Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CEU v University of Technology Sydney [2017] NSWCATAD 79 Hearing dates: 18 & 19 August 2016 and 6 September 2016 Date of orders: 13 March 2017 Decision date: 13 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: R J Perrignon, Senior Member Decision: 1. The respondent's interlocutory application to dismiss the proceedings for want of prosecution is dismissed. 2. Findings as follows: a. The respondent did not breach Health Privacy Principle 2 by collecting a document from the applicant on 17 April 2015. b. The letter from Dr Cai to the respondent's Special Needs Service dated 21 April 2015 did not breach Health Privacy Principle 9. c. The provision of Dr Cai's letter dated 21 April 2015 to the Special Needs Service did not breach Health Privacy Principle 11. d. The provision of health information by Dr Cai to Ms Edwards on 22 May 2015 did not breach Health Privacy Principle 11. e. On 21 May 2015, Ms Widjaja did not disclose the applicant's health information as alleged to Ms Edwards in breach of Health Privacy Principle 11. 3. The Tribunal decides to take no further action in the matter. 4. Any application for costs is to be filed and served within 7 days, specifying the matters in respect of which costs are sought and the grounds. 5. Submissions in reply are to be filed and served within a further 7 days. Catchwords: ADMINISTRATIVE LAW – Health Privacy Principles 2, 9 and 11 of the Health Records and Information Protection Act 2003 – whether provision of health information by one administrative unit of an agency to another constitutes 'disclosure' – whether diagnosis of alcohol dependence accurate – whether applicant's diary collected by agency – whether notes collected were irrelevant, excessive, inaccurate or unreasonably intrusive – whether health information disclosed as alleged on 21 May 2015 - meaning of 'disclosure' in Health Privacy Principle 11. Legislation Cited: Health Records Information and Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Cases Cited: AF v Minister for Health [2012] NSWADTAP 16 BVS v Sydney Local Health District [2015] NSW CATAD 171 RL v Department of Education and Training [2009] NSWADT 257 Category: Principal judgment Parties: CEU (Applicant) University of Technology Sydney Representation: Counsel: D Burwood (Applicant) A Flecknoe-Brown (Respondent) File Number(s): 1510578 Publication restriction: The applicant's name is not to be published REASON FOR DECISION 1. In 2014 the applicant was admitted to candidature for the degree of Bachelor of Nursing at the University of Technology in Sydney. On 24 February 2014, she was registered as a student nurse. 2. On 22 June 2015, the applicant complained to the University that it had breached a number of Health Privacy Principles in collecting and disclosing her health information, and sought review of that conduct. The University conducted an internal review. On 28 August 2015 it determined that it had not breached any relevant Health Privacy Principle. The applicant is not satisfied with that finding, and applies to this Tribunal for review of the conduct the subject of the University's internal review. 3. The Tribunal directed the applicant to file Points of Claim. She filed a lengthy document which did not particularise the breaches of Health Privacy Principles which she alleged, and which was incapable of informing the respondent of the case it had to meet. The respondent moved the Tribunal to dismiss the proceedings for want of prosecution. As the applicant was self-represented, that application was stood over to enable her to obtain legal advice. She was ably represented by counsel for the remainder of the application, and of these proceedings. 4. On 9 June 2016, in the course of the respondent's dismissal application, the following conduct was particularised in Points of Claim drawn and provided to the Tribunal by the applicant's counsel. 1. On 17 April 2015, the University breached Health Privacy Principle 2 by collecting from her an extract of 11 pages from her diary, which was excessive, irrelevant, inaccurate and unreasonably intrusive. 2. On 21 April 2015, the University used health information about her in breach Health Privacy Principle 9 without ensuring its accuracy, by sending, receiving or retaining a letter of that date written by Dr Cai to the University's Special Needs Service, which contained an inaccurate diagnosis of alcohol dependency and allegation of alcohol abuse. 3. On 21 April 2015, the University breached Health Privacy Principle 11 by sending Dr Cai's letter to the Special Needs Service, because his diagnosis of alcohol dependence and allegation of alcohol abuse was used for a purpose other than the purpose for which her health information had been collected. 4. On 22 May 2015, the University breached Health Privacy Principle 11 when Dr Cai orally disclosed to Ms Edwards his diagnosis of alcohol dependence for a purpose other than the purpose for which the applicant's health information was collected. No allegation is made that the applicant's health information was communicated to the Faculty of Health, on that or any other occasion. 5. On 22 May 2015, the University breached Health Privacy Principle 11 when a psychologist in the University's Counselling Service, Ms Widjaja, orally disclosed to the Acting Manager of its Special Needs Service, Ms Edwards, that the applicant suffered cognitive impairment, without her consent and for a purpose other than the purpose for which the information had been collected. 1. The following remedies were particularised in the Points of Claim: 1. An apology from the University for each of the breaches above. 2. Rectification of the applicant's health information disclosed by the agency. 3. Damages in the sum of $27,000, being nine months' salary of an Assistant in Nursing, which she says was foregone as a result of the delay in her clinical placement. 1. The respondent's dismissal application was stood over to the hearing. As there have been no further defaults in timetable by the applicant, and the respondent has had a proper opportunity to file and present evidence addressing the Points of Claim, it is appropriate that the dismissal application itself be dismissed. 2. No application to expand the Points of Claim, either in terms of the breaches alleged or the relief sought, was made or granted. The respondent has presented its evidence and submissions in answer only to the five breaches alleged in the Points of Claim, as it was entitled to do. To the extent that the applicant's written submissions address complaints or relief sought beyond those expressed in the Points of Claim, it is unnecessary to make any determination in respect of them. 3. For its part, the University responds to each of the five complaints against it in the following way. 1. It denies that it collected an extract from the applicant's diary at all on 17 April 2015. It says that the document in question, which the applicant claims was a diary extract, was in fact a single page summary of the matters for which she sought assistance, prepared by her at the request of the University and given to Ms Fietz at consultation on 17 April 2015, prior to seeing Ms Widjaja that day. It says that Ms Widjaja did not collect the document at all, and that its collection by Ms Fietz did not breach Health Privacy Principle 2, because the health information it contained was directly relevant to her consultation with Ms Fietz that day, and was not excessive, unreasonably intrusive or inaccurate. 2. Dr Cai's diagnosis of alcohol dependence in his letter of 21 April 2015 was accurate and up to date, and therefore not in breach of Health Privacy Principle 9. It says the diagnosis was based on the history given him by the applicant at consultation, and is consistent with admissions which she made about her alcohol consumption. 3. Dr Cai's letter was not a 'disclosure' by the agency for the purpose of Health Privacy Principle 11, because it was a communication between administrative units within the University itself. In the alternative, it says, the purpose of the letter was identical to the purpose for which the information was obtained or directly related to it, because the purpose of the consultation had been to obtain Dr Cai's help in attracting the services of the University's Special Needs unit for the applicant, and his letter was written expressly for that purpose. 4. The University admits that on 22 May 2015, Dr Cai told Ms Edwards that the application was managing her alcohol dependence with medication, and abstinent from drinking. It relies on Ms Edwards' file note of that conversation, and says she asked Dr Cai for an update on the health information contained in his letter of 21 April 2015 because she was considering whether the applicant's alcohol dependence should be disclosed to the Faculty of Health. The respondent says that this was a communication between administrative units within the agency, and therefore not a disclosure caught by Health Privacy Principle 11. In the alternative, it says that the health information was disclosed by Dr Cai for a purpose directly related to the purpose for which it was collected, and the applicant would reasonably have expected such a disclosure in the circumstances. 5. The University says that on 21 May 2015, Ms Widjaja enquired of Ms Edwards whether the applicant's alcohol use had been disclosed to the Faculty. It denies that she disclosed to Ms Edwards that the applicant suffered cognitive impairment. It says the Tribunal would not be satisfied that she made any such diagnosis, let alone communicated it to Ms Edwards. It denies that a communication between Ms Widjaja and Ms Edwards could constitute a 'disclosure' by the agency, for the same reasons as given above in respect of Dr Cai. It also denied that it could be a disclosure in circumstances where the recipient of the health information already knew that the applicant suffered from alcohol dependence. 