TB v South Eastern Sydney Illawarra Area Health Service
[2011] NSWADT 165
•07 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: TB v South Eastern Sydney Illawarra Area Health Service [2011] NSWADT 165 Hearing dates: 15 February 2010 Decision date: 07 July 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: Within 30 days of these orders the Respondent is to:
1. remove TB's ASET Form from TB's medical records and destroy that document; and
2. correct the entry in TB's Clinical Form by deleting the name and contact details of TB's son;
3. below the entry that is in dispute in TB's Clinical Form make an entry (with the appropriate alterations as referred to in paragraph 79) which states as follows:
a. The above entry at 1100 hours on [date] should be read as '[the Hospital's medical staff member] spoke with [TB's] son and '[the Hospital's medical staff member] explained the situation and reason for admission'. The patient, [TB], has requested that TB's son not be contacted.
Catchwords: Privacy - health information - accuracy of health information - amendment of health information Legislation Cited: Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Medical Practice Regulation 2008
Privacy and Personal Information Act 1998
State Records Act 1998Category: Principal judgment Parties: TB (Applicant)
South Eastern Sydney Illawarra Area Health Service (Respondent)
NSW Privacy Commissioner (Intervenor)Representation: Counsel
E Raper (Respondent)
M Geary (Applicant)
J McAteer (Privacy Commissioner)
File Number(s): 103027 Publication restriction: Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the applicant.
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as TB. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.
It is not in dispute that TB appointed her daughter ("TB's daughter") as her enduring guardian and this appointment was effective at the relevant time. TB's daughter commenced these proceedings on behalf of TB and acted as her agent in the proceedings until such time as legal assistance was obtained on TB's behalf.
TB alleges that the Respondent has breached Health Privacy Principle ("HPP") 8 pursuant to the Health Records and Information Privacy Act 2002 ("the HRIPA") and section 15 of the Privacy and Personal Information Act 1998 ("the PPIPA") in relation to TB's medical records.
Background
The relevant background is not in dispute.
TB was admitted to the emergency department of a hospital operated by the Respondent ("the Hospital"). When TB was admitted to the Hospital she was accompanied by her daughter. During that admission, a Clinical Form ("TB's Clinical Form") was completed by a person employed by the Respondent.
TB was subsequently re-admitted to the Hospital. Prior to that admission, a person employed by the Respondent completed part of a form known as an ASET assessment form ("TB's ASET Form"). ASET is an acronym for Aged Care Services Emergency Team. ASET forms are generally completed when an elderly person presents to the emergency department of a hospital.
Shortly after the second admission, TB's daughter completed a Health Care Complaints Commission complaints form, which included a complaint regarding the inclusion of TB's son's details and details of two other siblings on TB's ASET Form.
It is common ground that TB's Clinical Form and TB's ASET Form fall within the section 6 of the HRIPA definition of 'health information' and that the information complained of is health information. A request for correction of those form must be made pursuant to the HRIPA.
The Respondent responded to TB's daughter's complaint and stated that a duplicate ASET sheet which does not contain the disputed contact details was added to TB's medical record ("TB's Second ASET Form"). TB's ASET Form has been stapled on all sides to the back of TB's Second ASET Form. An entry was made on TB's Second ASET Form which states that TB does not wish for the relatives listed on TB's ASET Form to be contacted.
TB was not satisfied with the Respondent's response to the complaint and TB's daughter wrote to the Respondent requesting corrections to TB's medical records. The Respondent declined to make the changes that she requested.
The Respondent has taken the following steps in relation to TB's complaints about TB's Clinical Form and TB's ASET Form:
(a) the Respondent has refused to amend TB's Clinical Form on the basis that it is a record of an event; and
(b) with respect to TB's ASET Form:
(i) the original has been amended so that TB's son's details and TB's other children's details have been struck through but are still readable;
(ii) notes have been placed on TB's ASET Form that TB's daughter has requested that TB's son not be contacted;
(iii) TB's Second ASET Form has been stapled over TB's ASET Form. TB's Second ASET Form does not have TB's son's details and contains a further note that no other family members are to be contacted; and
(iv) the Respondent has refused to completely remove or blacken TB's son's details or TB's other children's details so that they cannot be read.
