Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DKV v Southern NSW Local Health District [2019] NSWCATAP 189 Hearing dates: 28 June 2019 Date of orders: 26 July 2019 Decision date: 26 July 2019 Jurisdiction: Appeal Panel Before: S Cole DCJ, Deputy President J Kearney, Senior Member Decision: The appeal is dismissed. Catchwords: Administrative Law – NCAT internal appeal – Health Privacy Principles – scope of review by NCAT Legislation Cited: Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: DKV (Appellant) Southern NSW Local Health District (Respondent) Representation: Appellant (self-represented) Solicitors: Crown Solicitor (Respondent) File Number(s): AP 19/06089 Publication restriction: unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Administrative and Equal Opportunity Division Citation: [2019] NSWCATAD 12 Date of Decision: 8 January 2019 Before: R L Hamilton SC, Senior Member File Number(s): 2018/00111711 REASONS FOR DECISION Introduction 1. On 30 January 2018, DKV made a complaint to a health facility in relation to the faxing of a referral letter to a GP who was not her treating GP. 2. An investigation took place in February 2018. DKV was sent a letter from Mrs K, who managed the investigation, dated 9 March 2018. 3. The health facility conducted an internal review from about 18 May 2018 to 8 June 2018. A copy of the internal review report was provided to DKV. 4. DKV applied to this Tribunal for a review under the Health Records and Information Privacy Act 2002 (NSW) ('the HRIP Act') and the Privacy and Personal Information Protection Act 1998 (NSW) ('the PPIP Act'). 5. Before the Tribunal at first instance, the respondent conceded a breach of Health Privacy Principles (HPPs) 4 and 11 under the HRIP Act. The Tribunal determined that there had been no breach of HPP 9. The Tribunal indicated that it had no jurisdiction in relation to the issue of whether there had been a breach of HPP 2, because it had not been the subject of the internal review by the health facility. The Tribunal noted the measures which had already been put in place to deal with DKV's concerns, and declined to take further action. 6. DKV appealed to the Appeal Panel of the Tribunal. Facts 1. On 17 January 2018, DKV telephoned a helpline saying that her treating GP ('the treating GP') was to be unavailable for three weeks and seeking some assistance. DKV was advised to visit the health facility the next day. 2. On 18 January 2018, DKV visited the health facility (operated by the Respondent) and made an urgent appointment to see a specialist. She also saw a GP (who was a visiting medical officer) ('the VMO') at the health facility and was treated for an ankle injury. 3. DKV attended her appointment with the specialist on 23 January 2018. Ms MF, a nurse working at the health facility, was also present at the appointment. In the course of the appointment, the VMO prepared a referral letter for a GP. The computer program she was using auto-populated three GPs as addressees for the referral letter: DKV's treating GP, the VMO and a third GP. DKV noticed the inclusion of the third GP and the referral letter was changed to delete the third GP. 4. On 24 January 2018, the referral letter was faxed from the health facility to DKV's treating GP and to the VMO. 5. DKV subsequently became aware that the VMO had been sent a copy of the referral letter. The events set out in paragraphs 1 to 4 took place. 6. DKV's application to the Tribunal was filed on 10 April 2018, and the grounds were as follows: I am not satisfied with the response from [health facility] following their internal review into a breach of my privacy where a report of my mental health was sent to the wrong Doctor which my son came upon undertaking his work duties. These actions have caused harm to my health and wellbeing. To remove these records will cause further harm to me and my sons employment and reputation. 1. DKV sought to be provided with a letter from the specialist in specified terms, and also sought compensation. 2. As outlined in paragraph 5, above, the Tribunal at first instance declined to take further action. Appeal to the Appeal Panel 1. This appeal is brought under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act"). 2. The CAT Act provides, in s 80: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. DKV, in her notice of appeal from the decision of the Tribunal at first instance, sought leave to appeal on the following grounds: The decision shows bias and favouritism for SNSWLHD evidence. Evidence has misinterpreted to justify this. Denied procedural fairness. As per attached document addressing 5b. 1. In the grounds of appeal annexed to her notice of appeal, DKV set out the following points, which we will summarise and deal with one by one: (1) Undue weight was placed upon the evidence provided by the respondent and bias against DKV is evident. DKV is disadvantaged by not having access to legal representation and office facilities. 1. No basis for the allegation that undue weight was placed upon the evidence provided by the respondent is evident from the decision of the Tribunal at first instance or from any other source. There is no reason to think that DKV's case was not adequately considered at first instance. The Tribunal gave DKV adequate opportunity to seek legal representation, so there was no denial of procedural fairness on that account. (2) The respondent did not follow its own procedures in DKV's dealings with Mental Health. This has been overlooked by the Tribunal Member and shown bias in reviewing the evidence in favour of SHSWLHD. 1. The assertion that the respondent did not follow its own procedures was not made out. In any event, it is not relevant to the matter at hand, which is a complaint about the alleged breach of Health Privacy Principles (HPPs). (3) The respondent provided affidavits on 28 September 2019, when it had been ordered to provide them on 18 September 2018 and the hearing was on 3 October 2018. This caused DKV anxiety and stress. The documents should not have been accepted by the Tribunal. 1. The hearing listed for 3 October 2018 did not proceed. A hearing scheduled for 15 October 2018 was also vacated, and DKV consented to the matter being dealt with on the papers, which is how the Tribunal at first instance dealt with the matter. There is no suggestion that DKV was unable to deal with the material in the affidavits. DKV provided a considerable amount of material to the Tribunal. No breach of the rules of procedural fairness has been made out. (4) The Tribunal should not have found that an alleged breach of HPP 2 was not within its jurisdiction. 