Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ALL v Sydney Local Health District [2014] NSWCATAD 4 Hearing dates: 8 May 2013 Decision date: 28 January 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal member Decision: The Tribunal decides to take no further action on this matter. Catchwords: Health information - review of conduct of a public sector agency that is alleged to be breach of the health privacy principles in regard to retention and accuracy and use of health information - claim for damages by way of compensation for loss or damage suffered because of the conduct Legislation Cited: Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 (repealed) Health Records and Information Privacy Act 2002 Mental Health Act 1990 Privacy and Personal Information Protection Act 1998 State Records Act 1998 Cases Cited: Central Sydney Area Health Service v Crewdson (GD) [2001] NSWADTAP 44 JD v Department of Health (GD) [2005] NSWADTAP 44 LB v Hunter and New England Area Heath Service [2010] NSWADT 82 QB v Greater Southern Area Health Service [2011] NSWADT 90 Re Applicant and Department Education and Training, Children's Youth and Family Services (1998) 53 ALD 509 Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192 ZR v Department of Education & Training [2010] NSWADTAP 75 Category: Principal judgment Parties: ALL (Applicant) Sydney Local Health District (Respondent) Representation: Kim Smith and Associates (Applicant) Crown Solicitors Office (Respondent) Information Commissioner File Number(s): 123243 reasons for decision Introduction 1The applicant, ALL, seeks review of conduct of the respondent, the Sydney Local Health District, which he asserts to have been a breach of a health privacy principle (HPP), under the Health Records and Information Privacy Act 2002 (HRIP Act), in regard to the use and retention and security of his health information. The applicant also asserts that he suffered loss and damage as a result of the asserted breaches by the respondent. 2The applicant's application is made under s 21 of the HRIP Act and Part 5 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). 3The applicant's application for review was made to the Administrative Decisions Tribunal and was heard, before me, on 8 May 2013. There is no dispute that the Tribunal had jurisdiction to review the conduct of the respondent the subject of the applicant's internal review application (see subs 21(1) of the HRIP Act and s 53 of the PPIP Act). At the conclusion of that hearing, I reserved my decision and made orders for filing and serving of additional evidence and submissions. These orders were complied with. 4On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). And by reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the HRIP Act and Part 5 of the PPIP Act continuing to apply. Relevant legislation 5Subs 11(1) of the HRIP Act provides that every 'organisation' that is a health service provider or that collects, holds or uses health information is subject to that Act. The term 'organisation' is defined to include a public sector agency (see subs 4(1) of the HRIP Act). 6Subs 11(2) of the HRIP Act provides that an organisation to whom, or to which the Act applies is required to comply with the 'Health Privacy Principles' (HPPs) that are applicable to the organisation. There is no dispute that the respondent is an organisation to whom the Act applies and is required to comply with the HPP's which are set out in Schedule 1 of the HRIP Act. Subs 11(3) of the HRIP Act provides that an organisation must not do anything, or engage in any practice, that contravenes a HPP. 7The HPPs include principles in regard to the collection (cl 1 to 4), retention and security (cl 5), access and amendment (cl 6 to 8), use (cl 9 and 10) and disclosure (cl 11) of a person's health information. The HPPs relevant to this application are set out below. 8Subs 21(1) of the HRIP Act makes provision for complaints to be made against a public sector agency in regard to conduct which is alleged to be a contravention of a HPP that applies to the agency. Such complaints are made pursuant to Part 5 of the PPIP Act and for that purpose a reference in Part 5 of the PPIP Act to 'personal information' is to be taken to include 'health information': see subs 21(2) of the HRIP Act. 9The term 'health information' is defined in section 6 of the HRIP Act to include 'personal information' that is information or an opinion about a physical or mental health or a disability (at any time) of an individual. The term 'personal information' is defined in s 5 of the HRIP Act. That section relevantly provides as follows: 5 Definition of "personal information" (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. 10Personal information is defined in the same terms in subs 4(1) and (2) of the PPIP Act. There is no dispute that the information the subject of this application is the health information of the applicant. 11The HPPs, relevant to this application, are those contained in clause 5 and clause 9 of Schedule 1 of the HRIP Act. These are in the following terms: 5 Retention and security (1) An organisation that holds health information must ensure that: (a) the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and (b) the information is disposed of securely and in accordance with any requirements for the retention and disposal of health information, and (c) the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and (d) if it is necessary for the information to be given to a person in connection with the provision of a service to the organisation, everything reasonably within the power of the organisation is done to prevent unauthorised use or disclosure of the information. Note. Division 2 (Retention of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause. (2) An organisation is not required to comply with a requirement of this clause if: (a) the organisation is lawfully authorised or required not to comply with it, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). (3) An investigative agency is not required to comply with subclause (1) (a). 9 Accuracy An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. 12In my view, while the respondent's conduct in regard to the collection and amendment of the applicant's health information was not the subject of this application, it is instructive to set out the HPP's in cl 2 and cl 8 of Schedule 1 of the HRIP Act. These HPP's are in the following terms: 2 Information must be relevant, not excessive, accurate and not intrusive An organisation that collects health information from an individual must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that: (a) the information collected is relevant to that purpose, is not excessive and is accurate, up to date and complete, and (b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates. 8 Amendment of health information (1) An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation. ... (4) An organisation is not required to comply with a provision of this clause if: (a) the organisation is lawfully authorised or required not to comply with the provision concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ). 