1. The applicant's claim for compensation for economic loss depends on her assertion that her clinical placement was delayed for nine months as a result of Dr Cai's inaccurate diagnosis of alcohol dependence and the disclosure of that health information in breach of Health Privacy Principle 11. The respondent does not appear to deny that a clinical placement was delayed by nine months at some stage, but says any delay was due to the actions of the Nursing and Midwifery Council on 15 October 2015. On that date, it determined that the applicant may not attend clinical placement scheduled to begin on 23 November 2015 until she had been reviewed by a psychiatrist appointed by the Council to conduct a health assessment, and to advise whether neuropsychological testing for cognitive impairment was necessary, and the condition was removed by the Council. In its reasons, the Council said that its review had been conducted following an anonymous complaint made about the applicant to the Health Professional Councils Authority, and a second anonymous complaint against the University's nursing faculty which included a copy of Dr Cai's letter. 2. It is common ground that on 22 October 2015 the applicant was examined at the Council's request by psychiatrist, Dr Samuells, who found 'no clear evidence' of alcohol abuse or dependency, no evidence of an underlying mental disorder, and 'no clear evidence' of any cognitive problem. 3. The respondent says the cause of the delay in clinical placement was the decision of the Council, and there is no evidence of any nexus between that decision and any breach of a Health Privacy Principle by the University. In particular, it says there is no evidence that the University made either of the two complaints which gave rise to the Council's investigation. In its reasons for decision, the Council indicated that the second complaint had included a copy of Dr Cai's letter dated 21 April 2015, but there is no evidence that the letter was provided by the University or any of its officers. Issues for determination 1. The issues for determination may be summarised as follows. 1. Whether the University's Counselling Service collected 11 pages from the applicant's diary on 17 April 2015 as alleged and, if so, whether the information collected was irrelevant, excessive, inaccurate or unreasonably intrusive in breach of Health Privacy Principle 2. 2. Whether Dr Cai's diagnosis of alcohol dependence and allegation of alcohol abuse in his letter of 21 April 2015 were inaccurate. 3. Whether the provision of that letter by Dr Cai to the Special Needs Service was a disclosure within the meaning of Health Privacy Principle 11 and, if so, whether it was disclosed for a purpose other than the purpose for which it was collected. 4. Whether Dr Cai's oral disclosures to Ms Edwards on 22 May 2015 were disclosures in terms of Health Privacy Principle 11 and, if so, whether they were made for a purpose other than the purpose for which the information was collected. 5. Whether Ms Widjaja disclosed to Ms Edwards on 22 May 2015 that the applicant suffered cognitive impairment or alcohol dependence and, if so, whether that constituted a disclosure in terms of Health Privacy Principle 11. Legislation 1. Section 21 of the Health Records and Information Privacy Action 2002 (the Act) provides that the contravention by a public sector agency of a Health Privacy Principle which applies to the agency is conduct to which Part 5 (Review of Certain Conduct) of the Privacy and Personal Information Protection Act 1998 applies. 2. Part 5 of the latter Act provides that a person aggrieved by the conduct of an agency may apply for a review of that conduct by the agency, and if not satisfied with the findings on review or the actions of the agency, may apply to this Tribunal for "administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application". 3. It is common ground: 1. that the respondent is a public sector agency to which Part 5 applies and therefore an 'organisation' to which the Health Privacy Principles apply, 2. that the applicant applied to the respondent for an internal review of the conduct complained of in these proceedings, 3. that on 28 August 2015 the respondent issued its findings on internal review, and 4. that the applicant was not satisfied with the outcome. 1. It follows that the Tribunal enjoys jurisdiction to review the alleged conduct of the University in respect of the five allegations particularised in her Points of Claim. 2. The scheme of the legislation, and the Tribunal's powers on review, were succinctly described by Montgomery SM in BVS v Sydney Local Health District [2015] NSW CATAD 171 (at paras 8 to 14): 8. In NSW the HRIP Act regulates "health information" through HPPs. The Privacy and Personal Information Protection Act 1998 ("PPIP Act") regulates general personal information (other than health information) through Information Protection Principles ("IPPs") and also regulates the review of conduct by public sector agencies for both Acts. 9. Section 5 of the HRIP Act and section 4 of the PPIP Act defines "personal information" as: ''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". 10. Section 6 of the HRIP Act defines "health information" as follows: (a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service, or (c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or (d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or (e) healthcare identifiers, but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act. 11. …. 13. Section 52 of the PPIP Act allows for the following conduct to be subject to an internal review: (a) the contravention by a public sector agency of a health privacy principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in a public register. 14. Section 55(1) of the PPIP Act provides for a person who has applied for an internal review to apply to the Tribunal for an administrative review of the conduct that was the subject of the internal review application. The Tribunal's powers set out under section 55 (2) of the PPIP Act are as follows: (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 3 of the Administrative Decisions Review 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. 1. The Health Privacy Principles are set forth in Schedule 1 of the Act. The applicant complains that the respondent breached Principles no's 2, 9 and 11. Health Privacy Principle 2 provides: 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. 1. Health Privacy Principle 9 provides: 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. 1. Health Privacy Principle 11 relevantly provides: Limits on disclosure of health information (1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless: (a) Consent - the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or (b) Direct relation - the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or Note. For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose. 1. The objects and purposes of the Act are to be found in section 3 as follows: 3 Purpose and objects of Act (1) The purpose of this Act is to promote fair and responsible handling of health information by: (a) protecting the privacy of an individual's health information that is held in the public and private sectors, and (b) enabling individuals to gain access to their health information, and (c) providing an accessible framework for the resolution of complaints regarding the handling of health information. (2) The objects of this Act are: (a) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information, and (b) to enhance the ability of individuals to be informed about their health care, and (c) to promote the provision of quality health services. Applicant's evidence 1. The Applicant gave written and oral evidence. 2. She said that on 17 April 2015, in the second year of her degree, she consulted Ms Fietz, who was a psychologist in the Counselling Service of the University's Student Services Unit. The applicant was asked to complete a First Visit Questionnaire. In her answers, the applicant admitted to drinking more than she should, and to having been feeling aggressive. 3. On the same day, she said, she consulted another psychologist in Counselling Service, Ms Widjaja, who had a copy of the applicant's completed questionnaire. She said that Ms Widjaja asked for a copy of eleven pages from the applicant's diary. The applicant obliged her. On one page, the applicant had written, 'I have an alcohol addiction'. Those diary notes were retained by the University. 4. The applicant denies that she abused alcohol, and says that her admission in her diary to having an alcohol addiction was inaccurate. She says the collection and retention by the University of this extract from her diary contravened Health Privacy Principle 11, because it was not relevant, was excessive, contained an inaccuracy (namely that she suffered from alcohol addiction), and was unreasonably intrusive. 5. On 21 April 2015, she consulted a general practitioner in the Health Services Unit of Student Services, Dr Cai. He wrote a letter addressed to the University's Special Needs Service (which, like the Counselling Service and Health Services, formed part of the Student Services Unit) on that day in the following terms: Thank you for seeing [applicant's name], age 45 yrs [sic], for assistance. [Applicant's name] suffers with depression and alcohol dependence. She is having trouble keeping up with studies due to low mood, poor concentration and effects of excessive alcohol consumption. I would appreciate any assistance you can provide her. In the meantime, I'm in the process of organising assistance (in form of medication and counselling) for her depression and alcohol abuse issues. 