Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: SW v Northern Sydney Central Coast Area Health Service [2011] NSWADT 19
• Hearing dates: 3 August 2010
• Decision date: 31 January 2011
• Before: S Higgins, Deputy President

Decision

1. Pursuant to subsection 55(2) of the Privacy and Personal Information Protection Act, the Tribunal decides to take no further action in this matter.

2. Application is dismissed.

• Catchwords: PRIVACY - health privacy principle - disclosure
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Health Records and Information Privacy Act 2002; Privacy and Personal Information Protection Act 1998
• Cases Cited: GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26; ZR v Department of Education and Training (GD) [2010] NSWADT 75
• Category: Principal judgment
• Parties: SW (Applicant); Northern Sydney Central Coast Area Health Service (Respondent); NSW Privacy Commissioner (Intervenor)
• Representation: Mr Rooney (Respondent); In person (Applicant); Mr McAteer (Intervenor)
• File Number(s): 103021
• Publication restriction: ADT Practice Note 22 applies

REASONS FOR DECISION

Introduction

1 The applicant, SW, a former patient of a hospital operated by the respondent, made an application to the Tribunal seeking review of conduct of the respondent which he asserts was a breach of his privacy.

2 SW initially complained to the respondent, on 14 October 2009, about the conduct of Ms Lyn Cooke, a medico-legal clerk at hospital A operated by the respondent. The complaint was that, on 14 September 2009, Ms Cooke released, to the local police, documents he had provided to the hospital that requested an updated report from his former treating doctor, Dr Maclean. He had requested the report for the purpose of his Family Court proceedings (complaint 1). SW asserted that as a consequence of Ms Cooke's conduct he was arrested and charged for an offence of intimidation (it should be noted that SW was not convicted of this offence).

3 Subsequent to this, SW made 2 further complaints about the conduct of Ms Cooke and the hospital. One complaint concerned an allegation that the documents he had provided for the purpose of obtaining the further medical report had been lost (complaint 2). The other complaint concerned Ms Cooke's conduct in telephoning him, in the presence of police and without his knowledge, with her telephone on loud-speaker (complaint 3). In regard to the latter complaint, SW alleged that the purpose of Ms Cooke's telephone call was to provoke him so that the police would arrest him.

4 The respondent dealt with each of the complaints in its internal review and found that the conduct complained of did not breach any of the health privacy principles in Health Records and Information Privacy Act 2002 (the HRIP Act). SW being dissatisfied with the findings of the respondent has sought external review of the conduct the subject of his 3 complaints.

5 The role of the Tribunal is to review the conduct complained of by SW. It is not a review of the internal review decision of the respondent's internal reviewer: see sub-section 8(2) of the Administrative Decisions Tribunal Act 1997 and GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26.

6 SW's application was heard on 3 August 2010. Despite being directed to appear in person at the hearing, SW chose to participate by telephone. At the conclusion of the hearing I made directions for the filing and serving of further submission by SW and the respondent. These directions were complied with.

Relevant legislation

7 Health Records and Information Privacy Act - The HRIP Act makes provision for the protection of health records and information. The Act applies to every organisation (including a public sector agency) that is a health service provider or that collects, holds or uses 'health information': see subsection 11(1) of the HRIP Act. There is no dispute that the respondent is a public sector agency to which the Act applies.

8 Subsection 11(2) of the HRIP Act provides that every organisation to whom the Act applies is required to comply with the health privacy principles contained in Schedule 1 of the Act. These principles govern the collection, access and amendment, retention, use (see clause 10) and disclosure (see clause 11) of 'health information' about an individual. It is the disclosure health privacy principle that is relevant to this application. This is discussed in more detail below.

9 'Health information' is defined in section 6 of the HRIP Act. It relevantly provides as follows:

6Definition of "health information"

In this Act, health information means:

(a)personal information that is information or an opinion about:

(i)the physical or mental health or a disability (at any time) of an individual, or

(ii)an individual's express wishes about the future provision of health services to him or her, or

(iii)a health service provided, or to be provided, to an individual, or

(b)other personal information collected to provide, or in

providing, a health service, or

(c)other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or

(d)other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of any sibling, relative or descendant of the individual, or

(e)healthcare identifiers,

but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.

