Henderson v The Privacy Commissioner HC Wellington CIV 2009-485-1037
[2010] NZHC 554
•29 April 2010
ORDER PROHIBITING PUBLICATION OF NAME OF 'L'.
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2009-485-1037
IN THE MATTER OF the Privacy Act 1993 AND
IN THE MATTER OF the Human Rights Act 1993
BETWEEN ROBERT HENDERSON
Applicant
AND THE PRIVACY COMMISSIONER
First Respondent
AND THE DIRECTOR OF HUMAN RIGHTS
PROCEEDINGS
Second Respondent
Hearing: 23 February 2010
Counsel: C J Hodson QC and R Scott for Applicant
C Gwyn and D Baltakmens for First Respondent A S Butler and SPH Elliott for Second Respondent
Judgment: 29 April 2010
JUDGMENT OF MILLER J
TABLE OF CONTENTS
Introduction.......................................................................................................... [ 1]
The narrative......................................................................................................... [ 4]
The proceeding.................................................................................................... [ 41]
The Health Information Privacy Code............................................................... [ 44]
The Privacy Commissioner and her functions................................................. [ 46]
The Director and his functions.......................................................................... [ 58]
The Commissioner’s investigation.................................................................... [ 64]
Assigning to the respondent a burden of proving exceptions....................................... [ 65]
Was the nurse, ES, an appropriate person to whom to make disclosure?...................... [ 72]
ROBERT HENDERSON V THE PRIVACY COMMISSIONER HC WN CIV 2009-485-1037 29 April 2010
Did the Commissioner err by failing to disclose information to Dr Henderson during her
| investigation?............................................................................................... | [ 81] |
| Did the Commissioner fail in a duty to promote settlement?............................ | [ 89] |
| Delay.......................................................................................................... | [102] |
| The Commissioner’s obligation to disclose information in judicial review........ | [105] |
| The Director’s decision to sue.................................................................... | [113] |
The relationship between the Tribunal proceeding and the Commissioner’s opinion [113]
| The Director's duty to give Dr Henderson an opportunity to be heard...................... | [118] |
| Is relief warranted?........................................................................................... | [123] |
| Decision.............................................................................................................. | [125] |
| Name suppression.............................................................................................. | [128] |
Introduction
[ 1 ] The Privacy Commissioner opined that Robert Henderson, a general
practitioner from Invercargill, breached the privacy of a patient, L, by disclosing what he interpreted as her drug-seeking behaviour to a nurse at her place of work, a nursing home. He feared that L might intercept drugs intended for residents at the home, and he believed it customary among health professionals to share such information.
The Commissioner delivered her opinion on 6 March 2007, the complaint having been made as long ago as 17 March 2003. She concluded that Dr Henderson had breached Rule 11 of the Health Information Privacy Code 1994 by disclosing L’s health information without justification. Having decided that settlement was not possible, she referred the complaint to the Director of Human Rights Proceedings. On 3 April 2009 the Director brought a proceeding in the Human Rights Review Tribunal, alleging breach of Rule 11.
In this application for judicial review Dr Henderson protests the Commissioner’s adverse opinion and complains of her failure to promote settlement and her extraordinary delays. He also challenges the Director’s decision to sue following the Commissioner’s allegedly defective opinion and before a complaint to the Ombudsman about the Commissioner’s conduct has been finally determined.
The narrative
I preface the narrative by recording that it is incomplete, for the Commissioner has not disclosed all the information on which she acted. It will be necessary to examine secrecy provisions in the Privacy Act 1993 and their implications for the proceeding. For the moment, I record that it is the Commissioner’s practice not to copy to one party correspondence from the other and she has not disclosed such material to the Court either. So, by way of illustration, in their respective affidavits the Commissioner’s staff and Dr Henderson exhibited correspondence between them, but the Commissioner did not exhibit correspondence from L and her legal advisors. The Commissioner did make certain disclosures to Dr Henderson, she made others to the Director, who appears to have disclosed such material to Dr Henderson, and two of the Commissioner’s staff, Katrine Evans and Mary-Camillus Dale, have sworn affidavits defending the Commissioner’s process and decision. But gaps remain.
Also by way of introduction, I note that some of the long delay revealed by the narrative, and one or two evident misunderstandings, may be explained by several changes of staff in the Commissioner’s office and changes of counsel on Dr Henderson’s side.
The narrative begins on 13 December 2002, when the patient, L, wrote to the manager of the Urgent Doctors Service, an after-hours clinic in Invercargill, complaining that the general practitioner who saw her the previous day, a Dr Prendergast, had treated her offensively when she presented with a back injury. It seems she wanted pain relief. She claimed that Dr Prendergast said she was named in a drug alert book as a methadone programme patient and accused her of wanting drugs.
Dr Henderson is the Complaints Officer at the Urgent Doctors Service. The complaint was referred to him and he spoke to Dr Prendergast. That led him to form the belief, which the Commissioner accepts is genuine, that L had exhibited drug-seeking behaviour.
I record that at no time before filing his affidavit in this proceeding did Dr Henderson relate Dr Prendergast’s detailed account of what had happened in the consultation, nor has Dr Prendergast ever provided a statement. In his affidavit Dr Henderson says Dr Prendergast’s account was that L demanded opiates for pain, refusing any other treatment, and became agitated and abusive when he would not prescribe them. No objection was taken to this evidence. I was told that Dr Prendergast is available, in that he still lives locally. There is no evidence that he has refused since the original complaint was made to co-operate with Dr Henderson or the Commissioner.
Sometime before 15 January 2003 Dr Henderson learned that L was a caregiver at a local nursing home where he had several patients. (It seems she had disclosed this information to Dr Prendergast, but Dr Henderson says he did not learn of it at the time and she did not mention it in her complaint of 13 December although she did say her injury was work-related.) Concerned that she might obtain drugs by depriving patients of their medications, he phoned the home at about 6.15pm and spoke to a receptionist. He says he asked for the clinical manager of nursing, knowing a senior nurse could ensure that drugs were secured. He understood that he was put through to that person. He actually spoke to a registered nurse, ES, who was the team leader and senior medical staff member on duty. He impressed on her the privacy and confidentiality of what he was telling her, saying that he nonetheless needed to inform the management about one of the staff. He explained that L was on the methadone programme, that she had drug-related convictions, that he had reason to believe she had been seeking drugs when at the clinic, and that she had been after hard drugs or methadone (there appears to be a conflict of evidence on the last point).
ES passed the information on to the manager of the nursing home, F. It also became known to other staff at the home, allegedly because ES was at a nursing station when she took the call. Why that resulted in disclosure to other staff is not presently known. Indeed, L stated in a later settlement proposal that ES would have taken the call on a mobile phone. There is no suggestion that Dr Henderson knew she was in a public area, or that ES warned Dr Henderson that she was unable to speak in confidence at that moment.
[10] In due course L complained to the Privacy Commissioner, saying that her health information had been disclosed to her employer without justification and she feared long term repercussions. The Commissioner told Dr Henderson by letter of 22 April 2003 that the complaint was being investigated, explaining her procedure, recording that she might attempt to settle the matter, and inviting any suggestions about how it might be resolved without further investigation. This letter was the first of several occasions on which the Commissioner invited one of the parties to make a settlement offer. The letter advised that the complaint had been made by Nicola Hillis of the Southland Community Law Centre, who was representing L.
[ 11 ] On 9 June Ms Hillis, a caseworker at the Southland Community Law Centre, wrote to the Commissioner recording the harm that L said she had suffered, including loss of confidence and a delay in reducing her methadone intake. L sought an apology and “a suitable amount” of compensation. This letter was the first of three settlement proposals made by L. Ms Hillis enclosed a letter of 28 May from R, the director of the organisation to which the nursing home belongs, saying that there is a clear chain of command in such organisations and Dr Henderson should know who to contact. R also claimed that L was not working that day. The Commissioner did not advise Dr Henderson of L’s proposals for settlement, nor did she tell him of R’s letter.
By letter of 8 July Dr Henderson responded to the Commissioner’s letter of 22 April, stating that L had at least two drug-related convictions and had approached several local doctors to obtain opiates, claiming to be in pain. He had felt that patients might be in imminent danger because they depend entirely on caregivers to administer their medications. It appears that he spoke to the Commissioner’s staff on 18 September. His counsel, Isobel Egerton, made detailed submissions on 20 October, contending that disclosure was necessary to meet a serious and imminent threat to the residents of the nursing home and so was authorised under Rule 11 of the Code.
On 29 January 2004 the Southland Community Law Centre wrote to the Commissioner, enclosing a statement from ES the gist of which was that she was the registered nurse on duty, that she took a call, that Dr Henderson identified himself
but did not ask who she was, and that he explained he had a problem that breached privacy and confidentiality of a staff member, that he needed to disclose it to the management for the safety of the residents, and that L was on a methadone programme. ES responded that she would pass the information to her manager, F, and did so that night. The letter added that L’s instructions were that Dr Henderson should have known caregivers did not have access to drugs at the nursing home. The statement of ES was not copied to Dr Henderson at the time, but its substance was discussed with his counsel by telephone and he responded by letter of 23 February, emphasising that he took care to ensure he was speaking to an appropriate person.
Nothing happened until 10 September 2004, when the Commissioner invited Dr Henderson to answer further questions about the consultation with Dr Prendergast and the records of the Urgent Doctors Service.
The Southland Community Law Centre wrote to the Commissioner by letter of 11 October with a second settlement proposal. L wanted an apology, an assurance that it would not happen again, and an offer of compensation that recognised the extent of L’s suffering. She did not nominate a sum of money. The letter was written by Jim Ogilvy, who described himself as an education worker. Attached to it was a two-page statement from L. She stated that she was still working at the nursing home but had to hide whenever Dr Henderson entered it, and she felt she could not seek employment in a similar position elsewhere because it seemed likely that other care facilities had been told she was on methadone. She had worked in the health industry for many years, caring for the seriously ill, the disabled, and the aged, and had never abused her position. She complained of the long delay, saying that she was in limbo while the complaint remained unresolved. She claimed that she had not used illicit drugs for the past seven years and said that but for the stress she would have completed methadone withdrawal.
The Commissioner did not tell Dr Henderson of this settlement proposal.
[ 16] Despite several reminders, not until 3 May 2005 did Dr Henderson’s new
counsel, Rebecca Scott, reply substantively to the Commissioner’s letter of 10
September. She contended that Dr Henderson had patients at the nursing home, he
saw a serious and imminent threat, he gave the information to a person who could act immediately to deal with it, and he supplied only the information necessary to identify the threat. Ms Scott also recorded Dr Henderson’s understanding that L had slammed her methadone card on the desk in front of Dr Prendergast after being told there was a warning about her; she produced the card in support of an argument that persons on the methadone programme may be prescribed the drugs she wanted. This account seemed to accord (in part) with L’s own narrative in her original complaint; she said that on the back of the card was a list of pain relief medications that she could be prescribed. Ms Scott stated that Dr Henderson had learned of L’s employment from a nurse at the practice.
On 30 September 2005 the Commissioner wrote recording her provisional opinion that L’s rights under Rule 11 of the Health Information Privacy Code had been breached. The draft opinion was a sensible way of giving notice of her proposed conclusions. She stated that at the time of the disclosure Dr Henderson did not have enough information to assess whether the threat to residents of the nursing home was imminent. He would need to have known more, such as whether L had access to drugs at the nursing home. She understood that L did not have access to the drugs cabinet and suggested there was no indication that L was likely to attempt to procure the residents’ medication. Further, Dr Henderson did not disclose the information to the appropriate person; ES was the registered nurse on duty, not the clinical manager and so was not in a position to deal with the issue.
The Commissioner recorded that a breach of L’s privacy required that she be satisfied not only that the Code was breached but also that the disclosure caused L an adverse consequence of the sort and degree set out in s 66 of the Privacy Act. She had written to L about the adverse consequences she claimed to have suffered. (That letter is not in evidence, but I note that L had already detailed the alleged harm in her October 2004 proposal.)
[ 19] In a letter of 20 October 2005 written by a new investigating officer, Ophelia Waite, to Ms Scott the Commissioner invited a settlement proposal, explaining that she must encourage the parties to settle. Ms Waite mentioned that the Commissioner had received a letter from L’s legal advisor. By letter of 27 October Ms Scott
inquired who the legal advisor was, and recorded that she had agreed with the Commissioner’s staff that it would be appropriate to await L’s views on settlement before he put forward any proposals. She sought confirmation of that process. Ms Waite responded on 31 October, advising that the Southland Community Law Centre had been corresponding with the Commissioner on L’s behalf and stating that the Commissioner would be in touch “once we have received [L’s] settlement proposal”.
[20] On 14 November Mr Ogilvy responded to the Commissioner’s request for a settlement proposal, making L’s third settlement proposal. In his covering letter Mr Ogilvy explained that L’s position regarding settlement had not changed from her proposal of 11 October 2004. The reason no figure had been put on compensation was that it was the least important of the three “requests” (the other two being an apology and an assurance that there would be no recurrence) needed to settle. He attached a three-page statement from L that detailed with evident depth of feeling the harm she had suffered. L had by now left Invercargill, attributing her resignation and move to Dr Henderson’s actions. She had lost much self-esteem and had abandoned her ambition to train as a nurse, and she now fears and avoids doctors, including her own GP, and has trouble sleeping.
[21 ] L’s settlement proposals and her account of the ill effects upon her were not sent to Dr Henderson. The Commissioner simply wrote on 16 December to Mr Hodson QC, Ms Scott apparently having taken parental leave. The Commissioner invited a settlement proposal from Dr Henderson and stated that as her office was impartial, it had “no input into the settlement proposals put forward by either party”. It appears the settlement options available had been discussed by telephone with Ms Scott but, notwithstanding the agreement that L should first put forward her proposal, there is no evidence that these discussions included any details of L’s proposals or her alleged losses, and the subsequent correspondence tends to confirm that these matters were not disclosed. It indicates only that the Commissioner had suggested a non-monetary present such as a gift basket in the discussion with Ms Scott. I observe that Ms Dale, who swore the substantive affidavit for the Commissioner, does not appear to have been involved at the time; not until October 2006 did she become the investigating officer.
It appears that Ms Waite and Mr Hodson discussed settlement in mid-February 2006 and Mr Hodson agreed to obtain Dr Henderson’s views on settlement. Dr Henderson put forward his only settlement proposal to the Commissioner by letter dated 8 March 2006. He offered an apology, stating that if his disclosure was a breach of R 11 he wished to express his regret, and inviting the Commissioner to pass the apology on to L. He added that:
I trust that in the circumstances of this case, and particularly that the communication occurred over three years ago and appears to have had no after effects, this file may now be closed.
The Commissioner did not forward this apology to L, but in her affidavit Ms Dale says that in late March L was told that Dr Henderson had expressed his regret but had made no other proposals. She says that L did not respond.
