Sitki and Comcare (Compensation)
[2022] AATA 4435
•22 December 2022
Sitki and Comcare (Compensation) [2022] AATA 4435 (22 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4528
Re:Hatice Sitki
APPLICANT
ComcareAnd
RESPONDENT
Decision
Tribunal:Mr S. Webb, Member
Date:22 December 2022
Place:Canberra
1.Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Jacqueline Gibb, Canberra Mobile Counselling, are refused.
2.Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Dr Huzan Daver, Converge International, are refused.
3.As the date for production under each summons is now past, the date for production under each summons is extended to 16 January 2023.
................[SGD].............................
Mr S. Webb, MemberCatchwords
PRACTICE AND PROCEDURE – psychological injury compensation claim – summons –treatment records – objection to summons – relevant principles – professional confidential relationship privilege – risk of harm – therapeutic relationship – legitimate forensic purpose – apparent relevance - obligation to ensure each party is given a reasonable opportunity to present their case – summons not oppressive or speculative - obligation to comply – objections refused
LegislationAdministrative Appeals Tribunal Act 1975 ss 2A, 33, 35, 39, 40A, 40B
Evidence Act 1995 (Cth) ss 126K
Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth)
Evidence Act 2011 (ACT) ss 126B
Health Records Act (Privacy and Access) 1997 (ACT) ss 6
Privacy Act 1988 (Cth) ss 6, 9, 10
Safety, Rehabilitation and Compensation Act 1988 ss 2A, 4, 5A, 5B, 14
CasesAustralian Broadcasting Corporation v Kane (No. 2) [2020] FCA 133
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Hunt v Wark (1985) 40 SASR 489
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
ZFCC and Comcare (Compensation) [2018] AATA 1358
Secondary MaterialsAAT President’s General Practice Direction, 28 February 2019, Part 5
REASONS FOR DECISION
Mr S. Webb, Member
22 December 2022
Hatice Sitki claimed compensation for an alleged injury in her employment by the Department of Defence. Comcare decided to refuse the claim. This decision was affirmed on reconsideration. Dr Sitki applied for review by the Tribunal.
In the course of the resulting proceedings, Comcare requested Ms Jacqueline Gibbs (a counsellor) and Dr Huzan Daver (a psychologist) be summonsed to produce records, including consultation notes, in respect of Dr Sitki.
On 23 September 2022, the Tribunal sealed and issued a summons requiring Ms Gibbs to produce records by 10 October 2022. Also on that day, a summons was sealed and issued requiring Dr Daver to produce records by 10 October 2022.
Subsequently, Ms Gibbs, Dr Daver and Dr Sitki lodged objections to the summons.
The Tribunal issued directions allowing time for each of the parties, Ms Gibbs and Dr Daver to make submissions addressing the objections. Written submissions were made.
It is these matters, alone, that are the subject of this decision.
I have carefully considered the submissions made.
Before dealing with each objection, it is convenient to make some general observations.
Principles
The summons power of the Tribunal is set out in s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to attend the hearing.
As can be seen, the power is for the purposes of a proceeding before the Tribunal.
While the summons power is broad, any documents produced to the Tribunal under a summons cannot be used for any purpose other than the proceeding.[1] A person who obtains access to documents produced by compulsion under summons, has a legal obligation not to use the documents for any purpose other than the proceedings in which they are produced. The obligation, which is also referred to as an implied undertaking, is dealt with in Part 5 of the Tribunal President’s General Practice Direction issued on 28 February 2019.
[1] AAT President’s General Practice Direction, 28 February 2019, Part 5.
It is important to observe that there is nothing voluntary about this obligation, which is also known as the Harman obligation.[2] It is a substantive legal obligation that arises in common law from disclosure under compulsion,[3] such that –
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence.[4]
[2] Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304, 309, 319, 320 and 321.
[3] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [105]-[109].
[4] Ibid, at [96].
