"WBT" and Department of Defence
[2007] AATA 5
•5 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 5
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/219
GENERAL ADMINISTRATIVE DIVISION ) Re "WBT" Applicant
And
DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Deputy President S D Hotop Date5 January 2007
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that:
· the record of personal information about the applicant, which is contained in a document in the possession of the respondent, being a copy of a document entitled “Referral for examination by a psychiatrist” (“Form 1” for the purposes of a referral under s 29 of the Mental Health Act 1996 (WA)) dated 5 October 1999, is “incorrect”, within the meaning of s 50(1)(b) of the Freedom of Information Act 1982 (Cth) (“the FOI Act”), by reason only, and only to the extent, of the inclusion of the word “overnight” in the handwritten statements made under the subheading, “Matters observed by referrer”, in that document;
· the record of personal information about the applicant, which is contained in that document, is not otherwise “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b) of the FOI Act;
· the record of personal information about the applicant, which is contained in that document , shall be amended, in accordance with s 50(2)(b)(i) of the FOI Act, by adding to that document a note which states as follows:
“On 5 January 2007 the Administrative Appeals Tribunal determined that it was satisfied that the inclusion of the word “overnight” in the handwritten statements made under the subheading, “Matters observed by referrer”, was incorrect.”
.....[Sgd S D Hotop].......
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – amendment of record of personal information – applicant claimed record of personal information contained in document in possession of respondent incomplete, incorrect, out of date or misleading – document a copy of an original document – original document in possession of State hospital – record of personal information incorrect in one respect but not otherwise incomplete, incorrect, out of date or misleading – record of personal information should be amended – appropriate manner of amendment – not appropriate to alter copy of original document – appropriate to add to document a note specifying respect in which information incorrect – decision under review set aside
Freedom of Information Act 1982 (Cth), s 4(1), s 48, s 50, s 55(6) and s 61
Mental Health Act 1996 (WA), s 29, s 31 and s 33
REASONS FOR DECISION
5 January 2007
Deputy President S D Hotop Introduction
1. The applicant has applied to the Tribunal for review of a decision, dated 11 May 2005, made on an internal review by an officer of the respondent refusing his application, pursuant to s 48 of the Freedom of Information Act 1982 (Cth) (“the FOI Act”), for an amendment of the record of personal information about him contained in a document in the possession of the respondent on the ground that that information is incorrect or misleading.
2. The record of the relevant personal information kept by the respondent comprises:
·a copy of a document entitled “Referral for examination by a psychiatrist” (being “Form 1” for the purposes of a referral under s 29 of the Mental Health Act 1996 (WA)), dated 5 October 1999 (“the relevant document”).
The Issue
3. The issue for the Tribunal’s determination is whether it is satisfied that the record of the personal information about the applicant contained in the relevant document is “incomplete, incorrect, out of date or misleading”, and, if so, whether that record should be amended.
The Relevant Provisions of the FOI Act
4. Sections 48 and 50 provide:
“48 Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.”
“50 Amendment of records
(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; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date--setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.”
The phrase “personal information” is defined in s 4(1) as follows:
"personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
Pursuant to s 55, an application may be made to the Tribunal for review of the categories of decisions specified in subs (1), which have been made on internal review, including the following category:
“(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48;”.
Section 55(6) provides:
“The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(c) the amendment relates to a record of an opinion to which neither of the following applies;
(i) the opinion was based on a mistake of fact;
(ii) 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.”
Finally, s 61 relevantly provides:
“61 Onus
(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
...”
The Evidence
5. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T19, pp 1-72) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”);
·Exhibits A1-A4 tendered by the applicant, and Exhibits R1-R5 tendered by the respondent;
·the oral evidence of the applicant, Lt Col V Ross, and Dr M Thomae.
Confidential Information
6. The Tribunal notes that Exhibits A2-A4 and R1-R5 (including the relevant document), and the transcript of the hearing in this matter which was held on 10-11 August 2006 and 18 October 2006, are the subject of a Confidentiality Order made by the Tribunal under s 35(2) of the AAT Act. Accordingly, the Tribunal will refer to the evidence and state its reasons in this matter in a manner which is not inconsistent with that Order.
The evidence of Dr M Thomae
7. Dr Thomae is a qualified medical practitioner and is presently an advanced trainee in endocrinology.
8. Dr Thomae is the creator of the original document of which the relevant document is a copy. At the time of the creation of that document Dr Thomae was a Royal Australian Navy Medical Officer and the applicant was a serving member of the Royal Australian Air Force.
