Michos v Eastbrooke Medical Centre Pty Ltd
[2019] VSC 131
•7 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00633
| CON MICHOS | Appellant |
| v | |
| EASTBROOKE MEDICAL CENTRE PTY LTD | Respondent |
---
JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 February 2019 |
DATE OF JUDGMENT: | 7 March 2019 |
CASE MAY BE CITED AS: | Michos v Eastbrooke Medical Centre Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 131 |
---
ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal dismissing complaint under Health Records Act 2001 – Right of access to health information under s 25, Health Records Act 2001 – Whether Tribunal misconstrued s 25 – Whether request for access can lapse for the purposes of s 34 – Tribunal misconstrued s 25 but no error in Tribunal’s finding that right of access not breached – Health Records Act 2001 (Vic), ss 5, 25, 34.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr T Warner | Allens |
HER HONOUR:
For many years, Con Michos was a patient of a general practice conducted by Eastbrooke Medical Centre Pty Ltd (the Clinic). In November 2016, Mr Michos and the Clinic had a disagreement about his access to a medical report that had been sent to the Clinic. Soon afterwards, Mr Michos complained that the Clinic had refused to give him access to the report, contrary to the Health Records Act 2001 (Vic) (HR Act). He took that complaint to the Health Complaints Commissioner and then to the Victorian Civil and Administrative Tribunal. In January 2018, the Tribunal dismissed the complaint.[1] Mr Michos now appeals the Tribunal’s decision to this Court.
[1]Michos v Eastbrook Medical Centre Pty Ltd (Human Rights) [2018] VCAT 119 (Reasons).
Mr Michos was involved in a car accident in 2009, as a result of which he had a claim against the Transport Accident Commission (TAC). In September 2016, TAC required Mr Michos to attend an independent medical examination by a psychiatrist, who prepared a report dated 23 October 2016. Mr Michos asked TAC for a copy of that report, so that he could discuss it with his solicitor.
On about 1 November 2016, a staff member at TAC faxed the report to the Clinic. Mr Michos had worked out that this was the quickest way for him to get a copy of the report, the plan being for him to pick it up from the Clinic. On 4 November 2016, Mr Michos telephoned the Clinic and spoke with the practice manager, Meredith Duggan. He had previously picked up reports from the Clinic without needing to see a doctor. He expected to be able to do the same that day.
Mr Michos claimed that Ms Duggan told him that the report would not be released to him at all. However, the Tribunal accepted Ms Duggan’s evidence that she said that the report could only be released in the context of an appointment with a doctor. This was consistent with the Clinic’s policy at the time. Ms Duggan made an appointment for Mr Michos to see a doctor to discuss the report on 15 November 2016.
Mr Michos then arranged for TAC to fax the report to another medical practice, and he collected a copy of the report from the other practice on the afternoon of 4 November. On the way home, he went to the Clinic to find out how to make a complaint about Ms Duggan. While he was there, he told Ms Duggan that he had obtained a copy of the report from another medical practice. The Tribunal accepted her evidence that she then cancelled the appointment for 15 November. Not long afterwards, Mr Michos made a formal complaint and ceased being a patient of the Clinic.
Mr Michos complained to the Commissioner that, when the Clinic failed to give him a copy of the report on 4 November 2016, it breached his right of access to his health information under the HR Act. After considering his complaint, the Commissioner wrote to the Clinic advising that the HR Act gives a person a right of access to health information about them, in the manner of their choice. Since Mr Michos had asked for a copy of the report, ‘it was not appropriate for an appointment to be made for Mr Michos to be able to access the medical report’. Rather, the Clinic should have told Mr Michos that he could collect the report once a suitably qualified health service provider had checked that the information did not pose a threat to the life or health of Mr Michos or another person,[2] and did not contain information given in confidence.[3] The Commissioner suggested that the Clinic amend its practice procedure to meet the requirements of the HR Act.
[2]HR Act, s 26.
[3]HR Act, s 27.
At Mr Michos’ request, the Commissioner referred his complaint to the Tribunal.[4] Senior Member Dea heard the complaint on 21 December 2017. On 25 January 2018, she found the complaint not proven and ordered that the complaint be dismissed. The Tribunal’s reasons for dismissing the complaint were, in summary:
[4]HR Act, s 65.