13Part 5 of the PPIP Act (i.e. ss 52 to 56) makes provision for the review of conduct of a public sector agency. S 52 in that part defines 'conduct' to include the contravention of an information protection principle that applies to a government agency. These information protection principles are set out in Part 2 of the PPIP Act (i.e. ss 8 to 19) and include principles in regard to the collection, retention and security, access, alteration, accuracy, use and disclosure of personal information (see ss 8 to 19 of the PPIP Act). As mentioned above, subs 21(2) of the HRIP Act provides that for the purposes of Part 5 of the PPIP Act, a complaint made about conduct of an agency that contravenes a HPP, is also conduct falling within that Part. 14Section 53 of the PPIP Act gives a person aggrieved by the conduct of a public sector agency the right to seek internal review of that conduct by that agency. By reason of subs 21(1) of the HRIP Act, this right extends to conduct which is alleged to be a contravention of a HPP that applies to that agency. 15Section 55 of the PPIP Act makes provision for a person dissatisfied with the findings of an agency in regard to that person's internal review application, to seek external review of the conduct complained of. That section relevantly provides: 55 Review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53. (1A) ... (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. (3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997. (4) The Tribunal may make an order under subsection (2) (a) only if: (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. (4A) ... (5) ... (6) The Privacy Commissioner is to be notified by the Tribunal of any application for a review under this section. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section. (7) ... 16Again, by reason of subs 21(1) of the HRIP Act, this right of external review applies to persons who have sought internal review of conduct which is alleged to be a contravention of a HPP that applies to that agency. The evidence 17The applicant tendered into evidence a number of documents. These included the records the subject of his complaint and a transcript of his triple zero call, on 18 August 2007. He also filed into evidence a report of Taryn Stubbs, Registered Psychologist, dated 10 April 2013 and a report of Dr Ruth Selig, Psychiatrist dated 25 March 2013. These reports were tendered into evidence in support of the applicant's claim for damages. 18Following the hearing, the applicant also filed some further material, on 24 and 27 May 2013. I assume the applicant has filed this additional material in support of his account of events on 18 August 2007 and his claim for damages. 19The respondent relied on a statement of Mr Hall, dated 21 March 2013, and the documents attached to that statement, which included the internal review determination made by the respondent. 20Mr Hall was not available for the hearing. As a consequence, the respondent called Dr MacDonald, psychiatrist and Director Clinical Services, Mental Health Services, of the respondent, to give oral evidence and to be cross-examined. Dr MacDonald explained that he had replaced Dr O'Connor. He also said he had read Mr Hall's statement and agreed with what had been stated in that statement. 21Subsequent to the hearing, the respondent filed a statement, dated 21 June 2013, of Mathew Swanborough, the respondent's Acting Director of Operations. The respondent also filed and served some further written submissions. 22On 26 June 2013, the Privacy Commissioner filed and served written submissions in regard to the application of the Health Privacy Principle in clause 9 of Schedule 1 of the HRIP Act. Background to the conduct the subject of review 23The conduct the subject of the applicant's application for review relates to the applicant's involuntary admission, to the Missenden Psychiatric Unit (MPU), of the Royal Prince Alfred Hospital (RPAH), on the evening of, Saturday, 18 August 2007. The applicant was admitted pursuant to ss 24 and 29 of the Mental Health Act 1990, as they applied at that time. 24S 24 of the Mental Health Act 1990, made provision for a member of the NSW Police to apprehend a person, without a warrant, and take that person to a hospital, where that person appears to be mentally disturbed and the Police Officer has reasonable grounds to believe that it is probable that the person will attempt to cause serious bodily harm to himself or another person. 25Constable Jayleen Donaldson, of the NSW Police, and her colleague (also a member of the NSW Police) brought the applicant to MPU at around 5.40 pm that afternoon. They had gone to assist the applicant, after he had made a triple zero call to police from an inner suburban hotel. 26In bringing the applicant to the MPU, Constable Donaldson completed a pro forma s 24 Form. In that Form Constable Donaldson described the circumstances which led to her request for the applicant's admission as follows: 'Police called to hotel in [suburb] by POI who stated two men were there with firearms trying to get him. Police spoke to persons from a business who stated that POI was very agitated saying everyone was after him. Police arrived POI appeared extremely paranoid saying people were out to get him etc. POI stated he hasn't slept for some time.' 27On the back of the s 24 Form, under the heading 'History Known to Conveying Police', Constable Donaldson has ticked the yes box against question 5 (i.e. 'Known to be a drug user') and added the words 'charged with drug possession of cannabis.' 28Dr Allan, the on-duty psychiatric registrar at the MPU, assessed the applicant at around 7:00 pm that evening. Dr Allan recorded his assessment (including provisional diagnosis) of the applicant in the respondents pro forma NSW Mental Health A5 Brief Assessment and Plan Form (Brief Assessment and Plan Form). That Form makes provision for entries to be made under a number of headings, including: - 'History of Presenting Illness', - 'Current Medications', - 'Past Psychiatric History, - 'Medical History', - 'Drug and Alcohol History', - 'Developmental History/Premorbid Personality', - 'Mental State Examination', - 'Risk Assessment', - 'Provisional Diagnosis', - 'Problem List' and - 'Management Plan.' 29I note, Dr Allan made handwritten entries under the majority of the headings on the Form. 30Under the heading 'Provisional Diagnosis', Dr Allan wrote (to the extent I am able to understand): Delusional and paranoid, unclear [unable to read] hx, ongoing THC use - difficult history, wanting to leave unit. 31Under the heading 'Management Plan', Dr Allan wrote 'Admit as mentally ill - Form 1 + 2'. 