection issue, the Tribunal decides: -

(a)The Respondent is granted leave to inspect all documents produced under summons issued to the Practice Manager, Territory Medical:

(b)The Respondent is granted leave to inspect all documents produced under summons issued to the Practice Manger, Palmerston Medical Clinic.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

................[sgnd].....................

Associate

Date of Decision:	9 June 2023
Date of Hearing:	10 February 2023
Solicitor for the Applicant:	Janet Wright Integrated Disability Action
Solicitor for the Respondent:	Ms Emma Carnell HWL Ebsworth Lawyers