(a) The circumstances of this case did not give rise to the Clinic’s access-related obligations under the HR Act;
(b) Even if the access provisions of the HR Act applied to these circumstances, Mr Michos had not proved a breach of his right of access; and
(c) Even if there had been a breach of the HR Act, there was no basis to award compensation arising from the events of 4 November 2016.
Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides for an appeal from the Tribunal to this Court, by leave, on a question of law. Mr Michos sought leave to appeal the Tribunal’s decision on a number of grounds. On 6 September 2018, Ierodiaconou AsJ granted leave to appeal in relation to two questions of law only, both of which concern the Tribunal’s construction of the HR Act.[5] The questions for determination on appeal are whether the Tribunal erred in law by construing:
(a) s 25 of the HR Act with reference to the phrase ‘necessary for one or more of its functions or activities’; and
(b) the question of whether a request for access lapses to be relevant to the obligations in s 34(2)(c) of the HR Act.
[5]Michos v Eastbrooke Medical Centre Pty Ltd [2018] VSC 517 (Leave to Appeal).
For the reasons that follow, I find that the Tribunal misconstrued s 25 of the HR Act, by reading down the word ‘collected’ in s 25(2) by reference to the phrase ‘necessary for one or more of its functions or activities’ in Health Privacy Principle 1.1. However, there was no error in the Tribunal’s understanding that s 34(2)(c) does not require access to be given to health information in circumstances where a request has been withdrawn or has lapsed. The error made by the Tribunal did not affect its conclusion that there was no breach of the right of access to health information, and so was not material to the outcome. I will therefore allow the appeal in part, but will affirm the Tribunal’s order dismissing the complaint.
Did Mr Michos have a right of access to health information under s 25?
Relevant provisions
Part 5 of the HR Act deals with access to health information. Section 25 of the HR Act provides:
Right of access
(1) Subject to subsections (2) and (3), an individual has a right of access, in accordance with this Part and HPP 6, to health information relating to the individual held by a health service provider or any other organisation.
(2) Subsection (1) applies to all health information collected on or after the commencement of this section.
Section 25(3) applies s 25(1) to various categories of health information collected before the commencement of the section.
The meaning of the word ‘held’ in s 25(1) is given by s 5:
For the purposes of this Act, an organisation holds health information if the information is contained in a document that is in the possession or under the control of the organisation, whether alone or jointly with other persons or bodies, irrespective of where the document is situated, whether in or outside Victoria.
There are comprehensive definitions of the terms ‘health information’ and ‘health service provider’ in s 3. There was no dispute that the medical report was ‘health information’ and that the Clinic was a ‘health service provider’ for the purposes of the HR Act. It is also clear that the Clinic was an ‘organisation’ to which the HR Act applies by force of s 11.
The right of access to health information under s 25(1) is not absolute. Section 26 provides that an organisation must not give an individual access to his or her health information if the organisation believes, on reasonable grounds, that the provision of the health information ‘would pose a serious threat to the life or health of the individual or any other person’. Section 27 prohibits an organisation from giving an individual access to health information that is subject to confidentiality, within the meaning of that section.
Separately, Pt 3 of the HR Act deals with privacy of health information by reference to the Health Privacy Principles, or HPPs, set out in Sch 1.[6] HPP 1 sets out the principles that apply to the collection of health information, while HPP 6 contains principles about access to and correction of health information.
[6]HR Act, s 19.
Within HPP 1, HPP 1.1 deals with when health information may be collected, HPP 1.2 to 1.6 deal with how health information may be collected, and HPP 1.7 provides for the collection of information given in confidence. HPP 1.1 provides:
An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies—
HPP 1 applies only in relation to health information collected after commencement.[7]
[7]HR Act, s 20. The relevant provisions of the HR Act came into operation on 1 July 2002.
Section 25 must of course be construed so as to give effect to the purpose of the HR Act. This is expressed in s 1 of the HR Act, as follows:
The purpose of this Act is to promote fair and responsible handling of health information by—
(a) protecting the privacy of an individual's health information that is held in the public and private sectors; and
(b) providing individuals with a right of access to their health information; and
(c) providing an accessible framework for the resolution of complaints regarding the handling of health information.