10 The term 'personal information' is defined in subsection 5(1) of the HRIP Act. It relevantly provides as follows:

5 Definition of "personal information"

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a)...

11 It is not disputed that SW's one page request contained information that was 'personal information' about him and that this personal information included information about a health service provided to him as well as information about his mental health.

12 Privacy and Personal Information Protection Act 1998 (the PPIP Act) - The PPIP Act provides for the protection of 'personal information', and the protection of the privacy of individuals generally. The term 'personal information' is defined in subsections 4(1) and (2) in exactly the same terms it is defined in subsection 5(1) and (2) of the HRIP Act.

13 Subsection 20(1) of the PPIP Act provides that the 'information protection principles' set out in Division 1 of Part 2 of the PPIP Act apply to public sector agencies. These information protection principles relate to the collection, retention, access, alteration, use (see section 16 and 17) and disclosure (see section 18 and 19) of personal information about an individual that is collected or held by a public sector agency. I have not considered these information protection principles any further as SW, nor the respondent have raised them as an issue in this application.

14 Complaints about the conduct of a public sector agency that allegedly contravenes an information protection principle or a health privacy principle - Part 5 of the PPIP Act (i.e. sections 52 to 56) makes provision for the review of conduct of a public sector agency. Section 52 of the PPIP Act prescribes the conduct that can be reviewed under Part 5 of the Act. This includes conduct by a public sector agency that is a contravention of an information protection principle that applies to that agency: see paragraph 52(1)(a) of the PPIP Act.

15 Section 53 of the PPIP Act gives every person who is aggrieved by conduct of a public sector agency falling within the terms of section 52 a right to make an application (i.e. a complaint) to the agency concerned and request the agency to undertake an internal review of that conduct. If dissatisfied with the findings of, or action taken by the public sector agency, the person who made an application for internal review is given a right to seek external review of that conduct by the Tribunal: see section 55 of the PPIP Act.

16 Subsection 21(1) of the HRIP Act provides that conduct by a public sector agency, which is a contravention of a health privacy principle applying to that agency is conduct to which Part 5 of the PPIP Act applies. Accordingly, complaints about a public sector agency having contravened a health privacy principle in regard to an individuals 'health information' is dealt with in the same manner as a complaint about an agency having contravened an information protection principle in regard to an individual's personal information.

17 There is no dispute that SW's application to the Tribunal is an application for review under section 21 of the HRIP Act.

NSW Health Privacy Manual

18 The NSW Department of Health has published a guide on the application of the provisions of the HRIP Act. The guide, which is publicly available on the Department's website, is entitled 'NSW Health Privacy Manual - Version 2'.

19 The Manual is intended to provide operational guidance to the legislative obligations imposed on the health system by the HRIP Act. To this extent the manual outlines procedures to support compliance with the Act in any activity that involves personal health information.

20 It is the respondent's contention that the conduct of its officers accorded with the relevant procedural guidance set out in the manual. These procedures are discussed more fully below.

The evidence

21 The respondent tendered into evidence a statement by Ms Cooke, Ms Merry Herbert and a facsimile cover sheet, dated 4 December 2009, from Detective Senior Constable Melanie Leatity to Maryanne Fernandez, the respondent's internal reviewer of SW's complaints. At the request of SW, Ms Cooke and Ms Fernandez were available for cross-examination at the hearing of SW's application for review. However, SW only sought to cross-examine Ms Cooke.

22 SW also tendered into evidence a statement and was cross-examined by the respondent's counsel. Prior to the hearing, SW had requested Ms Carolyn Yap, an employee of the respondent, be summonsed to give evidence. With the agreement of the respondent, it was not necessary to issue the summons as the respondent made her available to give oral evidence, by telephone, on behalf of SW.

23 Evidence of Ms Cooke In her statement dated 2 July 2007 (see Exhibit R1), Ms Cooke said that sometime in early September 2009, she received a written request from SW for a medical report from Dr N Maclean. She said SM's request 'comprised' a 'typed letter' requesting a report from Dr Maclean 'together with numerous other documents.' She said that, in accordance with usual practice, she retrieved SW's hospital records and clinical notes and added these the documents SW had sent in. She then forwarded SW's documents and SW's hospital records to Dr Maclean, via another hospital (hospital B) operated by the respondent.

