McKinnon v Nepean Blue Mountains Local Health Network

[2012] NSWADT 86

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	McKinnon v Nepean Blue Mountains Local Health Network [2012] NSWADT 86
Hearing dates:	11 and 12 October 2011 and 14 November 2011
Decision date:	08 May 2012
Jurisdiction:	General Division
Before:	P. H. Molony, Judicial Member
Decision:	Set aside the decision under review and remit it to the Agency for reconsideration in accordance with these reasons.
Catchwords:	Freedom of information
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Administration Act 1992 Health Practitioner Regulation Amendment Act 2010 Health Practitioner Regulation National Law (NSW) Health Records and Information Privacy Act 2002 Health Services Act 1997 Medical Practice Act 1992 (Repealed) Privacy and Personal Information Protection Act 1998
Cases Cited:	Altaranesi v NSW Self Insurance Corporation (No 2) [2011] NSWADT 28 Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 Alexander v University of Sydney [2008] NSWADT 214 Black v Hunter New England Area Health Service [2008] NSWADT 301 Colakovski v Australia Telecommunications Corporation (1999) 29 FCR 429 Commissioner of Police v Perrin (1993) 31 NSWLR 606 Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 Department of Social Security Social Security v Dyrenfurth (1988) 80 ALR 533 Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13 Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 Grace v Grace [2010] NSWSC 1514 James and Australian National University (1984) 6 ALD 687 Public Service Assn and Professional Officers Assn, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 Livingstone v State Rail Authority (NSW) [2002] NSWADT 25 Martin v Commissioner of Police [2005] NSWADT 23 News Corporation Ltd v NCSC (1984) 52 ALR 277 R v Nair [2010] NSWSC 707 Re Coulthart and Princess Alexandra Hospital & Health Service District [2001] QICmr 6 Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 Re Thies and Department of Aviation (1986) 9 ALD 454 Re Stewart v Department of Transport (1993) 1 QAR 225 Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Re Wiseman and Department of Transport (1985) 12 ALD 707 Schlebaum (No 2) v Director General, Department of Community Services [2001] NSWADT 214 Simring v Commissioner of Police [2006] NSWADT 331 Sovereign v Bevillesta [2000] NSWSC 521 Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 TW v TX [2005] NSWADT 262 Unsworth v Tristar Steering and Suspension Australia Pty Ltd [2007] FCA 1081 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 YZ v Sydney South West Area Health Service [2006] NSWADT 316
Category:	Principal judgment
Parties:	Michael McKinnon (Applicant) Nepean Blue Mountains Local Health Network (First Respondent) Suresh Nair (Second Respondent) Avant Law Pty Ltd (Third Respondent)
Representation:	Counsel T Brennan (Applicant) K Stern (First Respondent) M Allars (Second and Third Respondent) SBA Lawyers (Applicant) Ashurst Australia (First Respondent) Avant Law Pty Ltd (Second Respondent) Avant Law Pty Ltd (Third Respondent)
File Number(s):	113166

REasons for decision

Procedural Background

1. By application to the Tribunal dated 27 June 2011 Mr McKinnon sought review of a decision dated 12 May 2011 of Mr Geoff Murphy, the Workplace Relations Manager of the Agency, on an application for access to documents under the Freedom of Information Act 1989 (the FOI Act). That decision, made under s 24 of the FOI Act, was to grant access in full to 8 documents, to grant access in part to 8 documents, and not to grant access to 69 documents.

1. That decision was reached on internal review of an earlier decision of the Agency made on 25 April 2010, in respect to an amended request made by Mr McKinnon in which he sought access to the following documents:

I. the amount of money paid to neurosurgeon Suresh Nair since he was suspended by the medical board in 2004;

2. Information including documents produced in the last two years since Nair's employment showing any warnings, concerns or problems about improper behaviour, maladministration or mismanagement by Nair while employed.

1. Mr McKinnon subsequently sought a review of that decision in this Tribunal.

1. Dr Nair and his legal representatives, Avant Law Pty Ltd, together with the Medical Board of New South Wales subsequently sought to be and were joined as parties to the proceeding under s 67(4) of the Administrative Decisions Tribunal Act 1997 on the basis that their joinder was necessary to the determination of all matters in dispute in the proceedings.

1. The Medical Council of NSW, on its own application, was joined as party to these proceedings on 26 September 2011. Before the hearing commenced the Medical Council's legal representatives wrote to the Tribunal on 27 September 2011 advising:-

lt came to my attention yesterday afternoon, that the health conditions imposed by the Council were comprehensively summarised in the Supreme Court's decision of R v Nair [2010] NSWSC 707 at [201 and [22]. This was the first occasion on which either my client or I were aware that this information was already in the public domain.

In these exceptional circumstances, my client has instructed me that it no longer wishes to be heard in relation to whether the health conditions imposed on Dr Nair are exempt matter.

in light of the decision in Alexander v University of Sydney [2008] NSWADT 214 at 041 my client's direct interests are limited to documents about which it was consulted and it cannot properly be heard in relation to other matters.

Accordingly, my client no longer wishes to call evidence or make submissions and seeks to be excused from further participation in the proceedings. I will attend the hearing on 11 October to seek to be formally excused.

1. That leave was granted.

1. The hearing of the application took place over four days between September and November 2011, concluding on 14 November 2011.

Relevant factual background

1. Mr McKinnon is the FOI Editor of the Seven Network.

1. Mr Suresh Nair, the second respondent, is a figure of public notoriety. He was employed as a staff specialist doctor by the Agency in 2001, specialising in neurosurgery. Since June 2004, Dr Nair's registration by the Medical Board of NSW had been subject to practice and health condition imposed by the Medical Board's Impaired Registrants' Panel. Practice conditions imposed by the Medical Board are a matter of public record. Health conditions are not.

1. On 25 November 2009 Dr Nair was charged with one count of supplying cocaine, and bailed: conditions of which, among others, were that he was not to engage the services of an escort or prostitute and not to consume any illicit drug.

1. The following day, his registration as a medical practitioner was suspended.

1. On 9 January 2010, Dr Nair was arrested at his home in the company of two naked escorts. There was 5.14 g of cocaine in the premises, some of which had been prepared for ingestion. He was charged with three counts of supply a prohibited drug and one count of possess a prohibited drug. Bail was refused.

1. Then, on 4 February 2010, Dr Nair was charged with the manslaughter of Victoria McIntyre on 15 February 2009 and with the murder of Suellen Domingues-Zaupa on 19 November 2009. He was refused bail on those charges. Both women were escorts who died as a result of overdoses from cocaine in Dr Nair's company. The cocaine was supplied to them by Dr Nair, while providing him with sexual services.

1. On 24 June 2010 Dr Nair unsuccessfully applied for bail in the Supreme Court: see R v Nair [2010] NSWSC 707, per Latham J. In the course of that judgment Her Honour made reference to the following matters relating to Dr Nair's use of cocaine and its impact on his medical practice: -

20 Between the end of June and the beginning of September 2004, the applicant agreed to a number of conditions imposed by the New South Wales Medical Board on his registration. Those conditions included that the applicant not prescribe self medication, that he attend for treatment by a general practitioner, that he not self-administer any illicit drug or narcotic derivatives, or non-prescription compound analgesic or cold medication, that he attend the Doctors in Recovery Group at Northside Clinic on a fortnightly basis at a minimum, that he abstain completely from the consumption of alcohol, that he attend Alcoholics Anonymous or Narcotics Anonymous meetings at least on a weekly basis, that he attend for treatment by a psychiatrist at a frequency to be determined by the treating psychiatrist, that he continue to take any medication prescribed by his treating psychiatrist, that he attend for treatment by a specialist in anxiety disorders, that he attend three times a week for urine drug testing in accordance with the Board's protocol, that he attend for review by Dr Bruce Westmore (the Board nominated psychiatrist) initially on a three monthly basis and that he attend a review interview at the Board after three months.

21 The applicant's registration was suspended on 2 September 2004 for a period of six weeks. From mid October 2004 until mid-March 2005 the applicant voluntarily agreed to a number of conditions imposed on his registration. Those conditions were in general terms, the same as had been previously imposed. The majority of those conditions remained in force until early January 2009, subject to some variations in relation to the frequency of attendance on a psychiatrist and the frequency of the applicant's attendance at the Doctors in Recovery Group and Alcoholics Anonymous or Narcotics Anonymous.

22 Between early January 2009 and late February 2009, the applicant was subject to a fresh set of conditions, which included that the applicant was not to prescribe self medication, to attend for treatment by a general practitioner, not to self administer any illicit drug, narcotic derivatives, non-prescription compound analgesic or cold medication, to attend the Doctors in Recovery Group at Northside Clinic on a monthly basis at least, to abstain completely from the consumption of alcohol, to attend Alcoholics Anonymous or Narcotics Anonymous meetings on a monthly basis at least, to attend for treatment at a psychiatrist of his choice and to continue taking any prescribed medication, to attend for review by Dr Bruce Westmore on a three monthly basis and to attend a review interview at the Board on a three monthly basis or as otherwise directed.

23 These conditions remained in force, with some minor variations until 26 November 2009 when the applicant's registration was suspended, as I have already noted. Throughout this period of time, the applicant was also subject to a number of practice conditions, which restricted at various times the maximum number of hours per week that the applicant worked, the nature of the applicant's practice and the extent of the applicant's clinical review, supervision and monitoring by his employer.

24 It is abundantly clear from the terms of the conditions (see Exhibit B) that the applicant has been afflicted by a long-standing addiction to drugs, that he is prone to excessive consumption of alcohol and that there are other features of his mental health that have required the services of a treating psychiatrist. In spite of this history, the applicant seems to enjoy the confidence and support of his peers in neurosurgery. I can only conclude that the applicant is a gifted practitioner whose skills were so much in demand that suspension was a remedy of last resort.

1. Dr Nair subsequently pleaded guilty before His Honour Judge Toner SC in the District Court, on 30 June 2011, to:

• the manslaughter of Suellen Domingues-Zaupa on or about 19 November 2009;
• the supply of a prohibited drug, cocaine, on 15 February 2009; and
• being the supply of a prohibited drug, cocaine, on 9 January 2010.

1. In sentencing Dr Nair on 26 August 2011 the Court made reference to the following matters relating to Dr Nair's use of cocaine and its impact on his medical practice -

47. The offender displayed a determined persistence in abusing cocaine. His use of cocaine was not constant. He binged. He was introduced to it in 2002.

48. In 2003 he sought assistance from Dr Jurd in relation to his drug use and self reported to the Medical Board in 2004.

49. Dr Westmore reported to the Board on 25 May 2004 (Exhibit 1) and noted that the offender reported as to the "binging" nature of his cocaine use then. Quite what was triggering his use of cocaine in that way then is unclear from Dr Westmore's report.

