Re Francis and Department of Defence
[2012] AATA 838
•27 November 2012
[2012] AATA 838
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1272
Re
Ronald William Francis
APPLICANT
And
Department of Defence
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Date 27 November 2012 Place Adelaide 1. The decision under review in relation to the AF Med 1 form dated 17/3/72 is varied as follows:
(a) by directing that Box 62 be amended to read:
"A, but unfit for submarine service, according to ARB 1991 in respect of medical examinations for suitability for such service"; and
(b) the decision under review is otherwise affirmed.
2. The decision under review in relation to the AF Med 1 form dated 14/7/72 is affirmed.
3. The proceedings will be listed for a directions hearing on a date and time to be advised to give the applicant an opportunity, if he so wishes, to provide a statement pursuant to s 51A of the Freedom of Information Act 1982 (Cth).
.... [Sgd] ....
Deputy President D G Jarvis
CATCHWORDS
FREEDOM OF INFORMATION - Application for amendment of personal records - consideration of Australian Book of Reference 1991 - Naval and Medical Hospital Instructions (ABR 1991) - meaning of "guidance" - meaning of "have regard to" - direction to amend record of opinion of medical officer re suitability for service on submarines - reviewable decision not to amend records otherwise affirmed.
LEGISLATION
Freedom of Information Act 1982 (Cth), ss 50, 58AA and 93A
CASES
Department of Defence v Fox (1997) 24 AAR 171
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWSC 567
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Francis and Department of Defence [2004] AATA 33
Francis and Department of Defence [2005] FCA 100
Re Francis and Department of Defence [2009] AATA 549
Re Francis and Department of Defence [2010] AATA 780
R v CD [1976] 1 NZLR 436Whiteman v Secretary, Department of Veterans' Affairs [1996] FCA 1786
SECONDARY MATERIAL
The Macquarie Dictionary (5th Edition, 2009)
REASONS FOR DECISION
Deputy President D G Jarvis
27 November 2012
INTRODUCTION
The applicant, Ronald William Francis, served with the Royal Australian Navy between 1965 and 1972. On 17 March 1972 he was medically assessed for submarine suitability, and the record of his medical examination was contained in a form known as an “AF Med 1” form of that date.
He subsequently requested a free discharge from the Navy on compassionate grounds. He underwent a discharge medical examination on 14 July 1972, and was discharged two days later. The record of that medical examination was recorded on an AF Med 1 form dated 14 July 1972.
By an email dated 31 August 2011, Mr Francis made an application pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act) to amend the two AF Med 1 forms on the grounds that they are incomplete, incorrect, out of date or misleading.
The Department refused the application for amendment, and that refusal was affirmed on review. Mr Francis sought a further review of that decision, and the Australian Information Commissioner exercised the power in s 54W(b) of the FOI Act to decline to review the decision, allowing Mr Francis to proceed with an application to this tribunal for review of the decision. Mr Francis then applied to this tribunal for review.
ISSUE BEFORE THE TRIBUNAL
It was accepted that the AF Med 1 forms contained a record of personal information in a document of the Department, and that the information had been used by the Department for an administrative purpose, within the meaning of s 50(1)(a) and (c) of the FOI Act. The only issue before the tribunal is whether the information in the forms is incomplete, incorrect, out of date or misleading.
BACKGROUND
Mr Francis has been the applicant in at least four earlier proceedings in this tribunal arising from applications he has made to amend various records, including the AF Med 1 forms.[1]
[1] See Re Francis and Department of Defence [2004] AATA 33; Re Francis and Department of Defence [2009] AATA 549; Re Francis and Department of Defence, matter no. 2009/0278; and Re Francis and Department of Defence [2010] AATA 780.
It appears that the AF Med 1 form dated 17/3/72 was prepared in duplicate by the examining medical officer, but that at some stage the two copies of the form became separated, and one copy of the form was completed, but not the other copy. The completed copy differs from the other copy in that it was supplemented by the Confirming Authority. The final paragraph of the completed copy comprises a handwritten addition to the document reading: “Refer for orthopaedic opinion re fractured lumbar vertebrae”, and below that, in what appears to have been added separately in a different hand, “Unfit S/M [submarine] – emotional instability”. The application by Mr Francis which has resulted in the present proceedings was to amend that copy of the AF Med 1 form. He did not receive that copy of the form until comparatively recently, after obtaining it not from the Department of Defence, but from the Department of Veterans’ Affairs.
