EOC v Crowe [2021] NSWCATAD 335

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EOC v Crowe [2021] NSWCATAD 335 Hearing dates: On the papers Date of orders: 11 November 2021 Decision date: 11 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: The Tribunal decides to take no action in respect of conduct of Dr Crowe. Catchwords: ADMINISTRATIVE REVIEW - privacy - health records - alleged breaches of Health Privacy Principles – conduct – HPP 7 Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Care Complaints Act 1993 Health Records and Information Privacy Act 2002 Category: Principal judgment Parties: EOC (Applicant) Dr Sarah Crowe (Respondent) Representation: Solicitors: Applicant (self-represented) Mills Oakley (Respondent) File Number(s): 2021/00015994 Publication restriction: Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 the name of the Applicant is not to be disclosed.

REASONS FOR DECISION 1. The Respondent is an Ophthalmic Surgeon, Dr Sarah Crowe. 2. The Tribunal has made orders in these proceedings that the name of the Applicant not be disclosed to preserve the privacy of her health information. The Applicant is referred to as EOC. 3. EOC was a patient of Dr Crowe and first consulted her on 16 April 2015. 4. On 25 September 2019, EOC underwent cataract surgery under the hand of Dr Crowe. 5. The therapeutic relationship ceased on 21 November 2019. 6. On 19 March 2020, Dr Crowe received a complaint notification from the Health Care Complaints Commission (HCCC) in relation to a complaint made by EOC. 7. On 5 May 2020, the HCCC decided to take no further action against Dr Crowe. 8. On 24 May 2020, EOC made a request to Dr Crowe for access to: (1) Reports for consultation on the following dates; 16/04/2015; 27/10/2016; 8/03/2018, and per advice from the Information Privacy Commission (IPC). (2) A copy of 'Medical Record' you provided to HCCC (as per advice by IPC and Janette Campbell HCCC Assessment Officer). (3) A copy of 'your response' to HCCC. 1. By application filed 19 January 2021, EOC seeks a review of a decision of Dr Crowe to not provide a copy of her response to the HCCC as follows: 'Information Privacy Commissioner did not ask Dr Crowe to provide a copy of her response to HCCC and therefore Privacy Commissioner has not examined the specific information at issue in assessment of my complaint.' 1. In written submissions filed by EOC on 27 July 2021, the following is recorded: 'I am seeking NCAT to obtain Dr Crowe's response to HCCC in order to determine she is not using her professional privilege to present me as a mentally worthless person who should not be trusted with my complaints as she did in her reports and other communications. I would also like to request that NCAT would consider releasing to me Dr Crowe's response to HCCC in order to determine it does not include inaccurate or misleading information.' 1. In the written submissions filed by Dr Crowe's solicitors, Mills Oakley, the following is recorded: 'At the case conference on 6 April 2021, Senior Member McAteer ordered parties to 'put their best attempts to informally resolve the matter between [6 April 2021] and the mid-June listing …' Senior Member McAteer further commented that in the event of the parties being unable to resolve the matter by the next case conference on 15 June 2021, then the matter would be listed for hearing on the sole issue of whether a copy of Dr Crowe's response to the HCCC should be provided to the Applicant.' 1. The parties were not able to resolve the matter. In the result, I am to determine the sole issue of whether a copy of Dr Crowe's response to the HCCC should be provided to EOC. 2. Much of EOC's submissions relate to allegations of possible negligence of Dr Crowe, or, other investigations undertaken by the HCCC in relation to EOC's complaint to that body. EOC raises a number of assumptions which she contends could be satisfied by the provision of Dr Crowe's response to the HCCC. It has not been possible in these reasons to refer to every allegation raised in that regard, nor is it necessary to do so. 3. The scope of the matters before the Tribunal to be determined is whether Dr Crowe's response to the HCCC should be provided to EOC. 4. Pursuant to s55(2) of the Civil and Administrative Tribunal Act 2013, a hearing has been dispensed with. The proceedings have been determined on the papers.