Documents sought under a summons must be for a legitimate forensic purpose and, at least, they must have apparent or adjectival relevance to the issues for determination in the proceedings.[5] The threshold of apparent relevance involves consideration of whether:
(a)the documents sought could reasonably be expected to throw light on some of the issues in the principal proceedings;[6]
(b)there is a real possibility that they may assist in the resolution of the issues in the proceedings;[7]
(c)there is some reason to suppose that the documents sought will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination;[8] and
(d)when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.[9]
[5] Comcare v Maganga [2008] FCA 285 at [36].
[6] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[7] Comcare v Maganga [2008] FCA 285 at [37]; BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
[8] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[9] Wong v Sklavos [2014] FCAFC 120 at [12].
The Tribunal may refuse to issue or set aside a summons where these thresholds are not met or where the summons is oppressive or vexatious. It is necessary to balance competing interests:
“... the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”[10]
[10] Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504, Spender J quoting with approval what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[1984] 1 NSWLR 710 at 719.
Furthermore, the Tribunal is required to ensure each party has a reasonable opportunity to present their case and it must proceed in a manner that is procedurally fair. Despite appearances, proceedings in the Tribunal are not strictly adversarial in a legal sense. Notwithstanding s 33(1AA) and (1AB) of the AAT Act, under which the person who made the decision under review must assist the Tribunal to make its decision and the parties must assist the Tribunal to fulfil the objective in s 2A, proceedings commonly involve disputation about factual and legal matters in a context of divergent or competing interests. It is in recognition of this, under s 39(1) of the AAT Act, the Tribunal is required to ensure each party has a reasonable opportunity to present their case. Each party is entitled to prepare their case on the basis of an evidentiary mosaic constructed from relevant materials to which access has been granted and for that purpose to call upon documents of adjectival relevance.[11]
[11] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
Many are the cases involving claims for compensation in which medical records of health professionals consulted by the claimant are called into relevance. One can readily understand the sensitivity of such records, perhaps especially mental health counselling records, which may contain very private information about the person, including information which may not have been disclosed to anyone else. Issues of confidentiality and concerns about potential for harm may arise in objection to a summons requiring production of such records. These considerations may not be determinative, however, where records containing sensitive personal information have apparent relevance to the issues the Tribunal must decide.[12]
[12] Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24].
Any employee making a compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) should expect the entity deciding their claim to do so on relevant medical information. Where the claim is in respect of a psychological injury and issues of causation must be decided under the disease provisions in s 5B of that Act, the ambit of relevance is wide enough to include factors in the claimant’s circumstances (and history) which may have contributed to the alleged injury under claim.
Application for review
On 12 January 2022, Dr Sitki lodged a claim for compensation under s 54 of the SRC Act. In the claim, Dr Sitki set out the following information:
What is the condition that you are claiming for? pysh injury due to work pressure and harrassment Are you claiming for a psychological injury? Yes - I am claiming for a psychological injury If claiming for a physical injury or disease, which parts of your body are affected? pyshology, mental and physical What tasks were you doing when you were injured? normal work duties What happened and how were you injured? harassment and pressure When did you first notice your symptoms/injury? 19/10/2020 11:18 AM … Have you ever experienced a similar
symptom, injury or illness, work-related
or otherwise?I get severe panic and anxiety attacks.[13]
[13] T20, folios 67-68.
On 4 March 2022, Dr Sitki provided further information about her claim, in which she stated:
In support of my claim, I believe that I have been the consistent recipient of a
pattern of harassment, micro-management and abuse of power. These
behaviours have had and continue to have negative effects on my physical,
psychological, and mental health. I believe did not receive proper and complete
induction into the Department of Defence and have been struggling ever since I
have joined on 18th November 2019 to understand workplace rules and ICT
requirements procedures and policies. In particular I have received no proper
and comprehensive support to undertake training in a database that is essential
to my work as part of being in the Department. Despite repeatedly requesting
support, I have not received proper and complete induction, support and training
I needed to adjust to the Defence workplace environment and in the use of
Defence terminology. I believe I have received unreasonable treatment that has
devalued me and my professional contribution to the workplace. I believe that
there has been no recognition in the workplace of my specialist credentials with assistance and support to apply them to Defence business.
