New South Wales Court of Appeal CITATION : Crewdson v Central Sydney AHS [2002] NSWCA 345 revised - 6/12/2002 FILE NUMBER(S) : CA 40075/02 HEARING DATE(S) : 12 July 2002 JUDGMENT DATE : 26 November 2002 Gerard Crewdson PARTIES : v Central Sydney Area Health Service JUDGMENT OF : Handley JA at 1; Ipp JA at 40; Davies AJA at 41 LOWER COURT JURISDICTION : Appeal Panel, Administrative Decisions Tribunal LOWER COURT ADT 019001/01 FILE NUMBER(S) : LOWER COURT Appeal Panel JUDICIAL OFFICER : COUNSEL : Appellant - In Person Respondent - A Bell/J Kirk SOLICITORS : Appellant - In Person Respondent - I V Knight, Crown Solicitor CATCHWORDS : FREEDOM OF INFORMATION - NSW - application for amendment of official records on ground that information incorrect, out-of-date, or misleading - not vehicle for collateral review of merits or validity of official action - JUDICIAL REVIEW - application for amendment of official records not vehicle for collateral review of merits or validity of official action Freedom of Information Act 1989 (NSW) LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Public Sector (Management) Act 1988 Re Resch and Dept of Veterans Affairs (1986) 9 ALD 380, 386, 387, 389 Re Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 Hewitt v Grabicki 794 F. 2d 1373 (9th Circuit 1986), 1378 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741 Bisset v Wilkinson [1927] AC 177 Smith v Land & House Property Corporation (1884) 28 ChD 7 CA, 15 CASES CITED: Brown v Raphael [1958] Ch 636 CA, 642, 644, 645 Hayward-Brown v CEO Wentworth Area Health Service [2000] ADJ 46 Re Gordon and Department of Social Security (1991) 25 ALD 335, 339 Re Close and Australian National University (1993) 31 ALD 597, 609-10 Botany Council v The Ombudsman (1995) 37 NSWLR 357, 369 Director General Department of Community Services v S [2000] NSWADTAP 27 RR v Department of the Army 482 F DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40075/02 ADT 019001/01 HANDLEY JA IPP AJA DAVIES AJA 26 November 2002 GERARD CREWDSON v CENTRAL SYDNEY AREA HEALTH SERVICE FREEDOM OF INFORMATION – NSW – application for amendment of official records on ground that information incorrect, out-of-date, or misleading – not vehicle for collateral review of merits or validity of official action JUDICIAL REVIEW – application for amendment of official records not vehicle for collateral review of merits or validity of official action The appellant was a residential care worker employed by the Department of Community Services who was medically examined by the respondent at the request of the Department. The respondent made a report pursuant to cl 17 of the Public Sector Management (General) Regulation 1996 that the appellant was unfit for work and in need of further psychiatric assessment. The appellant applied under s 39 (c) of the Freedom of Information Act 1989 (NSW) (the Act) to have the report amended on the ground that information in it was incorrect, out-of-date or misleading. The application was refused and the appellant appealed to the Administrative Appeals Tribunal. A single member of the Tribunal directed that the report be amended, but his decision was set aside by the Appeal Panel which substituted an order affirming the respondent's decision. The appellant appealed to the Court of Appeal and submitted that the Appeal Panel's decision was vitiated by errors of law and it had disregarded findings of fact by which it was bound. He contended that the medical examination was affected by procedural unfairness, that the examining doctor was biased and that the report was beyond power under cl 17. HELD : dismissing the appeal: (1) A medical opinion is not shown to be incorrect or misleading because the procedures followed were legally flawed or the doctor was biased. It may still be correct. (2) The Act was concerned with the accuracy of official records and not with the merits or legality of official action recorded therein. It did not provide a vehicle for the collateral review of the merits or validity of official action. (3) The appellant had not established that the decision of the Appeal Panel was vitiated by legal error. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40075/02 ADT 019001/01 HANDLEY JA IPP AJA DAVIES AJA 26 November 2002 GERARD CREWDSON v CENTRAL SYDNEY AREA HEALTH SERVICE Judgment 1 HANDLEY JA: The appellant, who has represented himself throughout, has appealed to this Court from the decision of the Appeal Panel of the Administrative Decisions Tribunal of New South Wales of 28 December 2001, which set aside the decision of a single judicial member of the General Division (M A Robinson) given on 12 December 2000. The single member had directed, pursuant to the Freedom of Information Act 1989 (NSW) (the Act), that information relating to the appellant's personal affairs contained in the records of the Central Area Health Service (the respondent) be amended. 2 The appeal to the Appeal Panel conferred by s 113 of the Administrative Decisions Tribunal Act 1997, in the circumstances of the present case, was limited to questions of law. The further appeal to the Supreme Court conferred by s 119(1) of that Act is also limited to questions of law. Since the Appeal Panel included the President, Judge K P O'Connor, s 48 (2) of the Supreme Court Act assigned the appeal to this Court. 3 The proceedings relate to a report headed "Interim Advice" dated 29 October 1997 (the report) given by Dr Helen Jagger, the Deputy Head of the HealthQuest Service of the respondent, and a delegate of the Government Medical Officer. 