1. The applicant says that Dr Cai placed the letter in an envelope and gave it to her. Without reading it or knowing its contents, she says she delivered it to the Special Needs Service that day. She says that, being unaware of its contents, she did not consent to the provision of that letter to the Special Needs Service. 2. On 4 August 2015, the Director of the Student Services Unit, Dr Smout, sent a message to the applicant, referring to Dr Cai's diagnosis of alcohol dependence and to the admissions referred to above in her First Visit Questionnaire and diary. 3. The applicant says that in writing his letter of 21 April 2015, Dr Cai breached Health Privacy Principle 9, because the letter was inaccurate. She says she neither suffered from alcohol dependence nor abused alcohol, and does not do so now. She relies on medical reports of psychiatrist, Dr Samuells, and general practitioner, Dr Chang, and other evidence considered below. She says she consulted Dr Cai because she was worried about weight gain, not alcohol abuse, and that she sought medication for weight loss. She thought she could obtain cheaper medication of that nature from Dr Cai than from Dr Chang. 4. On 21 May 2015, the applicant said she consulted psychologist, Ms Widjaja, in the Counselling Service. The applicant says that Ms Widjaja told her: You have cognitive impairment. You will not be able to attend clinical placement. You must advise your Faculty of your condition. 1. The applicant denies that she suffered from cognitive impairment. She relies on the report of Dr Samuells, and on the fact that she was doing well in her studies at that time. 2. On 22 May 2015, the applicant met with the Acting Manager of the Special Needs Service, Ms Edwards. She says that Ms Edwards disclosed that Dr Cai had informed her that the applicant was an alcoholic, and on medication for that condition. She also says that Ms Edwards expressed the view that the applicant had 'cognitive impairment'. She invites the Tribunal to infer: 1. that Dr Cai told Ms Edwards that the applicant suffered from alcoholism, and 2. that Ms Widjaja must have told Ms Edwards that the applicant had cognitive impairment. 1. The applicant says she never consented to the disclosure: 1. by Dr Cai to Ms Edwards of her alcohol dependency, its management and medication for it, or 2. by Ms Widjaja to Ms Edwards of the diagnosis of cognitive impairment. 1. She says the information was used by Ms Edwards to delay the applicant's clinical placement by nine months, and thereby delayed the completion of her degree, and the prospect of gainful employment as an assistant in nursing, by a year. Respondent's evidence Mr Smout 1. Mr Smout gave evidence that he was the Director of the University's Student Services Unit, reporting to the Deputy Vice Chancellor (Education and Students), Professor Alexander. 2. He said that the Student Services Unit was comprised of a number of smaller units. Among them were Health Services, the Counselling Service, and Special Needs and Financial Assistance (referred to in these reasons as the Special Needs Service). 3. Dr Cai, he said, was a member of Health Services. He produced a contract under which Dr Cai had agreed with the University to provide medical services to students. Clause 8.2 of the contract provided that 'all Patient Records are the property of UTS'. 4. Ms Smout said that the purpose of the Counselling Service was to assist students to come to terms with academic and personal situations or health conditions in an optimal way, and gave examples. Ms Lok, he said, was in charge of the Counselling Service. Two psychologists among others, Ms Widjaja and Ms Fietz, reported to Ms Lok. 5. Ms Edwards, he said, was in charge of the Special Needs Service. The purpose of that Service was to cater for people with disabilities. Reporting to her were, among others, two Disability Support Officers, Ms Cheung and Mr Knowles. 6. He said that on 20 April 2015 the applicant had complained about psychologist, Ms Fietz, in the Counselling Service. Thereafter, her case was referred to Ms Widjaja. He described a number of subsequent complaints made by the applicant, and his role in dealing with them. 7. His evidence was uncontroversial. To the extent it is summarised above I accept it as accurate and make findings in accordance with it. Dr Cai 1. General practitioner, Dr Cai, gave oral evidence. The clinical notes of Health Services relating to the applicant were before the Tribunal. 2. The records reveal that the applicant consulted a number of different doctors and medical staff at Health Services from 13 February 2014. On 13 February 2014, the applicant completed and signed a 'new patient registration form', in which she admitted to drinking alcohol on a weekly basis. 3. She first saw Dr Cai on 7 May 2014, after being referred to him by a counsellor. She described symptoms of depression on a background of her husband having been killed in motor vehicle accident in 2012, while she was 8 months pregnant, having come to Australia with her son for a new start in January 2014, and being a single mother with a 22-month old son. She described ongoing symptoms of depression, comfort eating and weight gain. She said she was open to a 'trial of antidepressant again'. She told the doctor that she drank little alcohol. The doctor prescribed a trial of appropriate medication, and warned her not to drink. 4. She consulted him again on 21 May 2014. She described the effects of the antidepressant on her, and discussed the option of dropping a subject 'and try again maybe next yr [sic]'. On that day, Dr Cai wrote a letter on her behalf, addressed 'to whom it may concern', recommending that she be permitted to withdraw from a particular subject after the census date without penalty, on the grounds that she had been 'suffering from depression with symptoms of depressed mood, insomnia, poor energy and difficulty [with] concentration.' 5. On 7 July 2014, Dr Cai referred the applicant to psychologist, Ms Doctor, for opinion and management of depression under a mental health treatment plan. 6. Ms Doctor's report of 14 July 2014 was before the Tribunal. On that day, the applicant had consulted Ms Doctor, describing symptoms of depression. The report noted that the applicant admitted to drinking two glasses of wine every day. Ms Doctor devised a management plan which included cognitive behavioural therapy for depression. 7. Dr Cai's clinical notes indicate that the applicant saw him again on 23 September 2014. He changed the medication to another antidepressant. He took a history that her mood had deteriorated and that she shouted at her 2-year-old son. At the next consultation on 30 September 2014, she said she had stopped drinking alcohol, and described an improvement in her mood. 8. On 21 April 2015, the clinical notes indicate that she saw Dr Cai again, this time to address "Alcohol dependence". He ceased to prescribe the antidepressant Zoloft and instead prescribed Campral. Having regard to the advice he gave the patient (summarised below), it is likely that he ceased prescribing Zoloft because of her admissions in relation to her alcohol consumption. In his oral evidence, Dr Cai explained that Campral was prescribed to reduce alcohol dependence and for no other purpose. 9. His notes of that consultation recorded a history of 'alcohol abuse', the patient admitting to having been drinking for most of the year, more so in times of stress and mainly in the context of her studies, up to eight standards drinks per day. He recorded a history that she wanted 'to quit', but was looking for a 'quick fix'. He recorded that she was open to trying Campral. She said her depression had worsened this year (2014), but she was not taking Zoloft. She told him that another GP had prescribed duromine, which she thought would boost her energy. The notes record Dr Cai's explanation that this was 'a bad idea and it can have severe side effects'. They record a long discussion with the patient on how to 'tackle depression', by ceasing alcohol first, and then trying antidepressant medication. 10. The notes indicate that the applicant consulted Dr Cai again on 5 May 2015. She said she was tolerating Campral well, had significantly reduced her drinking and had now stopped it. The doctor recorded, 'motivated to cont[inue] Campral for now'. I infer from this that she had not ceased to take Campral, and was willing to continue it. 11. She saw Dr Cai again on 22 May 2015. He took a history that she was worrying about her clinical placement. From other evidence, this was due to commence on 25 May 2015. She described a recent incident at her home, when her neighbours called police due to her son crying. She told the doctor that she 'wants to stop campral as [she was] worried about [its] effects on her clinical [placement]'. I infer that she was still taking Campral as at 22 May 2015. The doctor recorded his advice that the drug had no cognitive side effects, and that it was 'ok to continue to take [it]'. He told her it was an in indicator of motivation to recover from her alcohol dependence. Mention was made in the notes of 'other objective tests incl[uding] blood etoh etc'. 12. Dr Cai's clinical notes described a further consultation on 2 June 2015 as a 'tense consult'. The applicant expressed her irritation at 'CPU, Viv and Claire due to special restrictions placed on her placement due to alcohol abuse'. She expressed anger at them 'for raising concerns about her safety to practice'. She assured the doctor that she remained abstinent from drinking, and said she was still taking Campral. Ms Cheung 1. Ms Cheung also gave evidence for the respondent. She was a Disability Support Officer in the Special Needs Service. She produced a number of email messages between the applicant and members of the Special Needs Service. 