50. A regime was put in place by the Medical Board and he was allowed to continue in practice.

51. The offender said, and I accept, that his cocaine use was largely controlled until late 2008, early 2009, when he broke up with a woman, a fellow medical practitioner. They had planned to marry.

52. He thought his reaction to that was the behaviour in which he then indulged for the next 18 months. Frequent binge use of cocaine purchased from escort agencies to accompany usually more than one escort, all using cocaine. Even the death of Victoria did not stop him nor even the death of Suellen. He was arrested in relation to the last offence (and the two on the Form 1) in circumstances that were not dissimilar to those in which each of these young women had died. He was then on bail. The conditions of that bail were that he was not to consume cocaine and that he not engage the services of an escort. He did both.

53. His solicitor qualified Dr Rosemary Wilcox, psychiatrist. Her report is dated 27 June 2011 and is part of Exhibit 1.

54. The history she took included:-

In the latter part of 2003 he developed a pattern of calling escort agencies to arrange for girls to come to his house and the escorts provided cocaine. He said from then on all the cocaine that he obtained was through escort agencies.

This is at odds with his version in evidence and that given to Dr Westmore.

55. He told Dr Wilcox: -

He ceased his use of cocaine in March 2004 however relapsed in July 2004. at the time due to being on the IPP he was required to have random urine tests yet despite knowing the risk he was taking he still used cocaine. He rationalised his actions. He said he was not looking for cocaine but had been offered it in a social environment.

On a number of occasions when questioned about his continued use of cocaine while being aware of the considerable risks he was taking he mentioned that he had struggled with "two minds" over the past 10 years. One mind was the "rational mind" that knew that cocaine use was harmful and illegal and that he must not engage in the use of cocaine for his own self-preservation and that any use would be at considerable risk. However, on the other side he had an "irrational mind" that wanted to use cocaine because of the pleasurable effect particularly when used in a sexual context and he said on many occasions he made the decision to follow his irrational mind. Dr Nair said cocaine made him feel frisky and increased his capacity to have sex.

She noted that he apparently remained drug free from July 2004 until November 2008.

56. Dr Wilcox noted:-

Following the termination of his long term relationship he increased his prior behaviour of ringing escort agencies and the escorts were once again associated with the use of cocaine. He acknowledged that he had a very high sex drive however said he was not preoccupied with sex and when he was at work he was totally focused on his work.

...

When he resumed his use of cocaine around November 2008 the number of escorts that he arranged at any one time increased and he said that at his request the escort agencies sent up to four or five girls in a night and the girls came with cocaine. He had difficulty quantifying the amount of cocaine he estimated that it was about the weight of half a cigarette box. He told me that he never coerced any of the girls into having cocaine, but said that they would have been informed that they were expected to use cocaine while with him.

57. At page 5 the doctor related:-

In June 2009 he relapsed. He knew that he was taking a considerable risk and he knew that someone had died as the result of taking cocaine in his presence, yet despite this he made the decision to follow his irrational mind. At the time he had no girlfriend and was feeling lonely and isolated.

As a result of his relapse in June he decided he needed help he knew that his actions were "insane" and he wondered what he was doing.

58. And then:-

The Medical Board immediately suspended him and he was bailed to the Sydney Clinic. Despite all that he had been through when he was discharged from the Clinic he contacted an escort Agency to arrange for cocaine and escorts.

...

1. His Honour referred to a report from Dr Jurd, dated 18 May 2009, which had been provided to the Health Care Complaints Commission. Dr Jurd had been Dr Nair's treating psychiatrist for seven years. In that letter no mention was made of the events surrounding the death of Victoria McIntyre on 14 February 2009. His Honour noted the history Dr Jurd gave came for Dr Nair. He concluded that:-

93. Mr Nair must have known:-

a. that it was of the first order of relevance; and

b. that in all probability it would have led to the immediate suspension of his right to practice.

94. He did not report his resumption of cocaine use in November 2008 (as he did to Dr Wilcox).

95. Dr Jurd, no doubt relying on what he was told by the offender, reported to the Commission:-

The most recent stressor was in about September 2008 when his imminent marriage was cancelled. Around that time, Dr Nair woke from a bad night's sleep feeling well below his best. He made what seems to have been a good clinical decision. He decided to cancel an operating list. The subsequent s.66 inquiry and this HCCC investigation seem to me to be more a function of his workplace's inability to accept that even neurosurgeons may have life problems.

It is my belief that Dr Nair is in stable remission from cocaine and alcohol abuse and that he is fully fit to practise medicine. I further believe that matters came before the Medical Board that would have been more suited to a casual chat between colleagues ("Hey mate, you ought to have a back up to your mobile if you are on call for life threatening stuff") rather than s.66 inquiry.

96. The offender induced Dr Jurd, who was effectively not only his treating psychiatrist but also his advocate to the HCCC, to lie as to why he had cancelled a list, to lie as to his fitness to continue to practice as a neurosurgeon and to lie in telling them that the offender:-

... is in stable remission from cocaine and alcohol abuse and that he is fully fit to practice medicine.

97. Nothing could be further from the truth.

98. I do not accept the offender's explanation. (see T.28:4-39).

99. What he told Dr Jurd is consistent with my conclusion that at the time of these offences he was driven by selfishness and self-gratification.

100. The lies to Dr Jurd were to ensure a report by him to the Board which allowed him to continue to practice.

101. If he had told the truth to Dr Jurd in all probability matters would have come to a head.

1. As a result of the sentences imposed for the offences to which he pleaded guilty, Dr Nair will be eligible for release to parole on 30 April 2015.

1. As already noted the circumstances surrounding Dr Nair's arrest, pleas of guilty, and imprisonment have been the subject of considerable public attention. Among the materials relied on by Mr McKinnon in this case are a series of media articles reporting on those circumstances, from arrest to sentence. Over objection from the respondent's I admitted before the Tribunal those articles that did not concern his Supreme Court bail application and his sentencing hearing. I considered the published reasons for decision were a more reliable source of what occurred at those hearings, than the newspaper reports.

1. Among the articles admitted was one entitled "Through the Cracks: Suresh Nair" by Tanveer Ahmed, a psychiatrist, from The Monthly of 1 June 2011. It is a considered article which briefly outlines the interventions by the Medical Board in Dr Nair's medical registration since 2004. It raises issues concerning the management of impaired medical practitioners; the tension between maintaining their professional contributions and patient safety; and, in Dr Nair's case, raises questions concerning whether the Medical Board's interventions were appropriate or sufficient. In that article Dr Ahmed outlined a number of conversations he had with professional colleagues of Dr Nair, some of whom he identified.

1. The documents sought by Mr McKinnon under the Freedom of Information Act 1989 from the Agency go to:

• The Medical Board's management of Dr Nair
• The Agency management of Dr Nair as a Senior Staff Specialist Neurosurgeon in its employ, especially in the light of the conditions on his registration ordered by the Medical Board, including internal discussions within the Agency.
• A fitness assessment of Dr Nair obtained by the Agency of Dr Nair and subsequent internal discussions relating to the impact of that report n the future management of Dr Nair by the Agency.
• Dr Nair's credentialing by and clinical privileges at the Agency.
• Communications between the Agency and the Medical Board concerning Dr Nair.
• Communications between the Agency and the Health Care Complaints Commission (HCCC) concerning Dr Nair.
• Communications between the Agency, Dr Nair and his lawyers.
• The establishment by the Agency, after Dr Nair was charged, of a review to evaluative clinical outcomes for Dr Nair as against his peers: the Review of Nepean Neurological Services.

1. The Agency has claimed specific exemptions with respect to each document in issue. Dr Nair and Avant Law have made global objections with respect to the documents, not being privy to them.

1. It is important when considering a review under the FOI Act to understand that s 61 places on the Agency "the burden of establishing that the determination is justified."

1. Before considering the various claims for exemption with respect to those documents it is necessary to set out in some detail relevant material concerning:

• The Agency's constitution, organisation and policies.
• The constitution of the Medical Board and Medical Council the constitution and operation of the IRP.
• Evidence concerning the confidentiality with which information relating to an impaired registrant is treated and managed within and by the Agency.

The Agency's constitution, organisation and policies.

1. The Agency is a local health district constituted under s 17 of the Health Services Act 1997 (HSA). Section 4 provides objects of the HSA include:-

(a) to establish a system of local health districts for the whole of the State to deliver health services and to enable their recognition as health networks for the purposes of the NHHN Agreement, ...

1. Section 8(2) of the HSA provides that:-

The principal reason for constituting local health districts is to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the areas of the State in respect of which the districts are constituted.

1. Section 9 sets out the primary purposes of local health districts:-

The primary purposes of a local health district in its area are as follows:

(a) to provide relief to sick and injured persons through the provision of care and treatment,

(b) to promote, protect and maintain the health of the community.

1. The function of local health districts are set out in s 10. This relevantly provides:-

The functions of a local health district are as follows:

(a) generally to promote, protect and maintain the health of the residents of its area,

(b) to conduct and manage public hospitals, health institutions, health services and health support services under its control,

...

(d) to achieve and maintain adequate standards of patient care and services,

(e) to ensure the efficient and economic operation of its health services and health support services and use of its resources,

(f) generally to consult and co-operate (as it considers appropriate) with any one or more of the following:

(i) the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993,

(ii) health professionals practising in its area,

(iii) other individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the promotion, protection and maintenance of health,

...

1. Under ss 17 and 22 of the HSA local health districts are bodies corporate.

1. Section 122 sets out the functions of the Director-General under the HSA. These include:-

a) to facilitate the achievement and maintenance of adequate standards of patient care within public hospitals and in relation to other services provided by the public health system,

(b) ...

(c) to inquire into the administration, management and services of any public health organisation,

(c1) to provide governance, oversight and control of the public health system and the statutory health organisations within it,

(d) ...

(f1) to give directions to statutory health organisations,

(g) such other functions as may be conferred or imposed by or under this Act.

1. The Director-General has issued a number of Policy Directives and Guidelines that concern the management, accreditation and conduct of medical practitioners employed by and providing services within local health districts, among others. These include:

• Medical Practitioners - Compliance with Registration Requirements (PD2008_071) (the Registration Policy).
• Complaint or Concern about a Clinician - Management Guidelines (GL2006_007) (the Management Guidelines).
• Complaint or Concern about a Clinician - Principles for Action ((PD2006_07). ( the Complaint Policy)
• Delineation of clinical privileges for visiting practitioners and staff specialists: Policy for Implementation (PD2005_495) (the Privileges Policy).

1. The Privileges Policy applies to all visiting practitioners and staff specialists working in public health in NSW. It defines clinical privileges as:-

Clinical privileges - the kind of work (subject to any restrictions) that the public health organisation determines a medical practitioner or dentist is to be allowed to perform at any of its hospitals or health services. Clinical privileges result from

the credentialling process, and represent the range and scope of clinical responsibility that a professional may exercise in a facility. Clinical privileges are specific to an individual, and also relate to the role delineation resources, equipment and staff available

in a single health care facility or group of facilities.