Applicable legislation
Section 4 of the PPIPA provides that 'personal information' means:
information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
Section 4A of the PPIPA provided that:
except as provided by this Act or the Health Records and Information Privacy Act 2002, the definition of 'personal information " in section 4 does not include health information within the meaning of Health Records and Information Privacy Act 2002.
Section 15 of the PPIPA states that:
15 Alteration of personal information
(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:
(a) is accurate, and
(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
(2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.
(3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.
(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998.
...
Section 25 of the PPIPA provides for circumstances in which an agency is not required to comply with some provisions. Section 25 provides:
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 or 19 if:
(a) the agency is lawfully authorised or required not to comply with the principle concerned, or
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).
Section 5 of the HRIPA provides a definition for 'personal information that is identical to the definition in the PPIPA. Section 6 of the HRIPA provides that 'health information', relevantly, 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 the future provision of health services to him or her, or
(iii) a health service provided, or to be provided, to an individual, or
(b) other personal information collected to provide, or in providing, a health service, or
...
Section 11 of the HRIPA provides that:
(1) This Act applies to every organisation that is a health service provider or that collects, holds or uses health information.
Note. The term organisation means a public sector agency or a private sector person.
(2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles and with any health privacy code of practice or provision of Part 4 that is applicable to the organisation.
(3) An organisation must not do any thing, or engage in any practice, that contravenes a Health Privacy Principle or a health privacy code of practice or a provision of Part 4 in respect of which the organisation is required to comply.
...
Clause 8 of Schedule 1 to the HRIPA (which provides for the HPPs) states that:
8 Amendment of health information
(1) An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information:
(a) is accurate, and
(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
(2) If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.
(3) If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation.
Note. Division 4 (Amendment of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.
Amendment of health information held by public sector agencies may also be able to be sought under the Privacy and Personal Information Protection Act 1998.
(4) An organisation is not required to comply with a provision of this clause if:
(a) the organisation is lawfully authorised or required not to comply with the provision 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).
Section 20 of the HRIPA provides that:
HPP 8 (Amendment of health information), and any provision of a health privacy code of practice applying to a public sector agency that relates to the requirements set out in that Health Privacy Principle, applies to public sector agencies despite HPP 8 (4) and section 21 of the State Records Act 1998.
Section 3 of the State Records Act 1998 ("the SRA") states that:
"State record" means any record made and kept, or received and kept, by any person in the course of the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office, whether before or after the commencement of this section.
Section 3 also provides that:
"public office" means each of the following:
(a) a department, office, commission, board, corporation, agency, service or instrumentality, exercising any function of any branch of the Government of the State,
...
Section 21(1) of the SRA states:
21 Protection measures
(1) A person must not:
...
(d) damage or alter a State record, or
Section 21(2) provides
(2) None of the following is a contravention of this section:
(a) anything done in accordance with normal administrative practice in a public office (as provided by section 22),
(b) anything that is authorised or required to be done by or under this Act, or by or under a provision of any other Act that is prescribed by the regulations as being an exception to this Part,
(c) anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and codes of best practice for records management formulated by the Authority),
(d) anything done pursuant to an order or determination of a court or tribunal,
...
Sub-section 22(1) states that:
(1) Something is considered to be done in accordance with normal administrative practice in a public office if it is done in accordance with the normal practices and procedures for the exercise of functions in the public office.
The SRA commenced on 1 January 1999. Sub-sections 21(6) and 21 (7) state that:
(6) This section prevails over a provision of any other Act enacted before the commencement of this section.
(7) An Act enacted after the commencement of this section is not to be interpreted as prevailing over or otherwise altering the effect or operation of this section except in so far as that Act provides expressly for that Act to have effect despite this section.
The Medical Practice Regulation 2008 (NSW) ("the MPR") was repealed on 1 July 2010 but was in force at the time of TB's complaint. Clause 4 of Schedule 1 of the MPR stated:
4 Alteration and correction of records
A registered medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in such a manner as to obliterate, obscure or render illegible information that is already contained in the record.
