Hindmarsh v NSW Ministry of Health [2019] NSWCATAD 30

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hindmarsh v NSW Ministry of Health [2019] NSWCATAD 30 Hearing dates: 4 February 2019 Date of orders: 18 February 2019 Decision date: 18 February 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: 1. The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Administrative Review - Access to Government Information – personal information – health information – no consent to release – application of public interest test Legislation Cited: Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Khoo v South Western Local Health District [2015] NSWCATAD 183 Leech v Sydney Water Corporation [2010] NSWADT 298 Category: Principal judgment Parties: Michael Hindmarsh (Applicant) NSW Ministry of Health (Respondent) Representation: Applicant in person Crown Solicitor's Office (Respondent) File Number(s): 2018/00286175

REASONS FOR DECISION 1. Tragically, on 31 July 2014, Paul Hindmarsh, a patient in the Eloura West Mental Health Unit at Shellharbour Hospital, assaulted and killed a fellow patient, Joseph Gumley, with whom he shared a room. Mr Hindmarsh was later found not guilty of murder due to mental illness. He is now detained as a forensic patient under the supervision of the Mental Health Review Tribunal. 2. The applicant in these proceedings, Dr Michael Hindmarsh, is Paul Hindmarsh's father. Understandably, Dr Hindmarsh is very upset by the circumstances which led his son to, in his words, become a murderer. Dr Hindmarsh is seeking information relevant to the care and treatment of his son prior to the incident in order to understand what triggered his son's behaviour. Dr Hindmarsh is also seeking access to the information as he wishes to bring legal action against those whom he believes are responsible for what occurred. 3. On 18 September 2017 Dr Hindmarsh sought access under the Government Information (Public Access) Act 2009 (GIPA Act) to a report on his son by the NSW Chief Psychiatrist. The Ministry of Health identified a report on a review conducted on 4 August 2014 at Eloura West Observation Unit, Illawarra Shoalhaven Local Health District by Associate Professor Scott Clark, Acting Chief Psychiatrist and Marc Reynolds, Manager Systems Management, MHDAO, NSW Ministry of Health as falling within the ambit of Dr Hindmarsh's request. 4. The Ministry decided to provide partial access to the report and it was released to Dr Hindmarsh with some information redacted. Dr Hindmarsh sought review of that decision by the Information Commissioner and, on 28 March 2018, the Information Commissioner recommended that the Ministry make a new decision under the GIPA Act. Before making a new decision, the Ministry took steps to ascertain whether Paul Hindmarsh was capable of giving consent to the release of his personal health information contained in the report and, if so, whether he consented to giving his father access to that information. Mr Hindmarsh was assessed as being capable of providing consent but did not wish his father to have access to his information. 5. Dr Hindmarsh lodged this application for review with the Tribunal on 11 September 2018. On 19 October 2018 the Ministry made a new decision and determined to release some further information in the report that had been withheld and to refuse access to the remaining redacted parts of the report. It is that decision that is under review in these proceedings. The redacted information related to Paul Hindmarsh, Mr Gumley and Paul Hindmarsh's mother (Dr Hindmarsh's wife).