4 The appellant, who had been employed by the Department of Community Services (the Department) since 1990 as a residential care worker had, at the request of the Department, attended at HealthQuest for a psychiatric examination. This was conducted on 29 October 1997 by Dr Caroline Roberts who reported her conclusions to Dr Jagger. On the same day Dr Jagger sent the report to the Department. This relevantly stated: "… a clear and full psychological assessment has not been possible today. Mr Crewdson is currently unfit for work and in need of further psychiatric assessment and consideration of treatment. He has been told that he should seek referral to a psychiatrist via his own doctor. He should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest. This will take about three months as he needs to be seen more than once to explore his mental health fully". (emphasis in original) 5 The appellant applied under s 39 of the Act to have the report amended on the ground that information therein was "incorrect, out-of-date or misleading" (s 39 (c)). The respondent rejected the application but did not dispute the appellant's claims that the report contained information concerning his personal affairs (s 39(a)), which was available for use by the respondent in connection with its administrative functions (s 39(b)). His application for an internal review was unsuccessful and he appealed to the Tribunal. 6 The single member was satisfied that the record was incorrect, out-of-date or misleading in material respects to the extent that it contained the words that the appellant "is currently unfit for work" (the statement). He set aside the respondent's decision refusing the appellant's request for an amendment and directed that the statement be removed or obliterated from the original and any copy in the respondent's records. This decision was set aside by the Appeal Panel which substituted an order affirming the respondent's decision. 7 The appellant contended before this Court that the decision of the Appeal Panel was vitiated by errors of law and that it had disregarded findings of fact by which it was bound. 8 The report was sought by the Department pursuant to cl 17 of the Public Sector Management (General) Regulation 1996 which, so far as relevant, provided: "(1) For the purposes of this clause, a public servant is not fit for work if the health of the public servant: (a) may render the public servant a danger to other public servants or to the public, or (b) is likely to be seriously affected by the public servant's remaining on duty … (2) The appropriate Department Head may direct a public servant to submit to such medical examination or other health assessment as the Department Head may, on the advice of the Government Medical Officer, consider necessary, if the Department Head has reason to believe that the public servant is not fit for work. (3) …. (4) If the appropriate Department Head receives a health assessment from the Government Medical Officer that a public servant: (a) … (b) is not fit for work, the Department Head is to direct in writing that the public servant must cease duty immediately … (5) If a direction has been given to a public servant under sub clause (4), the nature of the leave, if any, to be granted to the public servant during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of the Government Medical Officer. (6) A public servant to whom a direction has been given under sub cl (4)(b) must not resume duty unless the appropriate Department Head, on the advice of the Government Medical Officer, approves in writing. (7) …". 9 The clause replaced a clause in an earlier regulation under the Public Sector (Management) Act 1988 in substantially similar terms. 10 The appellant contended that the statement was incorrect, out-of-date or misleading (s 39(c)) because the procedures which led to his psychiatric examination on 29 October 1997 and the examination itself were affected by procedural unfairness, that Dr Roberts was biased, that the opinion formed by Dr Roberts and adopted by Dr Jagger was incorrect, that the report was beyond power because cl 17 did not authorise an interim report and because the doctors did not intend to find that he was unfit for work in terms of the special definition in cl 17(1). He also relied on a deed dated 30 October 1998 between himself, the Department and the respondent entered into in settlement of proceedings he had brought in the Equal Opportunity Tribunal. This provided by cls 2 and 12 for the parties to make a joint public statement that the appellant had resigned from his employment with the Department on 2 October 1998 and the Department acknowledged that he had been "a satisfactory employee". He submitted that it followed that he could not have been unfit for work on 29 October 1997. 11 The latter point can be disposed of summarily. The Department's acknowledgment in the deed and in its public statement that the appellant had been a satisfactory employee does not establish that on 29 October 1997 he was fit for work for the purposes of cl 17(1). 12 It will be convenient to deal next with the due process issues. The first of these concerns the effect of the report as a health assessment for the purposes of cl 17. The appellant submitted that neither Dr Roberts nor Dr Jagger were aware of the requirements of cl 17(1) or the nature of his duties as a residential care worker and they could not have directed their minds to its special definition of unfitness for work. He also submitted that the clause could not be activated by an interim assessment. 