Mr Francis requested the following amendments to both copies of the AF Med 1 form dated 17/3/72:
(a)that boxes 48 and 49 of the form be amended from “NE” (meaning “not examined”) to “abnormal”; and
(b)that box 62 relating to the recommended category be amended from “A” (being a category indicating fit for service anywhere) to “Medically unfit” (or what the appropriate wording was at the relevant time).
He asserts that his mental state was in fact examined by the medical officer in question, a Dr Clarke, at each of the examinations; and that in addition he was medically unfit on each occasion, because he was suffering from one or more mental disorders, and he had sustained fractures of the L1, L4 and L5 vertebrae which meant that he should not have been assigned a category A rating.
Mr Francis requested an amendment to the AF Med 1 form dated 14/7/72 on the grounds that it was also incomplete, incorrect, misleading and out of date for the reasons referred to in paragraph 8 above, together with the
“absence of Clinical Management for the psychiatric condition Emotional Instability and ... for the conditions of fractures of the 1st, 4th & 5th Lumbar Vertebra [sic] during the period 17th March 1972 to the 16th July 1972.”[2]
I interpret the words quoted above as stating one of the grounds upon which the application for amendment was made, but not as constituting an additional request for amendment.
[2] Exhibit R1, T7, page 12.
In support of his assertion that both documents were incomplete, incorrect, misleading and out of date, Mr Francis also referred to certain Royal Australian Naval instructions existing and in use when the AF Med 1 forms were prepared, and also to annotations made pursuant to consent orders made in two of the earlier tribunal proceedings. These annotations appear in T3A of exhibit R1 as regards the AF Med 1 form dated 17/3/72, and in T5A of exhibit R1 as regards the AF Med 1 form dated 14/7/72. The annotations record relevantly that:
(a)on 29 September 1993 the Repatriation Commission decided that Mr Francis had sustained fractures of his L1, L4 and L5 vertebrae in the course of his operational service;
(b)his Naval medical records clearly indicated that he had post-traumatic depression arising from his Naval service, and that on 28 January 1993 the Veterans’ Review Board (VRB) decided that he had post-traumatic stress disorder which arose in the course of his operational service;
(c)the events giving rise to the injuries accepted by the VRB occurred prior to 16 March 1972; and
(d)the AF Med 1 form dated 14/7/72 be annotated by noting the terms of the endorsement by the Confirming Authority appearing on the AF Med 1 form dated 17/3/72.
Further annotations requested by Mr Francis pursuant to s 51A of the FOI Act were also recorded. These included references to documents in the medical records evidencing that he had sustained fractures of the L1, L4 and L5 vertebrae, and evidencing diagnoses of anxiety, anxiety state, anxiety neurosis and post-traumatic stress that appear to have been made during his service.
Counsel for the Department, Mr Justin Davidson, confirmed that the annotations referred to in paragraphs 10 and 11 above had been made on both copies of the AF Med 1 form dated 17/3/72, and on the AF Med 1 form dated 14/7/72.
LEGISLATIVE PROVISIONS
Section 50 the FOI Act provides for the circumstances in which an agency or the Minister (and therefore this tribunal standing in their shoes on the hearing of applications for review) may amend records. It provides relevantly as follows:
(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; ...
Where it is decided not to amend a document wholly or partly in accordance with an application for amendment, the agency or Minister (or this tribunal when reviewing decisions) must take such steps as are reasonable to enable the applicant to provide a statement from the applicant containing the record of personal information that is claimed to require annotation.[3] The statement by the applicant must specify:
(i) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(ii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) the applicant’s reasons for so claiming; and
(iv) such other information as would make the information complete, correct, up to date or not misleading; ...
The record must then be annotated by adding the statement to the record, unless the agency or Minister (or this tribunal) considers the statement to be irrelevant, defamatory or unnecessarily voluminous.[4]
[3] s 51(1) and 51A(c).
[4] s 51B.
Section 57A of the FOI Act provides that an application may be made to this tribunal for review of decisions of the Information Commissioner or (relevantly) where the Information Commissioner has decided not to undertake a review because he or she is satisfied that it is desirable that the reviewable decision be considered by the tribunal.
