ARC v Northern NSW Local Health District [2014] NSWCATAD 109

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ARC v Northern NSW Local Health District [2014] NSWCATAD 109 Hearing dates: On the papers Decision date: 30 July 2014 Before: S Higgins, Principal Member Decision: Pursuant to subs 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal decides not to take any action on the matter. Catchwords: Privacy - amendment of personal information Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Health Records Information Privacy Act 2002 Freedom of Information Act 1989 (repealed) Privacy and Personal Information Protection Act 1998 State Records Act 1998 Cases Cited: Crewdson v Sydney Area Health Service [2002] NSWCA 345 GA v University of Sydney [2010] NSWADTAP 31 TB v South Eastern Sydney Illawarra Area Heath Services [2011] NSWADT 165 Category: Principal judgment Parties: ARC (Applicant) Northern NSW Local Health District (Respondent) Representation: ARC (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 133200

reasons for decision

Introduction 1The applicant seeks review of conduct by the respondent which she asserts to be a breach of the accuracy health privacy principles, under the Health Records Information Privacy Act 2002 (HRIP Act), in regard to her health information. 2The information that is of concern to the applicant is her health information as recorded in the Mental Health Access Line Handover Report (MHAL Report), which was created, on 13 July 2010 at about 9.38 am. The Report forms part of the applicant's mental health file that is held by the respondent. 3In these reasons for decision, the name of the applicant has been anonymised, as ARC, so as to preserve the privacy of her health and personal information. 4The MHL Handover Report is a record made by Mr Peter Mamouzelos, a clinician, of a telephone call he received from Mr Michael Grace, a psychologist, who had seen the applicant that morning. The applicant does not dispute that she had an appointment Mr Grace that day. However, she asserts that what is recorded in the MHAL Report about her mental health that morning was a fabrication and not reflective of what she told Mr Grace and why she had made an appointment with him. That is, it was her contention that the information concerning her mental health was 'false, misleading, exaggerated and /or out of date.' On this basis, the applicant sought the removal of the Report from her mental health file. 5In April 2013, the applicant made a formal complaint/internal review application, to the respondent, under s 21 of the HRIP Act. By reason of s 21 of the HRIP Act, the applicant's complaint/internal review is determined in accordance with the provisions in Part 5 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). 6In that complaint, the applicant identified the 'accuracy' of her personal/health information as being the essence of her complaint. The respondent determined the complaint on 9 May 2013. It considered the applicant's complaint in the context of the security, non-excessive and accuracy Health Privacy Principles (HPPs) in clauses 5, 2 and 9 of Schedule 1 of the HRIP Act. It found that its conduct did not breach any of these HPPs. It noted that, in accordance with its policies and procedures for all heath records, the applicant's health records were maintained securely and confidentially and access was restricted to her treating clinicians. However, to assist the applicant, the respondent said it had made a notation in her Community Mental Health - health record which explained her account of events as well as placing a copy of the applicant's letters with the record in issue. 7The applicant's application came before me, at planning meetings and directions, on 30 July, 20 August, 25 September and 20 November 2013. During these meetings, the applicant only pressed her claim in regard to the accuracy of her health information in the MHAL Report and the removal of that record from her health files. 8On 20 November, the parties agreed to endeavour to resolve the matter and in the event they were not able to resolve the matter, by 16 December 2013, the Tribunal was to determine the matter under s 76 of the Administrative Decisions Tribunal Act 1997 (as it applied at that time). 9Further material was filed by the applicant on 14 January 2014. 10On 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). By reason of cl 7(2) and (3) 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 NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of HRIP Act and PPIP Act continuing to apply. 11In the absence of being informed by the parties that the matter had been resolved, I have determined the matter on the material that has been filed and served, including the most recent amendments proposed by the applicant in the event the Tribunal does not accept her claim that the record be deleted.