Record is defined in section 3 of the MPR as "record means a record required to be made and kept under Part 2" of the Regulation. Part 2 provides that medical practitioners must take and keep certain information in records in relation to patient treatment and care. Schedule 1 sets out the information that must be included in a 'record' as defined in the MPR:
1 Information to be included in record
(1) A record must contain sufficient information to identify the patient to whom it relates.
(2) A record must include the following:
(a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),
(b) particulars of any clinical opinion reached by the registered medical practitioner,
(c) any plan of treatment for the patient,
(d) particulars of any medication prescribed for the patient.
(3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient.
(4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the registered medical practitioner who is treating the patient:
(a) the date of the treatment,
(b) the nature of the treatment,
(c) the name of any person who gave or performed the treatment,
(d) the type of anaesthetic given to the patient (if any),
(e) the tissues (if any) sent to pathology,
(f) the results or findings made in relation to the treatment.
(5) Any written consent given by a patient to any medical treatment (including any medical or surgical procedure) proposed by the registered medical practitioner who treats the patient must be kept as part of the record relating to that patient.
TB's case
TB contends that the Respondent breached HPP 8 by refusing to make corrections, on request by TB, to:
(a) TB's Clinical Form to remove details relating to TB's son so that those details are not visible; and
(b) TB's ASET Form so that TB's son's details, and the details of her other children, are not visible, in circumstances where those entries were inaccurate, irrelevant or misleading.
TB disputes the Respondent's contention that the scope of HPP 8(1) and the priority of other legislation means that the information complained of cannot be obliterated but may be struck through. She identifies HPP 8 as the principle relevant to correction.
TB submits that section 20 of the HRIPA states that the Respondent is required to comply with HPP 8. She says that the clear legislative intent was for HPP 8 to apply to public sector health agencies and for the requirements of HPP 8 to take priority over other legislative requirements. The effect of section 20 of the HRIPA is that HPP 8(1) applies to the Respondent despite the provisions of the SRA and MPR.
TB submits that pursuant to HPP 8(1) the Respondent must make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that health information is accurate, relevant, complete and not misleading. She points to section 6 of the HRIPA, and the definition of health information which expressly includes an individual's "express wishes about the future provision of health services to him or her" and she contends that the information regarding her children's contact details falls into this category.
TB has requested that her medical record accurately record her express wishes regarding her medical care. She has asserted that as it stands, the record incorrectly intimates that she wishes her son and her other children to be contacted in relation to the future provision of health services to her.
She has requested removal of the specified contact details and she wishes her medical record to show that if a medical decision regarding her care needs to be made and TB's daughter is unavailable, contacting TB's son or another child on the basis of her health information must not be the Respondent's next option. She is concerned that if the information that is presently recorded in her medical record is struck through but remains readable, this exact situation is likely to occur.
TB submits that there can be no other reason for the Respondent to retain contact details for TB's son and her other children other than to contact them at some future stage in relation to the provision of health services to her.
TB further submits that if HPP 8(1) did not permit the obliteration of inaccurate, irrelevant or misleading health information, there would be no reason for the legislature to include section 20 of the HRIPA (and specifically reference section 21 of the SRA) as the striking through (without obliteration) of information would not breach section 21 of the SRA.
With respect to other issues arising out of HPP 8, TB submits that:
(a) with respect to a patient's future health care wishes, an 'appropriate' amendment would be one that ensures compliance with those wishes. The only way this can occur is the obliteration, rather than simply the striking through of the relevant entries; and
(b) HPP 8(2) does not permit the organisation simply to not comply with HPP 8(1), but rather provides that if the organisation has taken the view that it has complied with HPP 8(1) and the complainant disagrees, the organisation must attach a statement of requested amendments. HPP 8(2) does not indicate that the organisation has a discretion whether or not to comply with HPP 8(1).
TB further submits that section 21(7) of the SRA expressly acknowledges the intent for other legislation to take precedence over section 21(1) of the SRA. Section 20 of the HRIPA was enacted after 1 January 1999 and expressly excludes section 21 of the SRA. TB says that the combination of section 21(7) of the SRA and section 20 of the HRIPA leaves no doubt that the intent was for HPP 8 to take precedence over section 21 of the SRA in relation to public sector agencies.
She further says that even if section 20 of the HRIPA does not have the effect of giving priority to HPP 8 over other legislation, clause 4 of Schedule 1 of the MPR does not prevent obliteration of the contact details.
Clause 4 of Schedule 1 of the MPR prohibits registered medical practitioners and medical corporations from altering a record "in such manner as to obliterate, obscure or render illegible information already contained in the record". TB submits that this clause only applies to a 'record' as defined as a "record required to be made and kept under Part 2".
Part 2 of the MPR requires registered medical practitioners and medical corporations engaged in the provision of medical services to make and keep a record for each patient in accordance with Part 2 and Schedule 1. Schedule 1 of the MPR describes the information to be included in a record by a registered medical practitioner or medical corporation. It states that the record must contain sufficient information to identify the patient and must include information known to the medical practitioner that is relevant to his or her diagnosis, particulars of any clinical opinion, treatment plans, medication particulars and any written consent given by the patient to any medical treatment proposed by the practitioner.
TB submits that there is no requirement for a 'record' as defined in Part 2 of the MPR to contain the name and contact details of a patient's family members. Accordingly, clause 4 of Schedule 1 does not prohibit a registered medical practitioner or medical corporation from deleting details of patients' family members from their records. Accordingly, neither the Respondent nor any of its medical staff would breach the MPR by deleting TB's children's detailed from TB's Clinical Form and TB's ASET Form.
TB further submits that the HRIPA and the MPR are not "so inconsistent or repugnant that they cannot stand together" and, as a result, both can operate at the same time. Accordingly, the information may be amended under HPP 8(1) of the HRIPA and not attract the operation of clause 4 of Schedule 1 of the MPR.
The relevant information in TB's Clinical Form states that one of the Hospital's medical staff spoke with TB's Son and explained the situation and reason for admission. TB submits that it is unclear from the entry whether the Hospital's medical staff member contacted TB's son or if TB's son contacted the Hospital's medical staff member. She further submits that it is also unclear whether the Hospital's medical staff member advised TB's son of TB's situation or vice versa. Accordingly, she submits, the entry is inaccurate or misleading. TB concedes that the entry records an event but submits that the record must be corrected so that it is no longer misleading regarding how the contact between TB's son and the Hospital's medical staff member occurred.
TB submits that the entry is misleading or inaccurate and should be liable for correction. She submits that the appropriate relief is to correct the entry in TB's Clinical Form so that it is clear that TB's son contacted the hospital and not vice versa and that the Hospital's medical staff member did the advising. She says that the entry should also delete TB's son's contact details, including his name, as the inclusion implies that TB wishes the hospital to contact TB's son in relation to her health care, and this is not the case. Those amendments allow the record of the event to remain intact but the misleading or inaccurate entry regarding TB's wishes in relation to her health care is corrected.
As noted above, TB submits that the inclusion of the reference to TB's children's existence and contact details in TB's ASET Form implies that TB wishes the hospital to contact those children in relation to her health care. Further, she asserts that she did not provide those details to the Respondent. Accordingly, the record that contains those details is misleading or inaccurate and therefore subject to correction. TB submits that simply striking out the details is not sufficient to cure the misleading or inaccurate nature of the information. The appropriate relief is for the details of her children to blackened out so that they can no longer be read.
Further, TB asserts that she has suffered emotional and mental harm as a result of her concern over the Respondent's staff contacting her family members in relation to the provision of health care services to her. She seeks financial compensation in relation to the harm she has suffered.
The Respondent's case
The Respondent contends that the Applicant's application is misconceived on a number of bases.
The Respondent relies on the evidence of its Director of Clinical information Systems ("Dr S") in regard to the systems in place for the management of its clinical information and the Respondent's internal policies regarding that management. Dr S also provided details in regard to the Respondent's dealings with TB and the steps taken to address her complaints.
