QB v Greater Southern Area Health Service No 2

[2011] NSWADT 162

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

QB v Greater Southern Area Health Service No 2 [2011] NSWADT 162

Hearing dates:

On the papers

Decision date:

04 July 2011

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

1. Within 90 days the agency shall review and reissue its Health Intake and Triage Policy so that the policy provides specific directions, compliant with the HPPs regarding

a. the circumstances in which health information about a person can be collected from third parties and in particular the agency's obligations under HPP 2 and HPP3;

b. the obligations of the agency to advise a person of and about the information collected by them as required under HPP 4;

c. the obligations of the agency to take reasonable steps to ensure that the personal health information they have collected is relevant, up to date and not misleading.

d. the circumstances in which an agency can use the information so collected as stipulated in HPP 9 and 10; and

e. the circumstances in which health information about a person may be disclosed to third parties as outlined under HPP 11.

2. Within 6 months of completion of order 1, the agency shall provide a course of training to mental health workers in its employ with respect to the requirements and operation of the HPP's in the context of their duties, and of the protections the HPP's establish for health information of the agency's clients.

3, No order as to costs.

Catchwords:

Health Records and Privacy Information Privacy Act - remedy

Legislation Cited:

Privacy and Personal Information Protection Act 1998
Health Records and Information Privacy Act 2002
Mental Health Act 2007

Cases Cited:

QB v Greater Southern Area Health Service [2011] NSWADT 90

Category:

Principal judgment

Parties:

QB (Applicant)
Greater Southern Area Health Service (Respondent)

Representation:

QB (Applicant in person)
GILD Insurance Litigation Pty Ltd (Respondent)

File Number(s):

093229

Publication restriction:

Names suppressed to protect Applicant's privacy

REASONS FOR DECISION

1. In these reasons the names of certain individuals and other information, which may enable the identity of the Applicant to be ascertained, have been suppressed in order to protect the Applicant's privacy.

Background

1. In QB v Greater Southern Area Health Service [2011] NSWADT 90 I made findings that the Greater Southern Area Health Service (the agency) had by its conduct with respect to QB breached a number of health privacy principles (HPPs). I made the following relevant orders -

1. Order that the agency to refrain from any conduct or action in contravention of, and to perform, HPPs 3, 4, 9 and 11.

2. Order that the agency apologise in writing to QB for each of the breaches found within 30 days of the publication of these reasons.

3. Order that the agency within 60 days of the publication of these reasons the agency shall:

a. write to Dr Y and Dr Z seeking to recover QB's health information disclosed to them in breach of HPP 11; and,

b. if that health information is recovered, ensure that it is safely secured; and,

c. whether or not the health information is recovered, advise QB in writing of the outcome of the request for recovery, and, if the health information is recovered, provide QB with details of what has been recovered and how it is secured.

4. The agency shall file and serve any submissions it wishes to make with respect to the form and content of the additional draft orders set out in paragraph 162 of these reasons within 30 days of publication.

5. OB shall file and serve any submissions in reply within a further 21 days.

6. The Tribunal shall then determine on the papers whether to make order in accordance with the draft, or in any other and what form.

7. Any application by QB for costs should be filed and served within 30 days, specifying the costs sought, and providing proof of expenses claimed.

8. Any submissions in reply from the agency should be filed and served within a further 21 days.

9. The Tribunal shall then determine the issue of costs on the papers.

1. The additional draft orders set out in paragraph 162 of the reasons were -

1. Within 90 days the agency shall review and reissue its Health Intake and Triage Policy so that the policy provides specific directions, compliant with the Health Privacy Principles, regarding:

a. the circumstances in which health information about a person can be collected from third parties, medical practitioners or other agencies, where the person has not consented to that collection and is not at risk of serious and imminent threat to the life, health or safety to him or herself, or another person, or to the public health or safety, and is able to communicate.

b. the obligations of the agency to advise the person of and about information so collected.

c. the circumstances in which health information about a person may be disclosed to third parties, medical practitioners or other agencies, where the person has not consented to that collection and is not a danger to themselves or others and is able to communicate.

2. Within 6 months of completion of order 1, the agency shall provide a course of training to mental health workers in its employ with respect to the requirements and operation of the HPP's in the context of their duties, and of the protections the HPPs establish for health information of the agency's clients.

1. QB has not sought an order for costs.

1. The agency has, by a letter dated 3 June 2011, sought amendments to draft order 1 so that "the intent of the orders are clear". The order it proposes is -

1. Within 90 days the agency shall review and reissue its Health Intake and Triage Policy so that the policy provides specific directions, compliant with the HPPs regarding

a. the circumstances in which health information about a person can be collected from third parties and in particular the agency's obligations under HPP 2 and HPP3;

b. the obligations of the agency to advise a person of and about the information collected by them as required under HPP 4;

c. the obligations of the agency to take reasonable steps to ensure that the personal health information they have collected is relevant, up to date and not misleading.

d. the circumstances in which an agency can use the information so collected as stipulated in HPP 9 and 10; and

e. the circumstances in which health information about a person may be disclosed to third parties as outlined under HPP 11.

1. QB has not made any submissions in response to that request.

Consideration

1. I accept that the agency's proposed amendments to order 1 should result in an amended Intake and Triage Policy that complies with the intent of the draft orders.

1. My principle reservation concerns the need, as I perceive it, for there to be clear policy guidance for mental health workers with respect to the collection, retention, use and disclosure of an individual's health information in circumstances where that individual, as was the case here, does not pose a risk of serious and imminent threat to the life, health or safety of him or herself, or another person, or to the public health or safety, and is able to communicate.

1. There are differences between the strictures imposed by the Health Records and Information Privacy Act 2002 , and the requirements of the Mental Health Act 2007 under which mental health workers are used to operating (see the discussion in at [45-52] of my first decision). That difference was reflected in this case.

1. The Mental Health Act 2007 applies where an individual with a mental illness is at risk of serious harm, a wider concept than serious and imminent threat. It does not operate to override or remove to the protections offered by the Health Records and Information Privacy Act 2002 and the Privacy and Personal Information Protection Act 1998 . One of my major concerns in making the draft orders was for the agency and its mental health staff to be aware of that difference, and to ensure that agency's policy and practice respected the protections given to individuals by the Health Records and Information Privacy Act 2002.

1. I accept that the amendments proposed will ensure that the Intake and Triage Policy is compliant with the HPPs. I expect that the amended Intake and Triage Policy, and subsequent training of mental health workers will be cognizant of the concerns I have highlighted above.

Orders

1. As a consequence the Tribunal makes the following orders in addition to the order made on 4 May 2011:

1. Within 90 days the agency shall review and reissue its Health Intake and Triage Policy so that the policy provides specific directions, compliant with the HPPs regarding

a. the circumstances in which health information about a person can be collected from third parties and in particular the agency's obligations under HPP 2 and HPP3;

b. the obligations of the agency to advise a person of and about the information collected by them as required under HPP 4;

c. the obligations of the agency to take reasonable steps to ensure that the personal health information they have collected is relevant, up to date and not misleading.

d. the circumstances in which an agency can use the information so collected as stipulated in HPP 9 and 10; and

e. the circumstances in which health information about a person may be disclosed to third parties as outlined under HPP 11.

2. Within 6 months of completion of order 1, the agency shall provide a course of training to mental health workers in its employ with respect to the requirements and operation of the HPP's in the context of their duties, and of the protections the HPP's establish for health information of the agency's clients.

3. No order as to costs.

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Decision last updated: 04 July 2011