LB v Hunter New England Area Health Service [2009] NSWADT 132

CITATION: LB v Hunter New England Area Health Service [2009] NSWADT 132

DIVISION: General Division

APPLICANT LB PARTIES:

RESPONDENT Hunter New England Area Health Service

FILE NUMBER: 099002

HEARING DATES: 26 May 2009

SUBMISSIONS CLOSED: 26 May 2009

DATE OF DECISION: 4 June 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Dismissal of application – frivolous vexatious misconceived or lacking in substance

Health Records and Information Privacy Act 2002 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Protection Act 1998

CASES CITED: LB v Hunter New England Area Health Service [2009] NSWADT 101 McGuirk v Director General, Attorney General's Department [2008] NSWADT 326

APPLICANT In person REPRESENTATION: RESPONDENT F Berglund, barrister

ORDERS: The Respondent's application to dismiss the proceedings pursuant to s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 is refused. However, the Tribunal declines to conduct an inquiry into the question of access to the two documents sought by LB under the Health Records and Information Privacy Act 2002 because this has already been determined in prior decisions made by the Tribunal under the Freedom of Information Act 1989.

REASONS FOR DECISION 1 LB has applied to the Tribunal for an inquiry into his complaint about the Hunter New England Area Health Service ('the Health Service') under the Health Records and Information Privacy Act 2002 ('the HRIP Act') (1) to deny him access to two documents containing his personal health information: (i) a psychological report prepared by a private psychologist, Dr G Lattimore, dated December 2005, and (ii) a Mental Health Triage Module, dated December 2005, created by the Hunter New England Mental Health Service, a unit of the Health Service; and (2) and in relation to the accuracy of personal health information held about him by the Health Service. 2 This decision is made in response to an application by the Health Service to dismiss LB's application pursuant to s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') on the ground "that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". Background 3 LB's application to the Health Service under the HRIP Act for access to the documents, dated 1 December 2008, was refused and LB sought an internal review. In his report in response to LB's application, the Review Officer found that the application related to 'personal health information' about LB and that the Health Service was the appropriate agency to deal with the complaint. The Review Officer found that there were two "points of conduct" that LB had requested be reviewed: (1) the Area Health Service's decision to deny him access to the two documents requested; and (2) the accuracy of personal information held about him by the Health Service. 4 The Review Officer found, with regard to the first part of the complaint, that there had been no breach of Health Privacy Principle ('HPP') 7, 'Access to personal health information'. He noted in relation to the first document sought by LB, the report prepared Dr Lattimore, that this had already been the subject of a review by the Tribunal, which, in June 2008, found the report to be an exempt document pursuant to the Freedom of Information Act 1989 ('FOI Act'), a decision upheld by the Appeal Panel. The Review Officer noted that the second document sought by LB, the Triage Module, had been the subject of a separate review by the Tribunal (differently constituted), which, in November 2008, found the Module to be partially exempt pursuant to the FOI Act. The Review Officer recommended that access to the documents sought by LB should continue to be refused. 5 With regard to the second part of the complaint, the Review Officer found no breach of HPP 9, 'Accuracy of personal health information'. The Review Officer said that any errors or inaccuracies in the two documents could have been addressed if LB had attended for assessment as requested by the Mental Health Service, but he had declined to attend. "Additionally, while the medical records cannot be deleted, the applicant's comments or any additional medical reports could have been attached as an addendum to his medical report." The Review Officer said LB "is still welcome to provide any additional information that he may want added to his medical report". He said the actions taken by the Health Service "are considered reasonable steps to confirm the accuracy of the information collected". 6 On 2 March 2009, LB applied to the Tribunal for an inquiry into his complaint about the Health Service. I conducted a planning meeting with the parties on 24 March 2009 at which Ms Johnson raised, as a preliminary issue, the application of s 22 of the HRIP Act, which provides that nothing in the Act affects the operation of the FOI Act and, in particular, does not operate to modify any exemption under that Act. I therefore set a timetable for the exchange of submissions on the preliminary issue of the Health Service's application to dismiss LB's application to the Tribunal pursuant to s 73(5)(g)(ii) of the ADT Act on the ground "that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". I set this preliminary matter down for hearing on 26 May 2009. 7 By letter dated 26 March 2009, addressed to the Registrar, LB requested that I "be removed from dealing with any further matter" he has before the Tribunal. On LB's letter being referred to me, I arranged a Directions Hearing on 5 May 2009 to discuss LB's application. LB asked me to disqualify myself on the ground of bias. He referred, in particular, to a hearing on 17 October 2008 in relation to the second document, the Triage Module, which I subsequently found to be an exempt document pursuant to the FOI Act. After considering submissions from the parties, I refused LB's application that I should disqualify myself: LB v Hunter New England Area Health Service [2009] NSWADT 101. The Relevant Legislation 8 At the hearing on 26 May 2009, I heard submissions from the parties on the Health Service's application that I should dismiss LB's application to the Tribunal pursuant to s 73(5)(g)(ii) of the ADT Act. This provides that the Tribunal: (g) may dismiss at any stage any proceedings before it in any of the following circumstances: