MMMY and National Disability Insurance Agency
[2022] AATA 3236
•6 July 2022
MMMY and National Disability Insurance Agency [2022] AATA 3236 (6 July 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/6812
Re:MMMY
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member Denise Connolly
Date: 6 July 2022
Place:Sydney
The Tribunal has determined that documents produced by Clinic A outlined in the list at paragraph [24] are of no apparent relevance. All other documents not outlined in the list at paragraph [24] are of apparent relevance and accordingly the Tribunal grants the Respondent leave to inspect all other documents.
...............................[SGD].........................................
Senior Member Denise Connolly
Catchwords
PRACTICE AND PROCEDURE – objection to inspection of summonsed material – where documents of a private medical nature – whether documents are of apparent relevance – some documents released for inspection.
Legislation
Administrative Appeals Tribunal Act 1975 ss 39(1), 40A, 40B
Administrative Appeals Tribunal Regulations 2015 Rule 17
Cases
Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340
Re ZFCC and Comcare (Compensation) [2018] AATA 1358
Waind and Hill v National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 372
REASONS FOR DECISION
Senior Member Denise Connolly
6 July 2022
Background
The Applicant has been diagnosed with relapsing remitting multiple sclerosis. On 3 December 2020 the Applicant’s plan, which included a statement of supports, was approved pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’). She lodged a request for internal review under section 100 of the NDIS Act, seeking an Omeo Power Wheelchair and a Photobiomodulation home device. On 23 August 2021 an internal reviewer found that the sought supports did not satisfy the reasonable and necessary criteria in section 34 of the NDIS Act. On 19 September 2021 the Applicant lodged her application for review with the Administrative Appeals Tribunal.
On 2 February 2022, the Respondent requested that summonses be issued to [REDACTED] Clinic (Clinic A), [REDACTED] Hospital (the Hospital) and the [REDACTED] Clinic (Clinic B) at the Hospital for the production of all clinical records. The Applicant objected to the summons requests on the basis that she had not consented to a general request for all of her records. She requested that the summons be amended to reflect agreed parameters. On 3 February 2022 the Respondent revoked the summons requests.
Summonsed Documents
On 3 February 2022 the Respondent requested that summonses be issued to Clinic A and various clinicians at the Hospital for the production of all clinical records from the past five years. The Applicant objected, submitting the five-year period was unacceptable as only a limited part of her medical history is relevant to the review application. An interlocutory hearing was held on 15 February 2022 and, having heard from the parties, the Tribunal was satisfied that the proposed summonsed material was likely to have apparent relevance to the issues. On 15 February 2022 the Tribunal exercised its discretion under s 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) to issue the requested summonses to produce clinical records, returnable before 2 March 2022. The summonsed persons produced the clinical records accordingly.
On 9 March 2022 the Tribunal determined that each party be given leave to inspect the documents produced under summons. The Applicant was granted leave to inspect from 9 March 2022. The Respondent was granted leave to inspect from 23 March 2022.
The Applicant’s Objections to the Respondent Inspecting Certain Documents
On 17 March 2022, the Applicant emailed the Tribunal to advise she objected to the Respondent inspecting numerous documents produced by Clinic A, in accordance with the summons, on the basis that “they have nothing to do with my MS or Psoriatic Arthritis and are private and confidential”.
On 18 March 2022 the Applicant emailed the Tribunal, attaching a list of the clinical records she did not want the Respondent to inspect. Her objections were based on the following reasons, in summary:
(a)the documents have nothing to do with her disability
(b)they are sensitive and personal, and relate to other medical conditions, and so are irrelevant
(c)she felt pressured into agreeing to her medical records being released
(d)she has two complex, permanent conditions and does not believe the Respondent’s representatives have the relevant qualifications or experience to understand her medical records
(e)it is disrespectful and paternalistic for the “system” to insist on receiving the information.
On 22 March 2022 the Applicant emailed the Tribunal to advise:
(b)asically the only documents I don’t object to are the ones to and from Dr [A] Dr [B] and Dr [C]. All of the rest are not related to my disability. This was the very issue I raised in my objections at the hearing. I have a complex medical history and I knew there would be hundreds of pages of irrelevant material…
Prior to the hearing the Respondent provided to the Tribunal and the Applicant written submissions setting out the principles and case law relevant to inspection of summonsed documents, cited and discussed below.
