LN v Sydney Local Health District (No. 2) (GD) [2012] NSWADTAP 41

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: LN v Sydney Local Health District (No. 2) (GD) [2012] NSWADTAP 41 Hearing dates: 21 May 2012 Decision date: 19 October 2012 Before: Judge K P O'Connor, President C Huntsman, Judicial Member M Bolt, Non-judicial Member Decision: 1. In light of the agency's tender of an apology (first made on 20 March 2012) for its conduct in this matter, no further action is required. 2. That there be no order as to costs. Catchwords: PRIVACY - Appeal - Extension to Merits - Finding as to Excessive Delay - Orders - COSTS - Appellant's application - Not granted Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Legal Profession Act 2004 Privacy and Personal Information Protection Act 1998 State Records Act 1998 Cases Cited: KT v Sydney South West Area Health Service [2010] NSWADT 94 LN v Sydney South West Area Health Service [2012] NSWADTAP 9 Tuffy v Vaughan & ors. (No 2) [2009] NSWADT 242 Category: Consequential orders Parties: LN (Appellant) Sydney Local Health District (Respondent) Representation: Counsel A Britt (Respondent) In person (Appellant) A Bridges-Webb, GILD Insurance Litigation Pty Ltd (Respondent) File Number(s): 119010 Decision under appeal Jurisdiction: 9108 Citation: LN v Sydney South West Area Health Service [2011] NSWADT 44 Date of Decision: 2011-03-03 00:00:00 Before: General Division File Number(s): 093024

REASON FOR DECISION 1This decision is made further to the Appeal Panel's decision in LN v Sydney South West Area Health Service [2012] NSWADTAP 9 (23 February 2012). The Appeal Panel upheld in part the appeal made by LN against a decision of the General Division of the Tribunal. 2The Appeal Panel held that the Tribunal had not provided any persuasive reasons as to why the failure of the agency to respond to a request for access to health information for a period of about 10 weeks did not constitute an 'excessive delay' in the circumstances of the case, and therefore infringe Health Privacy Principle 7 of the Health Records and Information Privacy Act 2002 (HRIP Act). The Appeal Panel granted the appellant's application for leave to extend to the merits. 3We added on that occasion: 26 We note that in her internal review application the appellant, apart from applying for financial compensation, asked for formal apologies of various kinds for the failure to provide her in due time with the report. It may be that there can be some resolution of this case along those lines. In the interests of bringing this dispute to finality, the Appeal Panel will deal with the remainder of the proceedings, rather than refer them back. 4The Appeal Panel made directions on 20 March 2012 for the parties to file submissions confined to the issue of whether a finding of contravention should be made in relation to compliance with HPP 7, and what further action, if any, should be required of the agency.