2. By email addressed to the Special Needs Service dated Wednesday 15 April 2015, the applicant explained that her teacher had advised her to make contact. She said that her husband had died in 2012, that she was a single parent with a 35-month old baby boy, that all her family was in her (overseas) country of origin, and that she was a full-time nursing student. She said that she was struggling, despite having been given an extension till 20 April – presumably, for an assignment. She explained that she had made an appointment to see a counsellor on Friday and said: I just want to escape from this world but I cannot do it because of my son. Any help you could suggest? 1. The counsellor, as appears below, was Ms Fietz, in the Counselling Service. Ms Fietz was not an officer within the Special Needs Unit. 2. On the same day, a Disability Support Officer within the Special Needs Unit, Mr Knowles, sent an email to the head of the Counselling Service, Ms Robertson. He explained that he had talked with the applicant, that she 'seemed very distressed', that she felt her subject co-ordinator and her Faculty as a whole 'hate her', that she was worried she would be unable to submit on 20 April, and that her baby 'never stops crying'. He said that after their conversation, she said she felt better, and was at no risk to herself pending her appointment with a counsellor on Friday. 3. Mr Knowles told Ms Robertson that he had advised the applicant to 'try and keep notes of her concerns and bring these to the appointment with counselling." 4. On 15 April 2015, Ms Robertson copied this email to Ms Fietz and Ms Widjaja in the Counselling Service, for the purposes of a consultation which had been arranged between the applicant and Ms Fietz that Friday. 5. On 16 April 2015, Mr Knowles sent the applicant an email, reminding her of her appointment to see Ms Fietz the next day at the Counselling Service. Mr Knowles said: During our appointment yesterday I mentioned writing a clear list of things you wish to discuss and bringing his to your counselling appointment. This might help structure the appointment so you get the most out of your time with Melissa. As mentioned yesterday, the Special Needs Service is for students[s] with an ongoing medical condition or disability … If you wish tomorrow, please organise an [sic] time to meet with the Special Needs Service at UTS reception …. 1. On 21 April 2015, Ms Cheung said, she met with the applicant at the applicant's request. Ms Cheung explained that it was a function of the Special Needs Service to provide information about support services available to students. She said that the applicant spoke quickly and spoke over the top of her, making it difficult to interject. The applicant, she said, reported a history of depression, anxiety and alcohol abuse, though she did not say how often or in what quantities she used alcohol. The applicant did not explain what support she needed, but said she was consulting Dr Cai for depression and was on medication for that condition until she ceased it in December 2014, recommencing it in April 2015. Ms Cheung said the applicant offered to provide a letter, confirming her conditions. 2. Ms Cheung explained to her that, in order to register with the Special Needs Service, a student must provide documentary evidence of an ongoing condition which impacts on their studies, from a registered health professional. The applicant said she would obtain a letter from Dr Cai that same day. 3. Ms Cheung then provided the applicant with a number of forms to sign, including consents to the release of information. She noticed that the applicant commenced to tick all the boxes on the consent forms before they were explained to her. She asked the applicant to wait while she explained the consents to her. While she was explaining, she noticed the applicant signing the forms. Ms Cheung produced the signed forms to the Tribunal. 4. The first page was headed, 'Service Statement – Special Needs Service'. Under a sub-heading, 'Disability Disclosure', were two alternative boxes. The first said, "I give permission to update my UTS disability status to indicate my disability/illness". The second said, "I do not consent to disclosing my disability". The applicant ticked the first box, and left the second unticked. The form then invited her to tick a box indicating the kind of disability to which her consent related. The options were, vision, hearing, learning, medical, mobility, and 'other'. The applicant ticked 'other'. Having regard to Ms Cheung's evidence as to the content of the conversation between the two women, which I accept, it is likely that 'other' was intended by the applicant to indicate her depression, anxiety and alcohol use. I do not accept that the applicant did not understand the form. To have made the choice as to which box to tick, she must have read the options. I am satisfied she did so before ticking the boxes, and the Ms Cheung explained their meaning to her. 5. However, the phrase, 'to update my UTS disability status' is not defined in the form. There is no evidence that it was understood to mean anything more than updating the information on her disability in the records of Special Needs Service. There is no complaint before the Tribunal that a member of the Special Needs Service breached a Health Privacy Principle by keeping the applicant's records up to date. This form does not assist the respondent. 6. On another page, the applicant ticked boxes authorising 'Special Needs staff' to inform her Academic Liaison Officer, subject co-ordinators, lecturers and tutors that she had a 'disability/ongoing illness', how it impacts on her studies, that she had a 'psychological condition', and 'what my disability/ongoing illness is as documented on my Special Needs file'. There is no evidence as to who the Academic Liaison Officer was. There is no complaint before the Tribunal that Special Needs disclosed information to a person identified in the evidence as an Academic Liaison Officer, subject co-ordinators, lecturers or tutors. This form does not assist the respondent. 7. The applicant's signature was witnessed by Ms Cheung on a page headed, 'Release of Information'. On that page, the applicant had ticked all the boxes, indicating her consent to the release of her 'medical history', 'psychological history', 'psychiatric history' and 'other' (not specified in the form) to, among other persons, the 'UTS Counselling service', the 'UTS Health Service', 'University Staff', 'My GP/s', and 'My Psychologist/s'. This consent was in the widest terms. In the context of this case, it authorised Special Needs to disclose the applicant's history of depression, anxiety, alcohol use, and any relevant diagnoses and treatments, to the Counselling Service and Health Service, among others. As no complaint is made in these proceedings of any disclosure by any officer of Special Services, this consent does not assist the respondent. 8. I am satisfied that Ms Cheung's recollection of her interview with the applicant was accurate and that the applicant understood the consent forms when she signed them and ticked the boxes. To the extent that boxes were ticked before and explanation was given. I am satisfied that explanation was nevertheless made in the same interview, that the applicant had ample opportunity to alter her forms and withdraw her consents if she wished, and did not do so. Nevertheless, for the reasons given above, her consents do not assist the respondent in respect of the issues for determination in these proceedings. 9. Ms Cheung said the applicant indicated that she did not need much assistance with exams or assignments, and declined an offer to obtain reasonable accommodations while she was on clinical placement. 10. Later that day, Ms Cheung received documents in her pigeon hole from Dr Cai. From the evidence of the applicant, it is likely that this included his letter of 21 April 2015. Ms Cheung said she told her manager, Ms Edwards, about her concerns over the applicant's alcohol problems as a nursing student about to go on clinical placement, the applicant's fast speech and talking over her and the applicant's ticking consent boxes without thorough explanation, even when asked not to do so. 11. Ms Edwards, she said, first said she would consult Mr Smout over whether there was a need to make contact about clinical placement and alcohol issues. After having done so, Ms Edwards told Ms Cheung that there was no need to make contact or prepare documentation at this stage. 12. On 21 May 2015, Ms Cheung said, the applicant met with Ms Edwards and retracted her consents to Special Needs Service speaking to anyone. 13. Ms Edwards is no longer employed by the respondent and lives interstate. She was not available to give evidence. However, there was before the Tribunal a file note of her conversation with Dr Cai the next day, 22 May 2015, in the following terms: [The applicant] manages dependency. Has not had a drink in over a month. On medication Committed to her course. If the faculty was concerned [Dr Cai] could write a letter and [the applicant] had suggested she could do an on the spot blood alcohol reading before placement. Ms Widjaja 1. Ms Widjaja gave written and oral evidence. She was a clinical psychologist and counsellor in the Counselling Service, within the University's Student Services Unit. 2. The records of the Counselling Service were before the Tribunal. They record various consultations the applicant had with Ms Doctor in 2014. They indicate that the applicant admitted to drinking alcohol twice a week on 1 April 2014, and 2 glasses of wine a day, 4 days per week, on 5 June 2014. At two subsequent consultations which appear to have occurred in August and September 2014, the applicant admitted to 2 glasses of wine five days per week, and 2 glasses of wine twice every day, respectively. 