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). Scope of Dr Hindmarsh's request 1. At the hearing, Dr Hindmarsh clarified that he was not seeking access to some of the redacted information in the report. In particular, he is not seeking access to any personal information about his wife or to personal or health information about Mr Gumley. He further clarified that the information he is seeking access to in the report is confined to information concerning drugs prescribed for, or administered to, his son. The legislative scheme 1. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure. 2. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act. 3. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. There will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 4. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. The decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure. "Could reasonably be expected to" 1. The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 have the requirement that disclosure of the information could reasonably be expected to have the nominated effect. 2. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC." 1. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]. Consent 1. In order to determine whether Paul Hindmarsh consented to the release of his personal and health information, the Ministry sought advice from Mr Hindmarsh's treating psychiatrist, Dr Reece Anderson. Dr Anderson, after speaking with Mr Hindmarsh and consulting with another clinician, formed the view that Mr Hindmarsh had capacity to consent to the release of the information to his father and expressly did not consent to his father having access to his personal health information. 2. Dr Anderson gave evidence at the hearing and reiterated his view that, while Mr Hindmarsh has a chronic mental illness (schizophrenia), he was able to understand the information presented to him, weigh up the relevant considerations and make a decision. He stated that Mr Hindmarsh freely communicated to him his wish that his father not be provided with his personal health information. 3. Dr Hindmarsh was given an opportunity to question Dr Anderson but did not dispute that his son did not consent to him being provided with the information he seeks. I accept the opinion of Dr Anderson that Paul Hindmarsh has capacity and does not consent to the release to his father of his personal health information contained in the report. Public interest considerations in favour of disclosure 1. In this matter, it is not contested that there are several public interest considerations in favour of disclosure: 1. disclosure of the information could reasonably be expected to promote open discussion of public affairs on an issue of public importance and enhance the Government's accountability; 2. disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public interest; and 3. disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with patients in mental health facilities. 1. The Ministry also acknowledges that the relationship between Dr Hindmarsh and his son and his intention to commence legal proceedings against the Illawarra Shoalhaven Local Health District and staff at the Eloura West Mental Health Unit at Shellharbour Hospital are factors which strengthen the weight to be given to these factors favouring disclosure of the information. 2. I am satisfied that release of the information could reasonably be expected to have the positive effects stated above. I agree with Dr Hindmarsh that there is considerable public benefit in understanding how the state funded health system operates and how patients are treated. Public interests against disclosure 1. Relevantly, for this application, there is a public interest consideration against disclosure if disclosure could reasonably be expected to; * reveal an individual's personal information (cl 3(a) of the table to s 14); and * contravene a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (HRIP Act) (cl 3(b) of the table to s 14). Personal information 1. The term "personal information" is defined in cl 4(1) of Schedule 4 of the GIPA Act as information or opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. Personal information which has already been publicly disclosed is not caught by the definition (cl 1 of Schedule 4). I am satisfied that some of the redacted information contained in the report is personal information about Paul Hindmarsh. 2. Section 54 of the GIPA Act requires an agency to take reasonable steps to consult with a person before providing access to personal information about the person and where the person may reasonably be expected to have concerns about the disclosure of the information. Mr Hindmarsh has not consented to the release of his personal information. Health information 1. The HRIP Act regulates the manner in which organisations deal with "health information". "Health information" is defined in s 6 of the HRIP Act to mean: (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… 1. I am satisfied that some of the redacted information concerning Paul Hindmarsh contained in the report is "health information" as it is information about his physical and mental health and about health services provided to him. This information includes details of medications prescribed for or taken by him. 2. Schedule 1 to the HRIP sets out the Health Privacy Principles (HPPs). HPP 11 states that 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 certain circumstances apply. Relevantly for this case, the information can be disclosed where the person to whom the information relates has consented to the disclosure of the information for that secondary purpose (cl 11(1)(a)). As set out above, Paul Hindmarsh has not consented to the release of his health information. 3. Disclosure is also permitted where 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 (cl 11(1)(b)). Release of Mr Hindmarsh's health information under the GIPA Act is not directly related to the purpose for which the information was collected, namely a review of the Eloura West Observation Unit following the death of Mr Gumley. 4. In addition, disclosure is permitted if there are compassionate reasons for doing so and disclosure is limited to the extent reasonable for those compassionate reasons. This can only occur of the individual is incapable of giving consent (cl 11(1)(g)). Mr Hindmarsh has been assessed as being capable of giving his consent to the release of the information but has expressly stated he does not wish his father to be provided with the information. 5. None of the circumstances which would permit release of Mr Hindmarsh's health information without a contravention of HPP 11 therefore apply. Applying the public interest test 1. Having established the public interest considerations in favour of disclosure of the information and public interest considerations against disclosure, my task is to weigh those considerations to determine whether there is an overriding public interest against disclosure. 2. The arguments made by Dr Hindmarsh, particularly in the context of what occurred at the Eloura West Observation Centre on 31 July 2014, that the public ought to be provided with information about the operation of the health system and its treatment of patients, is a very strong factor which would favour release of the information. It is important that the public be able to access such information and that appropriate legal action be taken if warranted. 3. The taking of civil proceedings against an agency is, however, a very different action to seeking to be provided with access to information under the GIPA Act. When access to information is sought under the GIPA Act, that Act governs whether the information can be released and the considerations may well be different to those that apply in legal proceedings. 4. Dr Hindmarsh is the father of Paul Hindmarsh and therefore has a legitimate interest in the information which he wishes to obtain. I note, however, that Dr Hindmarsh has not had any personal contact with his son for some time. 5. In this case, under the GIPA Act the public interest considerations against disclosure in cl 3(a) and (b) apply. Disclosure of the redacted information about Paul Hindmarsh could reasonably be expected to reveal his personal information. Disclosure of the information would contravene HPP11 of the HRIP Act as it concerns Mr Hindmarsh's health information. 6. I attach significant weight to the fact that the information sought is information about Mr Hindmarsh's health. Health information in a patient's medical record is sensitive information and, in most circumstances, there would be a very strong public interest in non-disclosure of such information (Khoo v South Western Local Health District [2015] NSWCATAD 183 at [81]). This is particularly the case where, as here, the patient has expressly objected to the release of the information. 7. I am of the view that, on balance, the public interest considerations in favour of disclosure do not outweigh the considerations against disclosure and there is an overriding public interest against disclosure of the redacted information contained in the report. Accordingly, it is my view that the respondent's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed. Order 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2019