1. It requires all public health organisations to delineate practitioners' clinical privileges. This process has two main components: credentialing, which involves verification of qualifications and experience, and the delineation of clinical privileges allowed to a practitioner. While the governing body of each public health organisation is responsible for the delineation of clinical privileges, the policy allows for the delegation of that process. It provides for each such organisation to have a Medical and Dental Appointments Advisory Committee (MDAAC) to provide advice and make recommendations to the authority with respect to clinical privileges. The Privileges Policy also provides that MDAAC may form subcommittees (Credentials (Clinical Privileges) Subcommittees) to advise on matters concerning clinical privileges.

1. In the present case many of the documents for which exemption are claimed relate to the work of either MDAAC or the Credentials (Clinical Privileges) Subcommittees (the Credentials Committee), and exchanges between their members.

1. The Registration Policy states that its purpose is to:-

1. To ensure that all doctors practising within the NSW public health system do so in compliance with their medical registration and any relevant conditions that maybe imposed on that registration.

2. To provide direction to Health Services and personnel on requirements for the identification and management of doctors with conditions on their registration, and the review of those practices and systems.

3. To specify Health Service verification and reporting in relation to doctors with practice conditions on their registration.

1. The policy notes the importance of identifying practitioners whose registration is subject to conditions, and managing their practice to ensure compliance. The policy advises that:-

Where there are health issues or concerns with a doctor, it may result in the imposition of health conditions on that doctor - for example, that the doctor is required to access specific health services. Whilst the Board publishes the existence of health conditions on its website, it does not publish the details of any such conditions. The Board's approach is generally that the details of health conditions imposed on a practitioner is a private matter, and that it is the Board's responsibility to ensure compliance by a practitioner of such conditions.

The existence of health issues or concerns about a doctor may also result in conditions being imposed that restrict or impact on the doctor's practice of medicine (called registration or practice conditions). The details of registration or practice conditions on

a practitioner are published on the Board's website, and Health Services are required to monitor compliance with such conditions by a practitioner in the course of their employment or appointment with the Health Service in accordance with this policy.

1. It makes provision for the monitoring of practitioners with practice conditions, and the development of a Management and Clinical Supervision Plan for them. It provides that when conditions are found to apply to a practitioner, MDAAC and the Credentials (Clinical Privileges) Subcommittee are to be advised of the practitioner's appointment status and conditions. Importantly, it instructs that:-

On cessation of the conditions the Management and Clinical Supervision Plan should be finalised and the completed Plan securely and confidentially placed on or linked to that practitioner's Human Resources personnel file.

1. The Management Guidelines and the Complaint Policy are to be read together. The Complaint Policy sets out a mandatory policy which binds all health organisations and services, while the Guidelines set out frameworks for the management of complaints and concerns that can be applied locally. Section 6 of the Complaints Policy sets out the General Principles applicable. Relevantly, it provides:-

Certain general principles apply to the management of a complaint or concern about a clinician regardless of the severity or nature of action to be taken. The nature of the complaint or issue may dictate how these principles are given effect and so a degree of flexibility in the approach taken to manage the complaint/concern may be required.

These general principles are:

...

Health and safety of patients. The primary concern in managing complaints or concerns about a clinician is the health and safety of patients. Any risk to the safety of patients must be removed or managed as the first step in the management of a complaint or concern about a clinician.

Responsibility for action. It is the responsibility of management to act on complaints or concerns about clinicians. The AHS or other PHO must actively manage the complaint or concern, and cannot defer this obligation to a registration board or the Health Care Complaints Commission. If a registration board takes emergency suspension action, or uses its emergency powers to place conditions on the clinicians' practice, then the AHS or other PHO will need to respond to address the external restrictions.

The decision to immediately suspend, to alter clinical privileges, or provide alternative non-clinical duties, is at the discretion of the CE in consultation with the clinician's clinical director. The reasons for taking action, or for electing not to take action should be clearly documented; A decision to take administrative action in relation to a clinician as a result of an initial risk assessment should in no way be an indication of the guilt or misconduct of an employee.

...

Privacy and Confidentiality. Details of the matter should be disclosed only on a "need to know" basis, recognising any obligation to report information to other bodies, for example professional registration boards; Privacy legislation and Department privacy requirements need to be considered in the management of a complaint or concern about a clinician. All information in respect of complaints is to be treated as private and confidential

Impairment of a clinician where there is a registration board. At any level of investigation, inquiries may uncover impairment as a major contributor to performance concerns. If this is the case the matter should also be referred to the appropriate registration board for action under their procedures for dealing with impaired registrants.

The Medical Board/Council

1. Until 1 July 2010 the regulation and registration of medical practitioners in NSW by the Medical Board took place under the Medical Practice Act 1992 (the MPA). That Act was repealed by the Health Practitioner Regulation Amendment Act 2010. On the same day, the Health Practitioner Regulation (Adoption of National Law) Act 2009 commenced operation. Subject to specified modifications it adopted the Health Practitioner Regulation National Law Act 2009 (Qld) and applied it in NSW as the HealthPractitioner Regulation National Law (NSW) (the National Law). The Medical Council of NSW took over the role formerly played by the Medical Board.

1. Among the complaints which could be made under the MPA was a complaint that a registered medical practitioner suffers from impairment; see s 39(d). Impairment was defined in clause 4 of the Dictionary to the Act:-

A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder.

1. Part 5 of Division 7 of the Act was concerned with impairment. Section 72 enabled the Medical Board to refer a practitioner to the Impaired Registrants Panel (IRP) if it was considered that the practitioner suffered from impairment. The IRP had power to obtain reports and information as it considered appropriate and to require the medical practitioner to appear before it: s 75. This included a power to require the practitioner to undergo a medical examination: s 79. Having undertaken its assessment s 80(2) provided that the IRP could:-

(a) counsel the practitioner or student concerned or recommend that he or she undertake specified counselling,

(b) recommend that the practitioner concerned agree to conditions being placed on his or her registration or to being suspended from practising medicine for a specified period,

(c) make recommendations to the Board as to any action that the Panel considers should be taken in relation to the matter.

1. Under s 81 the Medical Board had power to impose conditions as recommended by the IRP where it was satisfied that the practitioner had agreed to them. Such conditions were capable of review: s 81A. If a practitioner would not voluntarily agree to proposed conditions then the Medical Board could convene an urgent hearing under s 66, deal with the issues in and impose conditions. Section 85 provided that:-

(1) A report by an Impaired Registrants Panel to the Board may not be admitted or used in any civil proceedings before a court.

(2) A person may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such civil proceedings.

(3) A report referred to in this section is a protected report for the purposes of this Act.

(4) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions, but does not include the Tribunal, a Committee or a Performance Review Panel or the Supreme Court (in respect of appeal proceedings under this Act).

report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.

1. Section 190B made provision with respect to protected reports. It provided:-

(1) A person must not directly or indirectly make a record of or disclose to any person any information contained in a protected report which has come to the person's notice in the exercise of the person's functions under this Act, except for the purposes of exercising functions under this Act.

Maximum penalty: 50 penalty units.

(2) This section does not prevent the disclosure of a protected report to the Commission.

Note. Protected reports are health or medical reports (as referred to in section 190A), reports by an Impaired Registrants Panel to the Board and reports by assessors.

1. In addition s 190 provided:-

A person must not disclose any information obtained in connection with the administration or execution of this Act unless the disclosure is made:

(a) in the case of information relating to a patient of a registered medical practitioner-with the consent of the patient, or

(b) in any other case-with the consent of the person to whom the information relates or from whom the information was obtained, or

(c) in connection with the administration or execution of this Act, or

(d) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(e) with other lawful excuse, or

(f) in such other circumstances as may be prescribed.

Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.

1. The Medical Board had a formal policy on the Disclosure of Health Related Conditions that was in force when Dr Nair was first considered by an IRP in 2004. It referred to s 135A of the MPA which provided that:-

(1) The Board is to ensure that the following information, in relation to a registered medical practitioner, is made available to the public on request:

(a) any conditions imposed on the registration of the practitioner,

(b) any other order made in respect of the practitioner under this Act.

(2) This section does not require the Board to disclose anything that the Board considers relates solely or principally to the physical or mental capacity of a person to practise medicine.

1. The Policy adopted by the Medical Board was that it would not publicly disclose conditions relating to the health of a practitioner, or the monitoring requirements placed on an impaired practitioner. Practitioners who were before an IRP were, as matter of practice, read an opening statement which included the following advice:

A guiding principle under which the Health Program operates is that restrictions are to be placed on a doctor's practice only if they are necessary to ensure that health services are provided safely and are of appropriate quality.

There are strict rules concerning the confidentiality of this hearing. The details of today's proceedings cannot be released to an unauthorised person. Nor will information regarding your health be provided to an unauthorised party. The Council will, however, notify, in writing, your employer (if any) of the decision to take action. The notification will usually only contain details of conditions relating to your employment. Conditions relating to your health will be acknowledged but will not usually be disclosed in detail, although the Council does have discretion to do so. There will be no notification to your employer unless conditions are imposed.

1. On commencement of the National Law the Medical Board was replaced by the Medical Council of NSW. Among the complaints which can be made against a practitioner is that the "the practitioner has an impairment: s 144(d). Relevantly impairment is defined in s 4 thus:-

impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-

(a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or

...

1. Section 150 provides that the Medical Council may suspend or impose conditions on a practitioner's registration for the protection of the public. It may also require a practitioner to undergo a medical examinations: s152D.

1. The Medical Council may refer a complaint, a serious complaint or a notification of impairment to an IRP: s 145B(f)(ii), s 145D(3) and s 152. The IRP is then to inquire into the matter referred and may recommend that the practitioner accept registrations conditions: s 152E. If the practitioner voluntarily accepts the conditions the Medical Council may impose them: s 152J. If not, the matter is the to be deal with by the Medical Council as a complaint; s 152L.

1. Protected reports are defined in s 138, relevantly:

protected report means any of the following reports-

(a) a report prepared by an Impaired Registrants Panel for a Council;

...

(c) a report prepared by a registered health practitioner about an examination conducted under section 145E, 152B or 152C;

(d) a report prepared by a registered health practitioner for a Council in connection with an examination of a person by the health practitioner as required by a condition of registration or an order imposed by an adjudication body on the person;

(e) a report prepared by a registered health practitioner for a Council under a request made by a person to the health practitioner in connection with a matter being dealt with by an Impaired Registrants Panel;

...

1. Section 176F provides that:-

(1) A person must not, directly or indirectly-

(a) disclose a protected report to another person that the person has obtained in the exercise of the person's functions under this Law; or

(b) make a record of, or disclose to another person, information contained in a protected report that the person has obtained in the exercise of the person's functions under this Law

Maximum penalty: 50 penalty units.