Ms Raper, Counsel for the Respondent, submits that the obligation to amend a record under HPP 8(1) is not mandatory, given the capacity of the organisation to refuse to make an amendment under HPP 8(2). She disputes TB's assertion that HPP 8(2) does not indicate that the organisation has a discretion whether or not to comply with HPP 8(1).
Ms Raper further submits that in order to enliven HPP 8, TB needs to establish that there is something inaccurate and misleading on the Applicant's record and that TB is unable to prove this.
Further, she submits that to the extent that there is an obligation under HPP 8(1), it is to make appropriate amendments, where those amendments could include corrections, deletions or additions. Contrary to TB's assertion she argues that the amendment does not have to constitute a deletion and to amend according to the Applicant's perception of the record.
Furthermore, she submits that the use of the phrase "appropriate amendments" indicates the level of discretion which may be exercised by the organisation and thus is consistent with the proper reading of HPP 8(2).
Ms Raper asserts that despite not being required to do so, the Respondent did make appropriate amendments in compliance with HPP 8(1) in answer to TB's request. Alternatively, even if it is found that it has not complied with HPP 8(1), the Respondent has complied with HPP 8(2).
The Respondent contends that the disputed information contained in both TB's Clinical Form and TB's ASET Form is accurate. It says that there is no dispute in regard to the number of TB's children or where they live.
The Respondent submits that the disputed information in TB's Clinical Form accurately records that an employed doctor of the hospital had a conversation with TB's son. There is no evidence that the sought amendment is accurate and it could in fact be misleading.
The Respondent further submits that the disputed information contained in TB's ASET Form is also accurate information as to the composition of the Applicant's family which the Applicant provided to the hospital. However, the Respondent nevertheless undertook steps to address the Applicant's concerns. TB's ASET Form has been stapled on all sides to the back of TB's Second ASET Form. TB's Second ASET Form does not contain details of the TB's relatives save for TB's daughter. Accordingly, it cannot be viewed at all unless it was ripped from the back of the current form. The disputed entry on TB's ASET Form, which discloses details of the TB's relatives has, in any event, been crossed out. Further, an entry has been made on TB's ASET Form stating "Daughter request son not to be contacted". This entry is also highlighted. A further entry has been made on TB's ASET Form stating "Not to contact any relatives other than [TB's daughter] at any time".
TB's next of kin is listed on the Respondent's Patient information System ("PAS") as being TB's daughter. The PAS is accessible by TB's treating medical practitioners. The PAS is the most up to date and the first place staff look for persons to contact.
Ms Raper submits that there is a balancing exercise which must be undertaken when considering amendments. It is necessary to weigh an applicant's wishes about their information and ensuring a complete and accurate record of the hospital's interactions with TB and those on her behalf. She says that information relevant to the record is not limited to the information provided by TB, but also includes the information of others.
The Respondent accepts that section 20 of the HRIPA does limit the availability of the exemption relating to the operation of section 21 of the SRA under HPP 8(4) to public organisations. The Respondent also accepts that it is not required to comply with the MPR by virtue of the exemption in clause 4(4)(a) of the MPR which excludes a 'public health organisation' within the meaning of the Health Services Act 1997.
The Respondent submits that TB has not put on any evidence supportive of her claims of loss and that the claim is outside the ambit of the application before the Tribunal.
The Respondent submits that TB's application should be dismissed.
Consideration
This application is very narrow in its scope. It is an application for amendment of information held by the Respondent in relation to TB. Much of the material filed by TB is not relevant to the matter to be determined and has been disregarded.
It is common ground that the information that is in dispute is in fact health information for the purposes of the HRIPA. I agree with that assessment. The information concerns TB's "express wishes about the future provision of health services" to her.
In determining the application for amendment of the health information it is necessary to make a finding with respect to whether the information held by the Respondent is accurate. In my view it is not.
The information held with respect to TB's children suggests that TB's son and other children are to be regarded as 'other support' for TB. That is not accurate.