13 The evidence does not support these submissions. Dr Jagger gave this evidence (T 74 7/4/00): "Q: Under what legislation was I referred to HealthQuest? A: What legislation? Well I suppose that would be the regulation of the Public Sector Management Act which allows employers to make that referral when they are concerned about the health and well being of an employee. Q: Are you referring to clause 17 of the Public Sector Management General Regulation? A: I am not sure". 14 At T 75 she said she knew of the Personnel Handbook issued by the Department of Industrial Relations, Employment etc and had referred to it in her work at an earlier stage in her career. The relevant part of the handbook (as amended in August 1992) included in para 9.10.2(a) a statement that the Department Head may direct a public servant to cease duty where the advice of the Government Medical Officer is that the public servant "should not be at work pending investigation and/or examination". 15 Dr Jagger was aware of the duties of a residential care worker. She gave this evidence (T 77–8): "Q: I would like to present my statement of duties … Would you like to specify which of those two things I was unfit for in your opinion on 29 October 1997? A: I believe all of those duties … Q: Could you explain to me how the process does work? A: Well, the process is a matter of discussion about what the requirements of the job are and looking then at the clinical information that's available and then forming a medical opinion. Q: So you did look at the requirements of my job on 29 October 1997? A: Yes. I am very familiar with requirements of the position of residential care worker, residential care assistant. Q: And you say you made an assessment of my medical status in relation to performance of those duties? A: Yes, that's correct". 16 Dr Jagger said (T 80 K-M) that both she and Dr Roberts had formed the view that the appellant was unfit for work. She explained her opinion (T 87 G-N): "A: I meant that you were unfit to perform the job on the basis of a probable psychological illness based on Mary Roberts' clinical expertise. Q: So, if I had actually performed some of my duties on 29 October 1997 would that be evidence that I wasn't actually unfit for work? A: No, because that is not medical opinion. Q: So, what is the relationship of medical opinion to fitness for work? A: Well, fitness for work is an issue of medical opinion but performance of work, whether someone is actually undertaking that job or not, is not in itself medical evidence that the person is fit to perform that job. I think that's probably the best way to explain it". 17 Dr Roberts' evidence on this issue (T 151) was as follows: "Q: It appears to me that a fitness to continue examination as set out in those guidelines was not undertaken on that day by you? A: That is also why I recommended that you go and see a psychiatrist of your choice, so that you could have a proper fitness to continue done, but on the evidence before me that day I did not think that you – it was safe to send you to work . Q: … So you made that decision that I should not be returned to work, which effectively meant that I should be placed on sick leave based on the incidents that you had read and - - A: It was based on the incidents that I had read in the reports from your employer, and on your presentation to me that day". (emphasis supplied) 18 Her statement that she thought it was not "safe" to send the appellant to work shows that she was aware of the requirements for a finding of unfitness for work in cl 17(1). 19 The alleged unfairness in the procedures which led to the appellant's psychiatric examination and in the course of that examination, including the alleged bias of Dr Roberts, do not raise issues directed to the accuracy of the statement. One cannot establish that a medical opinion is "incorrect … or misleading" by establishing that the procedures followed were legally flawed or the doctor was biased. The opinion may still be correct. 20 Dr Jagger had formed the opinion in the statement and her opinion was correctly recorded. The report and the statement were not misleading because their provisional nature was indicated by the heading "Interim Advice" and by the contents of the report. 21 The statement was not out-of-date either. It was a correct statement of the doctor's opinion on the date it was made (Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 389 (Hall DP); Re Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 (Todd DP). It did not purport to be a final report, and it did not state that the appellant's condition was incurable. The fact that information in Departmental records relates to a specific date does not mean that it becomes out-of-date. 22 The position would be different if the records relating to a public servant contained a statement that he or she had failed to pass a certain examination. Such a statement would become out-of-date if and when the public servant passed that examination but the appropriate amendment would simply add a reference to that fact. 23 The statement is not of that nature. It referred to the appellant's condition on the day it was given and would not become out-of-date if he recovered, or if the interim assessment was not confirmed after a full examination. 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki 794 F. 2d 1373 (9th Circuit 1986), 1378. 25 The appellant contended that the opinions of Dr Roberts and Dr Jagger were wrong. If this was so it followed in his submission that the statement was incorrect or misleading and an amendment was called for. 26 Both doctors gave evidence that they formed the opinion and they stood by it. The appellant gave evidence in which he asserted that he was, in the relevant sense, fit for work at that time but he did not call expert evidence to support this claim. 