9. As previously mentioned, the original document is entitled “Referral for examination by a psychiatrist” and constitutes a referral under s 29 of the Mental Health Act 1996 (WA) by Dr Thomae of the applicant for examination by a psychiatrist at Graylands Hospital. The document is a pro-forma document (referred to as Form 1) for the purpose of complying with s 33 of the Mental Health Act 1996 (WA) (set out in paragraph 17 below) which prescribes the formal requirements of a referral under s 29 of that Act.
10. The document contains a section entitled “Examination by referring practitioner” in which Dr Thomae indicated that the relevant examination of the applicant by her took place at “Fleet Base West Health Centre, HMAS Stirling” on 5 October 1999 at 3.00pm. Under the subheadings:
“Basis on which it is suspected that person should be an involuntary patient –
·Matters observed by referrer:
·Matters communicated to referrer:”
Dr Thomae made certain handwritten statements. The document concludes with the following pro-forma referral:
“I have examined the person being referred and, having regard to section 26 of the Mental Health Act 1996, suspect that the person should be made an involuntary patient. I therefore refer the person to the above hospital or place for examination by a psychiatrist.”
There then appears Dr Thomae’s signature and the referral is dated 5 October 1999 at 4.30pm.
11. Dr Thomae gave extensive oral evidence, mostly under cross-examination by the applicant, regarding the basis on which she made the handwritten statements in the referral form under the subheadings:
“Matters observed by referrer”, and
“Matters communicated to referrer”.
Dr Thomae confirmed that, prior to her giving evidence, she had been provided by the respondent’s solicitors with a copy of the referral form (Exhibit R2) together with copies of extracts of the applicant’s service medical records (Exhibit A2) and of Graylands Hospital’s medical records regarding the applicant (Exhibit A3). She also confirmed that she had prepared some notes, from a perusal of the abovementioned medical records, for the purpose of giving evidence. A copy of those notes was tendered in evidence (Exhibit R4).
12. As regards the handwritten statements made by Dr Thomae in the referral form under the subheading, “Matters observed by the referrer”, Dr Thomae gave evidence regarding certain matters which she had personally observed and/or which had been referred to in contemporaneous clinical notes in the applicant’s medical records which she had read at that time.
13. As regards the handwritten statement made by Dr Thomae in the referral form under the subheading, “Matters communicated to referrer”, Dr Thomae’s evidence was that all of the matters referred to in that statement were communicated to her by the applicant’s wife in the course of a telephone conversation which occurred within 1-2 days – and probably within 24 hours – immediately prior to her completing the referral form on 5 October 1999. Dr Thomae said that she “particularly” remembered that conversation because of the nature of its content, and that she recalled writing a very detailed account of that conversation in her clinical notes at that time, but she said that those notes were not included in the copy of the applicant’s service medical records that had been provided to her for the purpose of her giving evidence in this matter. [The Tribunal notes that no written record of that conversation was in evidence before it.] Dr Thomae added that, in making that handwritten statement in the referral form, she was merely recording what had been communicated to her by the applicant’s wife, and she was not thereby asserting or opining that what had been so communicated to her was true.
The evidence of Lieutenant Colonel V Ross
14. Lt Col Ross joined the Australian Army medical undergraduate scheme in 1985, graduated in 1986, and since then has practised as an Australian Defence Force (“ADF”) Medical Officer. During the last 20 years she has had extensive experience in providing medical services to personnel within the 3 services of the ADR (Army, Navy and Air Force), and, more recently, in developing and implementing policy regarding medical fitness for service and deployment. She is presently the Staff Officer, Grade 1, Medical Services at the Joint Health Support Agency, and her primary function is assessing the medical fitness of ADF members for service and deployment and providing this advice to the Medical Employment Classification review Boards of each of the 3 services of the ADF.
15. An affidavit of Lt Col Ross, sworn on 26 July 2006, was tendered in evidence (Exhibit R1), and Lt Col Ross also gave oral evidence. It is unnecessary to refer in detail to Lt Col Ross’ evidence, apart form the following paragraphs of her affidavit:
“...
5.I have read carefully Medical Form 1 – ‘Referral for Examination by Psychiatrist’ dated 5 October 1999 (Medical Form 1), as provided by the applicant.
6.I have read the applicant’s original request under section 48 of the Freedom of Information Act 1982 (Cth) (FOI Act) dated 12 December 2004 (T3), his internal review request dated 15 March 2005 (T10), his application for Administrative Appeals Tribunal (AAT) review filed on 14 June 2005 (T1) and the decisions of the respondent dated 28 February 2005 (T9) and 11 May 2005 (T19).
7.I have a good understanding of the contents of applicant’s ADF Medical File. From my knowledge of the contents of this file, I have a good understanding of his medical history. I understand the purpose and use of a Medical Form 1. Based on my training and experience as a medical doctor I am aware that medical practitioners may refer a patient for involuntary psychiatric examination. I understand that the Medical Form 1 is a form of referral for examination by a psychiatrist in accordance with section 29 of the Mental Health Act 1996 (WA). Section 33 of that Act states, among other things, that the referral is to be in writing and is to ‘distinguish from the facts known because of personal observation by the referrer, any of the facts which have been communicated to the referrer’. I understand that these two components form the basis on which it is suspected that the person should be an involuntary patient.
...”
Analysis and Findings
16. It is common ground that, for the purposes of s 50(1) of the FOI Act, the relevant document contains “personal information” (as defined in s 4(1)) about the applicant and that that information “has been used,... or is available for use by the [respondent] for an administrative purpose”, within the meaning of s 50(1)(c). The only matter in dispute is whether that information is “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b).
17. Before turning to the contents of the relevant document – being a copy of a referral form (“Form 1”) for the purposes of a referral under s 29 of the Mental Health Act 1996 (WA) – it is helpful, for the purpose of understanding the nature of that document, to refer to the following provisions of that Act:
“29 Referral for examination by a psychiatrist
(1) Subject to section 194, a medical practitioner or an authorised mental health practitioner who suspects on reasonable grounds that a person should be made an involuntary patient may refer the person for examination by a psychiatrist.
(2) The referral is to be for examination either —
(a) in an authorised hospital; or
(b) at some other place where to the knowledge of the referrer the examination can be carried out,
as determined by the referrer.”
“31 No referral without personal examination
(1) A referrer is not to refer a person under section 29 without having first personally examined the person for the purpose of forming an opinion as to whether it is suspected that the person should be made an involuntary patient.
(2) However, facts communicated to the referrer, although not of themselves sufficient grounds for suspecting that a person should be made an involuntary patient, may be considered in forming the opinion.”
“33 Form of referral
A referral is to be in writing and is to —
(a) specify the day and time when the referral was made;
(b) specify the day and time when the person referred was personally examined as required by section 31;
(c) certify that, having regard to section 26, the referrer suspects that the person should be made an involuntary patient;
(d) specify —
(i) the authorised hospital; or
(ii) the other place,
at which the person referred is to be examined by a psychiatrist;
(e) specify the facts on the basis of which it is suspected that the person should be made an involuntary patient; and
(f) distinguish from the facts known because of personal observation by the referrer, any of the facts which have been communicated to the referrer.”
18. As regards the handwritten statements made by Dr Thomae in the referral form dated 5 October 1999 under the subheading, “Matters observed by referrer”, the Tribunal accepts Dr Thomae’s evidence that, subject to an exception mentioned below, those statements about the applicant referred to matters which she had personally observed in her capacity as an ADF Medical Officer. The exception relates to the word “overnight” which was included in Dr Thomae’s handwritten statements. Dr Thomae gave evidence that, although she had personally observed the relevant matters during the daytime, she had never personally observed them “overnight” nor during the night-time. On the basis of Dr Thomae’s evidence, the Tribunal is satisfied that the relevant statement is factually erroneous, and therefore “incorrect” within the meaning of s 50(1)(b) of the FOI Act, but only by reason of the inclusion therein of the word “overnight”. To the extent that Dr Thomae’s handwritten statements include an expression of opinion (namely, the statement commencing with the word “at” and ending with the word “further”), the Tribunal is satisfied, for the purposes of s 55(6)(c) of the FOI Act, that such opinion was based on her personal observation of the applicant, and was not based on a mistake of fact, and that Dr Thomae was not biased or unqualified to form the opinion and did not act improperly in any manner leading to the formation of the opinion.