In a second letter dated 8 March Dr Henderson responded to the Commissioner on the merits, arguing that F, although the manager, was a non-clinical administrator who would know little about drugs. He was often absent. Clinical administration was ES’s responsibility, and as the registered nurse she supervised lay workers. Anyone who had worked in nursing homes would know how easy it was to obtain drugs illegally in such institutions. He had observed this ease himself on many occasions. Rest homes depend on trustworthy workers and the low success rate of treatment programmes is well known; a person in L’s position was not to be trusted with drugs. The Commissioner had wrongly assumed that there could be only one appropriate person to whom disclosure might be made. In any event, F could not address the problem without involving ES.
In a letter of 24 May 2006 written by Ms Evans the Commissioner responded to the second of Dr Henderson’s two letters of 8 March. She reiterated that although Dr Henderson had tried to do the right thing, he had spoken to the wrong person. The manager, F, was the appropriate person. Dr Henderson should not have spoken to ES, even if she was a team leader. By disclosing the information to F, Dr Henderson would have ensured that the disclosure was limited to as few people as possible. The Commissioner mentioned R for the first time, reporting that R had said there was a chain of command at the nursing home and had claimed, expressing disappointment, that Dr Henderson should have known to speak to the manager;
because he had failed to do so, other staff now knew of the issue. Because he had spoken to the wrong person, the Commissioner thought it was very difficult for Dr Henderson to show that he had believed on reasonable grounds that disclosure was necessary to prevent a serious and imminent risk to others. She did not mention R’s assertion that L was not working that evening.
In relation to settlement, the Commissioner explained that L had said she had not reduced her methadone levels as she had planned to do, that she feared for her job security and could not seek employment at other nursing homes, that she felt she could not use the Urgent Doctors Service, and that she had suffered depression and loss of confidence and self-esteem. Some of L’s submissions might be overstated but others were more compelling, especially her loss of confidence and self-esteem and her fears about who knew of the matter at work. Disclosure of her methadone use resulted in significant loss of dignity, in the Commissioner’s opinion, and so was compensable under the Act. She invited Dr Henderson to reconsider how the matter might be settled.
It appears from the Commissioner’s letter that she had accepted much of what L said in L’s second settlement proposal. The Commissioner’s summary of L’s complaints about the harm she had suffered was drawn in part from the October 2004 proposal, as shown by the reference to using the Urgent Doctors Service. (L had left Invercargill by the time she made her third proposal.)
Despite reminders, Mr Hodson did not reply until 14 July. He suggested that it would have been helpful had the Commissioner acknowledged the apology and indicated in what way it needed to be improved upon. Ms Evans had reviewed the facts, introducing new matters and making many errors. In a reference to R’s statement, counsel observed that evidently the Commissioner was selectively confronting Dr Henderson from time to time with statements from others. All such statements should be disclosed. Counsel was dismissive of L’s claimed distress. So far as closure was concerned, Dr Henderson would reiterate the apology, assuming that it had never left the Commissioner’s office. Counsel referred to the Commissioner’s well-intentioned suggestion of a gift, but stated that L was making no secret locally of her complaint and her expectation of a substantial sum, adding
that Dr Henderson would not pay money. If an apology would not end the matter, he would be grateful for an explanation.
On 2 August the Commissioner’s investigations manager, Mike Flahive, invited further submissions. He also responded to the suggestion that an apology should end the matter by stating that while the Commissioner attempted to “provide some impetus” to settle “we do not influence the actual outcomes or views of either party”. He invited Mr Hodson to address his letter of apology to L, and the Commissioner would forward it to her.
Mr Hodson responded sharply by letter of 10 August:
Your “attempt to provide some impetus to the parties to settle” has to date been singularly one-sided. You will see, if you look back on the file, that on 31 October 2005 Mrs Waite was going to obtain and let us have [L’s] settlement proposal. By 16 December this had evolved into Dr Henderson putting forward a settlement proposal. This he did in March; your office took no action. (emphasis in original)
He noted that the Commissioner evidently did not think the March apology inappropriate yet had not sent it to L, and invited her to send it, explaining to L why it had been so long delayed.
Mr Flahive responded on 17 August, but did not address the allegation that the Commissioner was to have let Dr Henderson have L’s settlement proposal. Instead he stated that he had conveyed to L Dr Henderson’s sentiments but not the actual apology, which he criticised, responding perhaps to the tone of Mr Hodson’s correspondence, as self-serving:
The first issue you raise in your latest letter of 10 August is the question of settlement. I note that Dr Henderson forwarded to us a letter dated 3 March 2006 in which he stated a qualified expression of regret and concern. In the context of this complaint, I do not believe that the letter is in a form appropriate for us to forward to [L]. As I have suggested, it would be useful for Dr Henderson to address his comments directly to [L] in a letter forwarded to us which we will forward on to her. Despite what you may think about the Commissioner’s position in settlement proposals, we do take genuine settlement offers seriously. However, we also do not wish to inflame situations beyond settlement. I consider Dr Henderson’s letter of apology was somewhat self-serving and not likely to advance settlement in this case. I leave it to you and your client to decide how best to word an
appropriate apology letter. In the meantime, I have passed on the sentiments of Dr Henderson’s 3 March correspondence, to the complainant.
It appears that the Commissioner told L of the substance of Dr Henderson’s position in a letter of 18 August which is not in evidence. The Southland Community Law Centre wrote on 30 August, making it plain that L had understood her settlement proposals had been passed on to Dr Henderson:
In regards to the past correspondence from Mr Henderson referred to in your letter where he has offered an apology, Mr Henderson stated that if he were in breach of a privacy rule, he wished to express his regret that this should have occurred and he asked you to pass on to [L] his expression of regret and concern. You also state that in Mr Henderson’s view in the circumstances of this case, that there had been no after effects.
[L] is at a loss to understand how Mr Henderson could have come to that conclusion, given that during the correspondence between ourselves and the Privacy Commissioner we have gone to great effort to express the extreme stress, humiliation and shattered self-confidence that [L] has suffered as a result of Mr Henderson’s actions.
The devastating effects that Doctor Henderson’s statements have had on [L] have been written in her own words and sent to the Privacy Commissioner enclosed with the letter from the Southland Community Law Centre dated 14 November 2005.
L accordingly rejected the apology as insincere.
Mr Hodson wrote on 20 September, noting that the substance of Dr Henderson’s correspondence had been passed on, stating that the next move was over to L, and adding that Dr Henderson need not take it from the Commissioner that the apology was inadequate without knowing how L had reacted. It appears that he was unaware of L’s settlement proposals. His letter drew a response of 29 September, in which the Commissioner stated that the apology and sentiments had been conveyed but L had indicated that they did not satisfy her; the apology was inadequate. The Commissioner did not explain that L had rejected the apology because she thought Dr Henderson had seen but ignored her detailed proposals of November 2995. Nor is there any suggestion that the Commissioner told L that Dr Henderson had never received her proposals.
Dr Henderson has now seen L’s correspondence about settlement. He deposes that:
Had I been aware, at any stage when I was asked to make comments about settling this matter, the degree of distress which is conveyed in these documents by L, I most certainly would have approached settlement differently. Indeed, throughout the duration of this drawn out matter I have felt most aggrieved and the victim in the whole process, as I considered I was performing my professional duties and obligations in contacting [the nursing home].
Further submissions were made by Dr Henderson on 17 October. The Commissioner issued her final opinion on 6 March 2007.
