Pt v New South Wales Medical Board

[2010] NSWADT 107

CITATION:	PT v New South Wales Medical Board [2010] NSWADT 107
DIVISION:	General Division
PARTIES:	APPLICANT PT RESPONDENT New South Wales Medical Board
FILE NUMBER:	093207
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	6 November 2009
DATE OF DECISION:	3 May 2010
BEFORE:	Higgins S - Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Records and Information Privacy Act 2002 Medical Practice Act 1990 Privacy and Personal Information Protection Act 1998
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	Pursuant to s55(2) of the PPIP Act, an order not to take any action in this matter.

REASONS FOR DECISION

1 This is an application by PT (the applicant) seeking review of conduct, by the New South Wales Medical Board (the respondent), which he asserts amounts to a contravention of the collection, use and disclosure health privacy principles and information protection principles under the Health Records and Information Privacy Act 2002 (the HRIP Act) and the Privacy and Personal Information Protection Act 1998 (the PPIP Act) respectively. PT also asserts that the alleged contravening conduct has caused him to suffer loss and damage and in his application he has sought orders under s55(2)(a) of the PPIP Act, which include the removal of the decisions from the respondent’s website and compensation.

2 By consent, PT and the respondent agreed that the Tribunal should first determine the issue of liability; namely whether the conduct of the respondent, the subject of this application, amounts to a contravention of the health privacy principles under the HRIP Act, or a contravention of the information protection principle under the PPIP Act. The parties also agreed that the Tribunal determine this issue of liability on the papers pursuant to s76 of the Administrative Decisions Tribunal Act 1997. In accordance with orders made by the Tribunal at a planning meeting, PT and the respondent filed and served written submissions.

The conduct

3 The conduct that is the subject of this application is that described in PT’s application, to the respondent, for internal review under s21 of the HRIP Act and s53 of the PPIP Act. In summary the conduct complained about was as follows:

(a) the release by the respondent, in 2008, on its website, of a decision about PT that was made by the Medical Tribunal in 2000; and

(b) the release by the respondent, in 2009, on its website, of another decision about PT that was made by the Medical Tribunal in 2008.

4 It is not disputed that the respondent placed (i.e. released or disclosed) these decisions of the Medical Tribunal on its website.

5 The ‘health information’ and ‘personal information’ in these decisions of the Tribunal that are of concern to PT is as follows:

(a) details about his ‘past psychiatric history’ when he had at no time given the respondent, any psychiatrist or any legal representative permission for this information to be released;

(b)the names and addresses of witnesses appearing before the Medical Tribunal when the Tribunal had made orders prohibiting the publication of this information; and

(c) information about his current address ‘in a situation where I had moved here on police advice ...’

6 It was not disputed that the decisions of the Medical Tribunal contained information of this nature. However, in its internal review the respondent determined that there had been no breach of a health privacy principle under the HRIP Act, or a contravention of an information protection principle under the PPIP Act as the use and release of both decisions of the Medical Tribunal was authorised under s165(4) of the Medical Practice Act 1992.

Relevant legislation

7 PPIP Act – the term ‘personal information’ is defined in s4(1) of the PPIP Act. It relevantly provides as follows:

4(1)In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

8 There is no dispute that the decisions of the Medical Tribunal contain personal information about PT.

9 HRIP Act – the term ‘health information’ is defined in s6 of the HRIP Act. It relevantly provides as follows:

6 In this Act, “ health information” means:

(a) personal information that is information or an opinion about:

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual’s express wishes about future provision of health service, or

(iii) a health service provided, or to be provided, to an individual, or

(b) …

10 The term ‘personal information’ is defined in s5 of the HRIP Act. Its definition is in similar terms to that of s4(1) of the PPIP Act. Again there is no dispute that the decisions of the Medical Tribunal contain health information about PT.

11 PPIP Act – s20(1) of the PPIP Act provides that the information protection principles in Division 1 of Part 2 of that Act apply to public sector agencies. And s21 provides that a public sector agency ‘must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency.’ The information protection principles deal with the collection, storage, access, amendment, use and disclosure of personal information.

12 HRIP Act – s11 of the HRIP Act is similar in effect to ss20(1) and 21 of the PPIP Act in that a public sector agency that is a health service provider or collects, holds or uses health information is required to comply with the health privacy principles set out in Schedule 1 of that Act. The health privacy principles also deal with the collection, storage, access, amendment, use and disclosure of health information. In many respects these principles are reflective of the privacy information principles.