…
As a result of the above my health has suffered. These issues have aggravated
and heightened my anxiety and panic attacks. I believe that have reached the
point where I am unable to perform my assigned duties in the workplace and
have on my doctor’s recommendation taken extended leave because of aggravated anxiety and panic attacks because of workplace issues.[14][14] T31, folios 99 and 112.
On 5 April 2022, Comcare determined to refuse Dr Sitki’s compensation claim under s 14 of the SRC Act.[15] In making this decision, the decision-maker applied the injury and disease provisions set out in s 5A and s 5B of the SRC Act
[15] T41.
On 21 March 2022, Dr May-Lyn Lim, a consultant psychiatrist, provided a report to Comcare.[16] Dr Lim discussed Dr Sitki’s psychiatric history, noting she has some history of reactive depression for which she obtained some treatment in December 2019 in the context of marital breakdown and divorce.[17] It was Dr Lim’s opinion Dr Sitki experienced an adjustment disorder in response to circumstances in her employment in October 2020.[18]
[16] T35.
[17] Ibid, folios 130, 132 and 134 for example.
[18] Ibid, folio 133.
On 20 April 2022, Dr Scott Chalmers, a consultant psychiatrist, provided a report to Dr Sitki’s employer.[19] Dr Chalmers discussed Dr Sitki’s past psychiatric history and circumstances he considered relevant to her claimed injury, as well as his opinions about the correct diagnosis of her psychological ailment and her fitness for duty.
[19] T44.
On 12 May 2022, Comcare issued a reconsideration decision affirming the determination.[20]
[20] T46.
On 27 June 2022, Dr Sitki’s then lawyer lodged an application for review of the reconsideration decision, asserting [t]he decision is wrong in fact and law.[21]
[21] T1, folio 2.
Dr Sitki’s application for review is within the meaning of proceeding set out in s 3 of the AAT Act.
In order to determine the issues in these proceedings, in respect of Dr Sitki’s compensation claim, findings will be required for the purposes of s 5A, s 5B, s 7 and s 14 of the SRC Act. It will be necessary to determine if Dr Sitki’s employment contributed to a significant degree to the psychological ailment she claimed as an injury. When assessing if that threshold is met, being a contribution that is substantially more than material, the matters set out in s 5B(2) must be taken into account:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
Should the requisite causal nexus between the employment and Dr Sitki’s ailment be established by evidence, the next consideration is if the disease is a result of reasonable administrative action undertaken in a reasonable manner in respect of [her] employment. If so, the disease will not be within the meaning of an injury for the purposes of the SRC Act.
Jacqueline Gibbs
Dr Sitki consulted Ms Gibbs for mental health counselling in relation to the ailment for which she claimed compensation. While it is not entirely clear when the counselling commenced, on the clinical notes of Dr Somasundaram (treating general practitioner) it is likely to have been in or about January 2022.[22]
[22] T47, folio 220.
On 23 September 2022, at Comcare’s request, the Tribunal sealed and issued a summons requiring, on or before 20 December 2021, Ms Gibbs to produce:
Any and all documents in your possession relating to the Applicant, Dr Hatice Sitki (DOB: 17 November 1965), including but not limited to, all claim forms, court pleadings, witness statements, medical reports, notes, correspondence, investigation reports, notices, records relating to payments made and any other documents which relate to a claim for compensation made by the Applicant following a Workers Compensation Claim (claim number 1333873/1)
Ms Gibb’s objection is set out in an email she sent to the Tribunal on 1 October 2022:
I would like to object to the subpoena that has been issued (2022/4528) to me Jacqueline Gibb at Canberra Mobile Counselling. I would like to object on the fact that the client's counselling case notes contains confidential and sensitive information that was disclosed to a counsellor and they it is in inappropriate to release the entire case file because:
1. The disclosure of these sensitive counselling records could pose a threat to the psychological wellbeing of my client. I understand that this reason alone may not be sufficient, but I would urge it to be included as part of the reasons why the entire case file should not be disclosed
2. The disclosure of these sensitive counselling records may negatively impact on the therapeutic relationship that has been established with my client. My client has not consented to me releasing the counselling records and going against her wishes and releasing these records due to a subpoena could undermine the trust that the client has in me as a therapist.