Whether a contravention 5The relevant circumstances have been set out fully in the Tribunal's decision and the Appeal Panel's earlier decision. 6In summary, on 24 November 2008 the appellant sought access to a health record (a scan report). She made the request orally to staff at a counter in the area of the hospital that held the record. The staff located the record, dated 3 November 2008. The record contained an assessor's interpretation of the scan. The staff indicated that she was required to sign a release and wait for a doctor who would shortly be available to hand over the record, and discuss its meaning with her. She did not stay for reasons outlined in the previous decisions of the Tribunal and the Appeal Panel. 7The hospital supplied the report on or about 27 January 2009. It contained no material that might arguably justify withholding in whole or in part on the basis of governmental or personal interests of the kind protected by the exemptions under the freedom of information laws then in force. 8HPP 7 provided (as at 24 November 2008): 7 Access to health information (1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. Note. Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause. Access to health information held by public sector agencies may also be available under the Freedom of Information Act 1989 or the State Records Act 1998. (2) An organisation is not required to comply with a provision of this clause if: (a) the organisation is lawfully authorised or required not to comply with the provision concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). 9The provision does not address mere delay in the processing of an access to health information request. It regulates 'excessive' delay. The context is a piece of legislation that sets down no time limits for the processing of requests for access. In contrast, kindred legislation, the Freedom of Information Act 1989 (then in force), and the Government Information (Public Access) Act 2009 (GIPA, now in force), does impose specific time limits on the processing of access requests. 10There will usually be a need for some period of time during which a request is processed. The request will usually start with the filling in of a form, though no procedure of this kind is mandated by HRIP Act, in contrast to the way access requests made under GIPA are regulated. The agency will usually need time to locate the affected records, satisfy itself that the records are those of the applicant, and consider whether there are any reasons recognised by the governing law that might warrant it not granting access in part or in whole to the record. It may in some cases have to engage in the task of copying the underlying record. It may have to delete parts of the record to protect, for example, third party privacy interests, and produce a copy with deletions (or 'redacted' to use an expression now in vogue). 11In this case, as noted earlier, the transaction was not so formal. The appellant presented in person at the counter, the record was identified quickly and she was asked to provide a release and wait until a doctor could see her (expected to be soon), as already explained, in line with the internal directions to staff. 12As the agency noted in its written submissions, the modern principles of statutory interpretation insist that a purposive approach to ascertaining the meaning of words in legislation is to be adopted. The agency notes that purpose is to be ascertained from reading the legislation as a whole, and having regard as necessary, to the context of the legislation. Further, it is submitted the statute is to be interpreted by reference to the words used, not what the legislature might have intended to say or to divine the intent of the legislature. We accept these submissions. 13It remains that the words 'excessive delay' are ones of inexact compass. We accept, as submitted by the agency, that the analysis of Molony JM in KT v Sydney South West Area Health Service [2010] NSWADT 94 on this point is helpful. Molony JM referred to the dictionary meanings of 'excessive'. A delay will be excessive if it exceeds the 'usual or proper limit or degree' of delay or one that is 'right, proportionate or desirable' in the circumstances. 14The question is ultimately one of fact. 15In this case, the agency was ready to process the request on the day it was received subject to its procedures for giving access being accepted by the appellant. She did not accept them. 16As indicated in our earlier reasons, there was no statutory basis in the health privacy legislation for the procedures that were applied. We acknowledged in our earlier reasons that there may be clinical reasons, and an administrative desire to ensure a proper understanding of the record by the recipient, that have led to the adoption of an intermediary access procedure utilising a medical practitioner, but this is not something mandated by the legislation. Moreover, there is no statutory basis for having the access transaction confined to those who give a release from legal liability. Both of these constraints are at odds with the 'open access' philosophy that underpins modern access-to-records laws. We accept that the staff acted in the way they were instructed in dealing with the request. 17We are satisfied that these constraints provide the explanation for the appellant then resorting to the making of applications under the more formal regime of the Freedom of Information Act and then invoking the review procedure under the State's privacy laws. At the end of the decision-making period allowed by those laws, the agency officer decided to release the record. 18In our view, the agency should not have the benefit of the time involved in processing these transactions in assessing whether there had been an excessive delay. They were transactions made necessary by the protocol that we consider can find no basis in the HRIP Act, and had elements which tended to thwart access, especially the release requirement. 19In its submissions the agency noted that had the appellant waited a few more minutes for Dr Fulham to attend upon her, she would have got her record that day. We accept that. But its submissions do not refer to the release requirement, which, we consider, contributed to her decision not to remain around. 20The agency also asserts in its submissions that the appellant conceded that she was provided with a copy of the report on CD on 3 November 2008. This is not the evidence in the case. She says that she got the CD of the scan immediately, but her grievance is that she did not receive a copy of the report until it was provided on 27 January 2009. 21Our finding is that the delay was excessive. The agency therefore contravened HPP 7.

Whether an order should be made 22Under the HRIP Act, where the organisation under notice is a public sector agency, as here, the Tribunal's order making powers are those found in the PPIP Act at s 55(2) (see HRIP Act, s 21(1)): (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. 23Section 55(4) provides: (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. (The qualification in sub-section (4A) is not relevant to this case.) 24Regardless of the finding of the Tribunal on the contravention issue, the agency indicated both at the directions hearing on 20 March 2012, and at hearing on 21 May 2012 that it was prepared to tender a written apology for what occurred. On 20 March 2012 it presented a sealed envelope containing the apology. 25It opposed the appellant's case for payment of financial compensation. In our earlier decision we indicated that it was no longer open to the appellant to pursue her main claim in relation to financial compensation, costs associated with cancelling a trip she would have taken had her scan report been released to her when she said she first made a request for access (13/14 November 2008). We accepted the Tribunal's finding that the agency first become aware of a request on 24 November 2008, a date after her trip had been due to commence. 26In her submissions on this occasion she referred to various medical expenses said to have been incurred in relation to medications made necessary by her need to treat the stress and related conditions resulting from the way she had been treated by the agency. 27We are not satisfied by the material upon which the appellant relies. She suffered a delay that we have found to be excessive, but she has tendered no evidence (for example from a doctor, psychologist or psychiatrist) which explains the link to be drawn between the use of those medications and the conduct in issue. The only medical certificate is one dated 12 April 2012 expressed in the most general and vaguest of language which makes no reference to the events in issue, and does not have any of the hallmarks of a considered professional assessment or appraisal.

Conclusion 28In our view, it is sufficient to close this case to find that there has been a contravention of HPP 7, to treat as sufficient by way of redress the agency's tender of the apology. 29We are not disposed to providing any financial compensation to the appellant by way of an order pursuant to s 55(2).