13 The terms of the relevant privacy information principles and health privacy principles are discussed below.

14 It is not disputed that the respondent is a public sector agency for the purposes of the PPIP Act and the HRIP Act. The Medical Tribunal is also a public sector agency, however by reason of s6 of the PPIP Act and s.13 of the HRIP Act its judicial functions are not affected by the provisions of these Acts.

15 The PPIP Act and the HRIP Act both contain exceptions as to when a public sector agency is exempted from complying with a privacy information principle or a health privacy principle. For the purposes of this application, the relevant exceptions are contained in s25 of the PPIP Act and clause 11(2) of Schedule 1 of the HRIP Act. S25 of the PPIP Act provides as follows:

25 Exemptions where non-compliance is lawfully authorised or required


A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 and 19 if:

(a) the agency is lawfully authorised or required not to comply with the principles 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 ).

16 Clause 11(2) of Schedule 1 of the HRIP Act is in similar terms however, it only applies to the disclosure health information about an individual.

17 Medical Practice Act - The Medical Practice Act deals with the registration of medical practitioners, who wish to practice medicine within New South Wales. For this purpose the Act creates a Medical Board (the respondent), a Medical Tribunal and other related Committees or Panels. The Medical Tribunal is established under Part 11 of the Medical Practice Act. It has jurisdiction to ‘conduct an inquiry into any complaint, matter or application and to hear any appeal referred to it. …’(see s159 of the Medical Practice Act). Part 4 of the Medical Practice Act deals with complaints against medical practitioners and former medical practitioners. Such complaints can be made to the respondent or the Health Care Complaints Commission (see s42 of the Medical Practice Act) and the Board has power to refer the complaint for investigation to the Medical Tribunal (see s50 of the Medical Practice Act).

18 The Medical Practice Act also contains a number of appeal rights to persons seeking registration as a medical practitioner and registered medical practitioners (see ss17, 29, 35, 84 and Part 6 of the Medical Practice Act).

19 S161 of the Medical Practice Act provides that the proceedings of the Medical Tribunal are to be open to the public unless the Tribunal directs otherwise. That section also provides that an inquiry and a hearing of an appeal by the Tribunal is to be conducted in accordance with Schedule 2 of the Act. Clause 6 of that Schedule gives the Tribunal power to direct that the names and addresses of witnesses or the registered practitioner not be published.

20 S165 of the Medical Practice Act provides the following in regard to any decision that the Tribunal has made on an inquiry or appeal:

165 Tribunal to provide details of its decision


(1) The Tribunal must provide a written statement of a decision on an inquiry or appeal to the complainant, to the practitioner concerned and to the Board, and must do so as soon as practicable after the decision is made (bearing in mind the public welfare and seriousness of the matter).

(2) The statement of a decision must:
(a) set out any findings on material questions of fact, and
(b) refer to any evidence or other material on which the findings were based, and
(c) give the reasons for the decision.

(3) The Tribunal may also provide the statement of a decision to such other persons as the Tribunal thinks fit.

(4) The Board:
(a) must make publicly available a statement of a decision provided to it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part, and
(b) may disseminate any other statement of a decision as the Board thinks fit,
unless the Tribunal has ordered otherwise.

21 S166 of the Medical Practice Act provides that the Tribunal is not required to include confidential information in its statement of decision.

Consideration

22 In my opinion, the information protection principles and the health privacy principles relating to collection and use (see ss8, 9, 10, 11, 16, and 17 of the PPIP Act and clause 1, 2, 3, 4, 9 and 10 of Schedule 1 of the HRIP Act) are of no relevance to this application.

23 First, there is no evidence to support a finding that the respondent ‘collected’ the personal information or health information about PT as evidenced in the decisions of the Medical Tribunal. The uncontested evidence is that the decisions were provided to the respondent by the Tribunal in accordance with s165(1) of the Medical Practice Act. Hence, the personal information and health information about PT in these decisions was not ‘collected’ by the respondent. Instead the personal information and health information about PT in these decisions became information that was ‘held’ by the respondent (see s4(4) of the PPIP Act and s9 of the HRIP Act). Accordingly, the principles concerning the ‘collection’ of personal and health information do not apply (see ss8, 9, 10 and 11 of the PPIP Act and clause 1, 2, 3 and 4 of Schedule 1 of the HRIP Act).