3. The records that have been subpoenaed are justified due to a workers compensation claim. However, many of my notes and other case files relate to other aspects and relationships of the client's life that are seperate and unrelated from my client's workers compensation claim. My client is not seeing me as a worker's compensation counsellor and she is paying for these sessions out of her own pocket. I believe that my client has the right to have the confidentiality of certain information - specifically information that does not relate to her worker's compensation claim, as they are no relevant.
I propose that the following be supplied to the court instead:
1. Case notes (i.e. notes taken in session/intake notes), with any items that do not specifically mention work are redacted.
2. Emails and SMS with any items that do not specifically mention work are redacted
3. Session dates
4. Any invoices issued & Fees paid
On 8 October 2022, Dr Sitki provided written objections without consulting her then solicitor.
On 11 October 2022, Comcare lodged written submissions pressing the summons.
On 9 November 2022, Dr Sitki’s solicitor, Michelle Walsh of Turner Freeman, lodged written submissions setting out Dr Sitki’s objection to the summons. Dr Sitki’s objection is made, inter alia, on grounds of Professional Confidential Relationship Privilege[23] and it repeats submissions made by Ms Gibb.
[23] Objection to summons to Jacqueline Gibb, Submissions of Applicant, 9 November 2022.
I have carefully considered these submissions and materials.
I am satisfied the summons is for a legitimate forensic purpose and the contents of Ms Gibbs’ consultation records are of adjectival relevance to matters the Tribunal must decide in this case. Without going into extensive factual findings (which are not required for present purposes), there is material to suggest Dr Sitki has some history of psychiatric treatment and psychological symptoms prior to the alleged injury for which she claimed compensation. Her employer recorded concerns about her behaviour from August 2020.[24] In or about January 2022, Dr Sitki consulted Ms Gibbs for mental health counselling. It can be accepted the counselling traversed issues relating to Dr Sitki’s employment as well as other matters outside her employment. In this context, Ms Gibbs’ consultation notes may reasonably be expected to illuminate factors which may have contributed to Dr Sitki’s psychological symptoms and the ailment for which she claimed compensation.
[24] T40.1, folio 163 for example.
While I acknowledge Ms Gibbs’ records may contain sensitive information of a deeply personal nature, without more, the concerns Ms Gibbs expressed about Dr Sitki’s psychological wellbeing should the records be disclosed are not a sufficient reason to set aside the summons. Ms Gibbs asserts her therapeutic relationship with Dr Sitki would be negatively impacted and the trust within that relationship destroyed if she complies with the summons. It can be accepted disclosure of information given in counselling sessions under an expectation of confidentiality may have some effect on Dr Sitki’s approach to the counselling. Nevertheless, compliance with the summons is not a matter of choice for Ms Gibbs: the summons has the force of law backed by penalties for non-compliance.
It is important to distinguish production of records in compliance with a summons from the grant of access to the records or disclosure of the records more broadly. For access to be granted a decision is required under s 40B of the AAT Act. Under s 40B(1) the grant of access for inspection is confined to a party to the proceedings. The grant of access enables a party to use the documents only for the purposes of the proceedings. Where documents have direct relevance to matters the Tribunal must decide, a party may seek to tender them in evidence at a hearing. Should this occur, there is opportunity to object or, where the documents are taken into evidence, to seek confidentiality orders to prevent public disclosure of private personal information.
On the question of relevance, the assertions made by Ms Gibbs, Dr Sitki and her solicitor are not made out. It is not necessary for the records to have direct relevance to the compensation claim Dr Sitki made, adjectival relevance is sufficient for present purposes at this stage of the proceedings. Even though Ms Gibbs provides counselling to Dr Sitki in respect of matters outside her employment, it is possible, even likely, factors outside her employment may contribute to the psychological ailment for which she claimed compensation. For this reason, the summons is not properly described as a ‘fishing’ exercise. I am satisfied it is not.
