XJ v Public Guardian

[2007] NSWADT 41

CITATION:	XJ v Public Guardian [2007] NSWADT 41
DIVISION:	General Division
PARTIES:	APPLICANT XJ RESPONDENT Public Guardian
FILE NUMBER:	063306
HEARING DATES:	19/01/07
SUBMISSIONS CLOSED:	19 January 2007
DATE OF DECISION:	23 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Public Guardian - health care
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	XJ v Public Guardian [2006] NSWADT 327
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The decision of the Public Guardian not to disclose to XJ details relating to the private affairs of Ms A, including health related information, is affirmed.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 Ms A is a middle aged woman who lives with her brother and her elderly parents. She has disabilities which mean that she in not capable of making decisions about various aspects of her life. In 2001, the Guardianship Tribunal appointed the Public Guardian as Ms A’s guardian. That order was renewed in May 2006 and the Public Guardian was given the functions of making decisions concerning the major services to which Ms A should have access and the health care and major and minor medical and dental treatment she should receive.

2 XJ was married to Ms A’s brother, but they are now divorced. She is estranged from her brother and his family and despite the fact that she wishes to advocate for Ms A, she has not been permitted to speak to her for over 10 years. XJ has many concerns about Ms A’s welfare and says she wants to have a “two way discussion” with the Public Guardian about her concerns and about Ms A’s needs. She has been in touch with employees of the Office of the Public Guardian intermittently since the Public Guardian was appointed as Ms A’s guardian. Those communications culminated in the Public Guardian making a decision not to provide her with information relating to the private affairs of Ms A, including health related information. Following an internal review affirming that decision, XJ applied to the Tribunal for external review.

3 Despite the fact that XJ says she wants to have a “two way discussion” with the Public Guardian about Ms A’s needs, I decided in a previous decision that the only decision which the Tribunal has jurisdiction to review is the decision not to provide XJ with information relating to the private affairs of Ms A, including health related information: XJ v Public Guardian [2006] NSWADT 327. In particular, another the decision that the Office of the Public Guardian would only communicate with XJ in writing, and not by phone, is not a reviewable decision.

4 XJ says that her only requests related to health information. That information included:

a) whether Ms A is still taking anti-psychotic mediation;

b) what her treating psychologist had recommended;

c) whether sexual assault counselling had been recommended and, if so, whether it had been organised; and

d) why Ms A had not been put in touch with a community mental health organisation.

Was the Pubic Guardian’s decision the correct and preferable decision?

5 Introduction. The Tribunal’s role is to determine whether the Public Guardian’s decision is the “correct and preferable” decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: Administrative Decisions Tribunal Act 1997, s 63. The Public Guardian defends his decision on two main grounds. First, he says that he has both common law and statutory obligations not to disclose information about protected persons such as Ms A. Secondly, he says that Ms A has expressed the view that she does not want XJ to receive information about her and the decision to refuse to provide XJ with that information is in Ms A’s best interests. In those circumstances it is not necessary to make findings about the history of communications between the Office of the Public Guardian and XJ.

6 Obligations about disclosure under Guardianship Act. The general rule under s 101 of the Guardianship Act 1987 is that a person is not to disclose information obtained in connection with the administration or execution of the Act. The exceptions to that rule are if the disclosure is:

(a) with the consent of the person from whom the information was obtained,

(b) in connection with the administration or execution of this Act,

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings,

(d) in accordance with a requirement imposed under the Ombudsman Act 1974 , or

(e) with other lawful excuse.

7 Disclosure of information to a person such as XJ would come within the exception in s 101(b) if the information were disclosed “in connection with the . . . execution” of the Guardianship Act , that is, in connection with making substitute decisions about the health care Ms A should receive and the services to which she should have access. In the course of making those decisions, the Public Guardian consults with friends and relatives of the protected person. My view is that there is nothing in the Guardianship Act that prevents the Public Guardian from disclosing the health information of a protected person to friends and relatives in order to make substitute decisions for that person.

8 Obligations about disclosure under other legislation. Mr Tunbridge, representing the Public Guardian, submitted that even if the Guardianship Act did not prevent the Public Guardian from disclosing Ms A’s health information to XJ, then the Health Records and Information Privacy Act 2002 (HRIP Act) did prevent such disclosures. The information to which XJ was seeking access falls within the definition of ‘health information’ in s 6 of the HRIP Act. Health information is a sub-set of personal information as defined in s 4 of the Privacy and Personal Information Protection Act1998. However, there is nothing in the HRIP Act which prevents the Public Guardian from disclosing health information about Ms A to XJ as long as the disclosure is for the primary purpose for which the information was collected: HRIP Act, Schedule 1, Cl 11(1). The primary purpose for collecting information about Ms A’s health is to make substitute decisions for her in relation to services and health care. If health information were disclosed to XJ in furtherance of that purpose, there would be no breach of the HRIP Act.

9 Even if disclosure to XJ were for a secondary purpose, the Public Guardian would not be in breach of the HRIP Act as long as Ms A consented to the disclosure for that secondary purpose. Ms A’s guardian, the Public Guardian, is the “authorised representative” of Ms A under the HRIP Act: s 7 and s 8. That means that he is authorised to do anything that Ms A is permitted to do under the HRIP Act, including consenting to disclosure of her health information. Consequently, even if disclosure to XJ were for a secondary purpose, there would be no breach of the HRIP Act if the Public Guardian consented to the disclosure on Ms A’s behalf.

10 I am not satisfied on the basis of the material that has been brought to my attention, that there is any written or unwritten law which prevents the Public Guardian from disclosing Ms A’s health information to XJ. But that is not the end of the matter. Merely because the Public Guardian is permitted to do something, does not mean that he has made the wrong decision if he decides not to do it.

Ms A’s wishes and her best interests

11 Section 4 of the Guardianship Act states that:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

12 In particular, the views of Ms A should be taken into consideration and her welfare and interests are to be regarded as paramount. It was not in dispute that Ms A does not want XJ to have access to her health information. XJ’s response is that although Ms A’s views are relevant, she is being manipulated by her family who do not want to communicate with XJ. According to XJ, Ms A’s views are not ‘informed’ views and should not be determinative.

13 While some weight should be given to Ms A’s views, the more significant question is whether disclosing her health information to XJ is in Ms A’s best interests. The Public Guardian has been given the statutory duty of making substitute decisions for Ms A in relation to particular matters. As a general rule, he needs to do that with the benefit of as much relevant information as is available and with input from people who have Ms A’s best interests in mind. XJ says that it is in Ms A’s best interests that information be disclosed to her because she is a doctor and is concerned for Ms A’s welfare. She also says that Ms A is, or has been, abused exploited and neglected. One of XJ’s particular concerns is that Dr Hansen, Ms A’s psychiatrist, is not acting in her best interests.

14 XJ is able to present to the Public Guardian any evidence she has of treatment of Ms A that she does not regard as being in her best interests. The decision under review relates only to the provision of health information to XJ. Despite the fact that XJ wishes to advocate for Ms A and has had a personal relationship with her many years ago, that relationship has broken down irretrievably since her separation from Ms A’s brother. If the Public Guardian provides health information to XJ, despite opposition from Ms A and her family, then the relationship between the Public Guardian and Ms A will inevitably deteriorate. That will make it more difficult for the Public Guardian to make decisions which are in Ms A’s best interests. In those circumstances, the decision of the Public Guardian not to provide XJ with Ms A’s health information is the correct and preferable decision.

Orders

The decision of the Public Guardian not to disclose to XJ details relating to the private affairs of Ms A, including health related information, is affirmed.