NZ v Health Care Complaints Commission (GD)
[2006] NSWADTAP 56
•02/11/2006
Appeal Panel - Internal
CITATION: NZ v Health Care Complaints Commission (GD) [2006] NSWADTAP 56 PARTIES: APPELLANT
NZ
RESPONDENT
Health Care Complaints CommissionFILE NUMBER: 069022 HEARING DATES: On the papers SUBMISSIONS CLOSED: 07/07/2006
DATE OF DECISION:
11/02/2006BEFORE: Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: jurisdiction - procedural fairness - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053195 DATE OF DECISION UNDER APPEAL: 04/13/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Health Care Complaints Act 1993
Privacy and Personal Information Protection Act 1998CASES CITED: Director General, Department of Education and Training v MT [2006] NSWCA 270 REPRESENTATION: APPELLANT
RESPONDENT
NZ
P Griffin, counselORDERS: 1. The Tribunal’s decision at a planning meeting to confine the application for review to actions taken by the Health Care Complaints Commissioner in response to correspondence that it received from the applicant during the period 24-29 September 2004 is set aside; 2. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision in Order 1 above; 3. The Tribunal’s decision in Order 1 was the correct decision because the Tribunal lacked jurisdiction to review other conduct, namely the “AVO matter”; 4. The Tribunal’s decision not to take any further action in relation to the “Ms M” matter is affirmed.
REASONS FOR DECISION
Introduction
1 Background. NZ has appealed to the Appeal Panel from a decision of the Tribunal dismissing her application against the Health Care Complaints Commission (HCCC) in relation to alleged breaches of the Privacy and Personal Information Protection Act 1998 (Privacy Act). NZ suffers from the psychological condition known as agoraphobia (fear of open spaces and fear of being in a crowd) and from panic attacks. She is unable to leave her home except very occasionally. She has been involved in litigation with members of her family and with numerous public sector agencies for several years. A hallmark of NZ’s conduct is that she sends, often by facsimile, bundles of disorganised documents and letters of complaint to public sector agencies and to this Tribunal. It is often difficult and time consuming to identify from this material the point that NZ is endeavouring to communicate. We start with this background information because it is this conduct that has led, in part, to the proceedings now before the Appeal Panel.
2 Documentation sent to HCCC. In September 2004, NZ sent two thick bundles of documents to Judge Taylor, the Acting Health Care Complaints Commissioner. The Health Care Complaints Act 1993 (HCC Act) sets up the HCCC as an independent body to receive assess and, if appropriate, investigate complaints relating to health services and health providers. The HCCC also has power to prosecute or resolve serious complaints: HCC Act, s 3. The two bundles of documents contained, among other things, transcripts of evidence in Local Court proceedings, typewritten text from NZ, a reference from a local parish priest, employment references, copies of educational qualifications, records of summonses issued by NZ and legal correspondence relating to the sale of property. From this material, officers of the HCCC identified some allegations over which the HCCC had jurisdiction, namely an allegation by NZ that her sister, Ms M, who was an assistant nurse, had stolen from a patient and had assaulted a patient in 1996.
3 Documentation was intended to be kept confidential. The bundles of documents were marked "For the attention of Judge Taylor only". The letters also contained the following request:
4 Action of the HCCC . Under the HCC Act , the HCCC has statutory responsibilities in relation to “complaints”. Officers interpreted NZ’s allegations that her sister had assaulted and stolen from a patient as a complaint under the HCC Act and assessed the contents. The HCC Act requires the HCCC to notify the person against whom a complaint is made: HCC Act, s 16 and s 28. On 13 October 2004, the HCCC notified Ms M that it had received a complaint from NZ and that it had assessed the complaint, but decided not to investigate it. On the same day the HCCC notified NZ that her complaint against her sister had been assessed and declined. The HCCC also told NZ that they had notified Ms M that she had lodged a complaint about her as required by the HCC Act . After receiving that letter, NZ wrote saying that the material provided to Judge Taylor was not a complaint pursuant to the HCC Act and that it should not have been sent to her sister.
Please protect my privacy do not release this to [Ms M] or any of her family noted in this letter as they cover for her and inflict this on me in their group.