32Dr Allan also completed a pro forma medical report, for the purpose of subs 29(2) of the Mental Health Act 1990 (as it applied at that time), as to the applicant's mental state (Form 2). 33Subs 29(1) of that Act provided that a person taken to and detained in a hospital, under that Division 1 of Part 2 in Chapter 4 of that Act, must be examined, as soon as practicable (but not more than 12 hours) after the persons arrival at the hospital, by the medical superintendent. Subs 29(2) provided that a person must not be detained after examination unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person or a mentally disordered person. 34On page one, of Form 2, under the heading '(Reported behaviour of the patient), Dr Allan wrote: 'Called police in paranoid state, stating seeing people carrying guns.' On page two of Form 2, under the heading '(Observation by me of the patient)', Dr Allan wrote that the applicant appeared 'paranoid, delusional ... telling me he was to see the top policeman from Kings Cross to discuss a previous sexual assault.' On the same page, under the heading '(Conclusion)', Dr Allan wrote that the applicant required 'containment and further assessment. He is delusional, and poses a risk to others if he acts on these delusions.' 35The applicant was discharged the following Monday, 20 August 2007, after being further assessed by Dr Holton, another psychiatrist employed by the respondent. Dr Holton made a hand written record of that assessment on the applicant's 'Case History Notes'. It would appear that the applicant's mother was also present during this assessment. 36Included in Dr Holton's hand written notes are the circumstances in which the applicant was brought to the MPU, the applicant's account of events, his past psychological history, his medical history, his drug and alcohol history and his personal history. In those handwritten notes, Dr Holton noted that the applicant had no past history of psychosis and '? No charges' had been laid against him. 37Following Dr Holton's assessment, at about mid-day that day, the applicant was discharged. In discharging the applicant, discharge nurse, Patrick Rice completed the respondent's pro forma 'Continuity of Care Form'. Against the heading 'Discharge Diagnosis' on that form, Nurse Rice wrote 'Delusional Ideation'. 38Sometime after the applicant's discharge, on 9 January 2008, the respondent's administrative clinical coder completed a 'Coding/DRG Summary Report' in regard to the applicant's hospitalisation from 18 to 20 August 2007. That report contains the following information: New South Wales DRG U62B PARANOIA & ACUTE PSYCH DISCORDER W/O CAT/SEV CC W/O MENTAL HEALTH LEGAL STATUS PCCL ... ICD-10-AM Principal Diagnosis F220 Delusional disorder DRG .... 39As I have explained, it is the applicant's contention that Dr Allan, in making his assessment of his mental state that evening, 'used' the information provided by Constable Donaldson and not the information he provided. The applicant asserts that the information provided by Constable Donaldson was factually incorrect and as a consequence the assessment (including the provisional diagnosis) recorded by Dr Allan was also incorrect. He also asserts that Dr Holton assessed him as not having any delusional disorder and as a consequence the diagnoses recorded by Nurse Rice, in the 'Continuity of Care Form', and the respondent's administrative clinical coder, in the Coding/DRG Summary Report, were also incorrect. 40In his internal review application, other than asserting that the above recorded diagnoses were incorrect, the applicant did not make a specific request that they be amended, let alone be amended in a particular way. Accordingly, as I have noted above, this is not an issue in this application for review. However, as the accuracy of what has been recorded is an issue I have dealt with this issue in a general sense. The applicant's internal review request 41As the respondent relied on the background material that was before the internal reviewer, it is necessary to briefly deal with these. For completeness I have also summarised the findings and recommendations of that review. 42In 2007, sometime after his discharge (but before 16 November), the applicant applied for a copy of his medical records in regard to his admission to the MPU. Mr Hall responded to that request and advised the applicant that his medical records could not be found. 43In December 2007, the applicant made a request, under the former Freedom of Information Act 1989 (FOI Act), for access to his medical records. In January 2008, the respondent granted the applicant full access to his medical records, which had by then been located. 44In the latter part of 2008, the applicant obtained a statutory declaration, signed by his mother, which stated that she had received a call from Sargent L, of Kings Cross, that evening. She explained that the applicant had given her his mobile telephone when the police took him on the evening of 18 August 2007. She said the applicant had asked her to keep his mobile telephone turned on and that she was to answer the call from Sargent L. The applicant's mother said she received that call at about 8:00pm and Sargent L told her that he could not meet the applicant that evening as he was unable to get away from work. I note Sargent L appears to have countersigned the statement confirming that he had arranged to meet the applicant on or about that day. 45I understand the applicant then made representations to the respondent in regard to his 2007 admission to the MPU. In December 2008, Dr O'Connor, Director Clinical Services, Mental Health Services of the respondent, wrote to the applicant advising him that there did not appear to be any inconsistencies in the documentation or the management plan in regard to his admission. Dr O'Connor invited the applicant to come and discuss, with him, his concerns should he wish to. Dr O'Conner also advised the applicant that if he had any concerns about the accuracy of the information contained in his medical files he had a right to provide information or viewpoints to be added to his record. 46In March 2012, the applicant made a further application for a copy of his medical records under the HRIP Act. I understand that the applicant had sought this information to assist in a matter he had against the NSW Police. 47In response to this request, the respondent provided the applicant with the same information he had been provided with previously. However, on this occasion, the respondent advised that, when reviewing his medical records, the Case History Notes, in part, of Dr Holton and Dr Holton's discharge summary appeared to be missing. 