LN v Sydney South West Area Health Service [2011] NSWADT 44

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: LN v Sydney South West Area Health Service [2011] NSWADT 44 Hearing dates: 2-3 November 2009, 17 June 2010, 29 July 2010 Decision date: 03 March 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Tribunal determines to take no further action in this matter. Catchwords: Privacy - information protection principle - personal health information - access - excessive delay Legislation Cited: Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002 Freedom of Information Act 1989 Cases Cited: Director General, Department of Education and Training v MT [2006] NSWCA 270 Mills v Meeking (1990) 169 CLR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 Category: Principal judgment Parties: LN (Applicant) Sydney South West Area Health Service (Respondent) Representation: A Britt (Respondent) LN (Applicant - in person) File Number(s): 093024 Publication restriction: Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the applicant.

reasons for decision 1In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. 2The history of this matter is an unhappy one. LN was a patient at a hospital ("the Hospital") operated by the Respondent. On 3 November 2008 she underwent scan at the Hospital's PET Department. She subsequently requested a copy of the PET scan report ("the scan report") and asserts that this request was refused. 3She sought a review of the conduct of the Respondent under the Privacy and Personal Information Protection Act 1998 ('PPIP Act') and the Health Records and Information Privacy Act 2002 ("the HRIP Act") and she asserted a number of breaches of the Information Privacy Principles contained in the PPIP Act and the Health Privacy Principles contained in the HRIP Act by the agency. 4LN contends that she initially lodged her complaint in a phone call to the Respondent on 13 November 2008. She subsequently attended at the Hospital on 24 November 2008 and she contends that her request for a copy of the scan report was again refused. 5On 14 December 2008 LN wrote to the Respondent and complained "for breach the Freedom of Information Act' in regard to the failure to provide her with a copy of the scan report. 6On 20 December 2008 LN formalised her complaint in a document headed "Privacy Complaint Internal Review Application". Her complaint was in the following terms: "What is the specific Conduct I am complaining about? I was planning to travel overseas on 22 November 2008, and I like to gather all my medical reports with me to continue the treatment there and let the doctors of overseas have a look at my reports and scans As of 13th Nov. 08 I have requested [the Hospital] (PET Scan) to give me a copy of my scan report, but they refused saying "the rules of the hospital is not allowed to hand it to the patient) , I tried several times by phones, but unfortunately all ignorance I have been met. Due to not obtaining this reports and the ignorance of the [the Hospital], I have compelled to cancel my pre-scheduled and paid booking and even I could not even postpone it as I have not gotten any dates of when can I get this copy. This booking was made on Etihad Airways on 22nd Nov. 08 and full air fare was paid before. After cancellation of my booking, I wished to get the reports as soon as possible, but no one appreciate my situation, even I came to the hospital on 24th Nov. 08 to explain to them how much important to get it, and unfortunately they ignored me, so I was compelled to write a formal complaint letter dated 24th Nov. 08 (attached) and until now they refused to provide me with this reports. I contacted Ms Ellene from medical Legal Dept. and explained to her the situation and referred me to patient's services Dept, then I followed it by sending a fax dated 14th December 08 ( as a formal) particularly Ms Ellene did not give any attention to my complaint. Ms Shrine Martin contacted me through interpreter and I explained to her the situation again and said "the hospital is regret to what happened".. etc. and she promised to send the reports with apologize letter to me. Until today nothing I have been yet received. By this behaviour, it is causing the following damage to me: this behaviour of ignorance has been affecting on my psychological health, particularly I was planning to go overseas to see my family, particularly I suffer serious disease and my psychological health is main factor in my treatment and other medication. Cancellation of my flight which I was planning it before, and it caused to cancel all arrangements has been done overseas, particularly my sister who lives in other country has already travelled to see me there. I cancelled pre-scheduled appointment with doctors and other herpes specialist at overseas to continue my treatment, Travel agent refused to refund my air fare ticket as result of my cancellation and refused to refund air fare not before 10 weeks and will take 9% commission. (I raise this matter to Consumer Tribunal) which cost me legal fees. Plus Ms Shrine Martin refused to tell me the contact details of Privacy Commission or send the necessary forms will I need to fill it down even the apologise letter she did not send it as she promised me. And I told her to start the internal review for my complaint as of 13th November 08, and today she said that I have to apply my complaint in formal. I think as far as I know the complaint must to raise to the Agency by either by phone (orally) or in formal. I complaint orally and then I followed it by formal particularly all ignorance I received. Which of the following describes my complaint? refusal to let me access or find out about my own personal/health information. contravention of Health Privacy code of practice and Privacy and Personal Information Protection Act which give me the right to access my personal information held by agency and [the Hospital] must as the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. (unfortunately Ms Ellene told me in the phone conversation that I have to pay $30 to collect it, while Ms. Martin did not mention that. ... What affect the conduct have on my? Cancellation all prescheduled arrangement overseas, particularly scheduled appointment with doctors, herpes specialist, my meeting with my sister who came from other country to see me, and other arrangements; accommodation, etc. My flight was on school holiday of my children, and it is very difficult to leave them while they are in school. (the cancellation is wasting golden opportunity to me) . I disappointed as I wished to meet my family particularly I suffer illness which need mare psychological support to help my medication. as result of cancellation my ticket, the travel agent refused to refund my ticket now, and needs 10 weeks to refund it, and not refund 100% he will deduct 9% of air fare which I raised it to Consumer Tribunal. and costing me legal fees. Financial losses as result of the cancellation. 