Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CWF v Arndt [2017] NSWCATAD 251 Hearing dates: 13 June and 10 July 2017 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: Within 30 days of the publication of these reasons, the respondent is to provide the applicant with access to her health information by giving the individual a copy of the health information. Catchwords: ADMINISTRATIVE LAW – health information – information held by private sector person – whether disclosure of the health information would pose a serious threat to life or health Legislation Cited: Health Records and Information Privacy Act 2002 Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information Public Access Act 2009. Cases Cited: Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 Category: Principal judgment Parties: CWF (Applicant) Eileen Arndt (Respondent) NSW Privacy Commissioner (Interested Party) Representation: Counsel: Ms J D Williams (Respondent) Solicitors: Legal Aid (Applicant) HWL Ebsworth (Respondent) File Number(s): 2016/378535 (1610783) reasons for decision 1. The applicant CWF made an application to this Tribunal for an inquiry into a matter which was the subject of a complaint made to the NSW Privacy Commissioner under s 48(1) of the Health Records and Information Privacy Act 2002 (the HRIP Act). 2. The applicant's complaint was that Dr Eileen Arndt had failed to provide copies, on request, of the applicant's health information. Dr Arndt relied on an exemption under s 29 of the HRIP Act which provides: "A private sector person is not required to provide an individual with access to health information relating to the individual held by the private sector person if: (a) providing access would pose a serious threat to the life or health of the individual or any other person and refusing access is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph…" 1. The Privacy Commissioner issued a report on 25 October 2016 in which she stated she was unable to express a view as to whose position regarding the complaint should prevail. The applicant applied to the Tribunal for an inquiry into the complaint. 2. The NSW Privacy Commissioner was represented at the first day of hearing but not on the second day, and filed written submissions. 3. At the commencement of the hearing, Dr Arndt's legal representatives sought to adduce late evidence. This was opposed by the applicant. The Privacy Commissioner, who was represented on the first day of the hearing, submitted that the Tribunal should have access to all possible relevant information. Given that the proceedings concerned whether access would pose a serious threat to the life or health of the applicant or any other person, I determined that the majority of the evidence should be admitted but adjourned the latter part of the proceedings to allow the respondent to respond to that evidence. 4. The respondent sought that the medical evidence be heard in the presence of legal representatives only, to avoid unnecessary disclosure of the confidential information to the applicant. I was satisfied that this was desirable, given that the evidence was confidential, and for the applicant to hear some of the evidence during the hearing might render the inquiry futile if I should determine that the exemption under s. 29 of the HRIP Act was established. Consequently an order to that effect was made under s. 49(2) of the Civil and Administrative Tribunal Act 2013. Background 1. Dr Eileen Arndt is a general practitioner. She first saw the applicant on 25 February 2008 and treated her until 12 April 2013. 2. In 2015 and again in 2016 the applicant requested Dr Arndt provide her with copies of her health information which she held. Dr Arndt says she does not recall receiving the first request. 3. On 18 March 2016 the applicant complained to the Office of the Privacy Commissioner that Dr Arndt had failed to provide copies of the information. As part of the complaint resolution process, the Privacy Commissioner asked for the parties' views on whether sending copies of the records to the Royston Clinic would satisfy their concerns. Dr Arndt was prepared to send the records to the Royston Clinic. The applicant declined this proposal. She wished to receive the records directly. The issue before the Tribunal 1. The objects and purposes of the HRIP Act are set out in s 3: (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. 1. "Health information" is defined in s 6 as follows: 6 Definition of "health information" In this Act, health information means: (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." 1. Section 26(1) provides that an individual may request a private sector person to provide the individual with access to health information relating to the individual which is held by the private sector person. 2. Section 28 provides: 28 Form of access (1) Access to health information relating to an individual is to be provided to the individual: (a) by giving the individual a copy of the health information, or (b) by giving the individual a reasonable opportunity to inspect and take notes from the health information. (2) If an individual has requested that access to health information be provided in a particular form, the private sector person is to provide access in that form, and in accordance with any guidelines issued by the Privacy Commissioner for the purposes of this section. (3) Despite subsection (2), a private sector person may refuse to provide access to health information in the form requested if providing the information in that form: (a) would place unreasonable demands on the organisation's resources, or (b) would be detrimental to the preservation of the information or (having regard to the physical form in which the information is contained) would otherwise not be appropriate, or (c) would involve an infringement of copyright subsisting in matter contained in the information. If access is refused under this clause, the information is to be provided in another form. (4) Despite anything to the contrary in this Part or HPP 7, a private sector person who receives a request for access to health information collected before the commencement of this section need only give the individual an accurate summary of the health information. 