(2) Subsection (1) does not apply to the disclosure by a person of a protected report or information contained in a protected report-

(a) for the purpose of exercising functions under this Law; or

(b) to the Commission.

(3) A protected report may not be admitted or used in civil proceedings before a court other than with the consent of-

(a) the person giving the report; and

(b) the person the subject of the report.

(4) A person may not be compelled to produce a protected report, or to give evidence in relation to the report or its contents, in civil proceedings before a court.

1. In addition Protected Information is defined in s 214 as information that comes to a person's knowledge in the course of, or because of, the person exercising functions under the National Law. It is an offence to disclose such information unless disclosure is authorised or required by any law of a participating jurisdiction or is otherwise required or permitted by law: s 216(1) and (2)(b)(ii) & (c).

1. There are no transitional provisions relating to the ongoing application of the confidentiality provisions of MPA.

Evidence

1. During the hearing the Agency relied on the evidence of Mr Hedge and that of Dr Hely. Dr Nair and Avant Law called Ms Turnbull, a solicitor with Avant Law who made two statements. Mr McKinnon relied on a statement from his solicitor, to which a large number of newspapers articles were attached.

Mr Hedge

1. Mr Hedge is the General Manager of Nepean Public Hospital which is part of the Agency. He was involved in confidential discussions regarding Dr Nair in his professional capacity, as the Agency is required to deal with impaired doctors.

1. In dealing with impaired doctors a principal concern of the Agency is patient safety, reflecting its core obligation. Mr Hedge said that if a doctor is properly supported in managing an illness, and appropriate conditions are placed on their ability to practice, patient safety will not be compromised. If the Agency becomes aware that a doctor might be impaired, the Agency refers them to the Medical Council, which has the primary responsibility and necessary powers to manage them.

1. Mr Hedge said it is usual for Medical Council to impose a condition that a registrant complies with further conditions imposed by the Agency. The Agency seeks to promptly impose such conditions to ensure patient safety while retaining the doctor's skills for the public. In order to do so the Agency assesses the doctor's condition to determine its seriousness and consequences for patient safety. The Agency may suspend the doctor's privileges, or impose conditions on his or her practice. The Registration Policy requires the Agency to do this, and to monitor compliance with practice conditions. Input to these processes is provided the Clinical Governance Unit, the Director of Surgical Service, MDAAC, the Credentials Committee and the doctor's colleagues.

Mr Hedge said that freedom to speak frankly for those providing input is essential for these processes. The Agency keeps such communications confidential as matter of policy. His experience, in dealing with medical staff at all levels, was that they expected confidentiality when discussing themselves or a colleague, in order to maintain team coherence and functionality: and because of the severe professional consequences which could arise for the individual concerned. Without confidentiality he thought it would be "impossible to rely on medical staff to report." The system of ensuring patient safety relied on trust and confidentiality.

1. He said with respect to Dr Nair that, "medical staff ... had a clear expectation that submissions they made about this case would be treated with strict confidentiality by their governing body." If made public, he considered that they would be less inclined to communicate frankly with each other and with the Agency about an impaired doctor. He was also concerned that doctors would be "more reticent" about speaking about another doctor who might be impaired. Moreover, he considered that confidentiality encouraged self-reporting. He thought the maintenance of confidentiality to be an important part of supporting the Medical Council's processes and for ensuring patient safety.

1. He considered that clinicians regarded the maintenance of confidentiality as necessary to preserve harmony in clinical teams, to enable teams to work, to avoid the risk of recriminations, to avoid the risk of litigation among senior practitioners, and as a matter of general policy. When it was put to him that that events had reached the point in Dr Nair's case that the first four of those factors was no longer applicable, he said that his view was that "members of the team would be concerned as a matter of principle that there is a willingness for the organisation to speak about other members of the team." He did not accept that the point of principle was any less, given that information about Dr Nair that was in the public domain. He, personally, had not read any of the Court judgments relating to Dr Nair.

1. Mr Hedge was cross examined about these opinions in some detail. He gave evidence of discussions with senior clinicians at the Agency, and with those involved in Dr Nair's case, in which they had indicated the importance of their discussions remaining confidential. The people he had extensive conversation with were Mr Summers and Doctors Pain, Fernside, Casikar and Seex. Each had indicated that they expected their communications regarding Dr Nair to remain confidential. This informed his expressed opinion. His discussion with Dr Summers occurred the day before the hearing; those with Doctors Pain and Fernside some two years previously. Dr Casikar and Dr Seeks had both spoke to him directly about the issue as it related to Dr Nair.

1. He had not had a discussion with Dr Dexter but he noted that all Dr Dexter's written communications were marked "confidential." Similarly he had not had a discussion with Dr Cregan. He had not been aware that Dr Cregan had spoken with The Monthly until shortly before he gave evidence, when he had first seen Dr Ahmed's article. He said it referred to Dr Cregan's role "inaccurately" and to facts and dynamics at the Hospital that he also considered inaccurate.

1. Mr Hedge also gave evidence that after Dr Nair was suspended in December 2009 the Agency's Chief Executive established a review team headed by two surgeons to audit the clinical outcomes of patients treated by Dr Nair in comparison with his peers.. The Review of Nepean Neurological Services (August 2010) concluded at page 13 that:

In summary, the review team did not find evidence of significant variation from peer practice. The terms of reference were not to prove that Dr Nair was a safe and competent neurosurgeon, although the evidence is broadly in favour of such a conclusion. However, the terms of reference did require an assessment of whether there is evidence of variation from accepted peer practice and, based on the information presented to and reviewed by the team, it was concluded that such evidence/does not exist.

The team is aware that some individual cases are still being considered through the legal system or other review processes, and that more detailed analysis of individual cases (especially if this involves the capacity to question the patient and the surgeon) may uncover issues not identified by the review team. However, SWANS can be reassured that it has not been in possession of clear evidence of variation from peer practice.

1. Mr Hedge said it was not the practice of the Hospital to tell patients that their doctors have a substance abuse problem, unless that problem results in an adverse clinical outcome when disclosure is made under its open disclosure policy. Clinicians are aware of the open disclosure policy, and that if an impairment is seen to contribute to an adverse clinical outcome patients would be told about it. He considered there was a clear distinction between disclosure of confidential information under the open disclosure policy and under FOI. The former is made directly to people involved in a clinical incident.

1. Mr Hedge said that when the Medical Council imposes conditions on a doctor's registration the agency will assist in the administration of those conditions. If the MDAAC considers that the condition imposed by the Medical Council are not enough to manage risk, the Chief Executive, on the advice of MDAAC, may impose further conditions on the doctors' practice at the Hospital or suspend his or her privileges. There is a policy requirement that the conditions imposed by the Medical Council and any further conditions imposed by the agency be incorporated in a supervision plan. At all times the agency remains responsible for ensuring patient safety.

Dr Hely

1. Dr Hely is the Medical Director of the Health Professionals Councils Authority (HPCA), an administrative body which supports the Medical Council. She was formerly a hearing Member of the Medical Council and Medical Board, and has sat on many IRPs.

1. She gave evidence with respect to the operation of the Medical Council's Health Program, which was first established by the Medical Board in 1992. She described the program as having two purposes that are achieved by placing conditions on registration. First, to protect on the public in circumstances where doctors may become impaired in the ability to practice. Secondly, to support doctors with a health issue to work safely and appropriately.

1. Dr Hely said that the Health Program consists of a process of assessment by a Medical Council appointed health practitioner, following which the registrant is seen by the IRP. Usually, if the IRP believes the registrant is impaired conditions of registration are agreed and then imposed by the Medical Council. Once imposed they are binding. There are two types of conditions; practice and health conditions. Practice conditions relate to matters such as working arrangements, hours of work and supervision. Once imposed practice conditions appear on the public register. Health conditions relate to treatment of the registrant, and are personal to the registrant. They relate to activities outside the workplace and can include matters such as drug screening. They are kept confidential.

1. If the registrant will not agree to proposed conditions the matter is referred to the Medical Council which may use its emergency powers to suspend the registration or impose conditions to protect the public.

1. The IRP process is a voluntarily one but the conditions, once imposed, are binding. The registrant's progress is regularly monitored and reviewed, with conditions varied and eased as the Registrants make progress.

1. Dr Hely said there were a number of reasons for health conditions being treated as confidential. First, if disclosed, the registrant's health condition would become public. Secondly, there would be no benefit to the public flowing from such disclosure, and release could be expected to reduce the effectiveness of the Health Program.

1. This is so because:

• Full and accurate information is required so that the conditions imposed can be tailored to suit the circumstances of the registrant and of their impairment.
• The Health Program is substantially reliant on voluntary disclosure by registrants, and is intended to be supportive and facilitative of them, rather than a means of imposing punishment. Self-notification is largest source of notifications.

1. Registrants are advised of the confidentiality of health conditions in The Health Program Participant's Handbook, in briefing letters sent to them, and, in a statement read out by the IRP when it is convened. Dr Hely agreed in cross-examination that these documents reserved to the Medical Board the discretion to release such information. She said this was usually a matter covered in the conditions imposed, and that, in practice, this only occurred in exceptional circumstances.

1. Dr Hely considered the confidentiality of health conditions a corner stone of the Health Program, which relied "heavily for its effectiveness on voluntary reports made by doctors, their colleagues and employers." She considered that if registrants were aware their health conditions could be made public, then they and their colleagues would be more reluctant to voluntarily disclose health concerns, or might self-sensor in making notifications. Dr Hely expected that this would result in the Medical Council not receiving the full and frank disclosures that the Health Program is reliant on, and reduced self-notifications, especially of impairments that have not yet reached the point that they are noticed by others.

1. Dr Hely outlined in some detail the Medical Board's (now the Medical Council's) interactions with Dr Nair. I note that both the health and practice conditions imposed over time with respect to him have been publicly disclosed in Court judgments relating to.

1. Dr Hely agreed that one of the major constraints on the effectiveness of the health program, in the case of illicit drug users, was their propensity to lie. Objective testing, such as urine analysis, is a means of addressing that restraint. Dr Hely did not know why in 2009 the Medical Board removed from Dr Nair's conditions of registration the requirement that he undergo regular urine analysis.

1. Dr Hely's attention was drawn to the fact that the sentencing judge had fund that Dr Nair had lied to his treating psychiatrist, Dr Jurd. As a result he had presented a report to the Medical Board that was not an accurate presentation of Dr Nair's condition. Following receipt of that report the requirement for drug screen was removed. Dr Hely agreed, in retrospect, that this was en error.

1. Dr Hely said that, at the time she had made her statement of 13 September 2011, she had not been aware of the content of either the bail or sentencing judgments. The fact that detailed information regarding the conditions, and with respect to Dr Westmore's report to the Medical Board, had been detailed in them, did not change her view with respect to maintaining the confidentially of Dr Nair's medical conditions and associated processes.