3. In her statement, Ms Cheung said that on 17 April 2015, the applicant had consulted another counsellor in the Counselling Service, Ms Fietz. It is common ground that, at or shortly before that consultation, the applicant filled in and signed a "First Visit Questionnaire", headed, "Counselling Service". That document was before the Tribunal. It was dated 17 April 2015. The applicant signed the second page of the form, which recorded the student's right: To have what you say kept confidential, unless you allow or request information to be shared or there are safety concerns (you are at risk of self-harm, or harming others) or laws requiring release of information. Please note, counsellors employed by UTS student services are able to view all client records in order to share care, enable clinical supervision, and allow for review of counselling service delivery. 1. The term 'client records' was not defined in the form. It is not clear whether it meant all records of a student held by the University, or all records held by the Counselling Service. In any event, the form did not include a consent to disclosure of health information by the Counselling Service, though it warned that information might not be kept confidential if there were safety concerns or laws requiring the release of information. 2. The applicant's signature appeared immediately under the following paragraph at the foot of page 2: I am aware that this questionnaire will become part of my individual UTS Counselling Service file and I accept these rights and responsibilities. 1. There was also before the Tribunal a form signed by the applicant on 17 April 2017 and witnessed by Ms Fietz. It bore the following heading: University Counselling Service RELEASE OF INFORMATION 1. It closely resembled the form headed "Release of Information" which the applicant would later sign in conference with Ms Cheung on 21 April 2015. The applicant ticked all the boxes on the form provided by Ms Fietz, indicating her consent to the disclosure by the Counselling Service of her 'medical history', 'psychological history', 'psychiatric history' and 'other' (not described on the form) to 'University Staff', 'My GP/s', 'My Psychiatrist/s', 'Other therapists', 'DETYA Staff', 'DSS Officers' and 'Other'. 2. In these proceedings, the only disclosure by a member of the Counselling Service the subject of complaint is the alleged disclosure by Ms Widjaja to Ms Edwards on 22 May 2015 that the applicant suffered cognitive impairment and alcohol dependence. It is not in dispute that Ms Edwards was a member of the University's staff, and that Ms Widjaja was a member of the Counselling Service. If the applicant sought Dr Cai's professional assistance in respect of her alcohol intake, and he diagnosed alcohol dependence – as I am satisfied he did – a disclosure by Ms Widjaja that she was on medication for alcohol dependence (whether that information was obtained from Dr Cai or from the patient herself) forms part of her medical history, and is caught by the applicant's consent. For reasons given below, I am not satisfied that a diagnosis of cognitive impairment was ever made by Ms Widjaja or communicated to Ms Edwards, so it is unnecessary to determine whether any such communication fell within the terms of the consent. 3. Ms Fietz' notes of her consultation with applicant on 17 April 2015 were before the Tribunal. They recorded that the applicant 'presented with pressured speech and tangential thought patterns, and seems anxious throughout the session'. She described her tutors as 'evil'. She said she believed one tutor had lost her paper because he hated her. Ms Fietz recorded: She provided the counsellor [Ms Fietz] with a written summary of her concerns and how she would like these addressed (please refer to uploaded attachment). 1. The applicant asked Ms Fietz to send an email to her tutor in order to obtain her marks. Ms Fietz recorded: [The applicant] reported consuming one bottle of wine every night for the previous year. She indicated that she becomes intoxicated most nights in order to manage her stress levels. … 1. Ms Fietz recorded that she advised the applicant to continue seeing Ms Doctor. 2. After that consultation, Ms Widjaja said, Ms Fietz told her that the applicant was a nursing student and the mother of a young child, and that Ms Fietz was concerned about her alcohol consumption. 3. Later that day, Ms Widjaja said, the applicant presented to the reception desk at Counselling Services, requesting an urgent appointment as she felt unsafe. The applicant was referred to consultation with Ms Widjaja. Ms Widjaja produced her notes of that consultation, and a single page document which the applicant gave her, recording the applicant's contact details and the name and contact details of a tutor. Ms Widjaja recalled that the applicant had asked her to enquire of a tutor why a particular academic result had not been released. 4. Ms Widjaja could not recall requesting or receiving any diary extract on that occasion from the applicant. She did recall, however, seeing the last of the 11 pages which the applicant alleged she gave her on that occasion. Ms Widjaja did not believe the applicant gave her that page at all, but said that Ms Fietz may have shown it to her when the two had conversed earlier that day. She did not recall copying any document during her consultation with the applicant. 5. Ms Widjaja reported to the head of the Counselling Service, Ms Lok. From late April to mid May 2015, Ms Widjaja said that the two of them discussed the risks posed by the applicant's diagnosis of alcohol dependence and whether it was caught by mandatory reporting requirements. 6. Mr Widjaja produced an email which she had sent to Ms Lok on 15 May 2015 for the purposes of those discussions. It recorded that on 17 April 2015, the applicant had reported consuming one bottle of wine per night throughout the previous year. This was probably a reference to the disclosure made on that date in consultation with Ms Fietz. 7. The email continued, that on 20 April 2015 the applicant had reported to Widjaja craving for a drink every morning but not drinking before class, explaining that she 'might go the pub' after consultation with Ms Widjaja. In the email, Ms Widjaja recorded the applicant's assertions that she had never passed out from drinking, that it did not affect her caring for her son, and that the applicant would discuss it with Dr Cai, whom she had been seeing as her usual GP since 2014. 8. The email also recorded that on 1 May 2015, the applicant told Ms Widjaja that she had been taking medication prescribed by Dr Cai, that her drinking had reduced by 70 per cent, and that though she still experienced cravings, she drank twice only. Given the quoted figure of 70 per cent reduction on previous usage, it is likely that the phrase 'drank twice' in that context indicated a daily usage. Ms Widjaja's contemporaneous notes of that consultation were before the Tribunal. They were consistent with the description in the email to Ms Lok, though they contained more detail. They also mention complaints of depression, and record the applicant's view that her alcohol intake would not prevent her clinical placement. 9. The email also recorded a discussion on 15 May 2015 between Ms Widjaja and Dr Cai, in which he disclosed that he had prescribed Campral to reduce alcohol cravings, that the patient had reported significant reduction in alcohol intake, and that she had never presented in a dishevelled or intoxicated state. This was also consistent with Ms Widjaja's contemporaneous note of the conversation, which she produced to the Tribunal. 10. Ms Widjaja gave evidence that on 21 May 2015, she had a further counselling with the applicant. She produced her contemporaneous notes of that session. They record that Ms Widjaja discussed with the applicant the possibility of informing the Nursing Faculty about her problems with alcohol and depression. The applicant then denied that she was drinking or taking medication for it, and alleged she had not been doing so for a long time. As this was inconsistent with the history taken on 15 May 2015 to the effect that she was still drinking, Ms Widjaja questioned her about it, but she refused to discuss her alcohol consumption further. The psychologist recorded in her notes the following exchange: She stated that she does not need to tell the faculty about history of sexual partners or antibiotic prescription, so she does not think she needs to tell them about her drinking alcohol. … [The applicant] terminated the session saying that she no longer wanted to speak to me as I was only interested in covering my reputation and that I misused her trust. 1. Ms Widjaja denied telling the applicant that she had cognitive impairment. She recalled that she considered the applicant to be functioning well cognitively, and said that if she had noted cognitive impairment, she would have made a note of it. There is no mention of it in her notes. She also said it was not her practice to be so blunt to a patient as to accuse them of cognitive impairment. 2. Ms Widjaja in her first statement admitted to having a conversation with Ms Edwards about the applicant after this consultation. She recalled that she checked with Ms Edwards whether the Faculty had been notified of the applicant's alcohol use and treatment, in order to inform her own supervisor in the Counselling Service, Ms Lok. She otherwise did not recall the details of the conversation with Ms Edwards. She knew, however, from speaking with Ms Cheung in Special Needs, that Dr Cai had provided the Special Needs Service with a letter outlining the applicant's alcohol dependence. 