An amendment may be made to a record that relates to a record of an opinion only if the tribunal is satisfied of either (or both) of the following:
(a) the opinion was based on a mistake of fact;
(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.[5]
[5] s 58AA
By virtue of s 61(1) of the FOI Act, the Department has the onus of establishing that I should give a decision adverse to the application. This section provides relevantly as follows:
(1) In proceedings under this Part ... in relation to an application under section 48 (a personal records application):
...
(b) if the applicant in relation to the ... personal records application applied for the review—the agency to which, or the Minister to whom, the ... personal records application was made has the onus of establishing that ... the Tribunal should give a decision adverse to the applicant.
Under s 93A of the FOI Act, the Information Commissioner is empowered, by instrument in writing, to issue Guidelines for the purposes of the Act, and regard must be had to any such Guidelines for the purposes of the performance of a function, or the exercise of a power, under the Act. The Information Commissioner has issued Guidelines in respect of amendment and annotation of personal records.[6] In a New Zealand case Somers J commented that a requirement for a court “to have regard to” seven specified matters must affect the court’s discretion, but that the matters to be regarded are not to limit or affect that discretion. He added:
I think the legislative intent is that the court has a complete discretion but that the seven matters, or as many as are appropriate, are to be considered. In any particular case, all or any of the appropriate matters may be rejected or given such weight as the case suggests is suitable.[7]
In Department of Defence v Fox O’Loughlin J, after reviewing authorities, said in effect that a requirement for a decision-maker to “have regard to” specified matters means that he or she must give weight to them as a fundamental element in making a determination, and that “there would be a failure to ‘have regard’ to nominated matters if the regard was not ‘adequate’ or not ‘sufficient’” and that an authority would not comply with its statutory obligations “if it merely had ‘token’ regard or ‘nominal’ regard to those matters.”[8] In the present matter the Guidelines are not binding, but they provide assistance to those who administer the FOI Act, and decision-makers, including this tribunal, should apply the Guidelines unless there is a cogent reason to do otherwise.[9]
[6] See Part 7 – Amendment and Annotation of Personal Records, Version 1.1, October 2011.
[7] R v CD [1976] 1 NZLR 436 at 437. See also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41.
[8] (1997) 24 AAR 171 at 176.
[9] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 635 at 645.
Should Boxes 48 and 49 be amended from “NE to “Abnormal”?
In support of his application to amend Boxes 48 and 49 of the AF Med 1 forms, Mr Francis gave evidence to the effect that the medical officer in question, a Dr Clarke, asked him questions about how he felt, and about certain aspects of his personal situation, and it was accordingly incorrect for the form to indicate that the doctor had not examined his emotional stability or mental capacity. Mr Francis also pointed out that he had earlier been diagnosed as having a psychiatric disability, namely post-traumatic depression, and that this should have been apparent from his medical file, and so the “Abnormal” box in paragraphs 48 and 49 should have been ticked.
In a written witness statement, Mr Francis said:
The Applicant states that the psychiatric parts of the medical examination were conducted in relation to the Applicants reasons for wanting to be a submariner. The Applicant remembers the Examining Medical Officers interest in my hospitalisation in Vietnam, the collision with the USS Frank E Evans and the trouble I had been in. How the Applicant was managing with it. The Applicant states that the reason why some aspects are clear is that Dr Clarke brought up subjects I particularly did not want to talk about and in particular the loss of my child only three (3) months earlier. I remember I became very aggressive towards him over it and told him to stop. It was no surprise that after this confrontation we did not like each other very much.[10]
[10] Exhibit A1, Paragraph 14.
In relation to the AF Med 1 form dated 14/7/72, Mr Francis asserted in his witness statement that an examination did take place as regards his mental and emotional state, and that Dr Clarke had made an error of fact by conducting such an examination but recording “N/E” on the form, but not the results of the examination.[11]
[11] Exhibit A1, paragraph 21.
In cross-examination Mr Francis agreed that he had not previously asserted that Dr Clarke had not examined his emotional stability or mental capacity, but he said that this had never come up before. He said further that Dr Clarke should have examined these aspects of his medical condition.
Mr Francis’s evidence that he was not examined is inconsistent with statements he made to Selway J on the hearing of an appeal against a decision by Senior Member Purcell in the first of the four proceedings in this tribunal to which I have referred above.[12] According to the transcript of those proceedings, Mr Francis asserted in relation to questions 48 and 49 of the AF Med 1 form that Dr Clarke had never examined him; and when he was asked by his Honour what mistake of fact he relied upon, Mr Francis said that Dr Clarke failed to examine him when he was required to.[13]
[12] Re Francis and Department of Defence [2004] AATA 33.