1. While she agreed that there had been no diminution in self-reporting since their publication, she was of the view that not many doctors read such judgments. Her concern for the integrity and trust in the confidentiality of the system arose from the prospect of wider publication. In her experience doctors appearing before the IRP were most concerned about confidentiality.

Ms Turnbull

1. Ms Turnbull is a senior solicitor with Avant Law Pty Ltd. Avant Law is a subsidiary of Avant Mutual, a medical indemnity organisation. Among other things it provides legal assistance, including representation, for members in relation to complaints to the HCCC and the Medical Council.

1. Ms Turnbull has 25 years experience in professional conduct litigation, policy development, and legislative reform relating to the registration and regulation of medical practitioners.

1. Ms Turnbull said that Avant Law had represented members in relations to questions of impairment before both the Medical Board and Medical Council. She said it was her understanding that confidentiality of such proceedings was ensured by s 190 of the MPA and that any consultations with the Medical Board and the HCCC would remain confidential.

1. Avant Law had provided assistance to Dr Nair who is a member of Avant Mutual from November 2008. Ms Turnbull was not personally involved in those matters, but said she had reviewed the relevant files to prepare a chronology. She noted that, in summary:-

• Dr Nair reported his drug use to the Medical Board in April 2004.
• In June 2004 he voluntarily agreed to conditions being imposed on his registration - this included thrice weekly urine testing. The Agency was notified of the practice conditions in accordance with normal procedure. She was unsure whether the health conditions were also notified to the Agency on a confidential basis.
• In September 2004 a positive urine analysis led to Medical Board suspending Dr Nair from practice for 8 weeks at an urgent hearing held under s 66 of the MPA. He was also referred to the IRP.
• From October 2004 to November 2008 Dr Nair continued to practice under conditions. He was regularly reviewed by the IRP.
• In November 2008 the Medical Board received a notification from Professor Fernisde and Dr Seex concerning Dr Nair's non-attendance and performance at Nepean Hospital. Dr Nair's' clinical privileges were suspended by the Agency.
• A hearing under s 66 of the MPA was convened by the Medical Board on 11 December 2008. "The Board accepted that Dr Nair had personal reasons unrelated to relapse or drug use for his non-attendance ... he continued to be registered subject to conditions."
• On 7 January 2009 the Medical Board imposed conditions on Dr Nairs registration which required that he be supervised under Level 2 of its supervision guidelines. The referral by Professor Fernisde and Dr Seex was referred for further investigation under s 66B of the MPA.
• Dr Nair did not immediately resume work at the Agency because his clinical privileges remained suspended. Avant Law assisted him in negotiating his return.
• Dr Nair was reviewed by the Medical Board in March, June and October 2009.
• Following a notification by the Police on 25 November 2009 the Medical Board suspended his registration on 26 November 2009.

1. Ms Turnbull agreed that had Dr Nair disclosed to the Board that he was using cocaine at the time of the s 66 inquiry in November 2008 it is likely that his registration would have been suspended.

1. She agreed that Dr Nair had resumed private practice in 2009 before the Agency allowed him to work in the public domain.

1. Ms Turnbull said that at all times she understood that Dr Nair, the Agency and Medical Board were subject to the provisions of the MPA relating to disclosure of information relating to Dr Nair under the IRP When cross examined about this she explained that there was an expectation of confidentiality, which she considered essential to the integrity and effectiveness of the Health Program. She acknowledged that the degree of confidentiality was ultimately a matter for the Medical Board. When pressed she described it as a "relatively confidential process," acknowledging that disclosure of conditions to employers were exceptions. In her view, confidentiality pervades the Health Program's processes, although she agreed that there was no strict legislative requirement of confidentiality. She said that there was no such expectation with respect to a s 66 inquiry.

1. Ms Turnbull said that Avant Law's help line is frequently contacted by various members concerning the Health Program, whether they are nominated supervisors, medical examiners, registrants or their colleagues. In her experience a shared concern of those involved in the program was the protection of their professional reputations, and the confidentiality with which their input would be treated. Like Dr Hely she though confidentiality necessary to enable frankness in dealing with the IRP.

1. Ms Turnbull outlined her personal experience in representing doctors before the IRP. She said that her inquiries revealed that there are currently 100 practitioner on the Health Program. She was personally aware of 50 to 60 current cases in which the practitioners are now working productively.

1. In her opinion, maintaining the confidentiality of the IRP process is a crucial element of the Health Program. Doctors would see no benefit from the program if their reputations were not protected. She said this was something she had been told by doctors, as well as her own observation. Further, she said that she was aware that confidentiality of the Agency's management of impaired registrants was required by the Complaints Policy. In her experience such confidentiality is "rigorously observed."

1. Ms Turnbull was not aware that the Medical Board provided an evidential certificate to the Police disclosing the practice and health conditions imposed on Dr Nair.

1. Ms Turnbull said that in her opinion the Health Program was a success. When it was put to her that the there was no empirical research supporting that proposition she did not agree.

1. Ms Turnbull also confirmed that Avant Law had instructions from Dr Nair that he objected to the release of his permanent impairment.

Preliminary Issues raised by Dr Nair

1. In submissions, Mr McKinnon raised two threshold issues. First, the impact of the fact that much of the information concerning decisions made by the Medical Board with respect to Dr Nair is already in the public domain, and, in Mr McKinnon's submission, "notorious." In my view, the impact of information being in the public domain is best considered in the light of the individual exemptions claimed.

1. Secondly, Mr McKinnon made a series of submissions with respect to whether individuals other than Dr Nair and the respondents objected to release of information relating to their business or professional. In the light of the fact that Drs Fernside, Seex and Casikar specifically did not object to the release of information when they were consulted about it, I accept that they do not object to the release of that information.

1. Dr Cregan, does not appear to have been consulted about his business and professional information. Dr Ahmed's article quotes from Dr Cregan extensively. It is apparent from Dr Ahmed's article that he interviewed Dr Cregan, who had no apparent objection to the information he discussed in that article being in the public domain. Insofar, as the information there disclosed was Dr Cregan's, I conclude that he does not object to it being in the public domain.

1. Dr Paul Somers, Network Director, Surgery and Anaesthetics, Dr Charles Payne, Director Clinical Governance SWAHS, and Mr Brett Gardiner, Area Director, Medical Administration appear not to have been consulted about release of the documents as they relates to them. As a result I am unable to conclude whether they personally object to the release of documents generated by or relating to them.

1. With respect to Dr Dexter, the correspondence indicates that he objects to the release of document 16, and to contact information of the individuals in the email exchanges in document 37. I am not persuaded that his failure to participate in the proceedings, as originally indicated, represents consent to release.

1. I think it important to note that each of the consultation letters sent to these doctors asked whether they had any objections to the release of information relating to their professional affairs. As Is discussed below I am have concluded that none of the doctors concerned, as Senior Clinicians in the employ of the Agency, have professional affairs to which the exemption in s 7 can attach.

The Exemptions Claimed

1. The exemptions claimed by the Agency are set out in its revised schedule of documents. The schedule has a noticeable deficit when considered in any detail as it is not in strictly chronological order.

1. The Agency sought to remedy this by tendering on a confidential basis a chronological explanation of the documents in the schedule prepared by Mr Murphy. Because that document, when explaining the genesis of documents contains some expressions of opinion, I have not had regard to it.

1. The fully exempt documents are specified in a schedule of documents referring to 69 documents: one of which was in fact released.

1. Mr McKinnon was provided with redacted copies of the documents said to be partially exempt. These are set out in the schedule. A difficulty with the redacted documents is that they bare no markings to show what has been deleted, thus requiring a word for word comparison between the original and the redacted copy. Surprisingly this analysis revealed that partially exempt document 1 was provided to Mr McKinnon without deletions. As a result there are only 7 partially exempt documents in issue. The deletions should have been clearly marked to ensure against these complications.

1. In addition there are the global exemptions relied on by Dr Nair and Avant Law under clashes 6, 7(1)(c), 13 and 16(a)(iii).

1. For the sake of convenience I will deal with the exemptions claimed in the following order:

• Section 9 - HCCC documents
• Clause 12 - Offences against an act
• Clause 13 - Confidential Information
• Clause 16 - Adverse effects on the Agency
• Clause 7 - Business and professional affairs
• Clause 6 - Personal affairs
• The residual discretion

1. Having done so, I will then briefly consider an issue arising from the disclosure of documents 13 and 39.

Section 9 - HCCC Documents

1. Section 9 of the FOI Act, when read with Schedule 2, has the effect of providing that documents which relate to the functions of the Health Care Complaints Commission (HCCC) are exempt from the operation of the Act.

1. The Agency claimed exemption with respect to documents number 5 , 6, 7 and 9 under this provision. Mr McKinnon accepts that documents 5 and 6 relate to the functions of the HCCC, but did not think the description given to document 7 sufficient to establish that it related to the functions of the HCCC. Having read the document I am satisfied that, in its entirety, it relates to the functions of the HCCC.

1. A reading of document 9, however, leads to the opposite conclusion. It is a internal Agency brief suggesting responses to possible question concerning Dr Nair. It does not relate to the functions of the HCCC.

Clause 12 - Release would constitute an offence against an Act

1. Clause 12 of Schedule 1 of the FOI Act provided:

(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.

(2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.

1. The Agency submits that a number of documents are exempt under this provision, because s 62 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) makes it an offence for a public sector official to disclose personal information about another person, to which that person has access in an official capacity. Relevantly s 62(1) provides:-

A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions.

1. Section 68(1) of the Health Records and Information Privacy Act 2002 (the HRIP Act) makes similar provision with respect to health information.

1. The Agency submits that, for the purposes of clause 12, the test is whether disclosure to the applicant would be an offence irrespective of the FOl process. On this basis the Agency submits that the release of the documents, specified in its schedule of documents, under FOI, would constitute offences under s 62 of the PPIP Act and s 68 of the HRIP Act. As a result it argues that the exemption in clause 12 applies.

1. I do not accept this argument. The making of the decision to release documents and the giving of access under the FOl Act is in connection with the lawful exercise of a public official's functions, whether the relevant official is the Agency or the Tribunal on review. That official function is conferred by sections 24 and 27 of the FOI Act.

1. Section 62 of the PPIP Act and s 68 of the HRIP Act therefore have no application.

1. Next, the Agency relied on s 22 of the Health Administration Act 1992. This provides:-

If a person discloses any information obtained in connection with the administration or execution of this Act or any other Act conferring or imposing responsibilities or functions on the Minister, Department, Director-General, Corporation or Foundation and the disclosure is not made:

(a) with the consent of the person from whom the information was obtained,

(b) in connection with the administration or execution of this Act or any such other Act,

(c) for the purposes of any legal proceedings arising out of this Act or any such other Act or of any report of any such proceedings,

(d) with other lawful excuse, or

(e) in any other prescribed circumstances,

that person is guilty of an offence against this Act and, on conviction by a court of summary jurisdiction, liable to a penalty not exceeding 10 penalty units or to imprisonment for a term not exceeding 6 months.