I accept TB's argument that in its present form the information in TB's ASET Form implies that TB consents to the Respondent contacting any of her children in relation to her future health care if TB's daughter is unavailable. That is not the case. It is clear from the totality of the material before me that TB's intention is that the Respondent should contact TB's daughter in relation to TB's future health care. If TB's daughter is unavailable, the Respondent should not contact TB's other children.
I do not understand the Respondent to be disputing that that is TB's intention. As I understand it, the Respondent contends that it is prohibited from destroying TB's ASET Form. For the reasons argued by TB, I do not agree with that view.
Section 20 of the HRIPA provides that the Respondent is required to comply with HPP 8. HPP 8(1) applies to the Respondent despite the provisions of the SRA and MPR.
I accept that it is important for the Respondent to retain 'Records' and that 'Records' are not deleted so that there will be an historical account of events. That may be important in a number of situations, for example to show if mistakes have been made. However, for the reason argued on behalf of TB I do not agree that the information that is in dispute is a 'Record' as defined in section 3 of the MPR. In my view, the information is administrative in nature. Accordingly, clause 4 of Schedule 1 does not prohibit the Respondent from deleting details of TB's family members from its records.
HPP 8 is a beneficial provision. The legislative intent is that it be construed for the benefit of individuals. Pursuant to HPP 8(1) the Respondent must make appropriate amendments to ensure that TB's health information is accurate, relevant, complete and not misleading. In my view there is no overriding legislation that prevents the Respondent taking steps to do so by deleting details of TB's family members from its records. Where the Respondent's internal policies conflict with the applicable legislation, the policies cannot override the legislation.
It follows, in my view, that the legislation permits the amendment of TB's health information by the destruction of TB's ASET Form.
I accept that the Respondent did attempt to make appropriate amendments in compliance with HPP 8(1) in answer to TB's request. However, in the circumstances it is my view that the amendments were not adequate. The Respondent breached HPP 8 by refusing to make appropriate amendments.
I agree that the inclusion of TB's son's details on TB's ASET Form could result in the Respondent contacting TB's son in relation to TB's future health care. It is possibly that, in an emergency, the Respondent's staff would remove the staples attaching TB's ASET Form to TB's second ASET Form to access the contact details. This is clearly contrary to TB's wishes and should not be permitted. It can be prevented by either deleting details of TB's family members from TB's ASET Form or the destruction of TB's ASET Form. In my view, the destruction of TB's ASET Form would remove any possibility of contacting TB's son or TB's other children in relation to her future health care.
The retention of TB's second ASET Form should adequately address the Respondent's need for the information to which the form is directed.
I accept that the Respondent's argument that TB's Clinical Form accurately records that an employed doctor of the hospital had a conversation with TB's son. I also accept that there is no evidence in regard to whether or not TB's son instigated that conversation.
However, I accept that the inclusion of TB's son's details on TB's Clinical Form could possibly result in the Respondent's staff contacting TB's son in relation to TB's future health care. For that reason, it is appropriate that those details be deleted. This can be achieved by obliterating those details so that they cannot be read.
I agree with the addition to TB's Clinical Form that the Respondent has proposed. In my view, that addition would not be misleading.
TB's application for financial compensation in relation to the harm she asserts that she has suffered should be dismissed. TB has provided no evidence in support of that application.
The appropriate order is that the determination under review should be set aside and orders made in accordance with the views set out above. I note that I have expressed the orders in a manner that preserves TB's anonymity. The entry referred to in Order 3 should be read so as to require an addition that includes the relevant date, TB's name and the name of the Hospital's medical staff member who is the subject of the entry.
Orders
Within 30 days of these orders the Respondent is to:
1. remove TB's ASET Form from TB's medical records and destroy that document; and
2. correct the entry in TB's Clinical Form by deleting the name and contact details of TB's son;
3. below the entry that is in dispute in TB's Clinical Form make an entry (with the appropriate inclusion of the relevant date and the names of TB and) which states as follows:
a. The above entry at 1100 hours on [date] should be read as '[the Hospital's medical staff member] spoke with [TB's] son and '[the Hospital's medical staff member] explained the situation and reason for admission'. The patient, [TB], has requested that TB's son not be contacted.
Decision last updated: 07 July 2011
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