After summarising the facts, with respect to which she seems to have generally accepted L’s claim that she had sought pain relief after suffering a work injury, and after recording that the Code prohibits disclosure of health information unless an exception applies, the Commissioner stated that the onus was on Dr Henderson to show that an exception applied. Further, the delay of nearly four weeks in contacting the nursing home called into question the reasonableness of his belief that the threat was imminent and serious. (It is implicit in this statement that the Commissioner assumed Dr Henderson learned of L’s employment soon after the consultation.) Accordingly, he could not show that he had reasonable grounds for believing that there was a serious and imminent threat to others. He also made disclosure to an inappropriate person; the recipient needed the authority to achieve an effective result, and only the manager could do that. Disclosing the information to F would also have ensured that it did not become available to people who did not need to know. The Commissioner did not mention R’s assertion that L was not working at the time of the disclosure.
The Commissioner added that she was satisfied that disclosure of L’s involvement in a methadone programme resulted in significant humiliation and loss of dignity; it was not difficult to imagine her distress “when Dr Henderson phoned the nurses’ station and her colleagues became aware” of it. The information was highly sensitive health information carrying a substantial stigma.
With respect to settlement, the Commissioner recorded that L sought compensation, that Dr Henderson had apologised and expressed his understanding that there had been no after-effects, and that L did not believe the apology was
adequate. Dr Henderson had said he would not pay money. The parties were at an impasse and “there is nothing further this Office can do to encourage settlement”.
The Commissioner referred the complaint to the Director of Human Rights Proceedings on 13 March 2007, attaching her final opinion and expressing the view that the case explores the boundaries of what amounts to a serious and imminent threat to safety, and as such was “ a good legal issue for litigation in the Tribunal”. Dr Henderson and his counsel had been frustrated with the process, including the Commissioner’s “non-disclosure of documents provided by [L] and the statements provided by witnesses and third parties.” Only limited settlement options had been put forward; consequently the parties had been unable to settle. The Commissioner added that the Director might consult the investigation file. It is evident that the Commissioner was conscious that the Director might have to make discovery, so did not copy material from the file to him.
On 23 May 2007 Dr Henderson complained to the Ombudsman about the Commissioner’s investigation. In the meantime, the Director by letter of 19 March 2007 invited submissions from Dr Henderson under s 82(3) of the Act. Dr Henderson asked the Director to wait until the outcome of the Ombudsman’s investigation was known, and alleged that there had been serious deficiencies in the Commissioner’s process and opinion. He maintained that the Director could not exercise his statutory function while the Commissioner’s opinion was under serious challenge.
The Director agreed to consider deferring his decision, but the Ombudsman’s investigation stalled, apparently because the Privacy Commissioner did not provide a report as requested by the Ombudsman. Concerned about delay, the Director issued his proceeding on 3 April 2009.
Eventually, on 25 June 2009, and faced with a threatened judicial review application, the Ombudsman provided a provisional opinion in which she found the Privacy Commissioner’s conduct, including her attempts to promote settlement, not unreasonable. She recorded that the Commissioner accepted Dr Henderson’s
complaint about delays and explained that they were unlikely to recur. The Ombudsman has yet to issue a final opinion.
The proceeding
Dr Henderson seeks judicial review of two decisions; that of the Commissioner to refer the complaint to the Director, and that of the Director to sue.
So far as the Commissioner is concerned, the proceeding raises several issues:
a)Whether the Commissioner erred in law by assigning a burden of proof to Dr Henderson;
b)Whether the Commissioner erred in law by concluding that ES was not an appropriate person to receive Dr Henderson’s disclosure. This issue was not pleaded but it was debated in the correspondence and addressed in argument, and I propose to deal with it;
c)Whether the Commissioner erred by refusing to disclose information to Dr Henderson during the investigation, with the result that her opinion was founded on issues and information never put to Dr Henderson for reply;
d)Whether the Commissioner failed to discharge a statutory obligation to promote settlement;
e)Whether the Commissioner’s decision may be impeached for “unconscionable” delay;
f)The Commissioner’s obligation to disclose information in judicial review. This issue also was not pleaded, but it is necessary to touch upon it for reasons explained below.
With respect to the Director, Dr Henderson challenges the Director’s consultation under s 82(3), complaining that he is unable to make submissions about the Director’s decision to sue while his complaint to the Ombudsman is not finally resolved.
The Health Information Privacy Code
The Code was issued under s 46 of the Privacy Act 1993, the relevant provisions of which I summarise later in this judgment. Rule 11 of the Code provides that a health agency may not disclose health information that it holds unless certain circumstances apply; relevantly, that disclosure of the information is a purpose in connection with which it was obtained, or that the agency believes it is not desirable or not practical to obtain authorisation from the person concerned and disclosure is either directly related to a purpose in connection with which it was obtained or necessary to present or lessen a serious and imminent threat to public health or safety or the life or health of a person. I will set out the entire rule for context, emphasising the relevant parts:
Rule 11
LIMITS ON DISCLOSURE OF HEALTH INFORMATION
(1) A health agency that holds health information must not disclose the
information unless the agency believes, on reasonable grounds:
(a) that the disclosure is to:
(i)the individual concerned; or
(ii)the individual's representative where the individual is dead or is unable to exercise his or her rights under these rules;
(b) that the disclosure is authorised by:
(i)the individual concerned; or
(ii)the individual's representative where the individual is dead or is unable to give his or her authority under this rule;
(c) that the disclosure of the information is one of the purposes
in connection with which the information was obtained;
(d)that the source of the information is a publicly available publication;
(e)that the information is information in general terms concerning the presence, location, and condition and progress of the patient in a hospital, on the day on which the information is disclosed, and the disclosure is not contrary to the express request of the individual or his or her representative;
(f)that the information to be disclosed concerns only the fact of death and the disclosure is by a registered health professional, or by a person authorised by a health agency, to a person nominated by the individual concerned, or the individual's representative, partner, spouse, principal caregiver, next of kin, whanau, close relative or other person whom it is reasonable in the circumstances to inform; or
(g)the information to be disclosed concerns only the fact that an individual is to be, or has been, released from compulsory status under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the disclosure is to the individual's principal caregiver.
Compliance with paragraph (1)(b) is not necessary if the health
agency believes on reasonable grounds that it is either not desirable or not practicable to obtain authorisation from the individual concerned and:
(a)that the disclosure of the information is directly related to one of the purposes in connection with which the information was obtained;
(b)that the information is disclosed by a registered health professional to a person nominated by the individual concerned or to the principal caregiver or a near relative of the individual concerned in accordance with recognised professional practice and the disclosure is not contrary to the express request of the individual or his or her representative;
(c)that the information:
(i)is to be used in a form in which the individual concerned is not identified;
(ii)is to be used for statistical purposes and will not be published in a form that could reasonably be expected to identify the individual concerned; or
(iii)is to be used for research purposes (for which approval by an ethics committee, if required, has been given) and will not be published in a form which could reasonably be expected to identify the individual concerned;
(d) that the disclosure of the information is necessary to prevent
or lessen a serious and imminent threat to:
(i)public health or public safety; or
(ii)the life or health of the individual concerned or another individual;
(e) that the disclosure of the information is essential to facilitate
the sale or other disposition of a business as a going concern;
(f) that the information to be disclosed briefly describes only
the nature of injuries of an individual sustained in an accident and that individual's identity and the disclosure is:
(i) by a person authorised by the person in charge of a hospital;
(ii) to a person authorised by the person in charge of a news medium;
for the purpose of publication or broadcast in connection with the news activities of that news medium and the disclosure is not contrary to the express request of the individual concerned or his or her representative;
(g) that the disclosure of the information:
(i)is required for the purposes of identifying whether an individual is suitable to be involved in health education and so that individuals so identified may be able to be contacted to seek their authority in accordance with paragraph (1)(b); and
(ii)is by a person authorised by the health agency to a person authorised by a health training institution;
(h) that the disclosure of the information:
(i) is required for the purpose of a professionally
recognised accreditation of a health or disability service;
(ii) is required for a professionally recognised external
quality assurance programme; or
(iii) is required for risk management assessment and the
disclosure is solely to a person engaged by the agency for the purpose of assessing the agency's risk;
and the information will not be published in a form which could reasonably be expected to identify any individual nor disclosed by the accreditation or quality assurance or risk management organisation to third parties except as required by law;
(i) that non-compliance is necessary:
(i)to avoid prejudice to the maintenance of the law by
any public sector agency, including the prevention, detection, investigation, prosecution and punishment of offences; or(ii)for the conduct of proceedings before any court or
tribunal (being proceedings that have been commenced or are reasonably in contemplation);
(j) that the individual concerned is or is likely to become
dependent upon a controlled drug, prescription medicine or restricted medicine and the disclosure is by a registered health professional to a Medical Officer of Health for the purposes of section 20 of the Misuse of Drugs Act 1975 or section 49A of the Medicines Act 1981;
(k) that the disclosure of the information is in accordance with
an authority granted under section 54 of the Act.