1. The Agency argues that release of documents specified in its schedule of documents would result in a breach of this section. As a consequence, it submitted those documents were exempt under clause 12.

1. Once again I do not accept that submission. Release of the documents under the FOI Act would be "be in connection with" its "administration or execution," and, therefore, not an offence under s 22 of the Health Administration Act 1992.

1. Next the Agency argues that release of documents specified in the schedule would be constitute an offence under s 176(1)(a) and (b) of the National Law. The former relates to the disclosure of a protected report obtained "in the exercise of the person's functions under this Law." The latter relates to information contained in such a report that was obtained "in the exercise of the person's functions under this Law."

1. The Agency made lengthy submissions going to how those provisions of the National Law applied to the disclosure of protected reports under the MPA, despite there being no transitional provisions. Regardless of the merits or otherwise of those submissions, which I do not think it necessary to consider, I am not persuaded that, if s 176 of the National Law does apply to protected reports under the MPA, disclosure of those reports by the Agency would constitute an offence.

1. This is so because, as Mr McKinnon's submissions point out-

The respondent and its officers do not exercise and have never exercised functions under the National Law. It is only those who exercise the statutory powers or functions conferred by the National Law who exercise functions under it. The respondent and its officers do not and have not.

1. It follows from the above that I do not accept that any of the documents for which the Agency claims exemption, or partial exemption, under clause 12 of Schedule 1 of the FOI Act are exempt on that basis.

Confidential Information

1. Clause 13 of Schedule 1 of Freedom of Information Act 1989 provides:-

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

1. The judgment of Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 437 established that a person seeking to establish a breach of confidence must:

• be able to identify with specificity, and not merely in global terms, that which is said to be the information in question;
• show the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge);
• show that the information was received by the defendant in such circumstances as to import an obligation of confidence; and
• establish an actual or threatened misuse of that information.

1. That analysis was repeated by Gummow J in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73, where His Honour added an additional criteria that it is necessary for the detriment to be occasioned to the original confider of the confidential information.

1. In Public Service Assn and Professional Officers Assn, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 Britton JM set out the following understanding of the test :-

52 In Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 it was held that the words "for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.

53 It was further held that the test of exemption was to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff in respect of information held by the agency to which the relevant FOI application was made. If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.

1. With respect to clause 13(b) the Tribunal, if satisfied that the information was obtained in confidence, must ask whether material of the kind sought to be protected would, if released, prejudice or impair the supply of similar material to the agency in the future, as a matter of reasonable expectation: Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58].

1. In Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 at 190 (Bowen CJ and Beaumont J), the Full Court held that the words "could reasonably be expected to" require:

"a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous" .

1. In determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future: McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 at [25].

1. In Alexander v University of Sydney [2008] NSWADT 214 at [34] the Tribunal held that clause 13(b)(ii) was satisfied since there was evidence that release of a report dealing with a complaint about a senior member of staff, and containing evidence given by other academics, would be likely to make those other academics reluctant to come forward in future with information or concerns.

1. In the present case the Agency claims that all the documents, apart from the HCC documents (which are exempt under s 9), are exempt under both limbs of clause 13. The documents consist of the both external and internal communications.

1. The external communications concern:

• Communications from the Agency with the Medical Board.
• Communications from others with the Medical Board.
• Communications between Dr Phillip's office and the Agency relating to a fitness assessment of Dr Nair and subsequent report.
• Communications with Avant Law as Dr Nair's legal representative.

1. The internal communications relate to discussions and communications involving clinical and administrative staff of the Agency, Dr Nair, his colleagues, members of the Credentials Committee and of MDAAC, and the Agency's senior management regarding:

• The imposition of conditions on Dr Nair's registration by the Medical Board.
• Considerations by the MDAAC and the Credentials Committee of whether Dr Nair should retain his clinical privileges or be suspended, and when suspended when and on what terms he should be allowed to resume work.
• A fitness evaluation of Dr Nair made for the purposes of informing the Agency's decision making regarding his clinical privileges and supervision.
• The implementation of a supervision plan for Dr Nair.
• Monitoring and supervision of Dr Nair under a supervision plan
• Performance reviews of Dr Nair.
• The consequences of Dr Nair being charged and the establishment of the Review of Nepean Neurological Services.

1. It is convenient, for the purposes of discussion, to divide them into a number of categories.

Documents relating to the Agency's monitoring, supervision and assessment of Dr Nair

1. A large number of documents over which exemption is claimed fall within this group.

1. It includes external communications relating to:-

• Communications between Dr Phillip's office and the Agency relating to a fitness assessment of Dr Nair and subsequent report.
• Communications with Avant Law as Dr Nair's legal representative.

1. Of the internal communications I include the following in that group, namely, those that relate to relate to discussions and communications involving clinical and administrative staff of the Agency, Dr Nair, his colleagues, members of the Credentials Committee and of MDAAC and the Agency's senior management regarding:

• The imposition of conditions on Dr Nair's registration by the Medical Board
• Considerations by the MDAAC and the Credentials Committee of whether Dr Nair should retain his clinical privileges or be suspended, and when suspended when and on what terms he should be allowed to resume work.
• A fitness evaluation of Dr Nair made for the purposes of informing the Agency's decision making regarding his clinical privileges and supervision.
• The implementation of a supervision plan for Dr Nair.
• Monitoring and supervision of Dr Nair under a supervision plan
• Performance reviews of Dr Nair.

1. The Agency's submits that each of these documents is required to be treated as confidential in accordance with the Complaints Policy. This is disputed by Mr McKinnon who points to the precise wording of the Complaint's Policy to argue that confidentially only attaches to "complaints" rather than "concerns." The relevant portion of Complaints Policy reads:-

1. Clause 7 of Schedule 1 of the FOI Act provides:-

(1) A document is an exempt document:

...

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

1. In Alexander v University of Sydney [2008] NSWADT 214 the Tribunal adopted the following approach to the meaning of professional affairs, at [20]:-

... The use of the words professional affairs' was... intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, that is, to the running of a professional practice for the purposes of generating income.

1. In Re Coulthart and Princess Alexandra Hospital & Health Service District [2001] QICmr 6, it was held that the term "professional affairs" in the equivalent Queensland provision does not apply to salaried professionals performing duties in the service of the public, even where those professionals also had a concurrent private practice. The Information Commissioner quoted his earlier decision in Re Pope [1994] QICmr 16; (1994) 1 QAR 616, where he wrote:-

28. The basic object of s.45(1) of the FOI Act is to provide a means by which the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to persons and business entities engaged in private sector commercial activities (who supply information to government or about whom government collects information) and to government agencies which carry on commercial activities. In my opinion, the object of s.45(1)(c) and the objects of the FOI Act as a whole, are best served by giving the word "professional" a meaning which takes its colour from the words "business", "commercial" and "financial" which surround it in the context of s.45(1)(c). At paragraph 81 of my reasons for decision in Re Cannon, I observed that the common link among those three words is to activities carried on for the purpose of generating income or profits.

29. The four adjectives in the phrase "business, professional, commercial or financial affairs" were clearly not intended, because of the substantial overlap between them, to establish distinct and exclusive categories, but rather the phrase was intended to cover, in a compendious way, all forms of private sector commercial activity, and thereby to also cover commercial activities carried on by government agencies. The use of the words "professional affairs" was, in my opinion, intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, i.e. to the running of a professional practice for the purpose of generating income.

1. The Information Commissioner agreed that this could lead to an apparent anomaly in which records relating to a public patient would be exempt, while those relating to a public patient would not be. He continued at [22]:-

I do not accept that it is illogical in terms of the objects of the FOI Act. One of the primary objects of the FOI Act is to enhance the accountability of government, which includes accountability of individual government employees for the performance of their employment duties in the service of the public. This extends to the performance by salaried employee medical professionals of the services they are paid (from public funding) to perform for public patients. There is no similar accountability regime, through access to information, that applies to information held by private medical practitioners and private hospitals concerning services performed for their patients (though the desirability of a scheme for access by individual patients to their own medical records has been canvassed by the Commonwealth Privacy Commissioner). I do not consider it at all illogical, in terms of the objects of the FOI Act, that information about the performance by medical practitioners and private hospitals of services for which citizens are directly charged, might be eligible for exemption under s.45(1)(c) of the FOI Act (provided other elements of the test for exemption are satisfied), while information

1. In NSW professional affairs has been held to include information concerning the professional conduct of a psychiatrist in relation to a patient for whom the psychiatrist provided services for a fee: see Schlebaum (No 2) v Director General, Department of Community Services [2001] NSWADT 214. In Alexander v University of Sydney the professional affairs exemption did not apply to the Dean of the Sydney Conservatorium of Music, because she was found not to have been operating a professional practice at the relevant time.

1. In YZ v Sydney South West Area Health Service [2006] NSWADT 316 the question was whether two letters discussing a dispute over professional health care practice and a publication in an on-line professional journal, with specific reference to the professional conduct of YZ, contained information concerning YZ's professional affairs. One letter concerned differences of opinion and recognition of contribution to the development of a medical practice and the other contained defamatory imputations arising out of the dispute. Handley JM held that this was clearly information concerning YZ's a professional dispute. In finding that the documents were exempt under clause 7 Handley JM concluded that, "if the documents were released this could adversely affect the ability of the Health Service to attract suitable staff." The exemption found was not that relating to the professional affairs of the doctors concerned, but relating to the business affairs of the agency and the impact on it of release of the documents."

1. In the present case Dr Nair claims that all of the documents relate to his professional affairs. I do not accept this. Dr Nair was employed as a Senior Staff Specialist at the Hospital. He was a salaried professional with limited rights of private practice. The documents, insofar as they relate to his private practice, relate to his past professional affairs.

1. The documents which relate to his employment by the agency, its assessment, monitoring and supervision of him in his role as a Senior Staff Specialist do not relate to his professional affairs. They include discussions among his supervisors and peers, within the MDAAC and the Credentials Committee. Those documents do, however, relate to the business affairs of the agency in the assessment, monitoring and supervision of its professional staff.

1. The Agency also submitted that release of a number of documents would disclose the professional affairs of a number of doctors, including Dr's Fernside, Seex, Casikar, Dexter and Cregan, Pain and Summers. On the material before me each of those practitioners was a clinician in the employ of the Agency. While it is unclear whether any of them also had a right of private practice, it is clear that their participation in matters concerning Dr Nair, was in their capacity as clinicians in the Agency's employment. As such, for the reasons outlined above, the professional affairs exemption does not apply to them.