1. Section 29 provides: 29 Situations where access need not be granted A private sector person is not required to provide an individual with access to health information relating to the individual held by the private sector person if: (a) providing access would pose a serious threat to the life or health of the individual or any other person and refusing access is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or (b) providing access would have an unreasonable impact on the privacy of other individuals and refusing access is in accordance with guidelines, if any, issued by the Privacy Commissioner, or (c) the information relates to existing or anticipated legal proceedings between the private sector person and the individual and the information would not be accessible by the process of discovery in those proceedings or is subject to legal professional privilege, or (d) providing access would reveal the intentions of the private sector person in relation to negotiations, other than about the provision of a health service, with the individual in such a way as to expose the private sector person unreasonably to disadvantage, or (e) providing access would be unlawful, or (f) denying access is required or authorised by or under law, or (g) providing access would be likely to prejudice an investigation of possible unlawful activity, or (h) providing access would be likely to prejudice a law enforcement function by or on behalf of a law enforcement agency, or (i) a law enforcement agency performing a lawful security function asks the private sector person not to provide access to the information on the basis that providing access would be likely to cause damage to the security of Australia, or (j) the request for access is of a kind that has been made unsuccessfully on at least one previous occasion and there are no reasonable grounds for making the request again, or (k) the individual has been provided with access to the health information in accordance with this Act and is making an unreasonable, repeated request for access to the same information in the same manner. 1. Section 48(1) provides: 48 Application to Tribunal (1) A person who has made a complaint to the Privacy Commissioner under Division 1 may apply to the Tribunal for an inquiry into the complaint, but only if the complaint was the subject of a report of the Privacy Commissioner under section 47. 1. Section 51 provides: 51 Proof of exemption If in proceedings in relation to an inquiry into a complaint the respondent relies on an exemption under any provision of this Act or the regulations, the onus of proving that the exemption applies to the respondent in the circumstances lies on the respondent. 1. Section 54 provides: 54 Order or other decision of Tribunal (1) After holding an inquiry, 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 subsection (2), an order requiring the respondent to pay to the complainant damages not exceeding $40,000 if the respondent is a body corporate, or not exceeding $10,000 in any other case, by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) an order requiring the respondent to refrain from any conduct or action in contravention of a Health Privacy Principle, a provision of Part 4 or a health privacy code of practice, (c) an order requiring the performance of a Health Privacy Principle, a provision of Part 4 or a health privacy code of practice, (d) an order requiring health information that has been disclosed to be corrected by the respondent, (e) an order requiring the respondent to take specified steps to remedy any loss or damage suffered by the complainant, (f) such ancillary orders as the Tribunal thinks appropriate. (2) The Tribunal may make an order under subsection (1) (a) only if: (a) the application relates to conduct that occurs after the end of the 12-month period following the date on which Schedule 1 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 respondent. (3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons." Evidence of CWF 1. The applicant stated that she believed she had the capacity to receive and read her own medical records. She stated that she had received a large amount of medical records about 18 months ago covering the period between 2006 and 2011 from various sources and stated that having access to those records had not caused any threat to her life or health. The medical records were in evidence. 2. She stated that she had been working as a volunteer for the Australian Red Cross for over 9 years, in their retail store. 3. She said she was not currently on any medication and had not been for over five years. She said she had not suffered any bipolar disorder symptoms since stopping her medication. She did not believe that she had bipolar disorder. 4. CWF referred to an instance in April 2013 when she saw Dr Arndt. At this time she had ceased seeing Dr Arndt regularly. She said the purpose of her visit was to ask Dr Arndt why she had been sent to hospital in 2008. She later discovered that after the appointment Dr Arndt had referred her to the Mental Health Intake team for assessment. It was apparent that she was not pleased about this action by Dr Arndt. Evidence of Natalie Bauer 1. Ms Bauer is a psychologist who has treated the applicant recently. Her qualifications include a B.A (Psychology), a Graduate Diploma of Business, a Masters in Education and a Masters in Health Sciences and Psychology. Her evidence was that the applicant has been attending supportive counselling with her for a number of years. She first saw the applicant in April 2014 and saw her once a month. She saw her every month in 2016 and 2017. 