COSTS 30The appellant has sought an order for costs of the proceedings before the Tribunal and the Appeal Panel. The power to award costs is given by s 88 of the ADT Act, which provides: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 31The appellant represented herself. For a recent review of the principles that may apply to an application for costs and expenses by a litigant in person, see Tuffy v Vaughan & ors. (No 2) [2009] NSWADT 242. 32Her claim is for $11,654.70 divided as follows: (a) Tribunal fees, $422.50; (b) Legal consultation, $600; (c) Applicant's transportation, $303.50; (d) Witnesses' transportation, $48.95; (e) Witnesses' out of pocket expenses, $210; (f) Translation, $8,613; (g) Printing (504 pages), $100.80; (h) Copying (2037 pages), $407.40; (i) Fax, $12.00; (j) Post, $142.95; (k) Medication, $793.60. She attached vouchers, receipts and other documents to her submission in proof of these claims. Mr Britt, for the respondent, challenged the proof given for a number of these items. 33The documents supporting item (a) were business records of a kind that we regarded as credible. The documents in support of item (b) were not credible (cash receipt dockets not linked to any professional bill or a signatory shown to be a lawyer). The documents in support of items (c), (d) and (e) were the appellant's account of her travel expenses and those of persons said to be witnesses, as well as care costs for the appellant's daughter. The main item is (f), supported by an account from Star Translation Services bearing an official interpreter's stamp. Mr Britt questioned the appellant closely in relation to this document, including as to how and when the services were incurred, and whether any payment had been made by her, and evidence of that payment. He challenged the authenticity of this document. Items (h), (i) and (j) were supported by a list prepared by the appellant setting out her costs, with dates and the like. She attached various postal receipts that were credible on their face. Mr Britt challenged the authenticity of the documentation in support of item (k), medication. 34The primary rule is that each party to proceedings bears their own costs. While success on appeal may be taken into account as a factor relevant to the discretion, this is not a jurisdiction where costs automatically or near-automatically follow the event, as in the court system. We will not revisit here the detail of s 88, and the case law that gives guidance to how the Tribunal and the Appeal Panel has exercised the reserve discretion to award costs 'if it is fair to do so'. 35In our opinion, the agency has responded to the case mounted by the appellant in a way that has not exacerbated the proceedings or transgressed any of the matters that the Appeal Panel may take into account under s 88. 36This was a case, in its essence, about a single access transaction. There was a dispute before the Tribunal below about when the hospital should first have reasonably become aware of the appellant's access request. That was determined disfavourably to the appellant; and the finding was not disturbed on appeal. All that remained to be addressed was the question of excessive delay. 37As to the various items claimed by way of costs, we do not consider the medication claim to be an appropriate matter for an award of costs. Medication does not, in our opinion, fall within the ordinary purview of expenses associated with the conduct of litigation. We will not address Mr Britt's challenge to the authenticity of the supporting documentation. The other items all go to matters which in an appropriate case might possibly be the subject of an award of costs. We are not satisfied that the translation costs (the main item) were either needed in the degree claimed, or proven satisfactorily. We do not regard the proof offered in relation to the legal consultation costs as satisfactory. We are not satisfied as to the costs claimed in relation to witness expenses and home care costs. With these exclusions, that leaves on the table approximately $1,300 in claims. Some of them have credible receipts or vouchers attached, as we have noted. 38While success on appeal is a factor that favours an award of costs to the successful party, it is not decisive in the way that is typical of decisions on costs in the courts. The factors to which s 88(1A) expressly refer all focus on conduct by the opposite party that has gone beyond the fair and reasonable conduct of the litigation. 39In the many cases to which this agency has been a respondent, their usual counsel has been Mr Britt. As in other cases, so in this case, the appellant has made hostile criticism of Mr Britt's performance and the way in which he has dealt with her. We will not canvass these criticisms, except to the extent of indicating that we consider that the agency has reasonably conducted these proceedings. We note that on appeal the agency has kept its written and oral submissions brief, as encouraged by the Appeal Panel in its case management directions. 40In our view the agency has conducted itself in a way that has not transgressed the standards reflected in the express factors set out in s 88(1A). The agency in its submissions criticises aspects of the conduct of the appellant's case which added to its length and prolixity. While the appellant was successful on the excessive delay point, considerable time has been spent in this litigation in dealing with the issue of when she first notified the hospital of the access request (a point on which she was unsuccessful) and in responding to her related compensation claim (seeking to attribute the costs lost because of cancellation of an overseas trip to the non-provision of the scan report at the time she claimed that she first requested it). 41In the circumstances we think that the usual rule should apply to the appeal, that each party bear their own costs.

Order 1. In light of the agency's tender of an apology (first made on 20 March 2012) for its conduct in this matter, no further action is required. 2. That there be no order as to costs. 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: 19 October 2012