At the hearing on 5 April 2022 the Applicant, who was unrepresented, repeated her objections, indicating she believed only the correspondence between Dr [A], Dr [B] and Dr [C] should be made available to the Respondent to inspect. In her view all other documents are unrelated to her disability. The Tribunal discussed with the Applicant the relevant principles and case law. It was explained to the Applicant that the Respondent, bound by ethical and legal constraints, gives an undertaking to use the material only in the proceedings. The Tribunal also explained the risk of not allowing the Respondent to inspect apparently relevant documents, as discussed in the case law. There was an attempt to identify the documents the Applicant considered irrelevant but it became apparent that the documents before the Tribunal were in a different order to those before the Applicant. The Tribunal decided to adjourn so that a Tribunal officer could assist the Applicant to clarify the order of documents. The matter was listed to reconvene on 12 May 2022.
On 2 May 2022 the Tribunal was informed by the Respondent that the parties had agreed that the matter should be remitted to the CEO for reconsideration pursuant to s 42D of the AAT Act, so that a full plan review could be undertaken within 28 days. The Tribunal formed the view there was no utility in making its determination regarding the Applicant’s objections until such time as the review was complete because any new decision could impact on the relevance of documents. It vacated the hearing on 12 May 2022 and listed the matter for hearing on 10 June 2022.
At the hearing on 10 June 2022 the Applicant indicated to the Tribunal the type of documents she considered to be irrelevant. The Tribunal discussed with the parties whether documents relating to issues concerning the Applicant’s family member(s) and routine medical screening and pathology for purposes unrelated to the Applicant’s review should be made available for inspection. The Respondent agreed in principle that only medical records apparently relevant to the issues before the Tribunal needed to be inspected.
The Applicant repeated her concerns set out above and stated that she does not trust the Respondent with her private medical information. She was emphatic that only those medical records directly related to her disability should be made available for the Respondent to inspect.
Relevant Law
Section 39(1) of the AAT Act provides that the Tribunal must ensure the parties are given an opportunity to present their case and inspect documents to which the Tribunal proposes to have regard in reaching its decision, and to make submissions in relation to those documents.
Section 40A(1)(b) of the AAT Act relevantly provides that the Tribunal may summon a person to produce documents.
Sections 40B(1) and 40B(2) of the AAT Act relevantly provide that the Tribunal may give a party to a proceeding leave to inspect documents produced under a summons in relation to the proceeding.
The Tribunal has considered the case law cited by the Respondent regarding the principles informing the giving of leave to inspection of documents.
With respect to concerns about privacy and inspection of personal medical information, in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340 (Panagiotou) Deputy President Forgie stated at [24]:
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
Also on the issue of inspection of medical records in Re ZFCC and Comcare (Compensation) [2018] AATA 1358 (ZFCC) Deputy President Humphries stated:
[11] (When) medical records are produced to the Tribunal, an applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the respondent to inspect and copy pursuant to s 40B, often for the purpose of commissioning a medical report from a doctor regarding the applicant’s condition. An applicant may object to the respondent inspecting and copying those records, but the acceptable grounds for such objection are limited, as these reasons will explain.
[12] An objection may assert that the summonsed records include documents covered by legal professional privilege, or refer to another person (such as a family member) in such a way as to unduly intrude on that person’s privacy. Such an objection will often result in a refusal to grant access by the other party to parts of those documents. Sometimes an applicant will object to inspection on the basis that the records – or parts of them – are not relevant to the proceedings before the Tribunal. There are practical reasons however for caution in denying access on this basis and why, conversely, an eclectic approach should be taken to the question of a party inspecting medical records.