1. There are, however, a number of documents which relate to the professional affairs of Dr Phillips who was retained by the Agency to prepare a report on Dr Nair. These are documents 14, 15, 16, 51, 52, 53, 58, 59 and 60. They include his report and subsequent communications concerning its content. The material indicates that this work was undertaken privately by Dr Phillips in his professional capacity for a fee. They therefore contain information concerning his professional affairs.

1. The documents which the Agency claims exemption for under clause 7 fall within a number of categories. They are documents 8, 12, 15, 16, 17, 22, 23, 25, 26 (the same as 50), 28, 34, 35, 38 to 47, and 59 - 62. They relate to internal discussions and communication involving clinical and administrative staff of the Agency, members of the Credentials Committee and of MDAAC and the Agency's senior management, Dr Nair and his legal representatives regarding:

• The imposition of conditions on Dr Nair's registration by the Medical Board
• Considerations by the MDAAC and the Credentials Committee of whether Dr Nair should retain his clinical privileges or be suspended, and, when suspended, when and on what terms he should be allowed to resume work.
• A fitness evaluation of Dr Nair made for the purposes of informing the Agency's decision making regarding his clinical privileges and supervision.
• The implementation of a supervision plan for Dr Nair.
• Monitoring and supervision of Dr Nair under a supervision plan.

They also include document 8 which relates to the Review of Nepean Neurological Services.

1. I accept that these documents relate to the Agency's business affairs.

1. The issue that then arises is whether disclosure of any or all of that information that concerns Dr Nair's and Dr Phillips professional affairs, and the agency's business affairs, could reasonably be expected to have an unreasonable adverse impact on those affairs, or to prejudice the future supply of such information to the Government or to an agency.

1. In this regard Dr Nair submitted that the documents:-

... contain material of an evaluative nature, including allegations, which is capable of being reproduced out of context, or reported in a distorted and misleading manner. Such use of the material is likely. The very repetition of the allegations made against Dr Nair, possibly without adequate explanation or reference to the outcome of the Review of Nepean Neurological Services, of itself distorts the true course of events, since the allegations that are likely to be repeated are not new.

1. In this case a considerable body of information which relates to Dr Nair's professional affairs is already in the public domain. Dr Nair's objection to its release is founded on concerns about how it may be reported if released. There is a concern expressed that, taken out of context, the information could be defamatory.

1. With respect to those matters which relate to his private practice, I have grave difficulty in accepting that Dr Nair now has any "professional affairs" that it could be expected will be unreasonably adversely affected by release of the documents. Dr Nair is no longer registered and cannot practice medicine. He no longer has a private practice, the operation of which could be adversely affected by release. He is in gaol and will remain there for a number of years yet. His fall from grace is a matter of wide public notoriety.

1. Additionally, the release of information concerning Dr Nair's professional affairs (if they continued to exist) that is already in the public domain could not be reasonably expected to have an unreasonable adverse impact on them. Dr Nair's cocaine addiction, the practice and health conditions placed on his registration, the fact that the agency withdrew his privileges and that he worked under supervision, the very sad circumstances surrounding the death of the two sex workers, and Dr Nair's arrest, trial and imprisonment are all matters of public knowledge. Any damage they could do to his professional affairs has already been done. As a result the release of such information could not be reasonably expected to have an unreasonable effect on his professional affairs.

1. I do not accept that release of any of the information for which exemption is claimed on Dr Nair's behalf could be reasonably expected to have an unreasonable adverse impact on his professional affairs.

1. The material relied on by the Agency to claim exemption with respect to Dr Phillip's professional affairs and its own business affairs centres on the evidence of Mr Hedge, supported by that of Dr Hely and Ms Turnbull. This goes to the highly confidential nature of information concerning the reporting, management, supervision and management of impaired practitioners, and the fundamental importance of that confidentiality to the successful operation of the Medical Council's and the Agency' systems for detecting and overseeing impaired practitioners so as to ensure patient safety.

1. I accept, subject to the exception discussed below, that release of all the documents for which the business affairs exemption is claimed would disclose information relating to the business affairs of the Agency. Such disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs and to prejudice the future supply of such information to the Agency.

1. With respect to documents 14, 15, 16, 51, 52, 53, 58, 59 and 60 I also accept that their release could reasonably be expected to have an unreasonable adverse effect on Dr Phillip's professional affairs, and to have an adverse effect on those affairs in respect of his obligations of confidentiality.

1. The exception is document 8, the review briefing. For the same reasons I have given with respect to the review briefing not being exempt under clause 13, I am not satisfied that release of this document (subject to the deletion already indicated) could reasonably be expected to have an unreasonable adverse the business affairs of the Agency.

Clause 6 - personal affairs

1. Clause 6 of Schedule 1 of the Freedom of Information Act 1989 provides:-

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

1. The term "personal affairs" is not defined in the Act. As was observed by the Queensland Information Commissioner in Re Stewart v Department of Transport (1993) 1 QAR 225 at [18] there has been a consistent disinclination by courts and tribunals "from attempting any comprehensive explanation of what is encompassed by the phrase." There it was held that held that information about family, marital and other relationships with emotional ties is information about the "personal affairs" of the people concerned.

1. In Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Beaumont J, sitting as a presidential member of the Commonwealth AAT, said, at 221, personal affairs "refer to matters of private concern to an individual." Thus, because a person's "vocational competence in not something that is ordinarily treated as confidential" it is not, "prima facie at least" part of person's personal affair."

1. In News Corporation Ltd v NCSC (1984) 52 ALR 277 the Full Court of the Federal Court, at 283, found that personal affairs refers to the affairs of a natural person, and not a corporation. At 540:

It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a person, such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations, may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information. If it did, it would be necessary to consider whether disclosure of that information would be unreasonable so as to render the assessment an exempt document by virtue of s.41(1) of the FOI Act.

1. Colakovski v Australia Telecommunications Corporation (1999) 29 FCR 429 concerned an unsuccessful application to obtain records relating to telephone calls, which would identify the phone number (and the subscriber's name) from which nuisance telephone calls had been made. Lockhart J, at 436 said:

... I prefer the view that the "personal affairs" of a person within the meaning of ss 41(1) and 12(2) of the POI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs". Such a document would therefore prima facie answer the description of one which relates to the "personal affairs" of a person within s 41(1). ... I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of "personal affairs" in some definitive way. It would be unwise to substitute for the word "personal" some other word such as the word "private" because one generally accepted meaning of the word "private" is confidential or not widely known. In my opinion, a person's affairs may be personal to him notwithstanding that they are not secret to him. ...

1. Heerey and Jenkinson JJ agreed with Lockhart J. In the course of his decision Heerey J said, at 440:

... The fact that the call was made in itself is a personal affair of the caller. The personal affairs of a person are made up of a myriad of "acts, facts, matters and circumstances". A single act, such as the making of a telephone call, can be a personal affair. ...

1. In NSW the ambit of the phrase was considered by the Court of Appeal in Commissioner of Police v Perrin (1993) 31 NSWLR 606 where the issue was whether the name and rank of investigating Police officers constituted their personal affairs. In affirming that they do not Kirby P traversed the authorities and said, at 625:

The ordinary dictionary meaning of "personal affairs" has been held to involve "matters of private concern to an individual": see Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219; 3 AAR 529; Young v Wicks (1986) 13 FCR 85 at 88-89; 79 ALR 448 at 452. However, it has been suggested that this might be too narrow a paraphrase: see Department of Social Security v Dyrenfurth (1988) 80 ALR 533 at 539; cf Director of Public Prosecutions v Smith [1991] 1 VR 63 at 69. In its context, the words "personal affairs" mean the composite collection of activities personal to the individual concerned.

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear

to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the "personal affairs" of that person. The affairs disclosed are not that person's affairs but the affairs of the agency.

1. In Re Wiseman and Department of Transport (1985) 12 ALD 707 at [50-52] the Administrative Appeals Tribunal (AAT) held that the expression "personal affairs" includes information relating to the applicant's work performance and capacity for employment whether or not the respondent agency is an employer of the applicant." The AAT accepted that matters relating to the affairs of a natural person as an employee are not business affairs but are personal affairs. The information relating to personal affairs includes not only factual material but also opinion and rumour.

1. In Department of Social Security Social Security v Dyrenfurth (1988) 80 ALR 533 at 538-539) the Full Federal Court held that the AAT fell into error in adopting a blanket assumption that work performance can never be information relating to the personal affairs of the person. Whether information containing assessment of the work performance of an employee constitutes personal affairs depends upon the context. Information concerning a person's health, marital or other relationships, domestic responsibilities, or financial obligations, is personal affairs information. It may legitimately affect work performance and be included in an assessment of that performance. In such a context an evaluation must be made as to whether it concerns personal affairs and whether it is unreasonable to disclose it.

1. In TW v TX ([2005] NSWADT 262) Higgins JM (as she then was) held that a notification under the Occupational Health and Safety Act 2000 identifying an incident in the workplace and describing how an employee reacted to the incident, and the physical consequences of the incident for that employee, contained material concerning the personal affairs of that employee. Also exempt under clause 6 were the transcripts of interviews between fellow employees and the investigator appointed to investigate the complaint in the notification. The personal affairs exemption applied to interviews with employees who were normally in a management or supervisory relationship with the complainant because their participation in the interviews was not undertaken in performance of that management role.

1. Similarly, in Director-General of Education and Training v Mullett [2002] NSWADTAP 13 at 45) the Appeal Panel concluded that:-

... comments of a personal character made in the context of performance assessments or selection performance (for example the effect of domestic circumstances on work performance). Arguably a confidential assessment made at interview or in a performance appraisal may as a whole be said to be the 'personal affairs' of the employee

1. The question of whether a document contains "information concerning the personal affairs" of a person is a question of fact that is determined from the circumstances of each individual case: see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. In Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at [79], it was said that where a document contains a statement about a person's private life, which is widely known, "this does not deprive it of the character of information relating to the person's 'personal affairs.'"

1. In Martin v Commissioner of Police [2005] NSWADT 23 Higgins JM considered an application for the release of witness statements relating to allegations of assault made against her by neighbours. The Tribunal found at [65] that "while the statements do contain information concerning the personal affairs of third persons, the majority of the information also concerns the personal affairs of the applicant." That information concerning the applicant was not exempt: clause 6(2). Higgins JM concluded, at [66]:

"...the information that concerns the personal affairs of the applicant, in particular the information that records the events involving the applicant on 19 November 2003 (which forms the bulk of the information in both statements) is not exempt under cl.6 of Schedule 1 of the FOI Act. The fact that this information is provided by a third party does not make it personal information of that third party exclusively."

