Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Hearing dates: On the papers Decision date: 08 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: overriding public interest against disclosure - conclusive presumption Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Health care Complaints Act 1993 Cases Cited: Cianfrano v NSW Ombudsman [2007] NSWADT 273 DF v Director General, Attorney Generals Department [2002] NSWADT 164 Gliksman v The Commissioner, Health Care Complaints Commission [2001] NSWADT 47 Miller v Director of Public Prosecutions [2012] NSWADT 38 NZ v Health Care Complaints Commission [2006] NSWADT 111 Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 Category: Principal judgment Parties: Iraklia Pertsinidis (Applicant) Illawarra Shoalhaven Local Health District (Respondent) Representation: Anne Pertsinidis - agent (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 133288

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2The Applicant was been a patient of the Wollongong Hospital ("the Hospital"), which falls within the Illawarra Shoalhaven Local Health District ("ISLHD"). She submitted an application to the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act"), in which she sought access to the following: "File held by the ISLHD in relation to a complaint made by my family on my behalf in relation to events at Wollongong Hospital in May 2012" 3The Applicant was admitted to the Hospital in May 2012. The Applicant's family lodged a complaint with both the Respondent and the Health Care Complaints Commission ("the HCCC" or "the Commission") in relation to her treatment at the Hospital. The complaint was lodged with the Respondent on 10 May 2012 ("the Hospital complaint"). The complaint was lodged at the HCCC on 11 May 2012 ("the HCCC complaint"). The two complaints were in similar terms. The Respondent was advised of the HCCC complaint shortly after the HCCC received it and it received a formal notification of the HCCC complaint on 16 May 2012. 4In the notification letter, the HCCC invited the Respondent to respond to the complaint and requested a copy of the Applicant's medical records. A significant amount of the information on Respondent's complaint file was created or obtained for the purpose of responding to the complaints. 5An objection was made to the release of some of the information sought, and the decision was taken under section 58(1)(a) of the GIPA Act, to provide partial access to the information. Internal documentation related to the HCCC Complaint Handling & Investigation Process was excluded. 6The Applicant subsequent requested the Information Privacy Commissioner ("the IPC") review the Respondent's decision. The IPC made the recommendation under section 93 of the GIPA Act that the Respondent reconsider its decision by way of internal review and provide a new decision. 7The Respondent consulted with the HCCC and the fresh decision was made against disclosure of the withheld information under clause 2 of schedule 2 of the GIPA Act and Section 99A of the Health Care Complaints Act 1993 ("the HCC Act"). The decision was based on the Respondent's understanding that section 99A prohibits the disclosure of information collected and considered when preparing a response to the HCCC. 8The Respondent's internal investigation culminated in an Investigation Report dated 16 June 2012 ("the Investigation Report"). The Applicant contends that the Investigation Report did not address her concerns regarding her care and treatment at the Hospital. Her Access application sought documentation, specifically statements from the treating clinicians ("the staff statements"), to provide detailed and specific responses relating to her treatment and care. She was not satisfied with the Respondent's determination and she has applied to the Tribunal for external review of that determination. 9The Applicant identified five documents that remain in dispute: 1. Statement of Dr Jane Holt dated 16 May 2012 2. Statement of Dr Rachel Teo dated 18 May 2012 3. Statement of Dr Johanna Kohlhagen dated 18 May 2012 4. Statement of Dr David Huber dated 23 May 2012 5. Statement of Dr David Huber dated 29 May 2012