Whyte v Medical Council of NSW [2014] NSWCATAD 190

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Whyte v Medical Council of NSW [2014] NSWCATAD 190 Hearing dates: On the papers Decision date: 07 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The decision of the respondent to refuse the applicant access to Dr Hartnell's response is affirmed. Catchwords: ADMINISTRATIVE LAW - access to government information - access sought to doctor's response to a complaint made by the access application to the respondent and the Health Care Complaints Commission - whether application a valid application - excluded information

Access to government information - conclusive presumption of overriding public interest against disclosure - overriding secrecy law in Health Care Complaints Act 1993 - excluded information Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No 86a Health Practitioner Regulation (Adoption of National Law) Act 2009 Category: Principal judgment Parties: Sheila Whyte (Applicant) Medical Council of NSW (Respondent) Representation: S Whyte (Applicant in person) M Harvey, Medical Council of NSW (Respondent) File Number(s): 1410154

reasons for decision

Introduction 1The applicant seeks review of a decision of the respondent, made under the Government Information (Public Access) Act 2009 (GIPA Act), refusing her access to the information for which she sought access under that Act. 2The information sought by the applicant was the written response of Dr N Hartnell to a formal complaint she had made about his treatment of her. That complaint was made on or about 3 April 2013, to the respondent and the Health Care Complaints Commission (HCCC). The complaint included a complaint against another two medical practitioners who had also treated the applicant. Following consultation between the respondent and the HCCC, responses were sought from the three medical practitioners. Each medical practitioner responded individually. On obtaining these responses, the respondent and the HCCC determined to discontinue the complaints against the other two medical practitioners and the applicant was provided with their respective responses to her complaint about them. 3On 8 July 2013, the HCCC determined that the applicant's complaint against Dr Hartnell was to be referred for direct resolution and that Dr Hartnell's response was not to be provided to the applicant in accordance with the disclosure policy of the HCCC. The respondent informed the applicant about the outcome of her complaint against Dr Hartnell, on 7 August 2013. The applicant was also informed that the HCCC had not authorised the release of Dr Hartnell's response to her complaint. After further requests for a copy of the response, on 24 February 2014, the applicant made her formal application for access to Dr Hartnell's response under the GIPA Act. 4As I have noted, the respondent refused to grant the applicant access to Dr Hartnell's response. The grounds relied on by the respondent in its determination was that there was a conclusive overriding public interest against disclosure of the information in Dr Hartnell's response (see ss 13 and 14(1) and cl 1(1) and 6 of Schedule 1 of the GIPA Act). In this application, the respondent has also contended that the applicant's access request was not a valid request by reason of subsection 43(2) of the GIPA Act. 5The applicant is pressing access to Dr Hartnell's response as she feels she cannot progress to resolve her complaint without first seeing what he said in response to her complaint. 6The applicant's application came before me at a planning meeting 29 April 2014. At the planning meeting I made orders for the filing and serving of evidence and submissions. I also made an order under subs 50(2) of the Civil and Administrative Tribunal Act 2013 that this application can be adequately determined on the papers in the absence of the parties. 7The parties have filed and served material in accordance with the orders that were made. The applicant has filed and served a number of documents and has commented on the material filed and served on the respondent. 8There is no dispute that the tribunal has jurisdiction to hear and determine this application (see section 30 of the Civil and Administrative Tribunal Act 2013, sections 7 and 9 of the Administrative Decisions Review Act 1997 and section 100 of the GIPA Act). 9I have now considered all the material filed by the parties and for the reasons set out below I have determined that the decision of the respondent should be affirmed as the information in Dr Hartnell's response falls within the subsection 14(1) GIPA Act conclusive presumption of an overriding public interest consideration against disclosure.