…
[17] The passing of intimate medical records to strangers in the course of proceedings like these can, of course, be distressing to an applicant. The Tribunal and the party to whom access is granted should be mindful of that distress, and take reasonable steps to minimise it. Ethical and legal constraints affect a respondent’s use of this material, and these constraints must be diligently applied in a respondent’s dealings with the records. Alternatively, the parties and the Tribunal may agree that the probative value of certain records is sufficiently low to warrant their exclusion from the proceedings. But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant.
With respect to the relevance of material, the Tribunal notes that in Waind and Hill v National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 (referred to by the Deputy President in Panagiotou) Moffitt P (Hutley and Glass JJA agreeing) held (emphasis added):
The crucial question in relation to the exercise of the discretion to permit inspection in the second step[1] is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed….
[1] The first step being compliance with the summons. Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; 127 ALD 340 at [20]
Consideration of Objections
The Tribunal takes into account the Applicant’s objections. With respect to her concerns regarding privacy and her personal medical information being inspected, it is guided by the Deputy President in Panagiotou. While the Tribunal accepts there is information personal to the Applicant included in the summonsed material, that does not make the material irrelevant to the issues before the Tribunal. It notes the material only needs to be of apparent relevance. It takes into account the possible adverse consequences of excluding possible relevant material, as the Tribunal itself may be deprived of a sufficiently full picture of the Applicant’s disability. With respect to the Applicant not trusting the Respondent, the Tribunal notes the Respondent’s use of the material is limited by ethical and legal constraints, and that the Respondent has given an undertaking to use the material only in the proceedings.
The Tribunal has before it two options: to inspect the material itself to determine the relevance and identify for exclusion material which is clearly irrelevant to the issues before the Tribunal; or, to permit inspection of all of the documents by the Respondent, noting that ethical and legal constraints affect the Respondent’s use of this material.
In this case, given the Applicant’s strong objections and concerns about irrelevant material being inspected by the Respondent, the Tribunal has decided it is appropriate to inspect the material itself and exclude irrelevant documents from inspection.
Having regard to its statutory obligations and the relevant case law, the Tribunal has decided there are documents produced by Clinic A of apparent relevance and others of no relevance to the issues before the Tribunal. The documents of no relevance include material relating to routine medical screening and pathology for conditions and purposes unrelated to the Applicant’s disability, and notes regarding a family member. It finds the information in these documents is unrelated and of no relevance to the issues before the Tribunal. Accordingly it refuses the Respondent leave to inspect the documents outlined in the list below.
The list identifies the documents which the Tribunal has considered to be of no apparent relevance to the proceedings. The documents were provided to the Tribunal by Clinic A as two bundles of documents referred to as ‘Docs’ which were numbered, a bundle of documents referred to as ‘Reports’, and a bundle of documents referred to as ‘Visits’. As there were two bundles of ‘Docs’, the Tribunal shall refer to documents contained in the first bundle, provided digitally as .bmp files, as ‘B Docs’ and documents contained in the second bundle, provided digitally as .rtf files, as ‘R Docs’. The following documents are of no apparent relevance to the proceedings:
· B Doc 1 · Visit 3 · R Doc 1 · Visit 4 · B Doc 2 · Visit 6 · B Doc 8 · Visit 8 · B Doc 9 · Visit 13 · B Doc 12 · Visit 14 · R Doc 12 · Visit 16 · B Doc 13 · Visit 20 · B Doc 21 · Visit 30 · B Doc 33 · Visit 35 · B Doc 44 · Visit 37 · Report 11 · Visit 42 · Report 44 · Visit 44 · Report 54 · Visit 46 · Report 69 · Visit 47 · Report 122 · Visit 49 · Visit 1 · Visit 51 · Visit 2 · Visit 53
Decision
The Tribunal has determined that documents produced by Clinic A outlined in the list at paragraph [24] are of no apparent relevance. All other documents not outlined in the list at paragraph [24] are of apparent relevance and accordingly the Tribunal grants the Respondent leave to inspect all other documents.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Denise Connolly
.......................................[SGD].................................
Associate
Dated: 6 July 2022
Date(s) of hearing: 5 April and 10 June 2022 Applicant: In person Counsel for the Respondent: Mr M Sherman Solicitors for the Respondent: Mr R Anderson, ASHURST AUSTRALIA
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