5 Re-assessment by HCCC. The HCCC then re-assessed the complaint noting that NZ had made it clear that she did not wish the material she sent to Judge Taylor to be treated as a complaint. The HCCC then wrote again to Ms M advising that NZ had not intended to make a complaint and apologising for any undue stress that the error may have caused. The HCCC also wrote to NZ advising of the action they had taken and apologising to her.
6 Request for internal review under Privacy Act. NZ wrote a letter dated 13 September 2004 requesting an internal review of certain conduct of the HCCC pursuant to the Privacy Act. That Act gives a person aggrieved by the conduct of a public sector agency the right to a review of that conduct: s 53(1). The review of conduct is to determine whether any of the information protection principles or privacy codes of conduct applicable to an agency have been breached: s 52. For example, with some exceptions, s 18 of the Privacy Act prevents an agency from disclosing personal information. Personal information is defined to mean “information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.” The HCCC had some difficulty identifying the conduct about which NZ was requesting a review, but following further consultation with NZ, the HCCC identified the conduct as:
7 The AVO matter relates to a letter of complaint from a person called “Dejaher” which the HCCC received in 2000. That letter alleged that Ms M had stolen jewellery from a patient in a nursing home. The HCCC notified Ms M in writing that it had received the complaint and referred it to the Director General of the Department of Health, as it was required to do under the HCC Act , s 25. In August 2003, the Local Court heard apprehended violence proceedings between Ms M and NZ. In the course of those proceedings, Ms M tendered the HCCC’s letter dated 19 December 2000 notifying her of the complaint by Dejaher. According to NZ, Ms M told the Magistrate that NZ, not “Dejaher”, was the author of the letter of complaint.
(a) the HCCC treating her correspondence of September 2004 as a complaint and notifying Ms M (“the Ms M matter”); and
(b) Ms M using HCCC documents against her in AVO proceedings before the Local Court at Waverley in August 2003 (“the AVO matter”).
8 Internal review of conduct. After reviewing the conduct that NZ alleged to be in breach of the Privacy Act, the HCCC decided to take no further action. The HCCC found that it had not contravened the Privacy Act in relation to the collection, retention or disclosure of NZ’s personal information. The HCCC said that it was reasonable for it to have treated the September 2004 correspondence as containing a complaint against Ms M under the HCC Act. The HCCC said that once the decision had been made to treat the allegations against Ms M as a complaint, s 16 and s 28 of the HCC Act authorised it to notify Ms M of the complaint and the outcome of the assessment of the complaint. In relation to the AVO matter, the HCCC said that it was required by s 16 and s 28 of the HCC Act to notify Ms M of the assessment and the outcome of the complaint made by Dejaher. The HCCC went on to say that, [T]he notification letter of 19 December 2000 was tendered by Ms M in the AVO proceedings and made Exhibit 32. The Commission was not a party to the proceedings and did not provide the letter to the Court.”
9 Application to Tribunal. Because NZ was not satisfied with the HCCC’s findings, she applied to the Tribunal for a review of the conduct that was the subject of her application: Privacy Act, s 55. The Tribunal dismissed the application and NZ has appealed to the Appeal Panel against that decision. NZ is entitled to appeal on a question of law: Administrative Decisions TribunalAct 1997 (ADT Act), s 113(2)(a). She also asked for the Appeal Panel’s leave to review the merits of the Tribunal’s decision: ADT Act, s 113(2)(b). Because NZ’s disability prevents her from leaving home, the Appeal Panel acceded to her request that the appeal be determined “on the papers” pursuant to s 76 of the ADT Act.
Tribunal’s decision
10 The Tribunal began its decision by saying, at [3], that:
11 Having referred to these directions, the Tribunal did not make any specific findings about the conduct relating to “the AVO matter”. The Tribunal’s decision in relation to the “Ms M matter” was based on the following findings and reasoning process:
As a result of directions made at a planning meeting, the application for review is confined to actions taken by the HCCC in response to correspondence that it received from the applicant during the period 24-29 September 2004.
12 The President noted at [38] that since March 2005 the HCCC has adopted protocols which make it clear to complainants that its general practice is to communicate the complainant’s identity to the person the subject of the complaint. The President also noted at [38] that there has been an amendment to the HCC Act to clarify this practice and that the HCCC had apologised to NZ and amended its records to show that no complaint was made.