48After being informed about the missing documentation, the applicant made a number of further representations to the respondent concerning the missing documents and the accuracy of his health information as held and collected by the respondent. Of particular concern to the applicant was the diagnosis information of 'paranoia', 'acute psychiatric disorder', 'delusional' 'delusional ideation', and 'delusional disorder'. It was his contention that no such diagnosis had been made, or could have been made. 49Included in the representations to the respondent was a transcript of the triple zero call the applicant had made, on 18 August 2007, which led to his admission. I understand the applicant was granted access to the recording of the call and he obtained the transcript thereof. In that transcript there is no record of the applicant having said that the two men he had called about were at the hotel 'with firearms trying to get him'. 50The transcript records the applicant saying the following in the early part of his conversation with the police officer responding to his triple zero call: ... [applicant]: Yes I am sorry to bother you Police Officer: Your (sic) alright [applicant]: Look I am meeting I am meant to be meeting a Constable [L] from [name] Station for dinner Police Officer: Right [applicant]: Or for a coffee Police Officer: Right [applicant]: Um and I just got a bit scared because 2 huge guys have walked into the pub across the Road from the café where I am meant to be meeting him. Police Officer: Right [applicant]: And they look like their (sic) loaded and I don't know if they are Police or who they are and they are scarring me and I don't know if you can take me seriously. Its (sic) not a joke its (sic) not a prank call Police Officer: Right [applicant]: And I could be totally just paranoid but I am a bit scared I don't know they are police you know or who's who ... 51In response to the applicant's representations, Mr Allan Hall, Director of Clinical Governance, Mental Health of the respondent, wrote to the applicant addressing concerns he had raised. In regard to his admission and discharge, Mr Hall, confirmed that documents were missing. He went on to advise that, as a result of the missing documents, there was 'limited confidence in the final diagnosis, as chosen by the medical records department clinical coders ... was correct'. However, in regard to his pre-admission and assessment by Dr Allan, Mr Hall said, on the basis of the information available to Dr Allan at that time, there was a reasonable basis for his concerns about harm to the applicant's reputation by him acting on 'possibly paranoid thoughts about other people.' 52At the request of the applicant, Dr Nick O'Connor and Mr Hall, prepared a one page written statement confirming that there were missing documents and that on this basis there was limited confidence in the final diagnosis. 53On 3 April 2012, being dissatisfied with the responses he had received from Dr O'Connor and Mr Hall, the applicant made his application for internal review that is the subject of this application. As I have indicated, the conduct for which review was sought was that of Dr Mark Allan, Nurse Patrick Rice and the record keeping and client liaison staff. 54In his application for internal review, in response to the question as to what effect the conduct has had on him, the applicant said: 'a multitude of detrimental effects including discrimination, police harassment, misrepresentation, affected my legal and medical representation.' 55In response to the question as to what effect the conduct might have on him in the future, the applicant said: 'stigmatisation, discrimination, misrepresentation, vilification, etc - financially damaging.' 56The respondent determined the applicant's review application, on 2 August 2012. In its determination the respondent found that there had been a breach of the retention and security health privacy principal (cl 5 of Schedule 1 of the HRIP Act) in regard to the missing documents and as a consequence, that there was limited confidence in the recorded final diagnosis. However, the internal reviewer did not find a breach of the use HPP in cl 9. 57In making her findings the internal reviewer accepted that the applicant's assertion that: a)he had not said in his triple zero call that the two men he saw were carrying guns, b)he was in fact due to meet with Sargent L that evening when he made his triple zero call, and c)he had not been charged with any drug offences. 58In regard to the missing documents, the internal reviewer noted that a possible explanation was that the documents were not missing, but were never created. However, she concluded that on the balance of probabilities they were lost. 59The respondent's internal reviewer made a number of recommendations, including: a copy of the letters written by Mr Hall and Dr O'Connor should be placed on the applicant's medical record as they provided an explanation about the missing documents and addressed the concerns raised by the applicant in regard to the correctness of the information in his health records, a letter of apology be sent to the applicant, together with an invitation for him to place an addendum in his medical records particularising his concerns, the Director, Mental Health Services to order an audit of compliance in regard to the completion of medical records (including discharge summaries) for patients admitted to the MPU, the Manager, Patient Information and Medical Record Services to: arrange for a coversheet to be placed on the top of the applicant's file, indicating that the 18 to 20 August 2007 admission was incomplete due to important health information having gone missing and the final recorded diagnosis should not be relied on as being accurate, remind clinical coders, when a patient's documentation is identified as missing or incomplete, the file is to be coded as an incomplete medical record, direct the FOI coordinator that the patient, whose documentation is found to be incomplete, to be advised of this fact, and the applicant's medical record to be stored in the Secure 'file location with the medico-legal department' of the respondent. 60I understand, each of the abovementioned recommendations have been acted upon, including the cover sheet being placed on the top of the applicant's medical file, followed by copies of the letters from Mr Hall and Dr O'Connor. However, no amendments have been made. In this regard I note Mr Hall and Dr O'Connor have asserted that the respondent is not able to amen medical records by changing existing entries. Consideration 61As I have indicated above, at issue in this application is whether the respondent's conduct, as asserted by the applicant, was a breach of the 'retention and security' and 'use' HPP in cl 5 and cl 9 of Schedule 1 of the HRIP Act. 62It is the applicant's contention that: - there was a breach of the 'use' HPP, in cl 9, by Dr Allan at the time he was admitted and as a consequence the information he recorded in the Assessment and Planning Form and Form 2 is inaccurate, and - there was a breach of the 'retention and security' HPP, in cl 5, and as a consequence the discharge diagnosis recorded by Nurse Rice in the Continuity of Care Form and the principle diagnosis recorded in the Coding/DRG Summary Report are inaccurate, and - he has suffered loss and damage as a result of these breaches. 