24 Attached to Ms Cooke's statement was a copy of SW's request to Dr Maclean. That document was entitled 'Attention Dr Neil Maclean'.

25 Ms Cooke said, in accordance with usual practice, the secretary of hospital B would then forward the documents to a related clinic where Dr Maclean was working. Once Dr Maclean had finished with the documents he would return these, via hospital B, to the Medico-Legal Office of hospital A where Ms Cooke worked.

26 Ms Cooke said that shortly after she had prepared the documents for forwarding to Dr Maclean, she received a telephone call from SW. She advised him that his request had been received and forwarded for Dr Maclean's attention. She said that during the telephone call SW had indicated to her that 'he was concerned about when he would get all of his documents back.' Sometime after this, Ms Cooke received a further telephone call from SW enquiring about the progress of his request. Ms Cooke told SW that she would 'chase up' his request. She said she then telephoned Dr Maclean's secretary who said she too would follow up SW's request. Ms Cooke then telephoned SW to let him know what Dr Maclean's secretary had said.

27 Ms Cooke said that, on 14 September 2009, she received a telephone call from Dr Maclean's secretary. The secretary informed Ms Cooke that Dr Maclean would not respond to SW's request as he had not seen SW for a number of years. Ms Cooke said she immediately telephoned SW to inform him of what she had been told. Ms Cooke said SW responded by saying he was 'on the edge' and that:

'Dr Maclean will respond to this, I will have to take matters into my own hands. I will come over there and do something I will regret. You had better ring the Police.'

28 Ms Cooke said SW told her he would not accept Dr Maclean's answer and that he would 'not be accountable for' his own actions and that she had better warn him. Ms Cooke said she was very shaken up by SW's threats and mentioned her conversation with SW to her supervisor. At the suggestion of her supervisor, Ms Cooke telephoned Dr Maclean, who told her that he did not wish to see SW and asked her to telephone the police. After consulting her supervisor, Ms Cooke contacted the local police station.

29 Shortly thereafter, two detectives arrived to see Ms Cooke. She said that after she had explained to the detectives what SW had said to her, she 'indicated' that she wanted to call SW 'to make sure that he had calmed down'. She said that with the agreement of Senior Detective Constable Fuchs, she called SW. At the request of the detectives, she made the call by putting the telephone on speaker and that when SW answered she explained to him that her work colleague, Merry, could hear what was being said. Ms Cooke said that SW had not calmed down and continued to make threats by saying that 'he wasn't going to be accountable for his actions.'

30 Ms Cooke said that, at the request of the detectives and in consultation with her colleague Merry, she had provided them with a copy of SW's written request for a report from Dr Maclean. A copy of that request was attached to her statement. She said that she did not recollect how this document had come into her possession that day. She could only assume Dr Maclean had returned the documents, via hospital B, to hospital A. Ms Cooke said that she did not provide any other document to the detectives.

31 Ms Cooke said that she subsequently returned the written request and the attached bundle of documents to SW. She said that a no time had she told SW that his documents were lost. She said she may have said they were 'in transit'.

32 Evidence of Ms Herbert The statement dated 17 July 2010, of Merry Herbert, full-time medico-legal clerk at hospital, supports the evidence given by Ms Cooke in her statement (see Exhibit R2).

33 Evidence of SW In his statement, dated 20 July 2010, SW explained that he had made the request for Dr Mclean to prepare a report as he needed it for his Family Court proceedings concerning the shared custody of his child (see Exhibit A1). SW explained that he had provided to the Family Court a copy of an earlier report Dr Maclean had made about him. He said that the Family Court Judge hearing the proceedings had requested a further report. SW explained that in support of his request for a further report he had enclosed a bundle of documents relating to an incident that occurred when he was 14 years of age and that he only wanted Dr Maclean to see.