19. As regards the handwritten statement made by Dr Thomae in the referral form dated 5 October 1999 under the subheading “Matters communicated to referrer”, the Tribunal accepts Dr Thomae’s evidence that all of the matters referred to in that statement were communicated to her by the applicant’s wife in the course of a telephone conversation which occurred within 1-2 days immediately prior to her completing the referral form on 5 October 1999. In that respect, therefore, the Tribunal is satisfied that, in the context of the referral form in which it appears, Dr Thomae’s statement is not “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b) of the FOI Act, because, as contemplated by the relevant section of the referral form, that statement comprises a full and accurate account of matters that were in fact communicated to her by another person (namely, the applicant’s wife). The Tribunal notes Dr Thomae’s evidence that her statement was merely an accurate statement of matters that had in fact been communicated to her by the applicant’s wife, and did not involve any assertion or expression of opinion by her that the matters that had been so communicated to her were true. Likewise, the Tribunal, in expressing its satisfaction that, in the context of the referral form, Dr Thomae’s statement is not “incomplete, incorrect, out of date or misleading”, is not making any assertion, or expressing any opinion, regarding the truth, or falsity, of any of the contents of that statement.
Finding
20. It follows from the above analysis that the Tribunal is satisfied, and finds, that the record of personal information about the applicant contained in the relevant document is “incorrect”, within the meaning of s 50(1)(b) of the FOI Act, by reason only, and only to the extent, of the inclusion of the word “overnight” in the handwritten statement under the subheading, “Matters observed by referrer”, in that document, and that the record of “personal information” contained in that document is not otherwise “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b) of the FOI Act.
Should the record of personal information contained in the relevant document be amended, and, if so, in what manner?
21. In the light of the Tribunal’s finding that the record of personal information contained in the relevant document is incorrect, and having regard to the nature of that incorrectness, as set out in paragraph 20 above, the Tribunal is of the opinion that it is appropriate that that record of personal information be amended pursuant to s 50 of the FOI Act.
22. As regards the appropriate manner in which such amendment should be made, given that the relevant document is not an original document but is a copy of an original document – the original referral form, of which the relevant document is a copy, is, the Tribunal understands, in the possession of Graylands Hospital – in the Tribunal’s opinion it would not be appropriate to amend the record of personal information contained in that document in the manner specified in para (a) of s 50(2) of the FOI Act – namely, by altering that document itself in order to make the relevant information correct. Rather, it would be appropriate, in the Tribunal’s opinion, to make the relevant amendment in the manner specified in subpara (b)(i) of s 50(2) of the FOI Act – namely, by adding to that document a note specifying the respect in which the Tribunal is satisfied that the relevant information contained in that document is incorrect.
Conclusion
23. Accordingly, the Tribunal concludes that the record of personal information about the applicant which is contained in the relevant document should be amended by adding to that document a note which states as follows:
“On 5 January 2007 the Administrative Appeals Tribunal determined that it was satisfied that the inclusion of the word “overnight” in the handwritten statements made under the subheading, “Matters observed by referrer”, was incorrect.”
24. As regards the remainder of the record of personal information about the applicant which is contained in the relevant document and which the Tribunal is satisfied is not “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b) of the FOI Act, the Tribunal acknowledges that the applicant vehemently and genuinely disputes the veracity and the accuracy of some of that information. The appropriate action to be taken in order to record the applicant’s views regarding that information is an annotation of the relevant document in accordance with ss 51 and 51A of the FOI Act.
Decision
25. For the above reasons, the Tribunal sets aside the decision under review and, in substitution therefor, decides that:
·the record of personal information about the applicant, which is contained in a document in the possession of the respondent, being a copy of a document entitled “Referral for examination by a psychiatrist” (“Form 1” for the purposes of a referral under s 29 of the Mental Health Act 1996 (WA)) dated 5 October 1999, is “incorrect”, within the meaning of s 50(1)(b) of the FOI Act, by reason only, and only to the extent, of the inclusion of the word “overnight” in the handwritten statements made under the subheading, “Matters observed by referrer”, in that document;
·the record of personal information about the applicant, which is contained in that document, is not otherwise “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b) of the FOI Act;
·the record of personal information about the applicant, which is contained in that document , shall be amended, in accordance with s 50(2)(b)(i) of the FOI Act, by adding to that document a note which states as follows:
“On 5 January 2007 the Administrative Appeals Tribunal determined that it was satisfied that the inclusion of the word “overnight” in the handwritten statements made under the subheading, “Matters observed by referrer”, was incorrect.”
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...........[Sgd S da Motta]...............................
AssociateDates of Hearing 10-11 August, 18 October 2006
Date of Decision 5 January 2007
Counsel for the Applicant In person
Counsel for the Respondent Ms T McNeilly
Solicitor for the Respondent Australian Government Solicitor
0
0