[13] See Exhibit R5, transcript before Selway J, page 12, line 34 to page 15, line 14. It is not clear whether the AF Med 1 form referred to was the form of 17/3/72 or the form relating to the examination of 14/7/72.
The Department tendered an affidavit by Commodore E C Rushbrook, who is currently the Director-General Navy Health, Navy and Director-General Health Capability, Joint Health Command. She deposed to having appeared as a witness in one of the earlier proceedings in this tribunal involving Mr Francis, and swore that she had had cause to review Mr Francis’s central medical file on several occasions. In her oral evidence she said that there was nothing on the central medical file to indicate that Dr Clarke had conducted a medical examination of Mr Francis’s mental state at the time of the examination on 17 March 1972, or at the time of the examination on 14 July 1972. She said that a medical examination for mental status was a specific examination with about 30 questions, and obtaining a history was very important in order to make a diagnosis as to whether any psychiatric condition existed. However, there were no notes from Dr Clarke on the file to indicate that he had assessed Mr Francis’s mental state. On the contrary, the AF Med 1 forms indicate that there had been no mental state examination.
I find from the evidence and material before me that Dr Clarke did not conduct an examination of Mr Francis’s emotional stability or mental capacity at the time of either of the medical examinations referred to in the AF Med 1 forms. I further find that any inquiries of the kind referred to by Mr Francis would not have constituted an examination of his mental state. The forms are a contemporaneous record made by Dr Clarke of his examinations, and the endorsements “NE” indicate that no examination in relation to Boxes 48 or 49 was undertaken. I am satisfied that in this respect the forms are not incomplete, incorrect, out of date or misleading, and I refuse to make the amendments sought by Mr Francis to those two boxes. However, the fact that no examination was conducted on 17 March 1972 has a further significance, to which I will refer below.
Mr Francis also argued that Boxes 48 or 49 should have been marked “Abnormal” because of Dr Clarke’s pre-existing knowledge that he had been suffering from psychological disorders. It appears that there were earlier records of Mr Francis having been seen by medical practitioners who arrived at psychiatric diagnoses in August/September 1968, September 1969 and April/May 1972.[14] The medical officer who made the last such diagnosis was Dr Clarke. The records he made referred to an anxiety state or anxiety neurosis, and concluded with a record of 15 May 1972 indicating that Mr Francis was “much better”.[15] The records made by Dr Clarke accordingly indicate that the anxiety condition was not of concern by 15 May 1972. Even if he had referred to the records of the earlier psychiatric diagnoses at the time of the discharge medical examination on 14 July 1972, the most recent such diagnosis was nearly three years earlier. Commodore Rushbrook deposed that the medical examination on 14 July 1972 related to a “free discharge” from the Navy, and it was not intended that such examinations should be a comprehensive review of the person’s medical history and circumstances, but rather a military examination to determine whether the person was medically fit to perform his or her duties on the day of the examination, in the circumstances of a free discharge request.[16] I am also aware from other matters that have come before me in this tribunal that the condition which later became known as post-traumatic stress disorder was not well understood in 1972, and it may be that Dr Clarke did not expect that the effects of the conditions diagnosed in 1968 and 1969 might still be persisting. I have found that Dr Clarke did not examine Mr Francis’s mental state on 14 July 1972, and I further find that the AF Med 1 form of that date was not incorrect on the grounds that Boxes 48 and 49 were not marked “Abnormal”.
[14] Exhibit R1, PT5A, page 7E.
[15] Exhibit R1, PT5A, page 7K.
[16] Exhibit R4, paragraph 23, page 4.
Should Box 62 re “Category Recommended” be amended?
As mentioned above, Mr Francis is seeking an amendment to this aspect of both AF Med 1 forms. In my view, different considerations apply to each form, and I will first consider the AF Med 1 form dated 17 March 1972.
Commodore Rushbrook deposed that in May 1968, the Naval Board approved the promulgation of the Australian Book of Reference 1991 – Naval Medical and Hospital Instructions (ABR 1991) which set out, amongst other things, instructions relating to medical examinations during service and on discharge.[17] Article 0730 of ABR 1991 relates to medical examinations in respect of submarine service. This article provides relevantly as follows:
[17] Exhibit R4, paragraph 8, page 2.