2. In her view the applicant was not experiencing, currently, any serious mental health issues, had no delusional beliefs, no self-harming, no suicidal or homicidal behaviours and no perceptual disturbances. She considered that the applicant had normal cognitive functioning, good reasoning and judgment and displayed good insight into her mental and physical wellbeing. 3. She stated that the applicant had brought into counselling sessions some of her own medical records which she had obtained from other sources, some of which were sensitive, and had not shown any signs of heightened vigilance or reactivity as a result. She said that CWF's stress and anxiety levels were within the normal range. She said that CWF had seen notes which recorded that she had been delusional, shown paranoid thinking and blamed others. In her view it can be helpful for some mental health patients to see their medical records but it should be approached on a case by case basis. 4. Under cross-examination she said she was aware that the applicant had attempted self-harm in the past but said she had not attempted this since 2013. She was aware that the applicant had a history of not taking medication. She was aware that the applicant had been admitted involuntarily to mental health clinics 5 times and been treated with electro-convulsive therapy. She was aware that the applicant had been diagnosed with a number of conditions in the past, including bipolar disorder, borderline personality disorder, schizo-affective disorder, post-traumatic stress disorder and dysthaemia. Of these, she agreed that bipolar disorder, schizo-affective disorder, and borderline personality disorder were permanent conditions. She did not believe the applicant had bipolar disorder. She relied upon the opinion of Dr Thiering, who diagnosed complex post-traumatic stress disorder (PTSD). Evidence of Dr Paul Thiering 1. Dr Thiering is a psychiatrist who saw the applicant on two occasions. He has practised as a psychiatrist since 1989, holds a Bachelor of Medicine/Bachelor of Surgery from the University of Sydney and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. His report dated 17 September 2014 was in evidence and he also gave evidence by telephone. In his report he summarised CWF's condition as fulfilling the criteria for complex PTSD. He noted that he did not have access to her clinical notes from 2006 to 2011. He said that she did present with some paranoid thinking regarding her treatment and involvement with the health services, however he did not think she was delusional or psychotic. Her paranoid ideas seemed to him to be more consistent with what he described as: "a lack of trust and sense of threat commonly seen in patients with a history of childhood abuse and exacerbated by experiences of being scheduled, going before a magistrate, injected with medications and given ECT all against her will." 1. He noted no cognitive impairment and said she was functioning at a high level. He noted she was not on any medication at that time. 2. He admitted that had he seen the records between 2006 and 2011 they could have changed his view at the time he saw her of how intense her illness was in previous years. However he was aware she had been committed involuntarily for treatment a number of times, that she had a history of not taking medication, and stated that at the time he saw her, she had not been taking medication for about 3 years. 3. He said it was possible for persons with complex PTSD to become very ill and then recover and become functional. It is linked to trauma in childhood and personality problems, and there can be multiple symptoms, which can lead to different diagnoses. That explained in his view why the applicant had been diagnosed with Borderline personality disorder, Bipolar and schizoid personality disorder among others, in the past. He most recently saw her on 22 April 2015. His diagnosis did not change as a result of that visit. Her mental state was similar on both occasions. 4. He said that if his diagnosis was incorrect and the applicant did have bipolar disorder or schizo-affective disorder, these were permanent conditions and a relapse was possible. He said that he could not rule out bipolar disorder, but did not feel she met the criteria for schizo-affective disorder. 5. His opinion was that she was angry about her treatment by Central Coast Health, but he felt looking at her medical records would not do her harm, although it might make her angry. Evidence of Dr Arndt 1. Dr Arndt said she believed that the case notes she had taken could be deleterious to the patient's health if disclosed to her. In her opinion, the original diagnosis of CWF as having bipolar disorder was correct. 2. She related the incident which occurred in April 2013 when CWF had come to see her. She considered that on that occasion, CWF had shown symptoms of hypomania, demonstrated by grandiose ideas, not sleeping and planning incessantly. She said she rang the Mental Health Line as she was very concerned by her behaviour. 3. When asked why she thought her own notes were a risk to CWF's health if disclosed, she said the other medical records did not have the same amount of detail as her notes. Her notes recorded a continuous period and CWF was liable to bouts of rumination over her life, which sometimes escalated to a breakdown in her mental health. The confidential information 1. It was urged by the applicant that as she has already had access to many of her medical records without any serious threat to her health; it could not be proven that the records held by Dr Arndt could pose any serious threat to her health. The respondent on the other hand maintained that her case notes were more detailed and regular than the other records, and did pose a risk. 2. There is evidence that CWF has seen many medical records relating to her illness and treatment. These records were in evidence. Also in evidence was the health information held by Dr Arndt, which was produced on a confidential basis. 