Disclosure under subrule (2) is permitted only to the extent
necessary for the particular purpose.
Where under section 22F(1) of the Health Act 1956, the individual
concerned or a representative of that individual requests the disclosure of health information to that individual or representative, a health agency:
(a)must treat any request by that individual as if it were a health
information privacy request made under rule 6; and(b)may refuse to disclose information to the representative if:
(i)the disclosure of the information would be contrary
to the individual's interests;(ii)the agency has reasonable grounds for believing that
the individual does not or would not wish the information to be disclosed; or(iii)there would be good grounds for withholding the
information under Part 4 of the Act if the request had been made by the individual concerned.
This rule applies to health information about living or deceased
persons obtained before or after the commencement of this code.
(Despite subrule (5), a health agency is exempted from compliance
with this rule in respect of health information about an identifiable deceased person who has been dead for not less than 20 years.)
Under the Misuse of Drugs Act 1975 and the Medicines Act 1981 information about drug-dependent persons may be disclosed by a Medical Officer of Health to certain classes of person, including district health board employees, medical practitioners, designated prescribers, and those who deal in controlled drugs in the course of business.[1] The methadone users list to which Dr Henderson and Dr Prendergast referred is not in evidence but I was given to understand that it was issued under one of these provisions. Accordingly, r 11 contains a mechanism under which medical practitioners may disclose drug-seeking behaviour to officials who may publish it to places where controlled drugs are supplied to patients in the course of business. That presumably includes nursing homes.
The Privacy Commissioner and her functions
[1] Misuse of Drugs Act 1975, s 20; Medicines Act 1981, s 49A
The purpose of the Privacy Act 1993 is to promote and protect individual privacy, notably by establishing certain principles about the collection, use and disclosure of information relating to individuals. The Act covers all “agencies” whether public or private, and applies to all “personal information” which is defined as information about an identifiable individual .[2]
[2] Section 2.
The Act establishes the Office of the Commissioner, whose functions are set in s 13. They are extensive, reflecting the many interests encompassed by the concept of privacy,[3] and emphasise education, monitoring, law reform and policy functions. The last such function is that of exercising such other functions, powers and duties as are conferred on the Commissioner by or under the Act. The Commissioner must act independently, and must have due regard to certain matters; they include the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information.
[3] Geoffrey Palmer “Privacy and the Law” [1975] NZLJ 747.
The Act also allows the Commissioner to issue Codes of Practice relating to any specified information or class of information, or any specified agency or class of. agencies.[4] The Commissioner issued the Health Information Privacy Code in this way. Where a Code of Practice is in force, failure to comply with the Code is deemed to be a breach of an information privacy principle.[5]
[4] Section 46
[5] Section 53
An action interferes with the privacy of an individual if, and only if, in relation to that individual it breaches an information privacy principle or a Code of Practice issued under s 63 and, in the opinion of the Commissioner or of the Tribunal, as the case may be, the action has caused or may cause loss, detriment, damage or injury to that individual or may adversely affect his or her rights, benefits, privileges, obligations or interests, or may result in significant humiliation, loss of dignity or injury to the feelings of that individual .[6]
[6] Section 66.
Under Part 8 of the Act, the Commissioner receives and investigates complaints about interference with privacy of individuals. Her three functions are to investigate actions that appear to interfere with privacy, to act as conciliator in relation to any such actions, and to take such further action as that part of the Act contemplates.[7]
[7] Section 69.
The Commissioner must give notice to the complainant and the person to whom the investigation relates. Notice to the person to whom the investigation relates must include the details of the complaint or subject matter of the investigation:
73 Proceedings of Commissioner
Before proceeding to investigate any matter under this Part of this Act, the Commissioner—
(a) Shall inform the complainant (if any), the person to whom the investigation relates, and any individual alleged to be aggrieved (if not the complainant), of the Commissioner's intention to make the investigation; and
(b) Shall inform the person to whom the investigation relates of—
(i)The details of the complaint (if any) or, as the case may be,the subject-matter of the investigation; and..
(ii) The right of that person to submit to the Commissioner,
within a reasonable time, a written response in relation to the complaint or, as the case may be, the subject-matter of the investigation.
[52] The Commissioner may call a conference of the parties to a complaint, and may summons the person to attend such conference. The objectives of the conference are to identify the matters in issue and to try to obtain agreement between the parties on the resolution of those matters.[8]
[8] Section 76.
[53] Where an investigation is made, the Commissioner must conduct it “with due expedition” and must inform the parties concerned, as soon as reasonably practicable after the conclusion of the investigation and in such manner as the Commissioner thinks proper, of the result of the investigation and of what further action if any the Commissioner proposes to take.[9] Section 90 deals with the conduct of investigations:
[9] Section 75
90 Procedure
(1) Every investigation under Part 8 of this Act by the Commissioner
shall be conducted in private.
(2) Subject to section 120 of this Act,—
(a)The Commissioner may hear or obtain information from such persons as the Commissioner thinks fit:
(b)The Commissioner may make such inquiries as the Commissioner thinks fit:
(c)It shall not be necessary for the Commissioner to hold any hearing:
(d)Subject to section 73(b) of this Act, no person shall be entitled as of right to be heard by the Commissioner.
(3) Subject to the provisions of this Act, the Commissioner may regulate
his or her procedure in such manner as he or she thinks fit.
[54] The Commissioner has wide powers to summon and examine witnesses who in the Commissioner’s opinion are able to give information relevant to an investigation, and to require disclosure of any such person.[10].
[10] Section 91.
[55] Under s 120, which appears as one of the miscellaneous provisions, the Commissioner must not in any report made under the Act make any comment that is adverse to any person unless that person has been given an opportunity to be heard.
[56] Section 116 provides that the Commissioner, and every person engaged or employed in connection with the Commissioner’s work, shall maintain secrecy in respect of knowledge acquired in the exercise of their functions under the Act, but allows the Commissioner to disclose such matters as in the Commissioner’s opinion ought be disclosed for the purposes of giving effect to the Act:
116 Commissioner and staff to maintain secrecy
(1) Every person to whom section 96 of this Act applies shall maintain
secrecy in respect of all matters that come to that person's knowledge in the exercise of that person's functions under this Act.(2) Notwithstanding anything in subsection (1) of this section, the
Commissioner may disclose such matters as in the Commissioner's opinion ought to be disclosed for the purposes of giving effect to this Act.(3) Except where it is necessary to do so for the purposes of referring a
matter to the [Director of Human Rights Proceedings] pursuant to section 77(2) of this Act, the power conferred by subsection (2) of this section shall not extend to—(a) Any matter that might prejudice—
(i)The security, defence, or international relations of
New Zealand (including New Zealand's relations with the government of any other country or with any international organisation); or(ii)Any interest protected by section 7 of the Official
Information Act 1982; or(iii)The prevention, investigation, or detection of
offences; or
(b) Any matter that might involve the disclosure of the
deliberations of Cabinet; or
(c) Any information, answer, document, or thing obtained by
the Commissioner by reason only of compliance with a requirement made pursuant to section 95(1) of this Act.