1. It was open to the HCCC to treat NZ’s communications in September 2004 as a “complaint” within the meaning of that term in the HCC Act . At [33] the President observed that:
2. By communicating NZ’s identity to Ms M, the HCCC had disclosed NZ’s personal information. Section 18 of the Privacy Act makes it unlawful for a public sector agency to disclose personal information to a person other than the individual to whom the information relates.
. . . There were passages in the material submitted by the applicant which contained serious allegations of misconduct within the nurse-patient relationship involving a registered nurse. The HCCC was entitled to form the view that its statutory responsibilities were engaged, i.e. that it had before it a complaint within the meaning of the HCC Act . It formed that view, and then acted as contemplated by its legislation.
3. Section 18 is qualified by s 25(a) which says that a public sector agency is not required to comply with s 18 where the agency is “lawfully authorised or required not to comply with the principle concerned” or where “non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law . . .” The Tribunal concluded that the HCCC was authorised not to comply with s 18 by s 16 and s 28 of the HCC Act.
4. Section 16 requires the HCCC to give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made. Section 18 requires the HCCC to give written notice of the action taken or decision made by the Commission following its assessment of the complaint. By notifying Ms M of the complaints and of the identity of the complainant, the HCCC was complying with these provisions.
5. The Tribunal acknowledged that there are exceptions to each of these provisions including the exception in s 16(4) where it appears to the Commission, on reasonable grounds, that the giving of the notice will or is likely to:
6. However, the Tribunal concluded at [35], that:
(a) prejudice the investigation of the complaint, or
(b) place the health or safety of a client at risk, or
(c) place the complainant or another person at risk of intimidation or harassment.
This provision provides the Commissioner with a power not to proceed in the usual way. Whether the Commissioner should, or should not, have exercised this power in the circumstances is, in my view, not a matter that the Tribunal need inquire into. Section 25(a) deals with circumstances where an agency is ‘authorised’ or ‘required’ to disclose personal information. At the least, this was a situation where the agency had the relevant authorisation. That is all the Tribunal needs to address in order to reach a conclusion as to compliance with the Privacy Act .
Grounds of Appeal
13 Introduction. NZ filed lengthy written submissions, dated 21 April 2006, setting out the grounds of her appeal. Rather than reproducing NZ’s grounds of appeal as articulated by her, we deal with the points she has made under each of the six steps in the Tribunal’s reasoning process outlined above. Before doing so, we address the preliminary point NZ made that the Tribunal did not deal with the AVO matter.
14 AVO matter. NZ submitted that the Tribunal erred by not reviewing the HCCC’s conduct in relation to the AVO matter. As we have said, the Tribunal directed at a planning meeting that the issue for consideration be confined to action the HCCC took in response to correspondence that it received from NZ during the period 24-29 September 2004. The fact that the Tribunal did not make any specific findings about the conduct relating to “the AVO matter” suggests that the Tribunal did not consider that matter to have been raised by NZ in September 2004. The conduct that was the subject of the application included the AVO matter, that is, that Ms M used HCCC documents against her in AVO proceedings before the Local Court in August 2003. The HCCC included that conduct in its internal review.
15 Section 55 of the Privacy Act gives a person who has made an application for internal review, the right to apply to the Tribunal “for a review of the conduct that was the subject of the application under s 53.” (Emphasis added.) The Tribunal has jurisdiction to review that conduct, since it was the subject of NZ’s application for internal review to the HCCC. In our view, the Tribunal erred by making a direction in a planning meeting that effectively precluded any consideration of the AVO matter. Even if that matter was not conduct which the President viewed as potentially capable of contravening the Privacy Act, a decision about the Tribunal’s jurisdiction to review that conduct, if disputed, should have been made at a hearing after receiving submissions from both parties, not by way of directions at a planning meeting.
16 Extension to the merits. NZ has provided submissions as to why she says the Tribunal should have dealt with the AVO matter and has requested the Appeal Panel’s leave to extend the appeal to the merits of the Tribunal’s decision. This is an appropriate matter on which to give leave, because the issue is narrow and does not require any further evidence to be tendered.