27 The single member noted that the medical assessment was unclear and incomplete and that Dr Jagger had recommended that he proceed on sick leave out of more abundance of caution. In view of that, and "the unfortunate series of events that led to the decision, including the extremely prejudicial, inflammatory and unsubstantiated comments contained in the documents emanating from the Department here, to which both doctors had regard in arriving at their assessment, I do not think the positive finding that the applicant is 'currently unfit for work' can now stand or should remain on the applicant's file". The single member also found that the statement was "obviously outdated", but as I have held, this conclusion was vitiated by legal error. 28 He found that it was misleading "because it implies that a reasonable clinical assessment has been made". The construction of an informal document such as the report involves a question of law. See Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741. The report stated that a reasonable clinical assessment had not been made, and, as the Appeal Panel found, the single member was not entitled to hold that it implied the very opposite. 29 The single member said (para 51): "The record contains a firm declaration that the applicant was unfit for work at a point of time … The offending words are not couched in terms of an expressed 'opinion' by Dr Jagger that the applicant was unfit for work". 30 The statement was the product of the application of medical knowledge and skill to the appellant's physical and mental condition as reported by the Department, and as assessed by Dr Roberts during her clinical examination. It was stated to be based on a psychological assessment which was not "clear and full". In these circumstances the conclusion, although stated as fact, could only be a statement of opinion and it was not open to the single member to conclude otherwise. Compare Bisset v Wilkinson [1927] AC 177 where what was in form a statement of fact was held, in the circumstances known to both parties, to be a statement of opinion (183-4). 31 A statement of opinion by a skilled person is not only a representation that he holds that opinion, it will also generally be an implied representation that he "knows facts which justify his opinion". See Smith v Land & House Property Corporation (1884) 28 ChD 7 CA, 15; and Brown v Raphael [1958] Ch 636 CA, 642, 644, 645. 32 The respondent had the burden under s 61 of establishing that its determination, refusing to amend its records, was justified. However the Tribunal has held that the applicant bears an initial or preliminary burden to provide evidence in support of an application for amendment. See Hayward-Brown v CEO Wentworth Area Health Service [2000] ADJ 46 para 38 (Hennessy DP). 33 The single member was not asked to find, and could not have found, that the doctors were otherwise than honest. There was no evidence and no finding that they did not hold, and continue to hold, the opinion in the statement or that they did not have reasonable grounds for doing so, based on Dr Roberts' clinical expertise (para 16). There was no expert evidence to the contrary. Compare Re Gordon and Department of Social Security (1991) 25 ALD 335, 339. 34 Even if the Tribunal accepted other experts who had a different opinion that would not make "incorrect", for the purposes of s 39 (c), an accurate statement of the opinion held by Drs Roberts and Jagger. See Re Resch (1986) 9 ALD 380, 389 (Hall DP); Re Gordon (1991) 25 ALD 33; and Re Close and Australian National University (1993) 31 ALD 597, 609-10. The Act is not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records. 35 The position might be different if an expert whose opinion had been accurately recorded recognised later that it was incorrect at the time and withdrew it. However the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. See Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 (Todd DP). An amendment in the latter form would falsify the records and attempt to rewrite history. See Botany Council v The Ombudsman (1995) 37 NSWLR 357, 369 and Re Close (1993) 31 ALD 597, 609. Without the original opinion the records would not tell the whole story, and would be misleading. 36 Some decisions support the view that an accurate statement of an opinion, expert or otherwise, that was genuinely held could be incorrect or misleading for present purposes if it was based solely or perhaps substantially on information which was shown to be incorrect. See Director General Department of Community Services v S [2000] NSWADTAP 27 which was referred to in the decision of the Appeal Panel in the present case. Compare RR v Department of the Army 482 F. Supp 770 (1980), 774, 775. 37 It is not necessary to consider these questions because it was not established that the opinion was based solely or substantially on information shown to be incorrect. 38 Dr Bell, who appeared for the respondent in this Court, but had not appeared below, submitted by way of contention, that the requirements of s 39(a) and (b) were not satisfied even though this had been conceded below. Since the appeal fails in any event it is not necessary to deal with these submissions. 39 In my judgment the appellant has not established that the decision of the Appeal Panel was vitiated by legal error and the appeal to this Court should therefore be dismissed with costs. 40 IPP AJA: I agree with Handley JA. 41 DAVIES AJA: I agree with Handley JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.