Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356

Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356

Section 7 of the Health Records and Information Privacy Act 2002 (NSW) defines incapacity by reference to specific, enumerated criteria, none of which include death, and there is no legislative provision indicating death should be construed as a form of incapacity. As such, an executor of a deceased individual is...

Source-derived case information.

Parties
Appellant: Nepean Blue Mountains Local Health District; Respondent: ENY
Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Statutory Appeal; Administrative Review / Appeal From First Instance Tribunal Decision; Leave to Appeal and Substantive Appeal Determination
Outcome
Appeal allowed; leave to appeal granted; original Tribunal decision set aside; respondent's application dismissed
Legal Topics
Statutory Interpretation, Capacity and Incapacity Under Privacy Statutes, Amendment of Health Records, Posthumous Rights and Executorship, Standing to Seek Amendment of Health Information
Privacy Law Health Law Administrative Law Statutory Interpretation Capacity and Incapacity Under Privacy Statutes Amendment of Health Records Posthumous Rights and Executorship Standing to Seek Amendment of Health Information

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Parties

Nepean Blue Mountains Local Health District

Appellant

ENY

Respondent

Procedural Posture

Statutory Appeal; Administrative Review / Appeal From First Instance Tribunal Decision; Leave to Appeal and Substantive Appeal Determination

Legal Issues

  1. 1 Does incapacity in s 7 of the Health Records and Information Privacy Act 2002 (NSW) include 'death', permitting an executor to amend health/personal information under the Act?
  2. 2 Is an executor of a deceased person an 'authorised representative' for the purpose of s 8 HRIP Act, posthumously empowered to exercise amendment rights?
  3. 3 Was the Tribunal at first instance correct in principle in finding an executor could so act?

Ratio Decidendi

Section 7 of the Health Records and Information Privacy Act 2002 (NSW) defines incapacity by reference to specific, enumerated criteria, none of which include death, and there is no legislative provision indicating death should be construed as a form of incapacity. As such, an executor of a deceased individual is not empowered, by s 7 and s 8 of the HRIP Act, to seek amendment of the individual's health or personal information under the Act after death. The Tribunal at first instance erred in law by reading 'death' into 'incapacity' for the purposes of the Act.

Court Disposition

Appeal allowed; leave to appeal granted; original Tribunal decision set aside; respondent's application dismissed

Orders

  • Leave to appeal is granted
  • The appeal is allowed