In addition, s 6 sets out the objects of the HR Act:
The objects of this Act are—
(a) to require responsible handling of health information in the public and private sectors;
(b) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information;
(c) to enhance the ability of individuals to be informed about their health care or disability services;
(d) to promote the provision of quality health services, disability services and aged care services.
Tribunal’s Reasons
After referring to the relevant provisions of the HR Act, the Tribunal’s Reasons addressed the question of whether those provisions gave Mr Michos a right of access to the medical report. The Senior Member’s reasoning was as follows:[8]
[8]Reasons, [56]–[64].
The access provisions apply to health information which is ‘held’ by an organisation. Health information is held by an organisation if it is contained in a document that is in the possession or control of the organisation. Documents may be created by the organisation or ‘collected’ from others.
The section 25 right of access applies to all health information ‘collected’ by an organisation. The meaning of the term ‘collected’ is explained in part by HPP 1.1. HPP 1.1(a) states that an organisation must not collect health information about an individual unless the information is ‘necessary for one or more of its functions or activities’. While expressed in the negative, HPP 1.1 indicates the kinds of circumstances where an organisation collects health information for a HR Act consistent purpose.
On the evidence before me I find Mr Michos decided to use the Clinic as, in effect, a post office box. He wanted to obtain a copy of the report and he decided the most efficient way to do so was to have it sent there and for him to collect it.
The Clinic was not part of the discussion between Mr Michos and TAC about the report being sent to him. It did not ask for the report and there was no evidence any doctor at the Clinic had a need to see it or asked for it to assist in providing medical services to Mr Michos.
A copy of the report was scanned and attached to Mr Michos’ file in accordance with usual Clinic practice. However, there was no suggestion it would have been provided as a matter of course. As set out above, the TAC had sent a copy of the report direct to Mr Michos’ home.
This was not a case where a doctor had referred Mr Michos for a specialist opinion and so it was expected that the report would be sent to the doctor for review and discussion with Mr Michos. The report was prepared as part of a legal process at the request of TAC, not any of Mr Michos’ treating doctors. Reports of that kind are not prepared as part of a therapeutic relationship but rather to assist an organisation such as TAC to assess its legal obligations.
I find the report was ‘collected’ by the Clinic only because that was convenient to Mr Michos and because he wanted a copy to take to his solicitor for legal advice.
These circumstances do not in any way indicate the report was collected by the Clinic because it was ‘necessary for one or more of its functions or activities’.
I am not satisfied that these circumstances give rise to the Clinic’s access-related obligations under the HR Act …
Submissions
Mr Michos submitted that the Tribunal’s interpretation of s 25 was not consistent with the language, purpose and provisions of the HR Act, and had given the provision an alternative meaning that conflicted with the HR Act’s intended operation.[9] He drew attention to the following contextual matters:
[9]Relying on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), [69]–[70].
(a) HPP 1.1 does not provide a definition of the word ‘collected’ in s 25. The word ‘collected’ is not specifically defined in the HR Act.
(b) Part 5 of the HR Act and HPP 6 provide for access to health information. Neither Pt 5 nor HPP 6 refer to HPP 1 or HPP 1.1.
(c) The Explanatory Memorandum for the HR Act states that Pt 5 and HPP 6 are to be read together. Nowhere in the HR Act, the explanatory memorandum or the second reading speech does it state that HPP 1 is linked with Pt 5.
(d) HPP 1.1 is expressed in the negative; it refers to when an organisation ‘must not collect health information’. HPP 1.1 prohibits collection in the circumstances listed. It does not indicate the kind of circumstances where an organisation collects health information.
(e) The term ‘health information’ is defined very broadly in the HR Act. There is nothing within that definition that could alter its meaning depending on the author, or the reason the health information exists, or the use an individual wishes to make of it.
He drew attention to the purpose of the HR Act, set out in s 1, and to statements in the second reading speech that emphasised Parliament’s intention that the HR Act ‘strengthen the rights of users of health services’ by giving individuals ‘a legally enforceable right of access to their own health information which is contained in records held in the private sector’.[10] I understood his submission to be that the Tribunal’s interpretation of s 25 was not consistent with that purpose, because it limited an individual’s right of access.