[57] Where the Commissioner has made an investigation and is of the opinion that
the complaint has substance, the Commissioner “shall use his or her best endeavours
to secure a settlement between any parties concerned ... .”[11] If the Commissioner is unable to secure a settlement, she may refer the matter to the Director of Human Rights Proceedings for the purpose of deciding whether proceedings under s 82 should be instituted against the person who was the subject of the complaint or in respect of whom the investigation was conducted. [12]
The Director and his functions
[11] Section 77(1)(a).
[12] Section 77(2).
Where the Commissioner refers a matter to the Director, it is for the Director to determine, in his or her discretion, both whether it justifies proceedings and whether they should be instituted:
77 Procedure after investigation
(3) Where a matter is referred to the Director of Human Rights
Proceedings under subsection (2) of this section, it shall, subject to section 82(3) of this Act, be for the Director of Human Rights Proceedings to determine, in his or her discretion, both whether a matter justifies the institution of proceedings under section 82 of this Act and whether proceedings should be instituted under section 82 of this Act in respect of that matter.
Section 82 governs proceedings before the Human Rights Review Tribunal. It applies to any person in respect of whom “an investigation has been conducted” under Part 8 in relation to any action alleged to be an interference with the privacy of an individual. It also applies where settlement has been attempted under s 74, without success. Civil proceedings lie at the suit of the Director against any person in respect of whom the investigation has been conducted. The Director must not take proceedings against any such person unless he or she has first given that person an opportunity to be heard:
82 Proceedings before Human Rights Review Tribunal
(3) The Director of Human Rights Proceedings shall not take
proceedings under subsection (2) of this section against any person to whom this section applies unless the Director of Human Rights Proceedings has given that person an opportunity to be heard.
An aggrieved individual may also bring proceedings before the Tribunal, but only if the Commissioner or the Director considers that the complaint does not have substance or that the matter ought not be proceeded with, or, where the Director would be entitled to bring proceedings, the Director has agreed to the individual doing so in his or her own right or declines to take proceedings.
The available remedies in such proceedings include declarations, orders restraining the defendant from continuing or repeating an interference or engaging in similar behaviour, remedial steps, and damages.
Proceedings before the Tribunal are essentially adversarial in character. [13] The Tribunal must be satisfied on the balance of probabilities that any action of the defendant interfered with the privacy of an individual. Section 87 provides that where the defendant invokes an exception from an information privacy principle or Code of Practice, the onus of proving the exception in any proceedings under Part 8 lies on the defendant:
87 Proof of exceptions
Where, by any provision of the information privacy principles or of this Act or of a code of practice issued under section 46 or section 63 of this Act, conduct is excepted from conduct that is an interference with the privacy of an individual, the onus of proving the exception in any proceedings under this Part of this Act lies upon the defendant.
[13] Section 85.
Certain provisions of the Human Rights Act 1993 apply; they include s 109, which states the Tribunal may summons witnesses. The Tribunal has held that discovery is available in proceedings before it. [14]
The Commissioner’s investigation
[14] Director of Human Rights Proceedings v Richardson [2005] NZHRRT 36.
I begin by noting that the Commissioner accepts that her opinion involves the exercise of a statutory power of decision, although it does not finally determine rights and obligations. [15] That must equally be true of her referral to the Director.
Assigning to the respondent a burden of proving exceptions
[15] Jeffries v Privacy Commissioner [2009] NZCA 567 at [19].
I have already mentioned the Act’s provisions dealing with the Commissioner’s investigation. Ms Baltakmens aptly described the procedures as informal, inquisitorial, and private. The Commissioner may make such inquiries as she thinks fit, and may hear or obtain evidence from such persons as she thinks fit. She may summons and examine witnesses. The respondent may not insist on a hearing or apply to the Commissioner for orders compelling witnesses to give evidence.
Dr Henderson maintains that the Commissioner wrongly assigned to him a legal burden of proving, on the balance of probabilities, an exception to the prohibition on disclosure of health information.
A difference of view emerged between counsel for the respondents at the hearing. Ms Baltakmens emphasised that health information is special information in which there are strong expectations of privacy; its collection and use are strictly controlled; only in very limited circumstances can it be disclosed without authorisation, and then only to the extent necessary. However, she was driven to acknowledge that the Commissioner erred in law if indeed she did assign a legal burden of proof to Dr Henderson, for the procedures in the legislation do not so provide. Ms Baltakmens argued rather that on the facts the Commissioner did no more than assign an evidential burden, meaning that she notified Dr Henderson that she had satisfied herself, subject to anything he might say, that Rule 11 had been breached. Mr Butler, however, argued that the Commissioner might impose an onus, citing s 87 under which the defendant in proceedings before the Tribunal does bear the burden of proving exceptions; he argued that it was no error for the Commissioner to anticipate such proceedings by recognising the burden that would apply in them.
In my view Ms Baltakmens’ concession was correct, indeed inevitable. Section 87 rather proves Mr Hodson’s point; it appears as one of a number of provisions establishing that Tribunal proceedings are essentially adversarial, that the Director must prove his case on the balance of probabilities, and that the defendant
may ask the Tribunal to summons witnesses to appear at the hearing. There are no parallels in the sections dealing with the Commissioner’s investigation, which is inquisitorial, in which there need be no hearing, and in which it is for the Commissioner to decide whether to summon and question on oath any person who, in the Commissioner’s opinion is able to give relevant information, or to require such person to disclose information. This conclusion is consistent with the only relevant authority to which I was referred, the judgment of Ronald Young J in Stubbs
v Health and Disability Commissioner, a case dealing with the Code of Health and Disability Services Consumers Rights. [16] (Ms Baltakmens also referred to L v L, but that was an appeal from the Tribunal and s 87 applied. )[17]
[16] Stubb v Health and Disability Commissioner HC Wellington CIV 2009-485-2146, 8 February 2010
[17] L v L HC Auckland AP95-SW01, 31 May 2002.
This is not to deny that the Commissioner may reach the point in her investigation where she is satisfied, subject to anything the respondent might say, that the complaint has substance. Nor is it to assume that the legislation requires that she be satisfied to any standard; s 77 requires no more than that she form an opinion, undoubtedly in good faith, that the complaint has substance. It is to say, rather, that she must satisfy herself whether an available exception excuses the disclosure, undertaking such investigations as she thinks necessary for that purpose. She cannot insist that the respondent prove the exception to a legal standard, such as the balance of probabilities when, as the Commissioner acknowledges, the complainant bears no burden of proving the complaint.
That the Commissioner did assign a legal burden of proof to Dr Henderson cannot be doubted. In her final opinion she stated when introducing the Code that “[t]he onus is on Dr Henderson to prove that an exception applies...”, and she reached her conclusion on the important factual question of L’s drug-seeking behaviour by reasoning that “Dr Henderson has not provided any evidence to persuade this office...” and so had not supported his claim that he had reasonable grounds for belief. No statement had been provided from Dr Prendergast, nor had the doctor’s notes been made available. Addressing the risk that L would source opiates at work, the Commissioner concluded that “it is difficult to see – even on the
balance of probabilities – that Dr Henderson’s belief was reasonable ... .” She accordingly concluded under Rule 1 1 (2)(d) that Dr Henderson “has not made out the exception ... .” That followed other correspondence in which the Commissioner had made it plain that she considered Dr Henderson bore such a burden; I refer in particular to her letter of 24 May 2006. I also observe that Ms Dale placed some emphasis on the burden of proof in her affidavit, stating when summarising the correspondence that the Commissioner had to be satisfied of the exception on the balance of probabilities.
