Recent Cases: Victoria
Melbourne Health v OOZ [2021] VCAT 623
OOZ applied to Melbourne Health for access to records it held about a call to the mental health assessment team (“Team”) about OOZ. In particular, OOZ wanted the name of the person who called, a copy of the complaint / report and the notes and discussions between the Team officers who attended his wife, before sending police to his house. Melbourne Health identified three documents and granted OOZ access in part, claimed exemptions under ss 33(1) and 35(1) of the FOI Act.
OOZ sought review by the Information Commissioner (“Commissioner”). The Commissioner was satisfied that ss 33(1) and 35(1)(b) applied to parts of the documents but that those parts could be edited to remove exempt material, meaning those documents could be released. The Commissioner decision released two parts of the documents that Melbourne Health claimed as exempt.
Both Melbourne Health and OOZ applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of the Commissioner’s decision.
Personal affairs information: s 33(1)
The documents revealed personal affairs information comprising names, positions, phone numbers and email addresses; statements of opinion (including medical and clinical opinion) given by identifiable people; names and direct references to individual’s relationship to OOZ, and information or opinion communicated by other individuals that relate to the personal affairs of those persons.
The Tribunal was satisfied that the nature and sensitivity of the information in the documents case would make it unreasonable to disclose the identity of personnel involved. They contained confidential and sensitive information about relatively recent matters, including clinical matters and that sensitivity was likely to be ongoing. There was a public importance in keeping such information confidential, as it would assist health practitioners with the care and treatment planning for patients. The Tribunal placed significance upon responses given in confidence by affected personnel and held it would be prudent to preserve their confidentiality to be consistent with the appropriate management of patient by health professionals and other third parties.
In addition, the Tribunal considered that disclosure would be likely to cause stress or anxiety to individuals and would adversely impact the ability to obtain similar information in the future.
Personal affairs information: s 33(2A)
The welfare check on OOZ was performed by police, rather than clinicians, as OOZ was a security guard and had access to weapons. The Tribunal held that s 33(2A) was relevant and should be considered where there is a reasonable apprehension of the possibility of confrontation, retaliation, and/or danger to physical safety. Here, it was not a question of finding that OOZ was (or is) an actual threat, but whether health professionals and other third parties, who had an association with the case had a reasonable basis for feeling unsafe.
Information provided in confidence: s 35(1)(a) in conjunction with s30(1)
The Tribunal was satisfied that the conditions under s 30(1) were satisfied as the exempt parts of documents would disclose personal opinions and the records were required for determining the immediate triage requirements and ongoing medical care for OOZ. The records formed a significant part of the work undertaken by Melbourne Health and the information, if disclosed would be contrary to the public interest.
Hospital staff need to be able to communicate with candour and frankness and to rely upon restricted access to clinical notes to ensure that they are treating patients correctly. The information was sensitive and confidential, and disclosure could lead to ill-informed comment about the content of the exempt parts, particularly where a patient fundamentally rejects the outcome of the consultation and deliberative process undertaken by Melbourne Health. Disclosure of the documents would reveal records of observations and opinions which partially explained the ultimate decision taken in a triage process. The Tribunal was satisfied disclosure was contrary to the public interest, meaning s 35(1)(a) applied.
Information provided in confidence where future impairment: s 35(1)(b)
The Tribunal was satisfied that disclosure of the exempt parts of the documents may expose persons to unnecessary and unwarranted communication or comment by OOZ and may give an incomplete impression as to the role of significance of a particular person or persons in the consultative process.
OOZ’s motives were also put into question as he expressed objectives to make people accountable and that could be motivated by malice. The disclosure of the documents would not help OOZ in any way and the disputed documents indicated that Melbourne Health acted in accordance with its obligations.
HELD:
The Tribunal set aside the decision made by the Commissioner and affirmed the decision of Melbourne Health to refuse the release of parts of the documents.
GKU v Mostyn Street Clinic [2021] VCAT 411
GKU (“complainant”) alleged breaches of the HPPs by two respondents; general practitioner Dr Louisa Hope (“second respondent”) and Mostyn Street Clinic (“first respondent”) where the second respondent practices. The complainant said that the second respondent breached HPP 1.1 when she undertook a Mental Health Assessment of the complainant’s then four-year-old daughter. The mother of his daughter gave the doctor information about the complainant’s parents, which the complainant said should not have been recorded without consent or another exception under HPP 1.1 applying.
The complainant also argued that there was a breach of HPP 3 because the respondents refused to update his child’s Mental Health Assessment Record to show that the child’s mother had suffered from mental illness, and therefore the assessment is incomplete.
Collection: HPP 1.1
As the health information was required to be collected under the Health Insurance Act 1973 (Cth) it was permitted by the HR Act. There was no need for the second respondent to have contacted the complainant to obtain personal contact details of his parents so as to seek their permission to record the health information. It was clearly necessary and appropriate to collect the health information and the second respondent had the mother’s consent
Data quality: HPP 3
HPP 3 does not create a positive obligation on a health service provider to return to an original source to investigate whether subjective information collected is accurate. The complaint regarding failure of the respondents to record material regarding the mental health of the child was misconceived and the matters complained of could never amount to a breach of HPP 3.
HELD:
The Victorian Civil and Administrative Tribunal (“Tribunal”) was satisfied that the complaint was unsustainable in fact or law and that the proceedings are misconceived and lacked in substance. The complaint was summarily dismissed