[10]Victoria, Parliamentary Debates, Legislative Assembly, 23 November 2000 (Mr Thwaites, Minister for Health) (Second Reading Speech), 1906.
Mr Michos also emphasised the obligation, under s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), to interpret a statutory provision in a way that is compatible with human rights, as far possible consistent with the purpose of the provision. If a provision is open to more than one interpretation, the interpretation that least infringes human rights is to be preferred. He submitted that his interpretation of s 25 was more compatible with the right to privacy in s 13 of the Charter.
The Clinic submitted that the Tribunal did not interpret the right of access in s 25 as limited to information that was necessary for one or more of the Clinic’s functions of activities. Rather, the reference to HPP 1.1 was simply an example of the kind of circumstances in which s 25 creates a right of access to health information. The Clinic contended that the Senior Member’s conclusion that the circumstances in which the medical report was collected did not give rise to the Clinic’s access-related obligations under the HR Act[11] was not based on her reference to HPP 1.1.[12]
[11]Reasons, [64].
[12]Reasons, [63].
However, the Clinic did not accept that s 25 is to be interpreted as broadly as Mr Michos contends. It submitted that, having regard to the purpose of the HR Act and the statutory context in which s 25 sits, the right of access it creates must only apply to health information that is ‘held’ by an organisation with some connection to its relationship with the relevant person. Put another way, the submission was that where health information is obtained by an organisation without any connection to the relationship between the organisation and the person it relates to, it will not be ‘held’ within the meaning of s 25. In this case, the Clinic submitted, there was no such connection – the medical report ‘did not even relate to a therapeutic relationship between Mr Michos and [a] medical practitioner’ at the Clinic. The Clinic contended that this was why the Tribunal found that the Clinic had no access-related obligations under the HR Act in this case.
The Clinic submitted that this was the meaning of s 25 ‘that the legislature is taken to have intended’ the provision to have.[13] The statutory context makes it clear that the right of access is qualified, by ss 26 and 27, and by HPP 6. These qualifications oblige organisations that hold health information to assess that information before releasing it to a person. The Clinic submitted that it would be unreasonable, even absurd, to construe s 25 as imposing that obligation on an organisation that was no more than a non-consenting conduit for health information.
[13]Citing Project Blue Sky, [78].
As to purpose, the Clinic relied on the objects of the HR Act set out in s 6. It submitted that it would not promote the responsible handling of health information or the provision of quality health services to impose obligations on a health service provider to provide access to health information that is unconnected with its functions.
Both parties made submissions about the quality of the Tribunal’s reasoning. I have set those submissions to one side, because the adequacy of the Reasons is not a matter on which leave to appeal was granted. The question for resolution is simply whether the Tribunal misconstrued s 25 of the HR Act, by reference to the phrase ‘necessary for one or more of its functions or activities’.
Analysis
In my view, the Tribunal interpreted the right of access in s 25 as extending only to health information collected by an organisation because it was ‘necessary for one or more of its functions or activities’. The Tribunal read down the word ‘collected’ in s 25(2) by reference to HPP 1.1, and concluded that s 25 did not apply to the circumstances in which the medical report was collected by the Clinic. So much is clear from the Reasons, in particular the order in which the Senior Member set out the propositions that led to her conclusion that the circumstances did not give rise to the Clinic’s access-related obligations.[14]
[14]Reasons, [64].
I cannot agree that s 25 should be read down in this way, or in the alternative way put forward by the Clinic.
Beginning with the text of the provision, s 25(1) creates a right of access in broad terms – to health information relating to an individual that is ‘held’ by an organisation. There is a note next to ‘held’ that refers to s 5, which describes when an organisation holds health information. Section 5 is also in broad terms – an organisation holds health information if the information is contained in a document[15] that is in the organisation’s possession or under its control. There is nothing in the text of s 5 that provides a basis for reading it down by reference to the purpose for which the health information is collected by or provided to an organisation, or the purpose for which access is sought. Neither s 25(1) or s 5 makes any reference to the nature or scope of the relationship between an individual and an organisation that holds the individual’s health information. It is sufficient that the organisation holds the health information.
[15]Defined expansively in the Interpretation of Legislation Act 1984 (Vic), s 38.