Ms Gibbs, Dr Sitki and her solicitor assert the summons should be set aside on grounds of confidentiality. Those submissions cannot be accepted. As has been noted in previous cases, by making a compensation claim Dr Sitki should expect a thorough investigation of her claim on the basis of medical and psychological materials that illuminate factual matters of relevance to the legislative thresholds which must be applied. It is for this reason, by making a compensation claim, some elements of Dr Sitki’s right to privacy are foregone.[25]
[25] ZFCC and Comcare (Compensation) [2018] AATA 1358 at [10].
In part and without detail, Dr Sitki’s objection is pressed on grounds of Professional Confidential Relationship Privilege.[26] Dr Sitki’s assertion of the privilege lacks detail and, without more, the basis on which it is pressed is not clear. Professional Confidential Relationship Privilege is dealt with under Division 3.10.1A in Part 3.10 of the Evidence Act 2011 (ACT) (ACT Evidence Act). While similar provisions were introduced into the Evidence Act 1995 (Cth) (Commonwealth Evidence Act) by the Evidence Amendment (Journalists’ Privilege) Act 2007 (Journalists’ Privilege Act) the Commonwealth provisions were limited to journalists and (following subsequent amendments) presently appear in s 126K of the Commonwealth Evidence Act. There are a number of things to say about this.
[26] Applicant’s written submissions, 9 November 2022.
Firstly, under s 126B of the ACT Evidence Act, professional confidential relationship privilege is subject to the discretion of a court in respect of the admission of evidence. The discretion applies except where the court makes a finding that harm might be caused to the protected confider should the evidence be presented, and the harm outweighs the desirability of the evidence being presented. The matters to be taken into account are set out, inclusively, in s 126B(4) of the ACT Evidence Act. Clearly enough, findings about the nature and extent of likely harm are to be made on the basis of evidence, naked assertion or speculation is not sufficient.
Secondly, the Tribunal is a Federal merits review body established by the AAT Act. It is not a court. Absent an equivalent provision in the Commonwealth Evidence Act, there is a question whether the privilege under s 126B of the ACT Evidence Act is applicable. Professional confidential relationship privilege is a discretionary rule of evidence[27] created by the ACT Evidence Act and, under s 33(1)(c) of the AAT Act, the Tribunal is not bound by the rules of evidence.
[27] Australian Broadcasting Corporation v Kane (No. 2) [2020] FCA 133 at [213].
Thirdly, even if the professional confidential relationship privilege under s 126B of the ACT Evidence Act is applicable in these proceedings, it would be necessary to make relevant findings and to take account of the following matters:
(a)the probative value of the protected information in the proceeding;
(b)the importance of the protected information in the proceeding;
(c)the nature of the subject matter of the proceeding;
(d)the availability of any other evidence relating to the matters to which the protected information relates;
(e)the likely effect of presenting evidence of the protected information, including the likelihood of harm, and the nature and extent of harm that would be caused to Dr Sitki;
(f)the means available to the Tribunal to limit the harm or the extent of the harm that is likely to be caused if evidence of the protected information is disclosed; and
(g)whether the harm outweighs the desirability of evidence of the protected information being presented.
I am satisfied Ms Gibbs’ records may well illuminate matters of central importance to be decided by the Tribunal in this review, when making the correct or preferable decision in respect of Dr Sitki’s compensation claim. Ms Gibbs’ records may include information about factors which contributed to the onset or progress of the ailment for which Dr Sitki claimed compensation. The assertion Dr Sitki may experience harm should Ms Gibbs’ records be produced to the Tribunal and disclosed to Comcare is not detailed or supported by other probative material. The Tribunal has power to make confidentiality orders under s 35(3) or (4) of the AAT Act which may mitigate or limit the extent of any harm which might be caused. On balance, on the present materials, the potential for harm to Dr Sitki does not outweigh the summons requiring production of Ms Gibbs’ records in the proceedings.
Fourthly, documents produced by Ms Gibbs in compliance with the contested summons, should it stand, would only become part of the evidence before the Tribunal if they are tendered by a party and admitted into evidence by the Tribunal at a hearing of Dr Sitki’s application for review.