3. Dr Arndt's records begin in November 2006. They include notes concerning what was told to the doctor by the applicant about her emotions, her suicidal thoughts, her suspicions or beliefs about her family and others, as well as allegations against people, including health professionals, which may or may not be paranoid or delusional. There are comments by the doctor about her physical and mental health, medication and related matters. It appears from the notes that the applicant related to the doctor her suspicions about some of the health professionals who were treating her and her plans to report them or commence litigation against them. The records also include test results, reports from psychologists and psychiatrists, referrals, discharge summaries from stays in hospital, and a set of notes apparently made by the applicant describing her discussions with a psychiatrist who she seemed to distrust. 4. From a perusal of the confidential information and the medical records which are already in the applicant's possession I am unable to make a clear distinction between the two sets of records in terms of the nature of their content. Instead it seems to me that they have many factors in common. Consideration 1. The question to be determined is whether providing CWF with direct access to the information would pose a serious threat to the life or health of CWF or any other person. There are no relevant guidelines as referred to in s 29(a) of the HRIP Act. I was not referred to any decisions which provide an interpretation of s 29(a) and my own researches did not identify any useful precedent. 2. Some reference was made to cases which considered s 4(1) of the former Freedom of Information Act 1989 and the case of Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [21-25] which considered s 14 of the Government Information Public Access Act 2009. In my view neither of these assist as the wording and context of the provisions is different. 3. The respondent submitted that Dr Arndt's belief that providing access would pose a serious threat to the life or health of CWF was genuine and reasonable. In my view, however, this is not relevant to the substantive issue. The Tribunal must inquire into the complaint. The subject matter of the complaint was the respondent's refusal to provide the information directly to the respondent, in reliance on the exemption in s 29(a). In my view, in this case the Tribunal must therefore determine whether the respondent has established to the civil standard of proof, that providing access would pose a serious threat to the life or health of the individual or any other person. If she does not, the exemption cannot be upheld. 4. The respondent's belief might be relevant if the applicant had suffered loss or damage and was seeking compensation, but this is not the case here. 5. The applicant sought an order that the respondent grant the applicant personal access to her health information. She submitted that the respondent had not discharged the onus upon her, contained in s 51 of the HRIP Act, to prove the exemption in s 29(a) on which she relied. The applicant also submitted that she had provided sufficient evidence to eliminate any doubts as to her capacity to request and receive her own records. 6. It is evident that CWF has been diagnosed with a variety of serious mental health disorders or conditions over the past 10 years or so. The most recent diagnosis of her condition is that of Dr Thiering. He diagnosed complex PTSD rather than bipolar disorder or any other disorder, although he could not rule out bipolar disorder. As I understand the evidence, this is significant because in cases of bipolar disorder, there can be a relapse after recovery. However, Dr Thiering's evidence was that complex PTSD has a multiplicity of symptoms and for that reason is sometimes misdiagnosed as bipolar or other disorders. 7. On the basis of the available evidence, the possibility of CWF suffering a relapse cannot be ruled out. However, both Dr Thiering and Ms Bauer, who have treated her most recently, believed that for CWF to see her records would not adversely impact on her mental health. 8. Their evidence was that CWF is sufficiently well to review medical records relating to her past mental health. While Dr Thiering has not seen her since 2015, Dr Arndt has not seen her since 2013, and accordingly I prefer his evidence on that basis and also on the basis of his psychiatric knowledge and experience. There is also evidence that CWF has reviewed very similar information recently without any observed adverse effect, during a period when she was not on any medication. Decision 1. In my view, the respondent has not established that the direct disclosure of the health information held by the respondent to the applicant would pose a serious threat to the life or health of the applicant or any other person. 2. The only order that was sought was that the requested access be provided to the applicant. I consider that, in the circumstances, it would be more suitable to provide the applicant with a copy of the information. 3. Accordingly I make the following order pursuant to s 54(1)(c) of the HRIP Act: 1. That, within 30 days of the publication of these reasons, the respondent provide the applicant with access to her health information by giving the individual a copy of the health information. ******** 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: 15 August 2017