1. The instructions are for the guidance of Medical Officers when making preliminary examinations of personnel for service in Submarines. ...
2. Officers and sailors selected for service in submarines are to be of good physique, mentally fit, emotionally stable, and capable of sustaining a considerable amount of bodily strain. In the medical examination, care is to be taken that the candidates are in good health and free from any organic or functional cardiac or pulmonary disease, that they suffer from no active constitutional complaints such as syphilis
...
4. The examination of personnel is to be accompanied by a careful scrutiny of the Medical History Sheets, and those who have suffered from ... syphilis, or more than one attack of other venereal infection, are to be rejected.
5. Examining Medical Officers are to confirm orally that officers and sailors have never suffered from fits, psychiatric illness, rheumatism, disease of the lungs, disease of the ears or venereal disease. The following conditions may disqualify:
...
c. History of blackouts, recurrent headaches, severe or repeated concussion or cranial surgery.
d. Psychiatric conditions in any form.
...
9.The results of examination for service in submarines are to be recorded on Form AF Med 1.[18]
[18] Exhibit R4, Annexure ECR-3, pages 87 – 89.
Dr Clarke did not expressly record on the AF Med 1 form of 17/3/72 whether or not Mr Francis was suitable for submarine service, but Mr Davidson contended that by completing Box 62 with the category “A”, it should be implied that Dr Clarke considered that Mr Francis was suitable for submarine service.
The purpose of the medical examination evidenced by the AF Med 1 form dated 17/3/72 was recorded in Box 7, namely “Sub suitability”, that is, to determine Mr Francis’s suitability to serve on submarines. The form did not include provision for the outcome of that examination to be expressly recorded. In these circumstances, and having regard to the requirement in paragraph 9 of Article 0730 of ABR 1991 to record the results of the examination for service on submarines on the AF Med 1 form, I have concluded that Dr Clarke formed the opinion that Mr Francis was suitable to serve on submarines, and intended that opinion to be recorded by writing, without qualification, “A” in the space in Box 62 for the recommended category. I therefore accept Mr Davidson’s contention that Dr Clarke’s opinion can be implied from the inclusion of “A” in Box 62.
It then becomes necessary to consider whether I am satisfied of any of the matters referred to in s 58AA of the FOI Act, since only then does the tribunal have power to amend a record of opinion. In this regard, I refer to Article 0730 of ABR 1991. This deals specifically with the level of fitness required for submarine service, and refers to various medical conditions, the presence of which require the medical officer either to reject the sailor for submarine service, or confer a discretion to reject for such service.
It appears that Mr Francis had suffered from two such medical conditions. The first such condition was a psychiatric condition from which Mr Francis had previously suffered, which had been diagnosed as post-traumatic stress. Under paragraph 5 of Article 0730, Dr Clarke had a discretion to disqualify Mr Francis from submarine service if he was suffering from “psychiatric conditions in any form”. However, I have already found that Dr Clarke did not undertake an examination of emotional stability or mental capacity, and he was not therefore in a position to decide whether to exercise his discretion to reject Mr Francis for submarine service. It follows in my opinion that he did not act properly in conducting the factual inquiries that led to his recording category “A” in Box 62.
The second disqualifying condition was Mr Francis’s history of venereal infection. In paragraph 9 of his witness statement, he said that Dr Clarke was treating him for venereal disease, and in cross-examination he said that he had suffered “three or four, I believe, three” attacks of venereal disease up to the time of the examination in 1972. Mr Francis also referred to exhibit A3, which contains medical records referring to diagnoses of venereal disease. These records included an in-patient record referring to a date of admission of 27 March 1969 with a discharge date seven days later, showing a diagnosis of “N.S.U.”[19] Commodore Rushbrook said that this referred to “non-specific urethritis”. She also said that a later out-patient record dated 4 July 1969 indicated that there had been a negative “VDRL” test (being a test for gonorrhoea), but I note that the same record indicates “Post V.D.” as the medical officer’s diagnosis.[20] She thought that Mr Francis was probably suffering from an early form of gonorrhoea or some other venereal infection, and that his urethritis was more likely than not caused by a venereal disease. A further in-patient record shows an admission on 2 May 1970 with a discharge date nine days later, and a diagnosis of gonorrhoea leading to admission.[21] A venereal case card refers to a date of onset of 28 April 1970 with exposure at “Tokyo Bar HK”, and includes an endorsement “Yes” in a box headed “Previous V.D.” Subsequent VDRL tests were negative, but as mentioned above, those tests would not rule out the existence of other forms of venereal disease according to Commodore Rushbrook. It appears that the test results were communicated to Dr Clarke.[22]
[19] Exhibit A3, M1.