Once production has occurred, it is for the Tribunal to determine orders granting access to each party. The party with first access may object to another party inspecting some or all of the documents produced. Where a party seeks to rely upon documents produced under summons, it is for the Tribunal to determine if the documents should be admitted into evidence at a hearing. Should such documents be tendered by a party, objection may be made. Furthermore, in the event summonsed documents are taken into evidence, application may be made for confidentiality orders under s 35 of the AAT Act to prevent publication or public disclosure of the documents.
Lastly, documents produced under a summons to which access has been granted may only be used by a party for the purposes of the proceedings.
Considering these matters, I am satisfied Dr Sitki’s assertion of Professional Confidential Relationship Privilege is not made out and it cannot be accepted.
With regard to Dr Sitki’s assertion of privacy, it is necessary to consider relevant privacy legislation.
The Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles it establishes set out complementary provisions to the Health Records Act (Privacy and Access) 1997 (ACT) (ACT Health Records Act). In particular, the use or disclosure of personal information of a person for another purpose is not permitted under Privacy Principle 6 by operation of s 6.1 of Part 3, Schedule 1. However, this bar is expressly disapplied by s 6.2(b) where the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order. Thus, where use or disclosure of personal information is authorised by order of the Tribunal under s 40A or s 40B of the AAT Act, for the purposes of proceedings, s 6.1 of Privacy Principle 6 does not apply.
I understand Ms Gibbs’ counselling practice, Canberra Mobile Counselling, is located in the Australian Capital Territory. Insofar as her records of counselling Dr Sitki are within the meaning of health records, disclosure is subject to the ACT Health Records Act. Under s 6(1) of that Act privacy principles must be complied with, subject only to proof of authorised contravention under s 6(2). Principles 9 and 10 limit the uses and disclosure of health records. An authorised contravention includes a law of the Commonwealth or an order of a court of competent jurisdiction. As the summons provisions in s 40A and s 40B of the AAT Act are laws of the Commonwealth, where health records in Ms Gibbs’ possession are summonsed under s 40A of the AAT Act, the limits imposed by Principle 9 and Principle 10 under the ACT Health Records Act do not apply.
I am satisfied the objections of Ms Gibbs and Dr Sitki are not made out and the 23 September 2022 summons requiring Ms Gibbs to produce documents within its terms should not be set aside. The redactions proposed by Ms Gibbs and Dr Sitki, namely any and all documents which do not specifically refer to the Applicant’s employment,[28] cannot be accepted.
[28] Applicant written submissions, 9 November 2022.
Dr Huzan Daver
As will appear, I have reached a similar conclusion in respect of the 23 September 2022 summons requiring Dr Daver to produce documents within its terms, and I am satisfied the objections made by Dr Daver and Dr Sitki cannot be upheld.
On 23 September 2022, at the request of the Respondent, the Tribunal sealed and issued a summons requiring Dr Daver to produce the following by 10 October 2022:
Any and all documents in your possession relating to the Applicant, Dr Hatice Sitki (DOB: 17 November 1965), including but not limited to, all claim forms, court pleadings, witness statements, medical reports, notes, correspondence, investigation reports, notices, records relating to payments made and any other documents which relate to a claim for compensation made by the Applicant following a Workers Compensation Claim (claim number 1333873/1).
On 10 October 2022, Dr Daver lodged the following objection:
My client HATICE SITKI objects to any personal and individual session records being submitted to AAT or anyone else.
In keeping with my client’s wishes I too wish to register my objection of her individual session records being submitted to AAT.
I have spoken to Moray & Agnew … about the same and to the privacy officer at Converge International.
The client is happy for a “general report” being sent. I am happy to do the same but need some time (10 days for the same). Please acknowledge receipt of the same with your instructions on your decision.
On 18 October 2022, Dr Daver provided further submissions in support of the objection:
1. Firstly, the client Hatice Sitki has stated that she vehemently objects to any personal and individual session records being submitted to AAT or anyone else. However, she has indicated that she is willing for a consolidated report being sent. I am happy to send the same. This I believe should be more than sufficient in giving clues of her mental health condition.
2. I believe the client’s recounted present mental health condition may be amplified with the added stress that she has indicated of sharing personal information.
