MLTR and National Disability Insurance Agency

[2022] AATA 4128

MLTR and National Disability Insurance Agency [2022] AATA 4128 (2 December 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/6454

Re:MLTR

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Ms T Bubutievski

Date:2 December 2022

Place:Sydney

The Tribunal disallows:

(a)the Applicant’s objection to the issue of summons on Triple 333 Medical Centre and Word By Word Speech Therapy; and

(b)the Applicant’s objection to the Respondent’s inspecting the documents produced on the summonses on Triple 333 Medical Centre and Word By Word Speech Therapy.

............................[SGD]......................................

Ms T Bubutievski

Catchwords

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

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 40A, 40B

Cases
ZFCC and Comcare [2018] AATA 1358
Comcare v Maganga 101 ALD 68

Panagiotou and TNT Australia Pty Ltd [2011] AATA 565

REASONS FOR DECISION

Ms T Bubutievski

2 December 2022

1. The Applicant, MLTR, has sought merits review by the Tribunal of a decision of the National Disability Insurance Agency (the Agency) to approve a statement of participant supports which does not include several items sought by the Applicant. The Applicant is a teenage boy and is represented in these proceedings by his mother, Ms MLTR. He has a diagnosis of autism spectrum disorder, which necessitates additional support.

2. On 21 September 2021 a delegate of the CEO of the Agency decided on internal review that the following requested supports were not reasonable and necessary and would not be funded:

   ·increased core funding for continence supports and a support worker for three nights per week;

   ·increased capacity building funding for occupational therapy, positive behaviour supports, speech therapy and a dietician;

   ·home modifications.

   MLTR has proceeded to this Tribunal in respect of the decision not to fund the above supports.

3. In the course of these proceedings the Agency served a summons on the medical practice where MLTR has received treatment, the Triple 333 Medical Centre; and on Dr SK, MLTR’s paediatrician. It also sought to serve a summons on Word by Word Speech Therapy, where MLTR has previously received treatment. Ms MLTR does not object to the service of the summons on Dr SK, nor the Respondent inspecting documents produced on that summons. She did, however, object to the service of summons on the Triple 333 Medical Centre and Word by Word Speech Therapy and the Respondent inspecting any documents produced on these summonses.

4. After hearing the parties, the Tribunal has decided to disallow MLTR’s objection to the Agency serving summonses on the Triple 333 Medical Centre and Word by Word Speech Therapy. It has also decided to disallow the objection to the Agency inspecting any of the documents produced on these summonses, for the reasons given below.

   Relevant legislation 

5. The power to issue a summons is conferred by s 40A of the Administrative Appeals Tribunal Act 1975 (Cth), which provides:

   Power to summon person to give evidence or produce documents

   (1)For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:

   (a)appear before the Tribunal to give evidence;

   (b)produce any document or other thing specified in the summons.

   Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.

   (2)The President or an authorised member may refuse a request to summon a person.

   (3)A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:

   (a)the summons or another summons requires the person to appear before the Tribunal; or

   (b)the Tribunal directs the person to attend the hearing.

6. The Tribunal may, but is not compelled, to provide access to the parties to inspect documents produced under summons. Its power to do so is contained in s 40B:

   Inspection of documents produced under summons

   (1)Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:

   (a)the President;

   (b)an authorised member;

   (c)an authorised officer.

   Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.

   (2)However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if:

   (a)the officer considers that it is not appropriate for the officer to make the decision; or

   (b)a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal.

   (3)If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons:

   (a)a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and

   (b)the Tribunal may reconsider the decision on such an application or its own initiative; and

   (c)the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document.

   relevant principles

7. The purpose and process with respect to the issuing of a summons and subsequent access to documents produced pursuant thereto was summarised by Deputy President Forgie in Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [19]-[20]:

   19. A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions. Failure to comply with either a subpoena or a summons is an offence. Other parties to the action or matter in which a party requests that a subpoena or summons be issued may object to their being issued. Those to whom they are addressed may object to complying with them.

   20. Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or Tribunal proceeding. Three steps follow the issue of a summons. The first two precede the substantive hearing of the issue by the court or Tribunal and the third occurs during the course of, and as part of, that hearing. They have been identified by Moffit P in Waind and Hill v National Employers’ Mutual General Association Ltd:

   The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.

8. Deputy President Forgie went on to consider the objection of the Applicant in that case to the production of health records held by various doctors. She observed:

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

   25. What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.

9. Although the Tribunal in that matter was only considering whether it was appropriate to issue summonses for the medical records, very similar considerations apply to the question of whether a party should be granted access to summonsed records. In each case, the probative threshold for obtaining or granting access to the documents is that set out by Bennett J in Comcare v Maganga 101 ALD 68 at [37]-[38]:

   …the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings…

   The court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation or if they might be used for a legitimate forensic purpose in cross-examination…[References omitted]

10. The right to privacy, including medical records, is well-established in Australian law. There are, however, circumstances where an individual may explicitly or implicitly surrender elements of that privacy in a legal context. These include situations where a person’s entitlement to a claimed benefit or support depends upon them being able to establish that they have a particular injury or impairment; and/or that they require particular supports or benefits because of that injury or impairment. Examples include things like access to compensation, claims for disability support pension, and access to funded supports in respect of a disability. In each case, the seeking of the entitlement presupposes that the seeker is willing to disclose so much of their medical history as would satisfy a decision maker that they are qualified for that entitlement. In practice, this generally entails the individual making his or her full medical record available to the decision maker and, if necessary, to a court or Tribunal reviewing a decision regarding that entitlement.