24 On the basis of the personal information and health information about PT not having been ‘collected’ by the respondent, the principle as to ‘use’ of such information in s17 of the PPIP Act and clause 10 of Schedule 1 of the HRIP Act do not apply. It does not apply as this principle is expressly predicated on the information having been ‘collected’ by the respondent.

25 Nor is there any evidence, or complaint by PT, that the respondent ‘used’ the personal information and health information about PT in the decisions of the Medical Tribunal for its own internal purposes so as to bring the principle in relation to the accuracy of that information into play (see s16 of the PPIP Act and clause 9 of Schedule 1 of the HRIP Act).

26 This leaves the principle concerning the ‘disclosure’ of the personal information and health information about PT as contained in the decisions of the Medical Board. The principle is found in s18 of the PPIP Act and clause 11 of Schedule 1 of the HRIP Act. S18 of the PPIP Act is in the following terms:

18 Limits on disclosure of personal information

1.A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious or imminent threat of life or health of the individual concerned or other person.

2. If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

27 It is arguable that in this application, the proceedings before the Medical Tribunal having been held in the open and the Tribunal not making any orders suppressing the publication of the name of PT, his personal information or his health information, that he was reasonably likely to have been aware that the decisions of the Medical Tribunal would have been publicly disclosed or released by the respondent. It is noted that the respondent’s functions include the promotion and maintenance of high standards of medical practice in New South Wales and to ‘to publish and distribute information concerning this Act and the regulations to registered medical practitioners and other interested persons’: see s132 of the Medical Practice Act 1992.

28 Clause 11 of Schedule 1 of the HRIP Act is of similar effect to s18 of the PPIP Act. It is however, couched in the terms of disclosing health information about an individual for a purpose (i.e. a secondary purpose’) other the purpose for which it was collected (i.e. the primary purpose). The clause also contains a number of other circumstances in which a disclosure can be made. These circumstances, other than the exception contained in clause 11(2), are of no relevance to this application.

29 It is arguable that clause 11 of Schedule 1 of the HRIP Act has no application as it is difficult to see from the information before the Tribunal that the health information about PT was ever ‘collected’, in the relevant sense under that Act, by the Medical Tribunal or otherwise. The proceedings before the Medical Tribunal in the first decision were proceedings commenced by the Health Care Complaints Commission on the basis of its investigation into a complaint that had been made against PT while he was registered as a medical practitioner under the Medical Practise Act 1990. At the time these proceedings were on foot (i.e. 2000) the HRIP Act was not in operation. It did not come into force until 1 September 2004. However, health information about an individual would nevertheless have fallen within the meaning of ‘personal information’ under the PPIP Act. For the reasons stated above, it is arguable that the disclosure of PT’s personal information in the 2000 decision of the Medical Tribunal was in accordance with s18 of the PPIP Act.

30 The proceedings before the Medical Tribunal in the second decision were proceedings commenced by PT. It was an application for review, under s92 of the Medical Practice Act 1992, from the first decision of the Medical Tribunal that his name be removed from the Register of registered medical practitioners. The respondent opposed the restoration of PT’s name to the Register. As I have already said, the personal information and health information about PT was not ‘collected’, in the relevant sense, by the Tribunal. It is also difficult to see how that information was ‘collected’ by the respondent. In many cases the information was provided by PT, or had become available by means of the first proceedings before the Medical Tribunal.

31 In any event, it is unnecessary for me to determine the question as to whether the disclosures were in accordance with s18 of the PPIP Act or whether the HRIP Act applied as I have found that, pursuant to s25 of the PPIP Act, clause 11(2) of Schedule 1 of the HRIP Act and s165(4) of the Medical Practice Act 1992, the respondent was expressly required or given a discretion to disclose the decisions of the Medical Tribunal.

32 As I have said, the proceedings before the Medical Tribunal in 2000 were as a result of a complaint that had been made against PT. It is clear from the decision of the Medical Tribunal that in these proceedings it was conducting an inquiry into a complaint in accordance with s159 of the Medical Practice Act 1992. Accordingly, it was a decision falling within s165(1) of that Act and one which the Medical Tribunal was required to provide a copy to the respondent. The respondent in turn was required, under s165(4)(a), to make the decision publicly available as the Medical Tribunal had found the conduct the subject of the complaint to have been proven or admitted. Publication of any such decision is of course subject to any confidentiality orders that were made by the Medical Tribunal. The Medical Tribunal did make such orders in regard to the patients involved in the proceedings of 2000. This is reflected in the decision of the Medical Tribunal and patient names and addressed are not disclosed. On the material before the Tribunal, the respondent published on its website that decision. That is, the names and addresses of patients are not disclosed in what has been published by the respondent on its website.