3. The client has given me written permission to disclose her reported mental health condition and write a consolidated report (Please see her letter in attachment). The client has shared that she suffers from frequent panic attacks due to her reported anxiety disorder and the trauma she has endured which occasionally causes her to be “frozen” (that is she becomes incapable of physical movement and is in a blank state in thinking). This she has reported could be for a short duration of few mins to even a few hours. Based on the cited symptoms and her stated level of distress, there exists a strong possibility that providing the information in the format originally requested, and to which she is fervently opposed to, may be detrimental to her mental and emotional well-being.
This client needs ongoing support and at present is still undergoing psychological intervention from her chosen private specialist, as ours is a brief intervention counselling Employment Assistance service.
Dr Sitki’s objections are in similar terms to those made in respect of the summons served on Ms Gibbs.
The reasons given in respect of objections made by Ms Gibbs and Dr Sitki, also apply in respect of Dr Daver’s objections.
Assertions of confidentiality and professional confidential relationship privilege are not made out in respect of the 23 September 2022 summons requiring Dr Daver to produce consultation and other records relating to Dr Sitki. The possibility of harm to Dr Sitki or to her therapeutic relationship with Dr Daver appears to be asserted on Dr Sitki’s self-report. The prospect of a therapeutic relationship between Dr Sitki and Dr Daver must be considered in the context of the brief intervention counselling Dr Daver provided to Dr Sitki in the context of the Department of Defence Employee Assistance Program. It is Dr Daver’s submission, Dr Sitki’s recounted present mental health condition may be amplified with the added stress that she has indicated of sharing personal information. [29] The Doctor stated:
Based on the cited symptoms and her stated level of distress, there exists a strong possibility that providing the information in the format originally requested, and to which she is fervently opposed to, may be detrimental to her mental and emotional well-being.[30]
[29] Dr Daver’s written submissions, 18 October 2022.
[30] Ibid.
Dr Daver’s records may well shed light on matters of central importance the Tribunal must decide under s 5A, s 5B and s 14 of the SRC Act. Dr Daver first consulted Dr Sitki on 20 December 2021. Records of his of consultations with Dr Sitki may be relevant and valuable when deciding if her compensation claim is made out. The proceedings are at an early stage and Dr Sitki will have opportunity to object to the grant of access to any documents produced by Dr Daver or to the admission of any such documents into evidence at a hearing of Dr Sitki’s application for review. There is also opportunity for Dr Sitki to apply for confidentiality orders under s 35(3) or (4) as the matter progresses. The potential for harm may be reduced or limited should that occur. On balance, I am not persuaded the potential harm that may be occasioned by production outweighs the desirability of Dr Daver’s records being produced. Even though Dr Daver’s consultation records post-date the onset of the psychological ailment Dr Sitki describes in her compensation claim form and related documents, it is reasonable to expect his discussions with Dr Sitki may refer to factors which may have contributed to the onset or progress of her psychological ailment.
The proposition Dr Daver could write a report might be helpful and it may limit any harm to Dr Sitki, but it is not an adequate answer to or substitute for production of the documents within the scope of the contested summons.
Furthermore, the redactions proposed by Dr Sitki cannot be accepted. In a case of this kind, the relevance of documents is not limited to those referring expressly to Dr Sitki’s employment. The matters to which the Tribunal must have regard under s 5B(2) of the SRC Act have a broader ambit than Dr Sitki’s experiences in her employment by the Department of Defence.
For these reasons, the objections made by Dr Daver and Dr Sitki to the 23 September 2022 summons requiring Dr Daver to produce documents within its terms are not made out.
Decision
Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Jacqueline Gibb, Canberra Mobile Counselling, are refused.
Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Dr Huzan Daver, Converge International, are refused.
As the date for production under each summons is now past, the date for production under each summons is extended to 16 January 2023.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
.................[SGD].........................
Associate
Dated: 22 December 2022
Date final submissions received
14 November 2022
Solicitor for Applicant:
Ms Michelle Walsh, Turner Freeman Lawyers
Solicitor for Respondent:
Mr Ben Mason, Moray & Agnew Lawyers
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