63The respondent contends that there has been no breach of the 'use' HPP. It also contends that the health information about the applicant, as recorded by Dr Allan, in the Assessment and Planning Form and Form 2, are expressions of opinion honestly held by Dr Allan at that time and therefore accurate in the relevant sense. 64The respondent has at all times conceded that there has been a breach of the 'retention and security' HPP in so far as it relates to the missing documents. The respondent has also conceded that there can be little confidence in the discharge diagnosis in the Continuity of Care Form and the principle diagnosis in the Coding/DRG Summary Report, due to the missing documents. However, the respondent's concession does not go so far as conceding that what is recorded is inaccurate. 65Finally, the respondent contends that the applicant has failed to establish that he has suffered any loss or damage as a result of its breach of the 'retention and security' HPP. 66As I explained to the applicant, the role of the Tribunal under s 21 of the HRIP Act and s 55 of the PPIP Act is limited to reviewing conduct of the respondent in so far as it relates to the respondent's obligations to comply with the HPPs in Schedule 1 of the HRIP Act when collecting, holding, using, or disclosing health information about an individual. Similar obligations are imposed on the respondent, under the PPIP Act, in regard to the collection, holding, using and disclosing personal information about an individual. These obligations being compliance with the information protection principles in ss 8 to 19 of the PPIP Act. 67The extent of these obligations was considered by the Court of Appeal in Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192. At [20], Spigelman CJ, noted that within the prescribed information protection principles there was a clear bifurcation between the 'collection' of personal information by a public sector agency and the 'holding' of personal information by a public sector agency. A similar bifurcation is contained within the HPPs within Schedule 1 of the HRIP Act. 68At issue in FM was whether, 'personal information' held in the mind of a public sector agency employee was personal information 'held' by the public sector agency. At [40], Spigelman CJ (with Tobias JA and Brownie AJA agreeing), held, on its proper construction, the legislative scheme in the PPIP Act did not extend to personal information held in the minds of a public sector employee. It only extended to personal information 'collected' or 'held' by a public sector agency in a material form. Again, the same principles would apply to health information about a person that is 'collected' or 'held' by a public sector agency pursuant to the HRIP Act. 69It is accepted that the health information about the applicant, as recorded by Dr Allan, in the Assessment and Plan Form and Form 2, is health information 'collected' and 'held' by the respondent. Similarly, the health information about the applicant in his Case History Notes, Continuity of Care Form and Coding/DRG Summary Report, is health information 'collected' and 'held' by the respondent. 70Whether the information about the applicant in the s 24 Form, as recorded by Constable Donaldson, was information 'collected' by the respondent , or whether it was 'unsolicited' (see s 10 of the HRIP Act) was not addressed by the parties. In this regard I note the comments of the Appeal Panel in ZR v Department of Education & Training [2010] NSWADTAP 75 at [52] to [58] and the Tribunal in QB v Greater Southern Area Health Service [2011] NSWADT 90 at [62] to [65]. 71It is unnecessary for me to make a definitive finding in this regard, as the parties have proceeded on the basis of the information being 'held' by the respondent at the relevant time Dr Allan completed the Assessment and Plan Form and the Form 2: see LB v Hunter and New England Area Heath Service [2010] NSWADT 82 at [35]. Was there a breach of the 'use' HPP? 72On the material before the Tribunal, at the time Dr Allan examined the applicant, the only health information 'held' by the respondent was that recorded in the s 24 Form, by Constable Donaldson. There is no dispute that Dr Allan 'used' this information. 73While the respondent appears to concede that the health information about the applicant is factually incorrect, or misleading, in some respects, in my view, this does not necessarily mean that Constable Donaldson's record of events in the Form 24 is not accurate. In this regard, I note she was not the officer who had answered the applicant's triple zero call. She was from a nearby Local Inner City Police Station and appears to have received the request to assist the applicant second, or even third hand. Accordingly, what she recorded in the Form 24 is arguably what she understood to have been the subject of the applicant's call: see QB (supra) at [114] and EN v University of Technology, Sydney (No 2) [2009) NSWADT 193 at [58], where the Tribunal held that an opinion, if honestly held at the time the opinion was recorded, it will not be found to be inaccurate. 74Nevertheless, the question is whether Dr Allan's 'use' of the applicant's health information in the s 24 Form was in compliance with the 'use' HPP in cl 9 of Schedule 1. That is, having regard to the purpose for which the information was to be used, did Dr Allan take such steps as were reasonable, in the circumstances, to ensure the information was accurate? 75The applicant's health information in the s 24 Form was to be used for the purpose of examining him, pursuant to s 29 of the Mental Health Act 1990 (as it applied at that time), as to whether he was mentally ill, or had a mental disorder and required detention against his will. 76In JD v Department of Health (GD) [2005] NSWADTAP 44, at [69] to [71], the Appeal Panel considered what is meant by the term 'took such steps as are reasonable' in the context of the 'use' information protection principle in s 16 of the PPIP Act. That section is in similar terms to cl 9 of Schedule 1 of the HPP and in my view, the following remarks of the Appeal Panel in JD equally apply: 69 Reasonableness of Steps Taken. As we have indicated a primary consideration in examining this question is what is the purpose(s) for which the information is proposed to be used. What is reasonable in the circumstances will vary with the significance of the purpose to which the information is to be put, and may be affected by the urgency of the situation. It may be that no additional steps are necessary, as the Tribunal concluded in this case. 70 Having regards always to 'the purpose for which