3. She recalled that on the same day she discussed with Ms Lok whether a disclosure should be made to the Professional Experience Review Panel – a panel whose decisions could affect whether a student proceeded to clinical placement. Ms Lok said she had been informed by the Panel that reporting to the Panel was a matter for the discretion of the Counselling Service. 4. Ms Widjaja recalled that, later, she was informed that Dr Cai had provided assurance that the applicant's conditions would not affect her clinical placement, and that she was fit for practice. She thought that information came to her from Ms Lok or Mr Smout. 5. Ms Widjaja's recollections are corroborated by her contemporaneous notes, wherever such notes are available. She was cross examined, but did not resile from her evidence. I am satisfied that her recollections are accurate. Consideration and findings (1) Collection of information on 17 April 2015 1. The applicant complains that the collection by Ms Widjaja of 11 pages from her diary, including a page in which she admitted to alcohol addiction, breached Health Privacy Principle 2, because the health information collected was not relevant for the purpose for which it was collected, excessive, inaccurate to the extent that it contained an admission of alcohol addiction, and intrusive on her personal affairs to an unreasonable degree. 2. It is not disputed that on 17 April 2015 the applicant consulted a counsellor in the Counselling Service, and that she gave the counsellor the document in which she admitted to suffering from an 'alcohol addiction'. 3. The applicant says that Ms Widjaja requested and collected 11 pages from her diary, including the page on which that admission was written. However, the emails described above between Mr Knowles and others between 14 and 17 April 2015 demonstrate that he asked the applicant to prepare a summary of her concerns in preparation for her consultation with Ms Fietz of the Counselling Service on 17 April 2015. The page in which the admission is contained commences with the salutation, "Dear Melissa", and lists matters of concern to the applicant. It is highly likely that the page concerned was prepared by the applicant in response to Mr Knowles' suggestion, and presented to Ms Fietz at consultation on 17 April 2015. 4. Ms Widjaja does not recall collecting any documents from the applicant. There is no evidence to corroborate the applicant's assertion that she collected 11 pages from her. I am not satisfied that the page containing the applicant's admission, or any other document, was collected by Ms Widjaja from the applicant. I am not satisfied that any document other than the page concerned was collected by Ms Fietz. The page concerned, on its face, is not part of any diary. It is a document addressed to Ms Fietz, containing a list in tabular form of the applicant's concerns. It is entirely consistent with a list of matters which the applicant hoped to discuss with Ms Fietz, prepared by the applicant on the advice of Mr Knowles. 5. I am not satisfied that Ms Fietz or Ms Widjaja requested or collected any extract from the applicant's diary. It is inherently unlikely that either would have requested a particular extract of eleven pages from a diary, unless they had seen the entire diary and made an appropriate selection, or were otherwise informed as to what those eleven pages contained. There is no evidence that Ms Fietz or Ms Widjaja was shown the entire diary, or were informed what the eleven pages contained, so either could make a selection. 6. As indicated, it is likely that the page which was given to and collected by Ms Fietz listed the concerns which the applicant wanted to raise with Ms Fietz. It is common ground that Ms Fietz uploaded it to the University's digital archives. Through Mr Knowles, the University had left it entirely to the applicant's discretion to decide what concerns she should include. She listed the concerns which she had at that time, and wished to discuss with the counsellor. I accept that these were the issues which she wished to discuss. For those reasons, the information which she provided, and which was collected by Ms Fietz, was neither excessive nor unreasonably intrusive. It was precisely relevant to the purposes of the consultation, as the information reflected what the applicant wanted to discuss in that consultation. 7. For the reasons expressed below, I consider that the applicant's expression of concern that she had an 'alcohol addiction' was accurate and up to date as at the time the information was collected, in that she was genuinely concerned that she had an addiction of that kind. I also accept the accuracy of the clinical notes of the Health Service, and the clinical notes of Ms Widjaja, and that the histories accurately reflect was said by the applicant. For those reasons, I am also satisfied that she was suffering from alcohol dependency, as diagnosed by Dr Cai. 8. For all these reasons, I am not satisfied that in collecting the information, the University breached Health Privacy Principle 2. (2) Dr Cai's letter dated 21 April 2015 - accuracy 1. The applicant complains that the provision of Dr Cai's letter of 21 April 2015 to the Special Needs Service contravened Health Privacy Principle 9, because it contained health information which was inaccurate, namely a diagnosis of alcohol dependence and an observation of alcohol abuse. 2. The circumstances in which that letter was contained are illuminated by the evidence of Ms Cheung. They explain the purpose for which the letter was written. 3. On 21 April 2015, the applicant consulted Ms Cheung within the Special Needs Service. Ms Cheung told the applicant that the purpose of Special Needs was to advise students about the support services available to them, and that to access the Service, the student must provide documentary evidence from a registered health professional that they had an ongoing condition which affected their studies. In response, the applicant offered to obtain a letter from Dr Cai. I am satisfied that Ms Cheung's account was correct. 4. The applicant then attended Dr Cai on the same day. I am satisfied that the purpose of the consultation was to obtain a letter from him to give to the Special Needs Unit, so that the applicant could access the services of that Unit. The terms of the letter itself indicate that it was written for that purpose. It was addressed to the Special Needs Unit. It thanked them for assisting the applicant. Dr Cai specified two ongoing conditions from which the applicant was suffering, namely, depression and alcohol dependence, and indicated how they were affecting the applicant's studies. The letter precisely satisfied the requirements insisted on by Ms Cheung at her consultation with the applicant earlier that day. I am satisfied that the information it contained was collected by Dr Cai at consultation on that day, as it had been on previous consultations. On this occasion, however, it was obtained not for the purpose of treatment, but for the purpose of providing evidence of her condition and its impact on her studies to the Special Needs Service, so she could access the services of that unit. 5. Dr Cai gave evidence that he put the letter in an envelope and gave it to the applicant. Ms Cheung said she later received the document from the applicant in her pigeon hole. I am satisfied that both accounts are correct. The applicant did not deny that she delivered the letter, but said she did not read it. Her evidence in that respect was not challenged, and I am satisfied that she did not. 6. The diagnosis of alcohol dependence was consistent with the history given to Dr Cai on previous occasions, with the applicant's written admission to Ms Fietz at she had an alcohol addiction, and with the history of hazardous drinking and craving for alcohol given to Ms Widjaja in consultations on 17 and 20 April 2015. The applicant sought to explain her written admission by saying that she was of the Mormon faith, which considered alcohol to be one of the 'addiction foods'. She said she did not regularly drink, but felt guilty about having attended a wine tasting, and this is why she admitted to having an alcohol addiction. 7. However, she did not specifically deny that she had given the histories given to Ms Widjaja referred to above. Her explanation does not explain her specific admissions of hazardous drinking to Ms Widjaja. Though she appeared to have some difficulties with English, the fact that she kept a diary in English and continued to do well in her written assignments, in English, do not suggest any language difficulty of significance. Before the Tribunal, despite the presence of an interpreter, she would regularly offer answers in English to questions asked in English, without translation. I am satisfied that the histories she gave to Ms Widjaja and Dr Cai of hazardous drinking were correct. 8. I accept as correct the observations of her GP, Dr Chang, that she had never told him of any drinking, and he had never seen evidence of her intoxication, that a blood alcohol test performed on 31 August 2015 was negative, and that liver functions tests on that and subsequent dates were normal. However, prior to April 2015, she had only consulted him twice – once in March 2014 for her son's vaccinations, and once in July 2014 for a respiratory tract infection. It is self-evident that she did not consult him over any concerns about excessive alcohol intake and did not disclose this to him. There was no need, as she sought that assistance from the University's GP, Dr Cai. By April 2015, she was being successfully treated for her alcohol dependence. The negative alcohol result in August 2015, and the normal liver functions tests, are consistent with that. 9. I also accept as accurate a reference written by the director of the kindergarten attended by the applicant's son on 27 June 2016, which indicated that since September 2014 when their contact commenced, he had always presented as a very healthy clean child, and the applicant was always pleasant to educators, other children and their families. 