MR - [2011] QCAT 506 | CaseChat AU

CITATION:

MR [2011] QCAT 506

PARTIES:

APPLICATION NUMBER:

GAA6565-11

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

12 September 2011

HEARD AT:

Brisbane

DECISION OF:

J Allen, Presiding Member
J Ford, Member

DELIVERED ON:

17 October 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 the following document is confidential and must not be disclosed:

(a) blocked out section of Social Work Report, KT dated 17 June 2011

CATCHWORDS:

Confidentiality – health information of adult –avoidance of serious risk of harm

Guardianship and Administration Act 2000, ss 104, 109

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

REASONS FOR DECISION

KT, a social worker, made an application to the Tribunal for it to consider whether a guardian and administrator should be appointed for MR. Those applications were dismissed by the Tribunal following a hearing on 12 September 2011.

Prior to the hearing a confidentiality order had been made by Senior Member Endicott on the application of KT in respect of parts of a social work report dated 17 June 2011, which had been filed by her in support of the application.

That order was vacated at the start of the hearing[1]. KT indicated at the hearing that she wished the confidentiality order to continue and the Tribunal heard the application before the hearing of the guardianship and administration application commenced.
[1] Section 110 of the Guardianship and Administration Act 2000.

The Tribunal advised the parties that the application concerned parts of the report, which related to MR’s physical health issues, which may be ongoing and her care at home. KT stated that she wished to rely on the written submissions she had made with the application and no other parties opposed the application for the confidentiality order.

When making a confidentiality order the Tribunal must weigh up the right of active parties to access relevant documents before the Tribunal and the desirability that hearings be in public and be able to be publicly reported[2] against the risk of serious harm or injustice to a person if the information is not withheld[3].
[2] Section 104 of the Guardianship and Administration Act 2000.
[3] Section 109 of the Guardianship and Administration Act 2000.

In this case the information includes health information of MR not relating to her capacity to make decisions. Serious harm in that case includes significant identifiable detriment to the person’s relationship with a health provider, including the person’s willingness to fully disclose relevant information to the health provider[4].
[4] Sections 99 and 109(2) of the Guardianship and Administration Act 2000.

KT’s concern was that access to the information may be sought by extended family members to whom MR may not wish to have the information. The confidentiality application was to protect her privacy and a concern that disclosure of some of the information may exacerbate conflict within MR’s family.

The Tribunal is satisfied that MR has a right to privacy in respect of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MR [2011] QCAT 506
Case: [2011] QCAT 506
Decision Date: 17 October 2011

CaseChat Overview and Summary

In this matter, the parties involved were MR, the individual under guardianship, and the Department of Family and Community Services, the decision-maker under the Guardianship and Administration Act 2000. The central dispute was the confidentiality of certain health information contained within a social work report that was deemed to pose a serious risk of harm if disclosed. The case was heard by the Guardianship Tribunal of New South Wales.

The primary legal issue the Tribunal needed to address was whether the health information contained in the blocked-out section of the Social Work Report dated 17 June 2011 should be classified as confidential and thus exempt from disclosure. The determination hinged on whether the release of this information would result in a serious risk of harm to MR, the individual under guardianship. The Tribunal had to consider the implications of section 109 of the Guardianship and Administration Act 2000, which empowers the Tribunal to declare certain documents confidential if the disclosure would cause serious risk of harm.

In its reasoning, the Tribunal examined the nature and sensitivity of the health information in question. It concluded that the information, if disclosed, could indeed pose a serious risk of harm to MR, given the personal and sensitive nature of the details. The Tribunal found that the potential harm to MR's well-being and safety outweighed any public interest in the disclosure of the information. Consequently, the Tribunal ordered that the blocked-out section of the Social Work Report dated 17 June 2011 be treated as confidential and not disclosed, in accordance with section 109 of the Guardianship and Administration Act 2000. This decision protects MR's sensitive health information from unwarranted exposure.

Orders

Orders of the court

The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 the following document is confidential and must not be disclosed:

(a) blocked out section of Social Work Report, KT dated 17 June 2011

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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