The right conferred by s 25(1) is subject to sub-ss (2) and (3). The text of both sub-sections is directed to the time at which health information is collected. Section 25(2) applies the right of access in s 25(1) prospectively, to all health information collected on or after commencement. Section 25(3) extends its reach to a range of health information collected before commencement. Neither sub-section says anything about the purpose for which the information was created or collected or provided, or the purpose for which access to it is sought, or the relationship between individual and organisation.
The verb ‘collect’ means, in this context, to gather together, to assemble, to accumulate, to make a collection of.[16] The word ‘collected’ in s 25 should be given its ordinary meaning unless there is some contextual or purposive basis for reading it down.
[16]See, eg, the definition of ‘collect’ in the Macquarie Dictionary.
Turning to the statutory context, ss 26 and 27 qualify the right of access in s 25, as does HPP 6.1. These qualifications are expressed clearly, and in some detail. For example, s 26 refers to guidelines that the Commissioner may issue for the purposes of HPP 6.1(a). Section 27(2) clarifies the meaning of ‘subject to confidentiality’ in s 27(1), as covering health information given in confidence ‘with a request that the information not be communicated to the individual to whom it relates’. The precision with which these qualifications are expressed is a strong indication against implying further qualifications on that right of access.
Mr Michos was right to point out that there is no connection made in the HR Act between Pt 5 and HPP 1. However, the words ‘collect’ and ‘collected’ appear throughout the HR Act, because ‘collection’ is one of the concepts that delineates the application of the HR Act. For example, s 10(1) applies the HR Act to a public sector entity that ‘collects, holds or uses health information’. Section 11(1) does the same in relation to the private sector. Section s 20(1) applies HPP 1 ‘only in relation to health information collected after the commencement of this section’. Other HPPs apply to all health information ‘whether collected by the organisation before or after’ commencement.[17] The words ‘collect’ and ‘collected’ should be given a consistent meaning throughout the HR Act, and so it is necessary to consider whether they should be read down by reference to HPP 1.1 wherever they appear. I do not think that they should.
[17]HR Act, s 20(4).
The function of HPP 1.1 is to prescribe the circumstances in which an organisation may collect health information. It is implicit in HPP 1.1 that an organisation might collect health information in other circumstances. An organisation that collects health information for a purpose not permitted by HPP 1.1 commits an interference with privacy that is prohibited under Pt 3 of the HR Act. Reading down ‘collected’ so that it means ‘collected for a purpose permitted by HPP 1.1’ would have the anomalous effect that an organisation that gathered health information that was not necessary for its functions or activities would not contravene HPP 1.1 – because that would not amount to ‘collection’. Giving ‘collected’ its ordinary meaning avoids that result.
The legislature’s purpose in enacting the HR Act is set out in s 1. Relevantly here, the HR Act is intended to ‘promote fair and responsible handling of health information’ by ‘providing individuals with a right of access to their health information’. The extrinsic materials reinforce this intent, and make it plain that Parliament intended to extend that right of access to the private sector.[18] This purpose is better achieved by giving ‘collected’ its ordinary meaning. I am not persuaded that the objects in s 6 are undermined by doing so.
[18]Second Reading Speech, 1906, 1909; Explanatory Memorandum for the Health Records Bill, 1.
For similar reasons, I do not consider that the word ‘held’ in s 25(1) can be read down by reference to the relationship between an individual and an organisation, as the Clinic contended it should. This construction is contrary to the explanation given in s 5 as to when an organisation holds health information, and has no contextual support elsewhere in the HR Act. Reading down ‘held’ in this way would not, in my view, achieve the purpose of fair and responsible handling of health information. To the contrary, it would leave organisations free to gather health information about individuals with whom they have no relationship at all, which would significantly undermine the efficacy of the HR Act.
In my view, it is clear from the text, context and purpose of the HR Act that, in s 25, ‘held’ has the meaning given to it by s 5 and ‘collected’ bears its ordinary meaning. There is no contextual or purposive basis for reading down either word. As a result, there is no need to have resort to s 32(1) of the Charter, and no need to consider whether the right to privacy in s 13(a) of the Charter extends to a right of access to one’s own health information.
