Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57

CITATION: Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57

DIVISION: General

APPLICANT: Eleanor Dawson

RESPONDENT: The Commissioner, Health Care Complaints Commission

FILE NUMBER: 993076

HEARING DATES: 07/05/1999

SUBMISSIONS CLOSED: 07/06/1999

DATE OF DECISION: 30 July 1999

N Hennessy - Deputy President BEFORE:

PRIMARY LEGISLATION: Freedom of Information Act 1989

APPLICATION: Review of decision to refuse access to documents (or part thereof) - personal affairs exemption

MATTER FOR DECISION: Principal matter

Applicant: In person REPRESENTATION: Respondent: T Galloway, Director of Investigations and Prosecutions, Health Care Complaints Commission

ORDERS: 1. The respondent's decision not to disclose the complete list of practitioners on the list of psychiatrists as at 31 May 1999 is set aside. 2. In substitutation for that decision the respondent is to provide to the applicant within 7 days a complete list of practitioners on the HCCC's list of psychiatrists as at 31 May 1999. The list should indicate the names of those practitioners who have resigned since that date.

Background to the application 1 This is an application by Dr Eleanor Dawson under the Freedom of Information Act 1989 (FOI Act) for access to the names of psychiatrists currently on the Health Care Complaints Commission's (HCCC) list of psychiatrists under their Peer Review Scheme. The HCCC has disclosed the names of all but three of the people on the list and has submitted that those three have either never been "properly" on the list or are no longer on the list. Alternatively the Commission has claimed that they are justified in not disclosing the names of the three people because of the operation of certain exemptions under the FOI Act. 2 The applicant originally lodged her application with the HCCC on 30 July 1997 seeking the "names of psychiatrists currently on the Register." Her application for the names was refused in full by letter dated 22 August 1997. The applicant applied for an internal review of the HCCC's decision by letter of 25 September 1998. The HCCC replied by letter of 12 October 1998 refusing the application and quoting Section 13 (b)(ii) of Schedule 1 to the FOI Act to justify their decision. 3 On 4 February 1999 Dr Dawson wrote to the Ombudsman requesting that she conduct an external review of the HCCC's decision under the FOI Act. The Ombudsman responded by requesting the HCCC to provide further information. 4 The applicant lodged an Application for Review of a Decision with the Tribunal on 4 May 1999. In that application Dr Dawson noted that "The NSW Ombudsman is awaiting a response from the HCCC - due about 18 May 1999." 5 At a meeting on 3 June 1999 the HCCC Commissioner gave the applicant the names of fourteen people on the list and advised that efforts were being made to consult with the remainder of the psychiatrists on the list. However the HCCC told the applicant that the identity of the people who objected to their names being disclosed would not be provided. 6 At a Directions Hearing on 10 June 1999 the Tribunal ordered the respondent to provide a Statement of Reasons in respect of the people on the list whose names had not been disclosed. By an undated letter to the applicant, eight more names were provided. The names of the three remaining people were not disclosed. The letter stated that "In the circumstances the full current list of the psychiatrists peer review panel has now been supplied to you. As I understand it, this satisfied your Application and there are no further matters which would warrant the provision of a Statement of Reasons." Evidence 7 Sarah Crawford, Director of Executive Support at the HCCC gave evidence that the list in question is compiled by the HCCC to assist in investigative work where independent opinions are needed in order to assess the allegations of complainants. The officer handling a complaint decides who is the most appropriate person on the panel to do a review. That person is then telephoned and asked if they agree to conducting the review. 8 Ms Crawford told the Tribunal that the means by which a person becomes a panel member has changed in the last few years. Previously there was a very informal process whereby people were placed on the panel through personal recommendation. In the last couple of years the process has been formalised so that a person is required to provide their curriculum vitae and a senior officer conducts an interview. The list is continually changed to ensure that it reflects the needs of the Commission. As at June 1999 the list comprised approximately four hundred practitioners. Participation on the list is voluntary with practitioners paid fees for the provision of reports or for participation as witnesses in hearings. 9 Ten months ago letters were sent to all 400 members on the list to advise them of the new procedures and obtain up to date curriculum vitaes. Ms Crawford estimated that twenty or thirty of the 400 people who were sent letters wrote back saying they did not know they were on the panel. 10 On 31 May 1999 Ms Crawford sent a fax to the twenty five members of the psychiatric panel advising them that an FOI application had been received and asking whether or not they objected to their name being released. One person, person A, sent a fax to the Commission stating that he had never been on the list. The letter, dated 1 June 1999 stated that: I do not hold a position on your review panel and have no desire to do so. Please remove my name from your list and do not release it to any members of the public. 11 Person B sent a fax dated 1 June 1999 which stated that: Your fax prompted me into action as I had been planning to withdraw from the peer review panel. This is a formal notice of my resignation. 12 Ms Crawford spoke to Person C who sought further information from the Commission regarding the operation of the peer review scheme but requested that her name be removed from the list in the meantime. 13 The guidelines for Experts and Peer Reviewers are available to all reviewers. The issue of confidentiality is covered on page 4 of the guidelines. It states, in part, that: The practitioner subject of the complaint (the respondent) and the complainant will not have access to the identity of the reviewer unless the matter is referred to a disciplinary hearing, but will be entitled to know the speciality and details of the declaration of connection as required under the Act. Issues and legislation