10. As indicated, on 22 October 2015 Dr Samuells, psychiatrist, examined the applicant at the request of the Nursing and Midwifery Council. He found 'no clear evidence that [the applicant] is suffering from problem alcohol abuse or dependency'. He based his findings on the history given by the applicant. She told him that she had consulted Dr Cai for weight loss medication which, if prescribed by her usual GP, would have been much more expensive. She said that, at the suggestion of her psychologist, she asked him about medication to stop drinking. He had suggested Campral in response, explaining that it also helped with depression, stress and weight loss. She admitted to him that she had been drinking more than usual for her. She told Dr Samuells she had tried to explain to a psychologist at the Special Needs Service 'that she never normally drinks and only since she had been in Australia has she had a few drinks and that here was a period in April of this year when she was quite stressed and she rank nearly three bottles of wine over a period of three weeks which was a lot for her'. 11. The learned doctor accepted this history as accurate. The history is significantly different from that given by the applicant to the University's Health Service and its Counselling Service. In February 2014, she admitted in a new patient registration form to drinking on a weekly basis. On 14 July 2014, she told treating psychologist, Ms Doctor, that she drank two glasses of wine every day. On 21 April 2015, she told Dr Cai that she had been drinking up to eight standard drinks per day for most of the year. At consultations with Ms Doctor from June to September 2014, the applicant admitted to a steady increase in her alcohol intake, eventually admitting to drinking four glasses of wine per day. On 17 April 2015, she reported to psychologist, Ms Fietz, that she had been drinking a bottle of wine every night for the previous year – that is, since April 2014. There is no apparent motive for overstating her drinking to Ms Fietz. I am not satisfied that any language difficulty caused a mistake of this kind or magnitude. I accept her history to Ms Fietz as likely to be accurate. The admissions of her drinking to Dr Cai and Ms Doctor were probably understated considerably. To that extent, the history she gave to Dr Samuells was false. He relied on that history in order to reach the conclusions expressed in his report. 12. For that reason, Dr Samuell's opinion that she must have been misunderstood by Dr Cai in order for him to make the diagnosis he did, attracts little weight. His finding that there was no clear evidence of alcohol dependency as at 22 October 2015 is uncontroversial. It is common ground that, by early May 2015, after taking Campral as prescribed by Dr Cai, her dependency came under control. I am satisfied that she was still taking Campral when she consulted Dr Cai on 22 May 2015. 13. For all these reasons I am satisfied that, as at 21 April 2015, when Dr Cai wrote to the Special Needs Service that she suffered from alcohol dependency with alcohol abuse, that was an accurate and up to date diagnosis. I am not satisfied that, by reason of the writing of this letter and its transmission to the Special Needs Service, the University breached Health Principle 9. 14. In her Points of Claim, the applicant did not argue that, even if Dr Cai's letter of 21 April 2015 was accurate, its presence within the clinical records of the University makes those records inaccurate because they are not up to date. The clinical notes of Dr Cai from 5 May 2015 onwards record that the applicant had ceased drinking to excess, and had been successful in her management of the condition. I would not be satisfied in those circumstances that the records were not up to date. (3) Dr Cai's letter dated 21 April 2015 - disclosure 1. The applicant complains that the provision of Dr Cai's letter of 21 April 2015 to the Special Needs Service contravened Health Privacy Principle 11, because: 1. it disclosed her health information for a purpose other than the purpose for which it was collected, 2. the secondary purpose for which it was disclosed was not directly related to the purpose for which it was collected, and 3. she would not reasonably have expected disclosure for the secondary purpose. 1. I am satisfied that, on 21 April 2015, the applicant consulted Dr Cai in order to obtain a letter from him for transmission to the Special Services Unit, indicating that she had ongoing medical conditions which affected her studies, so that she might access the services of that unit. I am satisfied that Dr Cai on this occasion spoke with her to ensure that she was still suffering from alcohol dependency and depression, satisfied himself that she was, wrote the letter of 21 April 2015, and gave it to her for delivery to the Special Needs Unit, to permit her to access its services. 2. The information that she was still suffering both conditions was obtained at consultation on 21 April 2015. The purpose of collecting this information was the same as the purpose for which the letter written – that is, to provide documentary evidence of ongoing medical conditions affecting her studies, so that she might access the services of the Special Needs Unit. For that reason, the provision of that letter did not breach Health Privacy Principle 11. 3. Even if, contrary to my finding, Dr Cai had not obtained the updated information at consultation for that purpose, but had instead obtained information about her medical conditions at previous consultations for the purposes of treatment only, the purpose of the letter was directly related to the purpose for which the health information was collected, because the very medical conditions about which information had been collected on previous occasions formed the basis for the request for the assistance of the Special Needs Unit. By 21 April 2015 the applicant would reasonably have expected such a disclosure, because Ms Cheung had told her earlier that day that she required documentary evidence from a registered health professional outlining her medical conditions and their effect on her studies, the applicant offered to obtain a letter to that effect from Dr Cai, and consulted him for that purpose. It is an inescapable inference that she asked him for such a letter. For those reasons also, the provision of Dr Cai's letter did not breach Health Privacy Principle 11. 4. The University says that the provision of the letter was not a 'disclosure' by the agency in any event, because the information was provided by the agency to itself – that is, by one administrative unit of the agency to another. 5. The distinction between "disclosure" and "use", as those terms are used in the Health Privacy Principles, was discussed by the Appeal Panel of the Administrative Decisions Tribunal in AF v Minister for Health [2012] NSWADTAP 61 [at 102]: 'Use' and 'disclosure' have usually been presented as discrete concepts in data protection law, and that distinction is drawn in this law. 'Use' is generally seen as referring to the internal use made of personal information by the collecting agency, whereas 'disclosure' is used to describe the act of supplying the information to a third party external to the agency. 1. The reasoning in AF has been applied in this Tribunal: BVS v Sydney Local Health District [2015] NSW CATAD 171. By providing his letter to the Special Needs Service, Dr Cai was not providing it to a third party external to the university. For those reasons, the provision of the letter to the Special Needs Service was not a 'disclosure' within the meaning of Health Privacy Principle 11. (3) Oral disclosure by Dr Cai to Ms Edwards on 22 May 2015 1. The applicant complains that on 22 May 2015, Dr Cai disclosed orally to Ms Edwards that the applicant was on medication for alcohol dependency. She says this contravened Health Privacy Principle 11, because: 1. it constituted a disclosure of her health information for a purpose other than the purpose for which it was collected, 2. the secondary purpose for which it was disclosed was not directly related to the purpose for which it was collected, and 3. she would not reasonably expect disclosure for the secondary purpose. 1. As I have found, a disclosure by one officer of an agency to another is not the kind of disclosure which attracts the operation of Health Privacy Principle 11. For that reason, I am not satisfied that the oral disclosure by Dr Cai to Ms Edwards on 22 May 2015 was a disclosure for the purpose of that Principle. 2. Even if it were a disclosure caught by Health Privacy Principle, for the reasons which follow I am satisfied that the disclosure was made for a purpose directly connected with the purpose for which the health information was obtained, and the applicant would reasonably expect its disclosure for that purpose. 3. Ms Edwards' file note of her conversation with Dr Cai on 22 May 2015 is set out above. The accuracy of this file note was not challenged. I am satisfied that on 22 May 2015 Dr Cai had a conversation with Ms Edwards and told her: 1. that the applicant was managing her alcohol dependency by taking medication, 2. that she had been abstinent for over a month, 3. that she had suggested to him submitting to a blood alcohol test before her placement if the Faculty was concerned about her fitness for clinical placement, and 4. he was prepared to write a letter if required, confirming what he told Ms Edwards. 