the information is proposed to be used' the critical question is what steps were 'reasonable' in the circumstances. The circumstances will include, we think: (a) the gravity of the information, taking account of the context; (b) impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16; (c) how recently the information was collected; (d) the experience and competence of the author of the information; (e) the significance of the information in the context; (f) the extent to which it was possible to check back the information with the providers of the information, or the subject; (g) whether check back is unnecessary, because for example, of the known reliability of the source system; (h) whether check back is impractical because of operational issues, such as time constraints or needs to do with maintaining the confidentiality of the process; (i) whether particular recording methods might have been used that militate against error (such as a tape recordings in an interview setting); and (j) whether there are other steps that may be taken before any final action is taken in relation to the information, and whether they are likely to occur soon. 71 There is, of course, no prescriptive list. The judgement to be made is one based on the particular circumstances. ... 77In his evidence, Dr MacDonald explained the procedures that apply when a person is brought in by police pursuant to s 24 of the Mental Health Act 1990. His evidence was also based on his own experience in working in the MPU. In this regard Dr MacDonald said: as a general rule the on-duty psychiatric registrar will accept the information provided by police as being reliable. However, the information provided by police only forms part of the assessment made by the on-duty registrar; police usually complete the pro-forma s 24 Form when they bring the person to the hospital or mental health unit; it is often not practical to make enquiries, especially after normal business hours, about the correctness of the information obtained from police or otherwise; the applicant was brought to the MPU on a Saturday evening, which is after hours and usually very busy at the MPU; persons brought to the MPU and other emergency facilities of the respondent, pursuant to a s 24 request, are required to be assessed under a standard set of procedures; such persons are first seen and assessed by the on-duty psychiatric registrar, who speaks to the person and obtains their account of events and any other relevant information. The on-duty psychiatric registrar is required to record his/her observations and assessment of the person on the respondent's pro forma Assessment and Plan Form. Where, following the assessment, the on-duty psychiatric registrar forms the view the person is a mentally ill person, or a mentally disordered person requiring involuntary admission, as requested by police, the on-duty psychiatric registrar is required to certify to this in the respondent's Form 2. This, Dr MacDonald explained was an initial certification, subject to the person being more fully assessed by another psychiatrist. Where, on that further assessment, the other psychiatrist forms the view that the person is a mentally ill person, or a mentally disordered person requiring ongoing involuntary admission, the psychiatrist is required to certify to this effect on a second Form 2. 78I note that the procedures described by Dr MacDonald are consistent with the requirements of subs 29(1) and 33(1) of the Mental Health Act 1990, as it applied at the relevant time: see also QB, at [49], which contains a more detailed description of the operation of the relevant provisions of the Mental Health Act 1990. 79In his statement, Mr Hall explained in some detail why it is often impractical/impossible to check or verify the accuracy of information contained in a s 24 Form presented by police on a Saturday evening. 80In my view, having regard to the Assessment and Plan Form and the Form 2, as completed by Dr Allan, it is apparent that Dr Allan acted in compliance with the procedures described by Dr MacDonald. That is, Dr Allan made an initial assessment of the applicant, following Constable Donaldson's s 24 request. 81As I have explained, the s 24 Form is the legal basis on which a person is apprehended and brought to a hospital for assessment by a medical practitioner as to whether the person is mentally ill, or mentally disordered and requires containment under the Mental Health Act 1990. Hence, there was a legal obligation on the respondent to act on the information in that Form once the applicant was brought to the MPU. However, under the Mental Health Act 1990, the obligation on the respondent was to independently assess the mental health of the person the subject of the Form. 82In this case, it is clear from the entries in the Assessment and Plan Form that Dr Allan spoke to the applicant about the events of that afternoon/ evening. Dr Allan also endeavoured to obtain information about the applicant's medical history more generally. I note, Dr Allan has noted that the applicant refused to elaborate on his medical history and refused to discuss his developmental history, these being matters which Dr Allan was required to make inquiries about in assessing the applicant. 83This is not inconsistent with the applicant's evidence. He seems to acknowledge that Dr Allan asked him questions. What was of concern to him was that he was not believed, especially in regard to his meeting with Sargent L that evening. 84It is unclear whether, at the time the applicant was being assessed, he denied having said that the men he was concerned about were carrying guns. In any event, even though it has been established that the applicant did not say this, it does not follow that Dr Allan's 'use' of the information in the s 24 Form was contrary to the 'use' HPP in cl 9 of Schedule 1 of the HRIP Act. 85Having regard to the circumstances giving rise to the applicant's admission to the MPU, on 18 August 2007, and the procedures of the respondent in regard to s 24 requests, I am satisfied that Dr Allan's 'use' of the health information about the applicant in the s 24 Form was such that he took steps, as were reasonable, in the circumstances, to ensure the information in that Form was accurate. Those steps being his assessment of the applicant and asking him what had occurred. At the time this was the most practicable avenue available to him. Once again, I reiterate, on the basis of the material before the Tribunal, Dr Allan's assessment of the applicant, as recorded in the Assessment and Plan Form and the Form 2, appears to be primarily based on his observations of the applicant and not the basis on which the applicant was brought to the MPU by police. 