33 In his application to this Tribunal, PT said that he was not a registered medical practitioner at the time the Medical Tribunal made its decision in 2000. In my opinion, s165(1) of the Medical Practice Act 1992 nevertheless applies as it applies to any ‘practitioner’ and not just to ‘registered’ practitioners.

34 Accordingly, I find that the respondent has not breached the disclosure privacy principles in the PPIP Act or the HRIP Act in publishing on its website the 2000 decision of the Medical Tribunal concerning PT.

35 As pointed out by PT, and as I have already indicated, the decision of the Medical Tribunal in 2009, was a decision on an application made by PT under s.92 of the Medical Practice Act 1992. It was an application for review. PT is correct in that s165(1) of the Act does not make any mention of an ‘application’ or a ‘review’. It only makes mention of an ‘inquiry or appeal’.

36 The appeal and review provisions are contained in Part 6 of the Act. A right of review only arises where there has been a decision to suspend the registration of a registered practitioner, or de-register a registered medical practitioner, or where there has been a decision to place conditions on the registration of a registered practitioner. In this application PT was de-registered as a medical practitioner some time in 1999. He was de-registered on his own application following complaints that had been made against him. In light of the complaints, the Medical Tribunal nevertheless conducted an inquiry and it was as a result of that inquiry that it made orders in its decision of 2000, PT not be re-registered and that he was prohibited from making an application for review of this decision for 3 years.

37 Under s94(1) of the Medical Practice Act 1990, having received PT’s application for review, the Medical Tribunal was required to ‘conduct an inquiry’ into his application. S94A of the Medical Practice Act 1992 sets out how that ‘inquiry’ is to take place. It includes having regard to any complaints that have been made against the practitioner. In my opinion, on the basis of these provisions it is clear that s165(1) of the Act also applies to any decision of the Medical Tribunal on an applications for review. That is, such decisions are a ‘decision(s) on an inquiry.’

38 The second decision of the Medical Tribunal is as a result of its inquiry into PT’s application for review. The question is whether, the disclosure by the respondent is in accordance with s165(4) of the Medical Practice Act 1992. PT contends that it is not as it was not based on any complaint. The respondent contends that it is based on a complaint, being the complaint that was the subject of the first proceedings before the Medical Tribunal.

39 In my opinion, it is unnecessary to decide this in a definitive way. As can be seen from s165(4), paragraph (a) of that section places a mandatory requirement on the respondent to make publicly available a decision of the Medical Tribunal falling within s165(1) and in which the Medical Tribunal had found the complaint proven. Paragraph (b) of that section, on the other hand, gives the respondent a discretion to make any other decision of the Medical Tribunal falling within s165(1) publicly available. That discretion must of course be exercised in accordance with the objectives of the Act and the respondent’s functions under it. Furthermore, if the respondent determines to exercise its discretion under paragraph 165(4)(b), it must do so in accordance with any confidentiality orders that are made by the Medical Tribunal.

40 Having regard to all the material before me, I am satisfied that the respondent’s publication of the 2009 decision of the Medical Tribunal is authorised under paragraph s165(4)(b) of the Medical Practice Act 1992. In the circumstances it was a decision in respect to which the respondent could exercise its discretion under s165(4)(b). It also appears to have been properly exercised its discretion. No confidentiality orders were made by the Medical Tribunal and it appears that PT did not seek any. I note however, that the decision of the Medical Tribunal that is on the respondent’s website does contain some deletions to paragraphs 35 and 45 of the Medical Tribunal’s decision. As they do not concern PT’s personal information or his health information I do not propose to deal with them any further, but they do seem to address some of his wider concerns.

Conclusions

41 For the reasons set out above, I find that the conduct of the respondent in releasing on its website the two decisions of the Medical Tribunal concerning PT did not breach or contravene an information privacy principle under the PPIP Act or a health privacy principle under Schedule 1 of the HRIP Act. Accordingly, the appropriate order is to decide, pursuant to s55(2) of the PPIP Act, to take no further action on PT’s application for review of the respondent’s conduct.