Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rosser v Health Care Complaints Commission [2014] NSWCATAD 214 Hearing dates: On the papers Decision date: 08 December 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Isenberg, Senior Member Decision: The decision under review is affirmed Catchwords: Health Care Complaints Commission - Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Pertsinidis v lllawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Miller v Director of Public Prosecutions [2012] NSWADT 38 Category: Principal judgment Parties: Terry Rosser (Applicant) Health Care Complaints Commission (Respondent) Representation: T Rosser (Applicant in person) Health Care Complaints Commission (Respondent) File Number(s): 1410459 reasons for decision BACKGROUND 1In February 2012 Terry Rosser, the applicant, complained to the NSW Medical Council of NSW ('the Council') regarding the care and treatment provided to her by a named psychiatrist ('the complaint'). The Council notified the Respondent of the complaint: s.144G of the Health Practitioner Regulation National Law (NSW) ('the National Law'). 2The applicant's complaint to the Council was deemed to be a complaint made to the Respondent under s.11 of the Health Care Complaints Act 1993 ('HCC Act'). Under s.145A(1) of the National Law and s.12 of the HCC Act the Council and Respondent are required to consult about a complaint. 3The Respondent assessed the complaint under s.20 of the HCC Act in consultation with the Council and determined to take no further action in relation to the complaint. In May 2012 the applicant sought review of the Respondent's decision under s.28(9) of the HCC Act. The Respondent reviewed its assessment decision and upheld the original assessment decision to take no further action. 4Subsequently, the applicant requested the respondent to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'), as follows: A copy of all the questions asked by the Medical Council of [the named doctor] in response to my complaint. 5The Respondent determined, relying on s.43 of the GIPA Act, that the applicant's application for access to information was invalid because she sought access to 'excluded information' of the Commission,. 6The applicant seeks review of that decision. Relevant legislation 7Section 43(1) of the GIPA Act provides that an access application cannot be made to an agency for access to excluded information of the agency. The note to this section provides that information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. 8Schedule 2 relevantly provides: Excluded information of particular agencies Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. ... 2 Complaints handling and investigative information ... The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions .... Is the application valid: s.43 GIPA Act? 9The Respondent submitted that the information requested by the applicant is excluded information, and as a result, the applicant's access application is invalid. 10The Respondent referred me to the recent decision of SM Montgomery in Pertsinidis v lllawarra Shoalhaven Local Health District [2014] NSWCATAD 130. There the Tribunal referred to my decision in Miller v Director of Public Prosecutions [2012] NSWADT 38 in which I discussed the broad scope of the s.43 exemption. 11When the applicant complained to the Council it was obliged, under s.144G of the National Law, to notify the Respondent of the complaint. Section 11 of the HCC Act deems the complaint to be a complaint made to the Respondent. There is therefore no impediment to the operation of s.43 of the GIPA Act that the complaint investigated by the Respondent pursuant to its complaint handling function was not one which was directly made to it, but rather to the Council. 12I find that the application related to the Respondent's complaint handling, investigative, complaints resolution and reporting functions. It therefore was not a valid application by virtue of the operation of s.43 of the GIPA Act in that the information sought is excluded information, as defined. 13I accept that the applicant has concerns about her treatment and the treatment her son received, and it is about this that she has complained. I also accept that she is disappointed that, after investigation, no action was taken in relation to her complaint. I accept that there is little information about what precisely the Respondent did in investigating the complaint but under s.20 of the HCC Act in consultation with the Council, it determined to take no further action in relation to the complaint. In essence, the applicant seeks information about the depth of the investigation, so that she can be satisfied that her concerns were adequately explored. 1. It is useful to set out the object of the HCC Act. 3 Object and principle of administration of Act (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of: (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration. 14Similarly, it is useful to review the functions of the Respondent's functions. 80 Functions of Commission (1) The Commission has the following functions: (a) to receive and deal under this Act with the following complaints: - complaints relating to the professional conduct of health practitioners - complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients - complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW) , (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, (d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part, (e) to monitor, identify and advise the Minister on trends in complaints, (f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with, (g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints, (h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process, (i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions. (2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act. ... 15As can be seen, the Respondent has wide powers and responsibilities. It is charged, essentially, with dealing with complaints against health practitioners. That is what it has said it has done in response to the applicant's complaint, and the Tribunal has no jurisdiction to assess the extent or the appropriateness of the Respondent's investigation. Having said that, there was no evidence to suggest it had conducted its role other than diligently. Public interest test 16Having regard to my findings in paragraph 12 above, it is not necessary for me to consider the public interest test provisions under the GIPA Act. I note however, that there is a conclusive presumption of an overriding public interest against disclosure in relation to information that relates to the Respondent's complaint handling and investigative processes: s.14(1), cl 1 of Sch.1 GIPA Act. Is the application valid: s.41 of GIPA Act? 17The Respondent also submitted that the application was invalid as it did not comply with the requirements of s.41 of the GIPA Act in that it did not clearly state that it was an application under the GIPA Act nor was it accompanied by a fee of $30: s.41(1)(b) and s.41(1)(c), respectively. In view of my comments above it was unnecessary to consider this submission. I observe though, that while the submission may technically be a correct one, I doubt that I would have disposed of the application solely on that basis. DECISION 18The decision under review is affirmed. ********** 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: 08 December 2014