[20] Exhibit A3, M.
[21] Exhibit A3, M4.
[22] See Exhibit A3, M3.
On this state of the evidence, it seems likely, and I find, that Mr Francis had suffered from at least two attacks of venereal disease prior to the examination on 17 March 1972. I further find that when Dr Clarke examined Mr Francis on 14 March 1972, he should have been aware from having received the test results, and from a careful scrutiny of medical records, that Mr Francis had suffered more than one attack of venereal infection. Further, he should have obtained an appropriate history at the time of the examination. If he had done so, it appears likely that he would have obtained a history of at least two attacks of a venereal disease; if he did not do so, then his investigation was deficient. The episodes of venereal disease required rejection from submarine service by virtue of paragraph 4 of Article 0730 of ARB 1991.
It was contended on behalf of the Department, by reference to paragraph 1 of Article 0730, that the instructions were for the guidance of medical officers, and were not binding.[23] The meaning of “guidance” according to the Macquarie Dictionary, is:
1. the act of guiding; leadership; direction. 2. that which guides. 3. advice; instruction.”[24]
Similarly, the relevant meaning of the word “guide” is “to lead, direct or advise in any course of action”. In NRMA Insurance Ltd v Motor Accidents Authority of NSW[25] Dunsford J considered the application of statutory instruments which were “guidelines” with respect to various matters, including the assessment of the degree of permanent impairment of persons injured as a result of a motor vehicle accident. His Honour said that the description of the instruments as “guidelines” suggested “something less than orders or directions of universal application”, and that they were “there to indicate how the relevant assessments are generally carried out but must, where necessary, be applied so as to accommodate any unusual circumstances for which they do not make an express provision.[26]
[23] See Article 0730, paragraph 1, which is reproduced in paragraph 28 above.
[24] The Macquarie Dictionary (5th Edition, 2009).
[25] [2004] NSWSC 567.
[26] [2004] NSWSC 567 at [26] – [28].
Article 0730 provides in detail for the physical and mental health attributes required of persons selected for service in submarines, the care required of medical officers when conducting examinations, and the kinds of tests to be carried out. In addition, it specifies in detail and in prescriptive terms conditions that will result in disqualification, and other conditions suffered in the past that should be investigated, and may result in disqualification. In my view, the scope and content of Article 0730, the description of the contents of the relevant article as “instructions”, in combination with the proposition that the “instructions” were for the “guidance” of medical officers, all indicate that medical officers were expected to apply the matters provided for in the Article, unless there were some special or unusual circumstances which made the instructions inappropriate in a particular case. Article 0730 also provided expressly for the exercise of discretion in paragraph 5, but this discretion was only available after the relevant history had been orally confirmed during the examination.
There is nothing on the AF Med 1 form to indicate that Dr Clarke took into account the two above conditions from which Mr Francis had suffered, or that having done so, he nevertheless decided that in Mr Francis’s case, he would disregard the guidance provided by Article 0730, and that they were not conditions which should disqualify him from submarine service. Indeed, insofar as the psychiatric condition was concerned, it appears that Dr Clarke did not take it into account at all, because he did not examine Mr Francis’s mental state. A careful examination required considering whether the candidate was mentally fit,[27] as well as a careful scrutiny of Medical History Sheets.[28] This scrutiny was required for various specified conditions which did not include mental disorders, but it appears that such a scrutiny would have revealed the records of Mr Francis’s past mental disorders, and would have alerted Dr Clarke to the need to investigate this aspect orally, as required by Article 0730, paragraph 5. I therefore find that Dr Clarke acted improperly in making the factual inquiries that led to his opinion, and conclude that I have a discretion under s 58AA of the FOI Act to make a decision that requires an amendment to be made to the record of Dr Clarke’s opinion as to suitability for submarine service.