1. The HRIP Act provides, in s 21, that certain conduct by a public sector agency, including the contravention of a HPP that applies to that agency, is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies. 2. The PPIP Act, in s 53, provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct (s 53(1)). The review is to be undertaken by the public sector agency concerned (s 53(2)). This review is referred to as an internal review. 3. The PPIP Act, in s 55, provides that if a person is not satisfied with the findings of the internal review or the action taken by the public sector agency in relation to the application for a review, the person may appeal to the Tribunal. HPP 2 provides: 2. 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. DKV's complaint, which triggered the internal review, did not allege any breach of HPP 2, and, consequently, it was not the subject of the internal review. The ambit of the Tribunal's jurisdiction under the HRIP Act and the PPIP Act is limited to the issues raised by the complaint, which become the subject of the internal review by the agency (unless they are withdrawn). An alleged breach of HPP 2 was not the subject of the complaint or the internal review. The Tribunal at first instance said: 24 The respondent argues that the Tribunal does not have jurisdiction to review potential breach of HPP 2 because it was not raised in the applicant's complaint to the respondent and so was not the subject of internal review. Section 55(1) of the PPIP Act requires there to be an internal review under PPIP before NCAT can review the result. 25 The respondent relies on the decisions of the Appeal Panel and Tribunal in ALZ v WorkCover NSW [2015] NSWCATAP 138 at [62]-[63] and CEU v University of Technology Sydney [2018] NSW CATAD 13 at [75]-[76]. In ALZ the Appeal Panel said at [62]: "A key principle in privacy litigation before the Tribunal is that the scope of the proceedings is limited to the matters put in issue in the internal review process." It has been held that even though it is a precondition of NCT review that there has first been an internal review, the Tribunal is undertaking a second review of the conduct not a review of the outcome of the Internal Review (CEU at [75]). So Tribunal cannot review matters were not raised in the course of the Internal Review. 1. We note that the Tribunal at first instance, notwithstanding its determination that there was no jurisdiction in relation to an allegation of a breach of HPP2, nonetheless considered the issue. The Tribunal said: 26 Even if the Tribunal did have jurisdiction to consider HPP 2 I am satisfied that the notes taken by the specialist at the consultation were appropriate because they were reasonably proportionate to the subject matter of the consultation and necessary and relevant to advise a clinician involved in follow up treatment. They did not unduly intrude on the private affairs of DKV. The claims of inaccuracies by the applicant appear to be minor and unlikely to be material to ongoing treatment. The information was gathered from DKV and the claimed inaccuracies could easily have arisen from a misunderstanding of the information being conveyed over the period of the consultation. Dr B is a specialist in the same specialty at the facility who states on affidavit that it is usual in this field to take details of personal and family history and relationships. This seems intuitively correct. 1. We agree with the Tribunal at first instance. (5) DKV pleaded the following: The bias is evident at 9)1_ where it is stated "it is something of an oddity…that the appellant visited the GP on 17 January…again on 24 January, February 1, February 5, February 12 and then March 1' The evidence has been misinterpreted and assumed as I did not attend my GP on those dates. They are entries on my file. I attended for treatment of my ankle on 24 January 2018 and was lucky to get that appointment by waiting for a cancellation. Subsequently I was called by the GP to return on 9 February 2018 following an MRI as my injury needed treatment. I was not to know on January 18 that I would injure my ankle that same day. 1 March was a regular appointment for prescription of my medication. A copy of my billing statement attached supports this. Weight has therefore been given to MF [Ms MF] at paragraph 9(3). Although this is incorrect. This was not discussed with me. The discussion referred to the appointment on 24 January for assessment of my ankle injury. 1. The version of the facts put forward by DKV in this ground of appeal, which does not differ greatly, or in any critical or significant way, from the facts relied upon by the Tribunal at first instance, would not change the outcome of the review. 2. No basis for an allegation of bias, either actual or apprehended, emerges from this pleading, and nor was any basis put forward in argument before us. The respondent referred us to the definition of actual bias in Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters at [9,40]: A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilty from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy. 1. In relation to apprehended bias, the respondent referred to the plurality of the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31]; It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. … 1. There is simply no basis for an allegation of actual or apprehended bias. (6) DKV pleaded: At paragraph 29, it states 'ongoing treatment by way of referral to the treating GP. This is not correct. I was obviously self referred and there was no discussion that my GP would be part of the process. At paragraph 30, it states again that 'it was discussed at consultation' this is incorrect. 1. This pleading does not disclose a point of law. Even if leave were given to appeal on the basis of an error of fact, and the error of fact were established, the outcome of the review would be unaffected. In other words, the difference between the fact set out by the Tribunal and the fact argued for by DKV is immaterial to the review. Conclusion 1. Having considered DKV's grounds of appeal, together with her submissions and her argument at the hearing of the appeal, it is our conclusion that the Tribunal's decision at first instance is not affected by any error of law. 2. We decline to give leave to appeal in relation to any alleged error of fact, on the basis that the errors of fact alleged, even if they were made out, would not be material to the outcome of the review. Order 1. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 26 July 2019