1. As Ms Edwards was not available to give evidence, the purpose of the conversation must be inferred from its contents and from the other evidence. I accept Ms Widjaja's evidence that on 21 May 2015, she discussed with the applicant whether disclosure of her depression and alcohol dependency should be made to her Faculty, that the applicant denied having suffered alcohol dependency or taking medication for it for some time, and that the applicant refused to discuss the matter further. I accept that Ms Widjaja asked Ms Edwards whether any disclosure had been made by the Special Needs Unit to the Faculty, and that Ms Edwards said she would speak about it to her supervisor, Mr Smout, who was the head of the Student Services Unit. 2. On 22 May 2015, Ms Edwards spoke with Dr Cai and asked him for an update on the applicant's condition, in the context of the then current issue as to whether the Student Services Unit should inform the Faculty of the applicant's depression and alcoholism prior to her pending clinical placement. 3. Dr Cai's purpose in providing the update is to be inferred from the conversation itself, as evidenced by Ms Edwards' note. He released the information in order to ensure that the applicant's condition of alcohol dependency and its diagnosis did not adversely affect her studies and, in particular, her clinical placement. His communication to Ms Edwards had that precise effect, as no disclosure of her condition appears to have been made to the Faculty, and her clinical placement in May 2015 proceeded. 4. According to Dr Cai's clinical notes which were before the Tribunal, the health information so disclosed had been collected by him from the applicant in consultation 5 May 2015, when she told him that she was no longer drinking. On that occasion, it is likely the information was collected for the purposes of treatment, rather than obtaining welfare from Special Needs. There is no evidence that it was collected for any other purpose. 5. As I have found, the purpose for which Dr Cai's disclosure was made to Ms Edwards on 2 May 2015 was to ensure that her condition, as treated, did not prejudice her studies and, in particular, her clinical placement. That was a purpose directly related to her medical condition and its treatment – that is, directly related to the purpose for which the information was collected at consultation on 5 May 2015. 6. The applicant would reasonably have expected the doctor to confirm, on enquiry from the Special Needs Service in the context of a potential report to the Faculty about her condition, that her treatment was successful and should not affect her clinical placement. Such a disclosure was in her interests. A failure to make it, in the circumstances, would have been against her interests. It might well have resulted in disclosure of her condition to the Faculty, with a consequent delay in her clinical placement. 7. It follows that Dr Cai's disclosure to Ms Edwards on 22 May 2015 was made for a purpose directly related to the purpose for which it was collected, and that the applicant would reasonably have expected such a disclosure to be made in the circumstances. Even if, contrary to what I have found, it was a disclosure of the kind caught by Health Privacy Principle 11, it did not contravene that Principle. (5) Disclosure by Ms Widjaja to Ms Edwards on 22 May 2015 concerning cognitive impairment 1. The applicant complains that on 22 May 2015, Ms Widjaja in the Counselling Service orally disclosed to Ms Edwards in the Special Needs Service that the applicant suffered cognitive impairment and was managing alcohol dependence with medication, for a purpose other than the purpose for which the information had been collected, in breach of Health Privacy Principle 11. 2. The applicant did not witness any such conversation. She invites the Tribunal to infer that the disclosure was made. She said that at consultation with Ms Widjaja on 21 May 2015, Ms Widjaja told her that she had cognitive impairment, that it would prevent her from attending clinical placement, and that the applicant must advise her Faculty of her condition. The applicant says that the next day she met with Ms Edwards, who also told her that she suffered from cognitive impairment. She believes Ms Widjaja had disclosed to Ms Edwards her diagnosis of cognitive impairment, and invites the Tribunal to draw that inference. 3. It is common ground that the applicant consulted Ms Widjaja on 21 May 2015. Ms Widjaja's notes were before the Tribunal. They make no reference to any diagnosis of cognitive impairment. Ms Widjaja says, and I accept, that if she had made any such diagnosis, she would have recorded it in her clinical notes. Its absence from those notes strongly suggests that no such diagnosis was made by her. She could not recall making any such a diagnosis. There is no evidence that the applicant took contemporaneous notes of the meeting with Ms Widjaja on 21 May 2015. Her statement was prepared on 29 June 2016. In respect of this conversation, she was attempting to recall words that were said over a year earlier. I am not satisfied that her recollection is accurate. I am not satisfied that Ms Widjaja expressed any view to her to the effect that she suffered cognitive impairment. 4. I am not satisfied that Ms Widjaja made any such diagnosis, held any such opinion, or communicated it to Ms Edwards or any other person. 5. As Ms Edwards has been unavailable to give evidence, the applicant's evidence that on 22 May 2015 she told the applicant that she suffered from cognitive impairment is uncontradicted. Assuming, without finding, that Ms Edwards did say words to that effect on 22 May 2015, it is not clear why she held that opinion, or whether it had been communicated to her by someone else. The complaint is that a disclosure to that effect was made to her by Ms Widjaja. I am not satisfied that this occurred at all. 6. Even if it did, it would have been a disclosure by one administrative unit of the agency to another, and therefore not a disclosure caught by Health Privacy Principle 11. 7. The applicant also complains that Ms Widjaja disclosed to Ms Edwards that the applicant was alcohol dependent. Again, she did not witness the conversation. Ms Widjaja did not recall the details. Ms Widjaja did admit that she asked Ms Edwards whether the applicant's alcohol use had been disclosed by the Special Needs Service to the Faculty. The evidence does not establish whether she described what that use was, or that the applicant suffered from alcohol dependency. 8. The applicant alleges that Ms Edwards said to her: I've spoken to Dr Cai. He says you are an alcoholic. You are taking medication. … 1. This evidence, from the applicant herself, demonstrates that Ms Edwards derived this health information directly from Dr Cai. In those circumstances, I cannot be satisfied that Ms Widjaja disclosed to Ms Edwards that the applicant suffered from alcohol dependency at all. Even if Ms Widjaja did so, I am satisfied that Ms Edwards and the Special Needs Service had been in possession of that health information from as early as 21 April 2015, when the applicant delivered Dr Cai's letter of that date to the Service. 2. The term 'disclose' in section 18 of the Privacy and Personal Information Protection Act 1998 does include communications of information already known to the recipient: Nasr v State of New South Wales [2007] NSWCA 101; RL v Department of Education and Training [2009] NSWADT 257. To the extent relevant, Health Privacy Principle 11 is drawn in substantially the same terms as section 18, and it is appropriate to give the term, 'disclose', the same meaning. Even if Ms Widjaja did mention alcohol dependence to Ms Edwards, this would not have constituted a disclosure for the purposes of Health Privacy Principle 11, as I am satisfied that Ms Edwards was already well aware of it. 3. For that reason, and because it would have been a sharing of information between officers of the same agency, it could not have constituted a 'disclosure' within the meaning of Health Privacy Principle 11. 4. Even if, contrary to the findings I have made, Ms Widjaja disclosed to Ms Edwards that the application was on medication for alcohol dependency, I am satisfied that, by signing the form headed 'Release of Information' on 17 April 2015 in conference with Ms Fietz, the applicant indicated her consent to the Counselling Service and its officers (including Ms Widjaja) disclosing the applicant's medical history to University staff including Ms Edwards, and that that history included the fact that she was on medication for the management of her alcohol dependency. For that reason also, there can have been no breach of Health Privacy Principle 11. 5. For all these reasons, I am not satisfied that on 21 May 2015 Ms Widjaja made the disclosures which the applicant alleges she made to Ms Edwards, or that any such disclosures, if made, could have breached Health Privacy Principle 11. Conclusion 1. For the reasons given, I am not satisfied that the University breached a Health Privacy Principle in any of the five manners alleged. It is appropriate that the respondent's interlocutory application to dismiss the proceedings itself be dismissed, and to take no further action in the matter. 2. The respondent has foreshadowed an application for costs in the event that it is successful. In the circumstances, it is appropriate that it have an opportunity to make that application, if it still wishes to do so, in writing supported by written submissions, and that the applicant have an opportunity to respond. 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: 13 March 2017