[27] Article 0730, paragraph 2.
[28] Article 0730, paragraph 4.
In the alternative, on the state of the evidence as outlined above, I am not satisfied that the Department has discharged the onus requiring the tribunal to give a decision adverse to the applicant insofar as Dr Clarke recorded the outcome of the examination as to whether or not Mr Francis was suitable for submarine service.
I am mindful that having been satisfied that there is a ground for amending the AF Med 1 form of 17/3/72, the concluding words of s 50(1) of the FOI Act confer a discretion as to whether the record should be amended. I take into account that the Confirming Authority endorsed the form “Unfit S/M – emotional instability”, and so the form shows on its face that this was the overriding determination of Mr Francis’s capacity for submarine service. However, Mr Francis has had a long-standing concern about the examination conducted by Dr Clarke. As mentioned above, having regard to the purpose of the medical examination, the inclusion in Box 62 of “A” as the recommended category without qualification implied that Dr Clarke considered that Mr Francis was fit for submarine service. The record does not indicate that that opinion could not have been arrived at in accordance with ABR 1991 (in that there was no examination of the mental state) or that the opinion was contrary to ABR 1991 (insofar as there had been at least two prior attacks of venereal disease which required rejection). The form was intended to form part of Mr Francis’s Naval records, for use by Navy personnel who were likely to have had some understanding of the use made of ABR 1991 in conducting medical examinations as to fitness for submarine service. In all of the circumstances, I find that the AF Med 1 form of 17/3/72 was misleading in that it did not disclose that the opinion of the medical officer had been arrived at contrary to the Guidelines in ABR 1991, or alternatively, that the form was incomplete in this respect.[29] The form was also incomplete in that it left the outcome of the examination to be implied from the unqualified recommended category “A” in Box 62, and did not expressly state the medical officer’s opinion as to suitability for submarine service. In the circumstances, I think it appropriate that the form should be amended to indicate that the examining medical officer should not, consistently with applying the guidance provided by ABR 1991, have omitted to record that Mr Francis was not fit for submarine service.
[29] See the references in paragraphs 7.12 and 7.13 of the Guidelines made by the Information Commissioner to the meanings of “incomplete” and “misleading”.
It remains necessary to consider whether Dr Clarke’s recommended medical category in Box 62 requires amendment as requested by Mr Francis. It was mandatory for the medical officer to complete Box 62.[30] ABR 1991 provides for nine categories in which sailors may be employed, and I accept Commodore Rushbrook’s evidence that of these, category A was the most appropriate for Mr Francis.[31] However, having regard to my conclusion in the preceding paragraph, I consider that an annotation should be made to Box 62, so that it reads “A, but unfit for submarine service, according to ABR 1991 in respect of medical examinations for suitability for such service”.
[30] Exhibit R4, Annexure ECR-3, Article 0331, paragraph 5a.(2), page 54.
[31] See Exhibit R4, paragraph 18, and Annexure ECR-3, Article 0250, paragraph 1, page 35.
I now turn to the AF Med 1 form of 14/7/72. ABR 1991 provides that the AF Med 1 form is to be used to record all medical examinations during service and on discharge.[32] In the case of this examination, the purpose of the examination, recorded in Box 7, was Mr Francis’s “free discharge” from the Navy. The examination followed Mr Francis’s request for discharge on compassionate grounds. His application for discharge is dated 14 June 1972, and is based on his wife’s mental and physical health, which he said was also affecting his service career.[33] As mentioned above, I accept Commodore Rushbrook’s evidence that the medical examination on discharge is not intended to be a comprehensive review of the member’s medical history and circumstances, but rather a military examination to determine whether the member is medically fit to perform his or her duties on that day, in the circumstances of a free discharge request.[34] In these circumstances, unlike the examination referred to in the AD Med 1 form of 17/3/1972, there was no need for the examination to include any comment on Mr Francis’s suitability for submarine service, and once again, Category A appears to be the most appropriate of the nine categories referred to in ABR 1991. The designation “A” in Box 62 constituted an expression of opinion by Dr Clarke. Unlike the position in relation to the medical examination on 17 March 1972, I am not satisfied that Dr Clarke acted in breach of the Guidelines in ABR 1991 or otherwise acted improperly in conducting the necessary factual inquiries that led to the formation of his opinion. I note further that the AF Med 1 form itself recognised that some functions would not be examined, [35] and there was no obligation, in connection with a free discharge medical examination, to conduct an examination of emotional stability or mental capacity.