17 Consideration of the merits. The conduct about which NZ sought review in relation to the AVO proceedings was Ms M’s conduct in using HCCC documents against her in AVO proceedings before the Local Court at Waverley in August 2003. As the HCCC said in its internal review decision, it was not a party to the proceedings and did not provide the letter to the Court. The conduct that is regulated by the HCC Act is the conduct of public sector agencies such as the HCCC, not the conduct of private individuals such as Ms M. NZ said that that Ms M was an employee of the HCCC. Even if that is the case, and the Tribunal made no finding to that effect, the “use” or “disclosure” of personal information for a purpose extraneous to any purpose of the HCCC, such as for use in AVO proceedings, should not be characterised as “use” or “disclosure” by or “conduct” of the HCCC: Director General, Department of Education and Training v MT [2006] NSWCA 270. Consequently, the Tribunal lacked jurisdiction to review Ms M’s conduct in relation to the AVO matter because it did not relate to conduct of the HCCC.
18 Treatment of communications as a complaint. The first step in the Tribunal’s reasoning process in relation to the Ms M matter was that it was open to the HCCC to treat NZ’s communications in September 2004 as a “complaint” within the meaning of that term in the HCC Act. NZ disputed that finding, pointing out that she had specifically requested that the correspondence be referred to Judge Taylor and that the content of the letter was not to be released to Ms M or any other family members mentioned in the letter. NZ made the same point to the Appeal Panel. The Tribunal acknowledged that NZ did not intend the allegations to constitute a complaint but nevertheless found that it was open for the HCCC to come to that view.
19 Appeal Panel’s conclusion. The HCCC was established to receive and assess complaints relating to health services and providers and to investigate and prosecute or resolve serious complaints: HCC Act, s 3. The material sent to the Acting Commissioner of the HCCC included allegations of misconduct by a registered nurse against a patient. NZ later made it clear that she sent the material to the HCCC to demonstrate how her privacy had been misused, not to make a complaint under the HCC Act. Nevertheless, given the nature of the allegations NZ made against Ms M, the Tribunal has not erred in law when deciding that it was open to the HCCC to treat NZ’s allegations against Ms M as a complaint under the HCC Act.
20 Disclosure of personal information. The next step in the Tribunal’s reasoning process was that the HCCC had disclosed personal information of a kind protected by the Privacy Act. NZ did not dispute that finding but submitted that having come to that conclusion the Tribunal should have found that the HCCC had breached s 18 by disclosing that information. The short answer to this ground of appeal is that s 18 is qualified by s 25 which provides that an agency is not required to comply with s 18 in certain circumstances:
21 The Tribunal has not erred by finding that there was a disclosure of “personal information” but not concluding that the HCCC had contravened s 18.
A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:
(a) the agency is lawfully authorised or required not to comply with the principle concerned, or
(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ).
22 Requirements of s 16 and 28. NZ acknowledges that these provisions require the HCCC to give written notice of the identity of the complainant to the person against whom the complaint is made. However NZ pointed to 16 (4) of the HCC Act which provides that the HCCC does not have to give notice to the subject of a complaint if it appears to it, on reasonable grounds, that the giving of the notice will or is likely to:
23 In relation to that submission, the President observed at [35] that;
(a) prejudice the investigation of the complaint, or
(b) place the health or safety of a client at risk, or
(c) place the complainant or another person at risk of intimidation or harassment.
24 With respect, we agree with this reasoning.
This provision provides the Commissioner with a power not to proceed in the usual way. Whether the Commissioner should, or should not, have exercised this power in the circumstances is, in my view, not a matter that the Tribunal need inquire into. Section 25(a) deals with circumstances where an agency is ‘authorised’ or ‘ required’ to disclose personal information. At the least, this was a situation where the agency had the relevant authorisation. That is all the Tribunal needs to address in order to reach a conclusion as to compliance with the Privacy Act .
Orders
1. The Tribunal’s decision at a planning meeting to confine the application for review to actions taken by the Health Care Complaints Commissioner in response to correspondence that it received from the applicant during the period 24-29 September 2004 is set aside.
2. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision in Order 1 above.
3. The Tribunal’s decision in Order 1 was the correct decision because the Tribunal lacked jurisdiction to review other conduct, namely the “AVO matter”.
4. The Tribunal’s decision not to take any further action in relation to the “Ms M” matter is affirmed.
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