ALQ December 2022 Privacy

Issue: December 2022

Privacy

Executors may not apply for the amendment of personal or health information on behalf of the deceased

Access the decision: Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356

The respondent, relying on her appointment as executor, sought to amend the personal and health information of her late father under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) and the Health Records and Information Privacy Act 2002 (“the HRIP Act”). The Tribunal at first instance found in favour of the respondent.

The Appeal Panel allowed the appellant’s appeal, finding that the Tribunal erred in holding that “the individual to whom the information relates” must be read as extending to “the individual and their personal representative” to preserve the posthumous efficacy of the statutory privacy obligations.

In relation to the HRIP Act, the Appeal Panel found that death is not an “incapacity” for the purposes of s. 7 of the HRIP Act, which was a necessary precondition to the appointment of an “authorised representative” under that Act. Further, it found that there is no agency relationship between a testator and an executor, such that an executor would not meet that aspect of the definition of “authorised representative”.

The decision resolves a longstanding controversy as to the scope of the privacy Acts.

Appeal Panel overturns narrow construction of privacy exemption

Access the decision: HealthShare NSW v CJU [2022] NSWCATAP 316

At first instance, the Tribunal found that the appellant had disclosed the personal information of the respondent to a Local Health District (“the LHD”) and had failed to comply with the obligations relating to the collection of personal information. The Tribunal found that the exemption in s. 27A of the PPIP Act, which exempts agencies from compliance with the principles to the extent reasonably necessary to enable inquiries to be referred between the agencies, did not apply. The appellant appealed.

The Appeal Panel set aside the decision of the Tribunal, finding that: the provision of statements made by the respondent about the LHD did not involve her “personal information” because they were not “about” her. Insofar as their provision communicated opinions held by the respondent, those would have been apparent to the LHD and, accordingly, there was no “disclosure” of that personal information; the Tribunal misinterpreted s. 27A of the PPIP Act by finding that it does not apply to bilateral transfers of information. That is, the exemption applies to the mutual transfer of information and not merely to the unilateral transfer of an inquiry from the first agency to the second; and, the Tribunal erred in holding that s. 27A of the PPIP Act is conditioned by: (a) the agency’s privacy management plan; (b) confidentiality obligations; (c) and, relevant policies directed to the referral of inquiries between agencies.

Delay could only give rise to an appellable error if it had an operative effect on the decision or reasons

Access the decision: DMP v Sydney Local Health District [2022] NSWCATAP 357

The appellant contended that the respondent had breached his privacy when it delivered training on how to use its electronic records management system as he was able to look up his own medical records (having been a patient at one of the respondent’s hospitals) and those of others while receiving training on the system as a third-year medical student about to commence work in one of the respondent’s hospitals. At first instance, the Tribunal found that there had been no breach.

The appellant contended that the Tribunal erred because: it had provided inadequate reasons; he had been denied procedural fairness; and, the Tribunal did not have jurisdiction to consider an issue. The appellant also contended that he should be granted leave to adduce fresh evidence and leave to appeal on the bases that: the Tribunal had not reviewed all the conduct complained of in his submissions; the Tribunal had made incorrect findings of fact as it had not had regard to his evidence and had given too much weight to the respondent’s evidence; and, there had been evidence tampering because the Court Book had not been printed in colour.

The respondent contended that the Tribunal had not so erred and that leave to adduce fresh evidence and appeal should not be granted.

The Appeal Panel refused to grant the appellant leave to rely upon fresh evidence as it was not satisfied that it was likely that the documents would have produced a different result. The Appeal Panel also refused to grant the appellant leave to appeal as the grounds raised no issues of principle or questions of public importance, nor plain, readily apparent errors. The Appeal Panel dismissed the appeal as no error had been demonstrated.

Beware of personal information in settlement deeds covering multiple claims against an agency

Access the decision: EEH v NSW Self Insurance Corporation [2022] NSWCATAD 361

The applicant sought review of the respondent’s collection and keeping of a deed of release executed by the applicant and the NSW Police Force (“the NSWPF”). The respondent was not a party to the Deed but had been provided with the Deed so that it could pay the applicant the workers compensation component of the settlement monies.

The applicant contended that the respondent had breached ss. 8(1), 9 and 12(a) of the PPIP Act with respect to the information in the Deed not relating to his workers compensation claims.

The respondent contended that the Deed had to be read as a whole and, therefore, if part of the Deed was reasonably necessary to be collected and had been authorised to be collected from someone else or kept, then the collection and keeping of the whole Deed could not breach the PPIP Act. The respondent also relied upon its obligations under its constituting Act, the Workers Compensation Act 1987 and the State Records Act 1998.

The Tribunal accepted the applicant’s submissions and ordered the respondent to delete the parts of the Deed not relating to the applicant’s workers compensation claims and unconditionally apologise for breaching ss. 8(1), 9 and 12(a) of the PPIP Act. The decision is being appealed.

No extension of time to seek review by the Tribunal

Access the decision here: FGU v Northern Sydney Local Health District [2022] NSWCATAD 390

The applicant applied for administrative review of the respondent’s conduct which had been the subject of a prior internal review. The applicant had made two earlier applications that had been dismissed after the parties reached settlement. The applicant’s submissions made clear that he only sought compensation and not administrative review.

The respondent submitted that the application concerned conduct the subject of earlier administrative review and, so, was misconceived or lacking in substance. Alternatively, the application re-agitated matters the subject of an earlier settlement and involved a complaint about a health privacy principle not considered in the internal review.

The Tribunal refused to extend the time to make the application, citing: the extent of delay (147 days late) without satisfactory explanation; prejudice to the agency from three reviews; public interest in dispute finality and efficient use of resources; no prospects due to the administrative review not being pursued (which provided a further ground for dismissal).

The Tribunal clarified the distinction between orders dismissing proceedings pursuant to s. 55 of the Civil and Administrative Tribunal Act 2013 with reference to settlement and orders incorporating points of settlement pursuant to s. 59. A further application can be made in the former case whereas, in the latter case, an argument against that “would have force”.

Other decisions in this issue

Last updated:

30 Dec 2022