[32] Exhibit R4, Annexure ECR-3, Article 0331, paragraph 2, page 54.
[33] Exhibit R4, Annexure ECR-4, pages 96 – 97.
[34] Exhibit R4, paragraph 23, page 4.
[35] See the heading above Box 21.
In any event, the AF Med 1 form of 14/7/72 was annotated on 1 October 2009, as a result of earlier proceedings under the FOI Act as follows:
Although the last formal Medical Survey was 15 July 1969, Box 60 could have referred to the category recommendation noted in the member’s submarine suitability examination of 17 March 1972.[36]
This annotation therefore draws attention to the earlier AF Med 1 form, which clearly designates that Mr Francis was not suitable for submarine service. In addition, the annotations to which I referred in paragraphs 10 and 11 above refer to Mr Francis’s psychiatric disorders and his fractured vertebrae. In my view no further annotations are required, and the information in the form as annotated is not incomplete, incorrect, out of date or misleading.
[36] Exhibit R1, T5, page 7.
Mr Francis expressed concern that the unqualified AF Med 1 form of 14/7/72 would not represent a correct view of his medical condition when he sought civilian employment after his discharge. However, it appears that at the time when they were created the AF Med 1 forms were intended to be retained with Naval records. They were to be completed in duplicate, and the original form was to be included in AF Med 4, being a medical envelope to record various information, and the duplicate was to be provided to the Medical Director-General.[37] It was only after the enactment, in 1982, of the FOI Act that a generally available process was provided for members of the public to access records held by the Commonwealth government.
[37] Exhibit R4, Annexure ECR-3, Article 0332, pages 56 and 57.
Mr Francis also contended that the AF Med 1 form of 14/7/72 was incorrect in that it showed “Normal” against Box 42 in respect of the spine. However, on my interpretation, Mr Francis’s request for amendment did not relate to Box 42, and I have no jurisdiction in relation to this aspect.[38] In any event, Mr Francis had previously requested an amendment to that box in earlier proceedings. The AF Med 1 form has previously been annotated in the manner referred to in paragraphs 10 and 11 above, and even if I had jurisdiction to determine this aspect, it seems to me once again that Mr Francis’s concerns have been sufficiently addressed by the annotations made previously.
[38] See paragraph 9 above.
For the sake of completeness, I add that I have considered the case of Whiteman v Secretary, Department of Veterans’ Affairs,[39] to which Mr Francis referred me. An issue arose in that case as to whether a decision-maker considering issues under the Defence Service Homes Act 1918 (Cth) could inquire into the ground of discharge of a veteran, or whether the decision-maker should act on the officially-stated ground. However, the FOI Act expressly authorises members of the public to apply to an agency or a Minister to amend records containing personal information about that person, on the grounds, and subject to the limitations, in the FOI Act. The case is not relevant to the disposition of the present matter.
[39] [1996] FCA 1786.
As I have decided not to amend the AF Med 1 forms wholly or partly in accordance with Mr Francis’s application, I will adjourn the proceedings to give him an opportunity to provide a statement of the kind referred to in paragraph 51A(c) of the FOI Act.[40] The parties will be notified of the date when the proceedings can be relisted for this purpose. Mr Francis should consider this aspect in the light of these reasons for decision and the annotations previously made to the AF Med 1 forms in consequence of earlier proceedings.
[40] See paragraphs 10, 11 and 42 above.
DECISION
The decision under review in relation to the AF Med 1 form dated 17/3/1972 is varied as follows:
(a)by directing that Box 62 be amended to read
A, but unfit for submarine service, according to ABR 1991 in respect of medical examinations for suitability for such service; and
(b)the decision under review is otherwise affirmed.
The decision under review in relation to the AF Med 1 form dated 14/7/1972 is affirmed.
The proceedings will be listed for a directions hearing on a date and time to be advised to give the applicant an opportunity, if he so wishes, to provide a statement pursuant to s 51A of the Freedom of Information Act 1982 (Cth).
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis ..... [Sgd] .....
Admin Assistant
Dated 27 November 2012
Dates of hearing 18 and 22 October 2012 Applicant In person Advocate for the Respondent Mr J Davidson Solicitor for the Respondent Australian Government Solicitor
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