Further, even if the Clinic’s interpretation of s 25 is correct, the medical report faxed to the Clinic by TAC was not wholly unconnected with the therapeutic relationship between the Clinic’s doctors and Mr Michos. Although the Tribunal found that the report was not prepared as part of the therapeutic relationship, it did not go so far as to find that it was extraneous to that relationship. There are a number of matters that suggest otherwise:
(a) The report in question was a psychiatric report about a long-standing patient of the Clinic. An independent psychiatric opinion about Mr Michos was likely to be of interest, and might even have been of assistance, to his regular doctor.
(b) Ms Duggan’s evidence was that the fax cover sheet included a request for the doctor to discuss the report with Mr Michos at his next appointment.
(c) Consistent with the Clinic’s policy at the time, Ms Duggan made an appointment for Mr Michos to discuss the report with a doctor at the Clinic. To Mr Michos’ frustration, the Clinic dealt with the report as though it had received it in connection with their therapeutic relationship.
(d) It was not suggested that the Clinic had interfered with Mr Michos’ privacy, contrary to HPP 1.1, by putting the report on his file. Rather, scanning the report and attaching it to Mr Michos’ file appears to have been collection of health information permitted by HPP 1.1.
None of these circumstances is consistent with the Clinic being a ‘non-consenting conduit’ for the medical report. It had a legitimate interest in receiving the information in the report, separately and independent of Mr Michos’ purpose in using the Clinic as a convenient ‘post box’.
I find that the Tribunal misconstrued s 25 of the HR Act. Mr Michos did have a right of access to the medical report under s 25, and the Clinic had corresponding ‘access-related obligations’ under the HR Act.
Did the Clinic refuse access to health information contrary to s 34?
The second question of law to be resolved in this appeal is whether the Tribunal misconstrued s 34 of the HR Act, in relation to whether a request for access can lapse for the purposes of s 34(2)(c).
Relevant provisions
Division 2 of Pt 5 sets out how a request for access to health information is made and responded to under the HR Act. Section 33 prescribes the way in which a request for access may be made; it says nothing about withdrawing a request or the circumstances in which a request may lapse. There was no dispute here that Mr Michos made his request for access in accordance with s 33.
Section 34(2) provides:
Within 45 days after receiving a request, the organisation must—
(a) give to the individual a written reason for refusal of access to the health information, being a reason for refusal provided by this Part or HPP 6; or
(b) if the organisation is charging a fee in accordance with section 32 for giving access—
(i) give to the individual a written notice stating that the organisation will give access to the health information on payment of the fee specified in the notice; and
(ii) give access to the health information in accordance with section 29 or HPP 6.2 within 7 days after payment of the fee or 45 days after receiving the request, whichever is the later; or
(c) in every other case, give access to the health information in accordance with section 29 or HPP 6.2 as soon as practicable but not later than 45 days after receiving the request.
Section 35(a) provides that an organisation is taken to have refused access to health information if it fails to comply with a requirement of s 34.
Tribunal’s Reasons
The Tribunal found that, even if the access provisions of the HR Act applied in this case, Mr Michos had not proved a breach of his right of access. The Senior Member set out her reasoning as follows:[19]
Even if I were incorrect about the application of the access provisions of the HR Act to these circumstances, I am not satisfied Mr Michos has proven a breach.
Relevant here, section 34(2)(c) of the HR Act provides that an organisation must provide access as soon as reasonably practicable but after no more than 45 days of receipt of the request.
As a consequence, the Clinic was not required to hand over a copy of the report to Mr Michos as soon as he arrived at the Clinic or even later on that day. The Clinic was entitled to require him to wait until a doctor had an opportunity to review the document and consider whether access should be granted at all.
Because Mr Michos obtained a copy of the report elsewhere within hours, there was no opportunity or need for the Clinic to undertake that review and assessment process. I am satisfied that, once he communicated the fact he had obtained the report elsewhere and the 15 November 2016 appointment was cancelled, the request for access effectively lapsed. In these circumstances there was no breach of section 34(2)(c).
[19]Reasons, [65]–[68].
Submissions
Mr Michos submitted that s 34 of the HR Act did not specifically refer to a lapsing of a request for access. He pointed out that s 34(2)(c) states that, once an organisation receives a request for health information, it must provide the requested information within 45 days.