1. In Simring v Commissioner of Police [2006] NSWADT 331 the applicant sought access to statement prepared and used in the course of a completed and successful prosecution of the applicant. Pearson JM said of the statements, at [24]:

"I am satisfied that they contain information or opinion about the applicant, and information about individuals other than the applicant. Disclosure of these documents would reveal the identity of the authors of the documents, and identify others, as well as reveal the personal reasons for the creation of the documents. As such, disclosure of these documents would involve disclosure of personal information about persons other than the applicant: Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55."

1. Once it has been determined that a document contains information relation to personal affairs of an individual the question then to be determined is whether disclosure under FOI would be unreasonable.

1. In Colakovski when discussing this aspect of the decision making, Lockhart J said ((1991) 29 FCR 429 at [25]:-

Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However consistently with the stated object of the Act (see s 3), it is also necessary in my view to take

into consideration the public interest recognised by the Act in the disclosure of information.

1. In the same case, Heery J held at held at 441 that if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, disclosure would be unreasonable.

1. The public interest is therefore at the heart of a consideration of whether disclosure would be unreasonable. In the present case the agency argues that there is no public interest in disclosure, and that the request has no relationship to the public interest in the affairs of government. It would do no more that satisfy the curiosity of people about a matter of public notoriety. Dr Nair and Avant Law agreed with that view.

1. Mr McKinnon on the other hand referred to the article by Dr Ahmed and submitted that it illustrated a number of issues of significant public interest. There were:-

• the concept of supervised practice;
• the requirement for Dr Nair to undergo any form of drug screening;
• who is ultimately responsible for an impaired doctor;
• what is the role of the hospital administrator, the Medical Board, the supervisor and the Health Care Complaints Commission in managing and supervising an impaired practitioner;
• how is the role of private hospital administrators facilitated in those cases, such as Dr Nair's through early 2009, where it is the public hospital system rather than the Medical Board principally addressing issues of concern.

1. Mr McKinnon submitted that:-

[E]very patient and potential patient of the health care system, public or private, in the State has a right, to the extent that they are interested in doing so, in participating in public discussion and debate on the approach to be followed. The disclosure of documents, to the extent that they disclose material about Dr Nair will disclose what was known by whom within Nepean and/or within the Medical Board and/or within the private hospital system and at what time. They will disclose what systems were in place and what actions were taken and why. By making those disclosures the provision of access will facilitate a better informed discussion of these difficult issues.

1. The fact that Mr McKinnon is a journalist "with a substantial track record of obtaining access to, and dealing with large volumes of complex Government documents" was said, by him, to be relevant.

Consideration of Exempt Documents

1. The Agency argues that every document, apart from documents 5, 6, 7, 13, 30, and 62, is exempt under clause 6 as disclosure would result in the unreasonable disclosure of Dr Nair's personal affairs.

1. Subject to the exception noted below, a central problem that has caused me considerable difficulty in considering many of the documents to which the personal affairs exemption is claimed to apply, is that the great majority of them relate to the performance management, monitoring and review of Dr Nair as a result of his impairment, and the resultant consideration of his clinical privileges. That impairment, and details relating to it, is clearly information relating to Dr Nair's personal affairs. They are, however, inextricably interlinked with and impact on considerations relating to his work performance. Drawing a line between the two is complex, because of that inter-relationship.

1. For example, details relating to Dr Nair's impairment, health conditions and fitness assessment (and discussions of them) are plainly information relating to his personal affairs. Because decisions made with respect to his clinical privileges (and discussions of his performance and monitoring within the Agency) arise as a result that impairment, do they also have that character? Alternately, are they more properly regarded as relating to work performance? This was the difficulty which the Full Court of the Federal Court referred to in Department of Social Security v Dyrenfurth, when it concluded that is such a circumstance a judgment had to be made as to whether or not the information related to personal affairs.

1. In my judgement many of the documents that relate to the performance management, monitoring and review of Dr Nair as a result of his impairment, and the resultant consideration of his clinical privileges and fitness, relate to his personal affairs. This conclusion does not extend to those documents which are concerned with evaluations of his clinical and work performance, and discussions of them: e.g., document 10 where it relates to clinical performance, documents 20 (excluding identifying information relating to patients), document 26, obvious parts of document 24, 34 and 35, the performance improvement plan at 42, the position description in documents 54 and 59, the questions in document 55, document 56, 57, 62, and 69.

1. Of the remaining documents concerning which the exemption is claimed I am not satisfied that the following documents contain information relating to Dr Nair's personal affairs:

• Document 8, with the exception of information relating to remuneration of another individual.
• Document 9, with the exception of identify information relating to other individuals.
• Document 19, with the exception of any reference to Dr Nair's health.
• Docent 22, with the exception of any reference to Dr Nair's health.
• Document 31.
• The attachments to document 36.
• Document 52.
• Document 65.
• Document 69.

1. Finally I note that Dr Nair submitted that many of the documents in issue contain information in relation to the personal affairs of Dr Nair's colleagues and supervisors. I do not accept that submission. While the documents do reveal their names and positions, as well as actions they have taken in the course of their work, they do not reveal information relating to their personal affairs.

1. Having identified the documents concerning Dr Nair which relate to his personal affairs, the issue is whether disclosure of that information would be unreasonable. Again, I have reached differing conclusion in this regard, depending on the nature of the document and the information it contains.

1. The fitness report (document 14) and documents relating to subsequent discussions to its content (e.g. document 14 to 17, 39 to 40, and 64) involve a discussion of Dr Nair's impairment. While they traverse some matters already in the public domain, they do so in the context of a fitness assessment as a result of impairment. I consider that their release would be unreasonable.

1. With respect to the balance of the documents containing information relating to Dr Nair's personal affairs, the reality is that much of the information they contain is already in the public domain and accessible by Mr McKinnon and others.

1. I do not accept the submission advanced by the Agency, Avant Law and Dr Nair that there is no public interest in that information being disclosed. As I have already indicated I accept that there is a real and genuine public interest in Dr Nair's case and that it raises questions concerning the management of an impaired practitioners by both the Medical Council, the Agency and others. There are legitimate questions about Dr Nair's case which there is a real public interest in. I do not accept that release of the information will do no more that satisfy public curiosity.

1. On the other hand I do accept the documents do contain information of Dr Nair that is personal information within the meaning of the PPIP Act and health information within the meaning of the HRIP Act. I accept that there is a pubic interest in maintaining the confidentiality of that information.

1. I do also accept that there is a pubic interest in maintaining the confidentiality of the information, in the context in which it is found, in order to ensure the continued successful operations of the systems in place for detecting, managing, monitoring and supervising impaired practitioners. I have already explained my reasons for reaching that conclusion and explained why I consider the preservation of those systems essential for ensuring patient safety. I consider this a weighty factor.

1. On balance I consider that it would be unreasonable to disclose the information relating to Dr Nair's personal affairs.

Concerning Exempt documents 13 and 39

1. Copies of exempt documents 13 and 39 were disclosed to Mr McKinnon when they were annexed to Ms Turnbull's statement of 23 September 2010. Exempt documents 13 and 39 are both letters from Avant Law to the Agency written on Dr Nair's behalf concerning his employment.

1. By consent I made interim orders prohibiting the disclosure of the contents of those letters until the review application is determined. Those orders seeks to have effect on the final disposition of these proceedings.

1. Ms Allars, for Avant Law, told me that the disclosure was inadvertent and an error: the consultation letter from the Agency to Avant Law (Exhibit B to the statement) was said to be bundled with the documents. The relevant paragraph of Ms Turnbull's statement read:

By letter dated 15 November 2010 Mr Geoff Murphy, Workplace Relations Manager, SWAHS, requested comments on two letter written by Mr Kamaras of Avant Law in relation to Dr Nair's return to work after suspension in 2008. Annexed hereto and marked "C" is a true copy of Mr Murphy's letter.

1. There is, however, no evidence from Ms Turnbull as to how this error occurred. She did not address the error in her subsequent statement prepared a week later. I note that I also indicated during the hearing that I would make provision for the production of such evidence. It was not forthcoming. In those circumstances Mr Brennan, for Mr McKinnon, submitted the disclosure was "knowing and voluntary and any further question as to their exempt status is moot."

1. Mr Brennan did refer me to a number of decisions concerning the inadvertent disclosure of privileged documents in the course of discovery, particularly Unsworth v Tristar Steering and Suspension Australia Pty Ltd [2007] FCA 1081, per Gyles J. I have also had regard to the decision of Austin J in Sovereign v Bevillesta [2000] NSWSC 521, and Brereton J in Grace v Grace [2010] NSWSC 1514. In that case His Honour said:-

14 My view remains, as summarised in Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497, at [14]:

In the context of formal discovery, in the absence of obvious mistake apparent to an inspecting party, or fraud, the position is that, once inspection has been allowed of a document listed in that part of an affidavit or list, in which privilege from inspection is not claimed, then any privilege attaching to that document is to be regarded as waived by being included in that part of the affidavit or list, and by being made available for inspection [Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511 at 525, Goldberg J].

15 Accordingly, in my view, the crucial question is whether there was an "obvious mistake" within the meaning of the authorities to which I have referred. In this respect, it is important to bear in mind that the question is not whether the disputed documents were "obviously privileged", but whether their disclosure was an "obvious mistake". These are quite distinct concepts, because a party may voluntarily disclose a privileged document for a myriad of reasons.

1. In the present case, when one considers that documents 13 and 39 were annexures to Mr Murphy's letter to Avant Law, and that in her statement Mr Turnbull expressly annexed a true copy of Mr Murphy's letter, one might have reasonably expected Mr McKinnon and his legal representative to be surprised by the disclosure of material claimed to be exempt. I do not accept however that it must have been obvious to them that it was a mistake.

1. I also accept that the fact that Mr McKinnon is in the possession of those two documents renders the claims for exemption in relation to them moot.

The residual discretion

1. Mr McKinnon submitted that I should exercise the residual discretion vested in the Tribunal to disclose documents otherwise found exempt: see University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362. Irrespective of the arguments as to the exact nature and extent of that discretion it is clear that should only be exercised where there are "strong grounds" to do so, taking into account the objects of the FOI Act: Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 at [24]. In that case the President observed, at [27]:-

Practical circumstances that might influence the Tribunal to exercise the discretion include:

- whether the exempt matter was, by other means, in the public domain

- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant

- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity

- the public interest in an informed debate on issues of significance to the community

- whether there were adverse consequences for the proper administration of government, and their extent

- whether any adverse consequence is remote or innocuous

1. In this matter I have traversed the competing public interest in considerable detail and indicated my views as to which, on balance, prevail and why. I do not intend to repeat those discussions. They touch on and balance the practical considerations outlined by the President.

1. I am not persuaded that this is an appropriate case in which to exercise the residual discretion.

Conclusion

1. In the light of my findings the correct and preferable decision is to set aside the decision under review and remit it to the Agency for reconsideration in accordance with these reasons.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 08 May 2012