11. What affect might the conduct have on you in the future? May I could not see my family again as result of my illness. Could not I find same doctors at overseas which I have been arranged appointments with them again, Could not help the advise of my specialist in getting recovery. Others What Would I like to see the agency do about the conduct? Formal apologizes for not giving me this report when I requested. Formal apologizes for the conduct of [the Hospital] with me Damages paid as result of cancellation of my flight and subsequences the affects of that. Expenses paid for Consumer Tribunal and fees of travel agency and arrangement done at overseas." 7The Respondent undertook an internal review in regard to the complaint. The internal review concluded: "5. FINDINGS The process for determining access to health information allows for consideration of circumstances where access could adversely impact on the wellbeing of the patient. The PET Department procedure recognises this and the 'authorisation' form contains a written statement recommending that the patient contacts his/her referring doctor for advice and discussion as they might misinterpret the clinical (technical) information and explanations. The Internal Review finds that there has not been a breach of the Health Privacy Principles HPP 7(1) as alleged by [LN]. In conducting the review, it has been noted that [LN]: i) has not been provided with a personal copy of the scan report of 3 November 2008, as yet; ii) requested the use of an Arabic interpreter with the lodgement of her complaint with the Patient Representative [Note: There is no record that [LN] requested an interpreter when she attended the PET Department for her scans]; iii) may have future scheduled visits to the PET Department. The Reviewer was advised that [LN] was referred for a follow-up scan, by the same doctor who referred her for scans in 2008. It assumed that she has been in contact with him about her ongoing care and treatment and it is, therefore, concluded that [LN] has met the second criteria (point ii) below under which a personal copy of a scan report is provided to a patient; A personal copy of the written report about the scan image(s), upon request, by one of three methods - to: i) the referring doctor - so that the report can be picked up at the patient's follow-up visit; ii) the patient, posting it to the patient's home address 2 weeks after the scan so that the patient has sufficient time to organise an appointment with his/her treating doctor; or iii) a nominated doctor of the patient's choice (other than the referring doctor) . Accordingly, a copy of the written report will be sent to [LN] in a letter dated 27 January 2009. In addition, as [LN] may attend the PET Department again the following action will be taken, by way of correspondence (dated 27 January 2009) , to facilitate personal access to future reports: i) [LN] will be provided with a copy of the form authorising provision of the document by one of the three accepted methods, translated into Arabic. ... ii) [LN] will be reminded in writing that in order to obtain copies of written reports in the future, she will be required to comply with the PET Department's usual practice, as outlined on the 'authorisation' form. The letter and the associated attachments (the PET scan report and the authorisation form for the release of patient data [both in English and Arabic]) will be despatched via courier on 27 January 2009. If [LN] does attend the PET Department and refuses to sign the form, a notation is to be made on the information sent to the referring doctor: i) informing him that [LN] may seek to have a personal copy of the written report; ii) confirming that the hospital has no objections to this request; and iii) seeking his assistance to provide access to the document, if requested. 6. RECOMMENDATIONS Section 53(7) of the Privacy and Personal Information Protection Act sets out a range of options which can be recommended at the end of the internal review. These are to: i) take no further action on the matter; ii) make a formal apology to the Applicant; iii) take such remedial action as is appropriate (for example, the payment of monetary compensation to the Applicant); iv) provide undertakings that the conduct will not occur again; and/or v) implement administrative measure to ensure that the conduct will not occur again (for example, revision of relevant policies and guidelines, and privacy training for relevant staff. In this case, the [LN] has sought: a formal apology for not giving her the report when she requested it; a formal apology for the conduct of [the Hospital] staff towards her; damages paid as a result of the cancellation of her flight and the subsequent effects of that; expenses for the Consumer Tribunal and fees of the travel agency and overseas arrangements. Recommendations: It is recommended that the hospital take no further action with respect to this matter given that: i) [the Hospital] has not breached HPP 7(1) . ii) There are unanswered questions around the timing of the travel and the request for the document - for example, if the travel date was 22 November, why wait until 24 November to attend the hospital to ask for a copy of the report? iii) Access to the document was not refused; [LN] did not co-operate with staff to facilitate access as per usual PET Department procedures - procedures which were implemented in mid 2006 and which fall within the provisions of HPP 7. iv) Access to the document was not refused under the FOI Act [the Freedom of Information Act 1989] - a valid application has not been lodged, as an application fee and proof of identification have not been received from [LN]. An FOI application is not considered necessary as [LN] has been provided with a copy of the PET scan report on 27 January 2009. It is recognised that these recommendations may not meet the expectations of the Applicant. 8LN was not satisfied with the outcome of the internal review and she has applied to the Tribunal for external review of the alleged conduct.