86While the applicant has not sought amendment of Dr Allan's recorded provisional diagnosis, as set out in the Assessment and Plan Form, or Dr Allan's recorded observations and conclusions as recorded in Form 2, I note the principles set out by the Appeal Panel of the ADT, in Central Sydney Area Health Service v Crewdson (GD) [2001] NSWADTAP 44 in regard to amendment of opinions about a person as contained in a record held by a government agency. 87Crewdsen concerned an application, by the respondent applicant, for amendment of a conclusion in a medical report, held by the appellant respondent, concerning the applicant. The applicant had sought amendment under the former Freedom of Information Act 1989, as it applied at that time. In the medical report, the doctor stated that the applicant was 'currently unfit for work and in need for further psychiatric assessment and consideration. ...' The applicant was subsequently not found to have been unfit for work and it was on this basis that the applicant sought amendment, in the form of a deletion. At first instance, the ADT found that the record was not accurate and should be amended as requested. However, on appeal the Appeal Panel set aside this decision and found that the record was accurate. 88At [56] to [65], the Appeal Panel considered a number of authorities in regard to the issue of amendment of an expressed opinion about a person. At [66], the Appeal Panel held that it preferred the approach adopted by the Administrative Appeals Tribunal in Re Applicant and Department Education and Training, Children's Youth and Family Services (1998) 53 ALD 509 at [62] - [66]. That approach being as follows: '(62) There are, of course, limitations to the amendments that might be made to the record of an opinion. The limitations arise, not from any express restriction on the powers of the tribunal, but from the inherent nature of the provisions of the FOI Act (ACT) for correction of records. ... The situation is more complex where the opinion is formed as the result of applying special knowledge or skills to a set of facts, such as the diagnosis of an illness by a skilled physician observing a set of symptoms. In such a case, it may be necessary to have the opinion of other experts. If the facts on which the opinion in the record is based occurred some time in the past and could not be replicated at the time amendment of the record is being considered then, in the absence of bias or lack of qualification of the author of the opinion or some other such matter, it may be very difficult to come to a conclusion as to whether the opinion was correct or not. ... (63) Where an opinion, even an expert opinion, is based on facts that are shown to be wrong or misunderstood, it is clear that the opinion cannot be allowed to stand as correct information. Even before the amendments to the FOI Act (Cth) to which I have referred, it was established that such an opinion might be corrected by the procedures of Pt V of the FOI Act (ACT). [The President then referred to Re Leverett and RR v Department of the Army and Re Jacobs and Department of Defence (1988) 15 ALD 645; Re Resch and Department of Veterans' Affairs]' (64) ... (65) ... I see no reason why an opinion should be allowed to stand as correct if the principal factual support for the opinion is shown to be erroneous unless it appears that same opinion would have been given if the author of the opinion had not relied on the discredited facts. ...' 89These principles have been followed by the ADT subsequently. 90In my view, the same principles are applicable to requests for amendment of health information under the HRIP Act and the amendment of personal information under the PPIP Act. These provisions having replaced those that were in the former Freedom of Information Act 1989. 91Accordingly, while the applicant may be able to establish that some of the factual matters recorded in the s 24 Form, the Assessment and Plan Form and Form 2 are either factually incorrect, or misleading, this does not necessarily mean that the recorded provisional diagnosis of Dr Allan is inaccurate. Was there a breach of the 'retention and security' HPP? 92There is no dispute that in late 2007, when the applicant first sought access to his medical records relating to his 2007 admission to the MPU, they could not be found. This is clearly a breach of cl 5(1)(c) of Schedule 1 of the HRIP Act. However, of concern to the applicant is the fact that some of his medical records are missing, or lost, in particular the Discharge Summary and the concluding parts of Dr Holton's assessment on 20 August 2007. 93Other than the findings of the internal review, the respondent did not place any additional material before the Tribunal in regard to this alleged breach. This is regrettable as it is the conduct of the respondent which is the subject of review and not the findings of the internal reviewer in regard to that conduct. 94As I understand the position of the respondent, it concedes that the information in question is either missing or was never created. In the event they are lost, the respondent seems to concede that this would amount to a breach of the retention and security HPP in the HRIP Act. However, in the event they were never created, the respondent seems to contend that this would amount to the medical records of the applicant being incomplete. I am unclear as to whether the respondent also contends that this conduct amounts to a breach of a HPP. 95In any event, as I have mentioned, the respondent's position seems to be that, in light of the missing documents, the recorded discharge diagnosis, of Nurse Rice, on the Continuity of Care Form and the principal diagnosis etc. on the Coding/DRG Summary Report are 'not reliable'. 96In my view, given this concession, there is a real issue about the accuracy of this information. This is especially so given the procedures of the respondent, as explained by Dr MacDonald and Mr Hall, as to what constitutes a complete medical record for every patient (e.g. the completion of a discharge summary, by a medical practitioner, for every patient). As identified by the respondent in its correspondence with the applicant and in its internal review, where there is an incomplete medical record, this is to be reflected in what is recorded in the Continuity of Care Form and the Coding/DRG Summary Report. 97Dr MacDonald's evidence was that the recorded discharge diagnosis in the Continuity of Care Form was not a diagnosis but a symptom. If that is correct, then it is difficult to see how it can be said to be accurate. In any event, in the absence any evidence as to the expertise of Nurse Rice in regard to such a diagnosis, or a record of a discharge diagnosis of this kind having been made by Dr Holton, a question remains about the accuracy of these expressed diagnosis. 