[71 ] It follows that the Commissioner erred in law. The error mattered, for it resulted in the Commissioner failing to satisfy herself about important facts that had been drawn to her attention and might excuse Dr Henderson. Had the Commissioner approached her inquiry correctly, from an inquisitorial perspective, she might have considered whether she ought require Dr Prendergast to explain what happened in the consultation. Instead she appears to have assumed that Dr Henderson had it in his power to secure Dr Prendergast’s co-operation. She might have critically examined the proposition that by choosing to speak to ES Dr Henderson caused other staff to learn of the information. And she might also have examined procedures at the nursing home to assess whether it was indeed possible for L to intercept drugs intended for patients, as Dr Henderson asserted.
Was the nurse, ES, an appropriate person to whom to make disclosure?
In her final opinion the Commissioner placed substantial weight on her conclusion that ES was not the correct person to whom to make disclosure, if disclosure was warranted. F, as the manager of the nursing home, was the person ultimately responsible for the staff and therefore, as Ms Dale put it, “the most appropriate person to whom information regarding L should have been disclosed”.
Rule 1 1(2)(d)(ii) relevantly provides that disclosure that is not authorised by the affected person may be made where “the health agency believes on reasonable grounds” that it is not desirable or not practicable to obtain authorisation and that the disclosure of the information “is necessary to prevent or lessen a serious and imminent threat” to the life or health of another individual. Disclosure under sub-rule (2) is permitted only to the extent necessary for the particular purpose.
[ 104] The Commissioner’s delay was indeed inordinate, and I am prepared to accept that she cannot excuse herself, in this context, by pointing to a government decision to limit her funding. But she did not deny Dr Henderson natural justice. Dr Henderson contributed about 18 months to the overall delay of four years. There were long periods in which he did not respond to the Commissioner. He did not
pursue an early conclusion. And if I am wrong in that, I would not be prepared to grant relief. While Dr Henderson is aggrieved by what he sees as the Commissioner’s indifference to her duty, he can point to no specific prejudice resulting from delay. [23]
[23] Amaltal Fishing Co Ltd v Commissioner of Inland Revenue (2009) 24 NZTC 23,313; Daniels v Chief Executive Officer of the Department of Work and Income (2002) 6 HRNZ 724.
The Commissioner’s obligation to disclose information in judicial review
[105] The Commissioner’s approach to disclosure in this judicial review application was inevitably in issue before me, for Ms Gwyn explained in oral argument that the Commissioner has taken the stance that disclosure in judicial review is not something done for the purpose of giving effect to the Act. In the result, she has conducted herself on the basis that she is bound by s 11 6(1) but has no discretion to make disclosure to the Court.
[ 106] While he criticised the Commissioner for this stance, Mr Hodson acknowledged that the Court had not been asked in the pleadings to address the point, and neither counsel wished me to decide whether discovery may be ordered against the Commissioner. (I note that discovery has been addressed in several cases, although in only one of them, Jeffries v Privacy Commissioner, was the Commissioner a respondent in judicial review .[24]) I am told that informal lists of documents were exchanged, the Commissioner’s excluding everything in which she claimed privilege, statutory immunity or confidentiality. Ms Gwyn accepted, however, that I might decide whether s 116(2) is available to the Commissioner in judicial review.
[24] Director of Human Rights Proceedings v Richardson [2005] NZHRRT 36; Siemer v Fardell HC Auckland CIV 2003-404-5782, 23 July 2004; Jeffries v Privacy Commissioner HC Wellington CIV 2006-485-860, 20 October 2006.
In supplementary submissions, and having reflected at my invitation on Knight v Commissioner of Inland Revenue, [25] the Commissioner accepted that in responding to judicial review she is giving effect to the purposes of the Privacy Act. That seems to me obvious. As Cooke P put it in Knight, settling the limits of powers given by an Act and giving redress for exceeding those powers carries the Act into effect, as does
[25] Knight v Commissioner of Inland Revenue [1991] 2 NZLR 30 (CA).
an inquiry into its alleged maladministration. [26] I add that the Tribunal drew this point to the Commissioner’s attention in Richardson. [27]
[26] At 35.
[27] At [104].
[107] Accordingly, it is not now in dispute that the Commissioner must in judicial review turn her mind to the exercise of her discretion under s 116(2).
[ 108] Ms Gwyn also accepted that, as a general principle, decision-makers have a duty to disclose to the Court material relevant to a decision being judicially reviewed .[28] I agree. The Court normally expects public bodies to disclose relevant material, which is one reason why discovery is not required as a matter of course under the Judicature Amendment Act, and an adverse inference may be drawn where a decision-maker has failed to do so.[29] This expectation is qualified in the Commissioner’s case, but she must still consider whether and how disclosure of information bearing on the decisions being reviewed can be made without compromising unduly her other responsibilities under the Act. She must be prepared to justify non-disclosure if her decision under s 116(2) is reviewed, if discovery is sought, or when the judicial review application is argued. Consideration may be given to seeking the consent of those affected or making disclosure on terms confining the information to the Court and counsel.
[28] R v Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 (CA) at 945 per Sir John Donaldson MR, 946-947 per Parker LJ.
[29] New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 554, 561-2, 567-8; Michael Fordham Judicial Review Handbook (5th ed, Hart, Great Britain, 2008) at [10.4]; Harry Woolf, Jeffrey Jowell, Andrew Le Sueur De Smith’s Judicial Review (6th ed, Sweet & Maxwell, Great Britain, 2007) at [16-065].
[ 109] By way of illustration, the Commissioner might have deposed in this case that she did consider disclosing L’s settlement proposal but did not because she thought it unhelpful; instead, she engaged L in confidential discussions. Had she done that, the Court would be most unlikely to draw adverse inferences from her decision not to disclose the confidential discussions. [30]
[30] Air New Zealand v Auckland International Airport (2001) 16 PRNZ 783, Berryman v Solicitor-General HC Wellington CIV 2005-485-1795, 4 July 2007 at [5].
[1 10] Beyond that it is not necessary to go in this case. In particular, I need not
determine to what extent the Act reserves to the Commissioner the freedom to refuse
disclosure in judicial review. It differs somewhat from the income tax legislation, under which most of the cases have been decided. I will assume that s 116 applies, meaning that the Commissioner must observe secrecy unless she considers information ought to be disclosed for the purposes of giving effect to the Act.
[ 111 ] The Commissioner failed to exercise her discretion under s 116(2) in the context of the judicial review application. She has not attempted to justify nondisclosure of relevant information by reference to specific secrecy considerations arising on the facts. (For example, she does not suggest that witnesses disclosed information to the Commissioner on the understanding that it would go no further.) I accept, however, that the Commissioner seems to have laboured under a legal misunderstanding, and because of the way in which the issue arose before me no relief would be appropriate.
[ 112] The omission does influence my approach to the evidence. I draw no adverse inferences against the Commissioner on account of her non-disclosure. At the same time I am not prepared to draw inferences in her favour on the assumption that her hands were tied by s 116(1). Non-disclosure of relevant material must be justified by reference to the Act’s purposes.