Mr Michos also persisted in his contention that there was no evidence that he had waived or withdrawn his request for the medical report, although leave to appeal was refused on that question.[20]
[20]Leave to Appeal, [83].
The Clinic submitted that whether a request under s 33 has ‘lapsed’ by virtue of it having been waived or withdrawn by the person who made the request is relevant to the operation of s 34. It contended that the obligation under s 34(2)(c) does not continue if a request has been withdrawn. It submitted that Pt 5, Div 2 of the HR Act should be read subject to the maxim that, as a general principle, ‘anyone may, at [their] pleasure, renounce the benefit of a stipulation or other right introduced entirely in [their] own favour’.[21]
[21]Federal Commissioner of Taxation v McGrouther (2015) 229 FCR 466 (McGrouther), [4] (Allsop CJ), [23] (Pagone and Davies JJ). See also DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014), 448–9 [11.29].
Analysis
Although s 33 does not expressly provide for a request for access, once made, to be withdrawn, I accept the Clinic’s submission that this is to be implied. A person who makes a request under s 33 has a right to receive a response in accordance with s 34(2). Where there is no reason to refuse access, the person has a right to be given access to the health information requested within 45 days.[22] The right of access plainly exists solely for the benefit of the person concerned; in a statute concerned with the privacy of health information there is no question of access being given under s 34 for the benefit of the public or in the public interest.[23] The person who has requested access may waive their right to a response under s 34(2) by withdrawing the request or by communicating that the request has lapsed.[24]
[22]HR Act, s 34(2)(c).
[23]McGrouther, [10]–[11] (Allsop CJ), [25] (Pagone and Davies JJ).
[24]McGrouther, [6]–[9] (Allsop CJ).
Whether a request has been withdrawn or has lapsed is a question of fact in each case. In this case, the Tribunal found that the request for access had effectively lapsed.[25]
[25]Reasons, [68].
As to Mr Michos’ contention that there was no evidence to support that finding, Ierodiaconou AsJ was clearly correct to refuse leave on this question. An error of law will be established only where there is no evidence at all to support the relevant finding of fact.[26] Here, there was evidence to support the Tribunal’s finding. The following exchanges took place during Ms Duggan’s evidence:
[26]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356; S v Crimes Compensation Tribunal [1998] 1 VR 83, 90.
MR MICHOS: So I’ve said to you that I don’t need the report anymore, that’s correct? --- Yeah, when you came in you said ‘I’ve obtained it from somewhere else, I don’t need it’.
The report anymore. --- Mm hmm.
And a little later on:
When I came in and saw you. I advised you, allegedly, I’ve advised you that I don’t want the report anymore, along those lines. --- Well, you said you’d obtained the report, yes.
From somewhere else, and I don’t need it anymore. --- Yeah.
The Tribunal accepted that evidence, and also accepted Ms Duggan’s evidence that, after Mr Michos informed her that he had obtained a copy of the report from another medical practice, she cancelled the appointment she had made for Mr Michos on 15 November 2016.[27] The Reasons make it clear that the Senior Member preferred Ms Duggan’s evidence to that of Mr Michos on this issue.[28]
[27]Reasons, [49], [68].
[28]Reasons, [68].
The Tribunal did not misconstrue s 34 of the HR Act. It was correct in its understanding that a request under s 33 could be withdrawn or could lapse. It was open to the Tribunal to find that Mr Michos withdrew his request for access to the medical report, so that his right to access under s 34(2)(c) effectively lapsed.
Disposition
Mr Michos has succeeded in his argument that the Tribunal misconstrued s 25 of the HR Act. However, he has not established that there was any error in the Tribunal’s conclusion that the Clinic did not breach his right of access. That means that the error in the Tribunal’s decision, established by Mr Michos on appeal, does not change the outcome of his complaint.
In those circumstances, the appropriate orders are:
(a) The appeal is allowed in part, in relation to the Tribunal’s construction of s 25 of the HR Act;
(b) The Tribunal’s order of 25 January 2018, that the complaint be dismissed, is affirmed;
(c) The appeal is otherwise dismissed.
I will hear the parties on the question of the costs of the appeal.
---
4
5
0