98Dr MacDonald's evidence was that this information in the Coding/DRG Summary is primarily prepared for statistical and funding purposes. In his statement, Mr Swanborough gave similar evidence. Mr Swanbourough provided an explanation of how a clinical coder (an administrative officer) makes the relevant entries on the DRG Summary Report. He said, in making these entries, the clinical coder is required to extract the relevant descriptions from the Australian Coding Standards (as published by the National Casemix and classification Centre) as they apply to what is recorded on the medical records of each individual. As pointed out by the respondent in its correspondence with the applicant and the internal reviewer, where that medical record is incomplete, this should be reflected in the entry that is made. Where it is established that the clinical coder has extracted the wrong description (either on the basis of what is in fact contained in the medical record, or on the basis of incorrect information in the medical record, of a person) it seems to be arguable that the extracted description is not accurate. And if found to be inaccurate, cl 8 of Schedule 1 of the HRIP Act clearly makes provision for the amendment of that information: see also s 20 of the HRIP Act, which provides that the amendment HPP applies to a public sector agency despite HPP 8(4) and s 21 of the State Records Act 1998. 99As the applicant did not seek amendment of this information in the Continuity of Care Form, or the Coding/DRG Summary Report, I have made no conclusive findings in this regard. However, this remains an issue to be resolved and I urge the parties to do so. Damages 100As I have explained above, subs 55(2)(a) of the PPIP Act gives the Tribunal a discretion to make an order that the respondent pay, to the applicant, damages. However, such an order can only be made where the Tribunal is satisfied that the applicant has suffered loss or harm because of the conduct of the respondent. In this application the relevant conduct is that relating to the missing documents. 101The applicant contends he has suffered such loss and harm. That loss and harm being in the form of psychological harm and ongoing harassed by police. 102In regard to the latter, the applicant provided the transcript of the hearing of a criminal charge brought against him, by police, in early 2008, for an offence of having in his custody, in a public place, a knife. The charge was heard, in late 2009, and the Court dismissed the charge, with the applicant having successfully defended the charge. 103While I can understand the applicant's concerns about the manner in which he was charged and prosecuted, I am not persuaded that there is any nexus between these events and the respondent's failure to 'retain and secure' his health information as required by the HPP in cl 5 of Schedule 1 of the HRIP Act. The respondent's failure was entirely internal and there is no evidence that the police or any other person has had access to the missing information or any other part of the applicant's health information as collected and held by the respondent. 104I am also not persuaded, that the applicant has established that he has suffered psychological harm as a result of the respondent's failure to 'retain and secure' his health information as required by the HPP in cl 5 of Schedule 1 of the HRIP Act . 105In her report, Dr Selig, psychiatrist, said that she has been seeing the applicant as a patient since October 2007. Dr Selig noted that the applicant's anxiety levels were high at the time he was admitted to the MPU and she explains this increase to be associated with his efforts to assist police to accumulate evidence against the person who he alleged to have sexually abused him when he was a child. In her conclusions, Dr Selig states that she has no doubt that the applicant's claim that he was sexually abused as a child is true and that he shows typical long term deficits in mental health, behaviour and relationships. However, she expresses no opinion about harm (if any) the applicant has suffered as a result of the respondent's conduct. 106In his report, Taryn Stubbs, psychologist, concluded that the applicant's 'pre-existing symptoms', due to being sexually abused as a child, appear to have been 'further aggravated by his experience at the Royal Prince Alfred Hospital, and the related events subsequent to his admission, and his discharge with an erroneous diagnosis, ...' 107I accept that the applicant experienced increased levels of anxiety, in August 2007. However, for the purpose of this application, it must be shown that this increased level of anxiety was attributable to the conduct of the respondent in failing to 'retain and secure' his health information. In my view, for the same reasons given above, the opinion of Mr Stubbs fails to establish this. 108Accordingly, I find that the applicant has failed to establish that he has suffered and loss or damage as a result of the respondent's contravening conduct. In the event I am wrong, in my view, any loss or damage that is suffered as a result to this contravening conduct is minimal and would not warrant an order that the respondent pay damages to the applicant. 109For completeness, had it been established that the respondent's conduct was also a breach of the 'use' HPP, I would have made the same findings in regard to the applicants claim for loss and damage. Conclusions and orders 110In summary, for the reasons stated above, my findings are: the conduct of the respondent in regard to the use of the information contained in the s 24 Form prepared by Constable Donaldson was not a breach of the HPP in cl 9 of Schedule 1 of the HRIP Act, the conduct of the respondent in regard to the missing discharge summary and the case history notes, in part, of Dr Holton was a breach of the HPP in cl 5(1)(c) of Schedule 1 of the HRIP Act. 111While I have considered aspects of the applicant's assertion in regard to the accuracy of his health information in so far as it relates to Dr Allan's provisional (initial) diagnosis, the discharge diagnosis as recorded by Nurse Rice and that recorded by the clinical coder in the Coding/DRG Summary Report, I have not made any conclusive findings as the applicant's internal review application, the subject of this application did not make a request for amendment. However, I have noted that the question as to the accuracy and amendment of the discharge diagnosis in the Continuity of Care Form and that contained in the Coding/DRG Summary Report remains an issue in light of the concessions made by the respondent. 112Finally, I have found that the applicant has failed to establish that he has suffered any loss or damage as a result of the respondent's breach of cl 5(1)(c) of Schedule 1 of the HRIP Act. In the event I am wrong, I have also found that the applicant's loss is minimal and it is not appropriate to make an order for compensation. 113In light of my findings and the steps taken by the respondent to date, the appropriate order is to decide to take no further action on this matter. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 28 January 2014