The Director’s decision to sue
The relationship between the Tribunal proceeding and the Commissioner’s opinion
[113] I begin by addressing the relationship between the Commissioner’s adverse opinion and the Director’s proceeding. Mr Butler argued that the two are independent. Jurisdiction to sue does not rest on an adverse opinion; indeed, the Director may sue when a complaint has settled.
[ 114] It seems to me that this is to speak too generally. It is true that s 82 applies to a person in respect of whom “an investigation has been conducted” under Part 8, and that s 82 authorises proceedings against any such person in respect of any action of that person that is an interference with an individual’s privacy. However, the Director does not have power to sue in every case falling within s 82. That section must be read with s 83, which allows an aggrieved person to sue in certain circumstances. So far as proceedings brought by the Director are concerned, the investigation referred to in s 82(1)(a) is that of the Commissioner and s 77(2) envisages that the Commissioner will refer “matters” to the Director. “Matters” is not defined, but the term is plainly used because the Commissioner’s jurisdiction under Part 8 is not confined to complaints. The section allows the Commissioner to refer a matter to the Director after making any investigation under Part 8. Importantly, s 77(3) confers a discretion on the Director but only in respect of matters referred under s 77(2). The purpose of such referral is that of allowing the Director to decide whether proceedings under s 82 should be instituted against the person against whom the complaint was made or in respect of whom the investigation was conducted. Read together, these provisions indicate that the Director’s power to sue under s 82 requires both that an investigation has been conducted by the Commissioner under Part 8 and that the Commissioner has referred to the Director the matter to which the investigation relates. I note that the Tribunal has considered the Director’s powers in two decisions that were not examined in argument before me. [31]
[31] KI v Sheppard [2005] NZHRRT 21; Lehmann v Radioworks Ltd [2005] NZHRRT 20
[115] Of course an investigation was conducted in this case, and a complaint referred to the Director under s 77(2). As Mr Butler submitted, administrative law no longer treats a flawed decision as a nullity for all purposes. [32] Rather, the decision generally remains lawful until set aside. It follows that the Director had the power to bring his proceeding at the time he did so.
[32] Martin v Ryan [1990] 2 NZLR 209.
[ 116] It need not follow that he retains power to prosecute the proceeding following judicial review of the Commissioner’s referral. But Dr Henderson seeks declarations that the Commissioner’s opinion is invalid and that she had no lawful basis on which to refer the matter to the Director (rather than an order quashing the referral), and a declaration that the Director has filed his proceeding in breach of s 82(3). So I need not consider the implications for the Director’s proceeding of an order quashing the referral..
[ 117] I inquired of Mr Butler what the Director means to do should Dr Henderson succeed against the Commissioner. His response was that the investigation and opinion are not nullities and the proceeding remains live whatever this Court may think of them. The Tribunal can resolve the factual questions that remain. So the Director will not abandon his proceeding without further ado if the Court’s judgment is against the Commissioner. Mr Butler did acknowledge that the Director has based his decision to sue, in part, upon the Commissioner’s opinion. I take it that that means the Director would consider whether he ought continue if the Commissioner lost. Further, Mr Butler advised that the Director is “not averse” to settlement; if the parties reached agreement he would normally withdraw the proceeding as a matter of practice.
The Director’s duty to give Dr Henderson an opportunity to be heard
[ 118] It cannot be disputed that the Director’s decision to sue was the exercise of a statutory power.
[ 119] Dr Henderson’s complaint is simply that until the Ombudsman has provided her final opinion the Director cannot comply with his obligation to provide Dr Henderson with an opportunity to be heard, as s 82(3) requires.
[ 120] Mr Butler responded that the Ombudsman’s opinion is not a mandatory relevant consideration; it is for the Director to decide whether the investigation revealed a meritorious claim. In any event, the Ombudsman’s provisional opinion is unhelpful to Dr Henderson.
[121] Section 77(3) provides that where a matter is referred to the Director he has a discretion whether to issue a proceeding in respect of it. The Director may not sue unless he has given the proposed defendant an opportunity to be heard, but he need not delay while other remedies are exhausted. In any event, the Ombudsman’s jurisdiction does not extend to setting aside the Commissioner’s investigation or opinion. So the Director need not await the Ombudsman’s opinion, notwithstanding that it might be a relevant consideration if delivered before the decision to sue was made. In the meantime, Dr Henderson might tell the Director, when invited to make
submissions about the proposed proceeding, anything that he said to the Ombudsman by way of challenge to the Commissioner’s opinion.
Nor is there substance in Mr Hodson’s submission that the Director acted precipitately. He did await the Ombudsman’s opinion, but after a long delay decided he would wait no longer.
Is relief warranted?
The respondents marshalled several arguments against relief. Mr Butler emphasised that the Director’s proceedings do not depend on the Commissioner’s opinion, and the merits can be finally resolved in the Tribunal. There may be good reason to think that Dr Henderson cannot make out his defence there. Ms Baltakmens argued that insofar as the complaint rests on ignorance of L’s settlement proposal Dr Henderson now knows the details, so nothing is gained by requiring the Commissioner to go back and pursue settlement. It is still open to him to settle the complaint himself, yet he has not made the effort. It might also be said that by refusing relief the Court would recognise that he contributed by his own delays and intransigence to the failure to settle.
[ 124] I find these arguments unpersuasive, for several reasons. The first is that when a reviewable error has been made, relief ordinarily follows. [33] Second, relief has a salutary effect which is well merited in this case. Third, the Commissioner, rather than Dr Henderson, is largely responsible for the parties’ failure to engage with one another in settlement negotiations. Fourth, L’s claim against Dr Henderson may have merit, but the relief sought does not bring the claim to an end. Fifth, Dr Henderson seeks only declarations against the Commissioner, rather than an order that she revisit her work. I accept that she is not well placed to broker a settlement now, and the parties have other options, such as private mediation. Lastly, I do not accept that declarations are futile. The complaint has yet to be resolved. The Commissioner’s opinion and resulting referral affect the prospects of settlement and
[33] Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139.
the price that Dr Henderson might have to pay to achieve it, for they place L in a somewhat stronger position than she would be without them.
Decision
[125] Dr Henderson’s claim against the Commissioner succeeds in part. There will be declarations as follows:
a)That the Commissioner’s opinion is wrong in law, having been based on an onus of proving exceptions to Rule 11 that she wrongly assigned to Dr Henderson and an erroneous assumption that disclosure to meet a serious and imminent risk to life or health must be made to a person who is not only able to deal with such risk but also the most senior person with that ability; and
b)That the Commissioner failed in her duty to promote settlement; and
c)That the Commissioner could not reasonably conclude, when she referred the complaint to the Director, that she was unable to secure a settlement.
[ 126] I decline Dr Henderson’s request for a declaration that the Director filed his proceeding contrary to s 82(3), and decline his request for an order staying the Tribunal proceeding.
[127] Counsel must seek agreement on costs. It may assist them if I indicate that I envisage that Dr Henderson should receive one set of costs according to scale. Although he did not obtain relief against the Director, the two respondents took common cause, Mr Butler defending the Commissioner’s actions with an eye to the Director’s proceeding, and Dr Henderson has prevailed in substance. Memoranda may be filed if counsel cannot agree.
Name suppression
[128] Orders were made at the hearing permanently suppressing L’s identity in connection with this proceeding. The orders were made because the proceeding concerns health information that the Act and the Code recognise as private in nature, and because L’s identity is not necessary to an understanding of the Court’s decision. For the same reasons I have not identified the nursing home or its employees in this judgment.
Miller J
Solicitors:
Bartlett Partners, Wellington for Applicant
Crown Law, Wellington for First Respondent
Russell McVeagh, Wellington for Second Respondent
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