11. Medical records are generally produced through the issuing of a summons under s 40A on an Applicant’s medical practitioner. When the records are produced to the Tribunal, an Applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the Respondent to inspect and copy pursuant to s 40B. An Applicant may object to the Respondent inspecting and copying those records, but the acceptable grounds for such objection are limited.

12. An Applicant will sometimes object to inspection of documents on the basis that the records are not relevant to the proceedings before the Tribunal. The Tribunal must exercise considerable caution in accepting this argument. It is often the case that documents which may appear as irrelevant to a layperson are in fact important to determining the matter at hand. Genuinely irrelevant documents are disregarded, and their presence causes no mischief. It is generally not possible to determine whether or not a document is relevant until it is inspected.

13. The passing of medical records to strangers in the course of proceedings like these can, of course, be distressing to an Applicant. The Tribunal is mindful of that distress. Ethical and legal constraints affect a Respondent’s use of this material, and these constraints must be diligently applied. In ZFCC and Comcare [2018] AATA 1358, DP Humphries said [at paragraph 17]:

    “…But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly-relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the Applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant….”

    THE POSITION OF THE PARTIES

14. Ms MLTR said that the basis for her objection to the issue of the summonses was that she has provided all the documents that she is prepared to provide to the Agency and has nothing else to give them. She said that MLTR has not received services from Word By Word Speech Therapy since early in the pandemic as the services were delivered by home visit and due to the extensive lockdowns the service was unable to visit their home. MLTR has not had speech therapy since that time. Ms MLTR said that she has no reports or documents from Word By Word Speech Therapy that she could provide to the Agency to assist in its decision-making.

15. The Respondent submitted that there was nothing in the evidence currently available to it that would induce it to change its position, but there may be evidence in the documents produced under summons which would allow it to do so. It was firm on the need to summons Word By Word Speech Therapy, on the basis that clinical notes and reports about MLTR’s treatment and progress would help inform its position in relation to the additional funding for speech therapy which has been requested by MLTR.

16. Ms MLTR said that MLTR does not want people looking at his private medical records. He is entitled to his privacy, and she must respect that. He is a teenager and does not talk about any of the issues that affect him. She said that he is worried that people will know the documents are about him. The Tribunal noted that it has made confidentiality orders in this matter, which means that information must be de-identified, including any decision of the Tribunal if the matter proceeds to hearing. It further noted that the documents produced under summons are not made available, other than to the parties and the Tribunal. Ms MLTR said that she was aware of this, but that given the recent hacks of Optus and Medibank she could not be confident that this information would be kept private.

17. Ms MLTR also argued that the documents produced under summons from the Triple 333 Medical Practice would be irrelevant to the proceedings as MLTR sees this doctor for many things other than his autism diagnosis. She was unable to identify any particularly irrelevant information which may appear in those documents.

    CONSIDERATION

18. The Tribunal considered Ms MLTR’s argument carefully, noting the tension between MLTR’s right to keep his medical information private and the need for both the Tribunal and the Agency to be satisfied that the supports requested by MLTR are reasonable and necessary if MLTR is to get the outcome he seeks. The Tribunal is satisfied that it would be correct to issue summonses on both the Triple 333 Medical Centre and Word by Word Speech Therapy. Conditions for which MLTR has received medical treatment are not irrelevant. The Tribunal accepts the Respondent’s argument that documents from Word by Word Speech Therapy would enable it to more fully consider the request for increased therapy funding, in particular speech therapy, even though this service is not presently being received. The documents produced under summons for both organisations can reasonably be expected to throw light on the issues that need to be resolved in reviewing the decision. They are not irrelevant or unrelated to the application for review. They are issued and served for a legitimate forensic purpose.

19. Making the complete records available to the Agency may well assist in satisfying it that the claimed supports are indeed reasonable and necessary. Denying the Agency access to those records may lead it to maintain its current position. Whatever the outcome, the objective of merits review of this decision is best served by having MLTR’s medical and speech pathology records available to the Agency for inspection.

    Conclusion

20. The Tribunal will disallow MLTR’s objection to both the issue of summons to Triple 333 Medical Centre and Word By Word Speech Therapy and the Respondent inspecting the documents produced through the summonses on both organisations.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski

..........................[SGD]................................

Associate

Dated: 2 December 2022

Date(s) of hearing:	23 November 2022
Date final submissions received:	23 November 2022
Advocate for the Applicant:	Ms MLTR
Solicitors for the Respondent:	Ms Stephanie Miller, Sparke Helmore