34 SW's account of events, differ in some respects to that of Ms Cooke. These differences are as follows:

(a) on 14 September 2010 he received a reply from Dr Maclean saying that he was unable to prepare the requested report and that he should go elsewhere. He said he asked for his documents to be returned to him as soon as possible;

(b) he said that about an hour after this, Ms Cooke telephoned him and informed him that his documents had been lost and that they did not know where they were. He said that he 'panicked' and became 'extremely worried' about his documents getting in the wrong hands and told Ms Cooke to contact hospital B and request that they find them immediately as they contained details he did not want anyone to know about. He said Ms Cooke telephoned him again to say that hospital B staff had said they would look for them when they were ready. He said that this really caused him to become very frustrated;

(c) he said that during her subsequent telephone call that day, Ms Cooke provoked him in reacting the way he did because he was extremely worried about where his documents were; and

(d) the day after the police had arrested and charged him, he telephoned Carolyn Yap, the then manager of the Medico-Legal Department of hospital A and asked her if she could go and find his documents as he did not want anyone reading them. He said that 2 days later, Ms Yap called him to say that she had found his documents and that she would return them to him.

35 Evidence of Ms Yap In her oral evidence Ms Yap said she recollected receiving a telephone call from SW on or about 15 September 2009. She said her recollection was that SW wanted to make a complaint about one of the staff members having disclosed a document he had provided to the hospital and that he wanted to have the documents he had provided to the hospital to be returned to him.

36 Ms Yap said that she recollected having telephoned SW about 3 days later to say that she had found his documents and that she had mailed them to him. Ms Yap said that at no time were SW's documents missing. She said she did not drive to hospital B to look for the documents. She agreed she may have contacted Dr Maclean's office and the documents were then sent via the internal courier system to hospital A, but she did not believe that the documents were at any stage lost.

37 Facsimile of Detective Senior Constable Leaity In the facsimile from Detective Senior Constable Leaity (Exhibit R4), it was stated that Ms Cooke provided one document to the police and that the document was entitled 'Attention Dr Neil Maclean'. The facsimile went on to say 'this document is evidence in a criminal investigation.'

38 Attached to the facsimile of Detective Senior Constable Leaity was a copy of the transcript of a record of interview she and Detective Senior Constable Fuchs had with SW on the day he was arrested and charged following his conversation with Ms Cooke. The date of the interview is recorded as 4 September 2009 and the time of the interview is 4.09 pm. In that record of interview SW is recorded as having said, in response to a question about his dealings with the hospital that day (see Q49), the following:

'I've received um, ah, some documents from the female, we filed an application a couple of weeks ago, both me and my solicitor, and we've received a reply on the Judge's um, decisions on that application and she refused the application saying that there was one thing that had to be rectified and fixed up before she would accept my application and this being um, some um, paperwork had to be filled out by um, a, a doctor who did a previous report for me and in order to get those reports to him it has to go through [hospital A] Medico Legal. Um, I received a phone call this morning from [hospital A] Medico Legal stating that the ah, doctor was not inclined to um, do the extra bit of paperwork that was required by Newcastle Family Law Court and um, I said, "Well, I need something in writing back stating that's the reason why." And I said, "Look, if he doesn't do it, then I'll just go over there and I'll speak to him and if, you know, if he doesn't like it, then I'm just going to lose it on him." This meaning, I was just going to yell at him and snap. But I was, in no way just telling him that I was going to go over to [hospital B] and see the doctor and the secretary and get them to put something in writing themselves and that's it. I was not intimidating anyone ...'

39 In responses to subsequent questions asked of him, SW continued to assert that he was only seeking something in writing from Dr Maclean to say that he would not make a further report so that he could give it to the Family Court.

40 At question 99 and 107 of the transcript is recorded what the police officers say they heard SW say to Ms Cooke during the subsequent telephone call that day. In his response, SW did not deny he had said something about going to see Dr Maclean and he would 'yell', 'snap', 'argue', 'whatever it takes' 'if they want to call police, fine' but he was not going back to the Family Court with nothing.

Findings of fact

41 In my view, Ms Cooke, Ms Yap and SW each gave truthful evidence to the best of their respective recollections at the time they made their statements or gave their oral evidence. This evidence was not contemporaneous to the events that occurred on the day in question. For example, Ms Cooke's statement was prepared some 10 months after the events in September 2009 and Ms Yap's oral was given some 12 months after the event. Neither witness produced any contemporaneous file note they or another officer of the respondent had made on or shortly after the events had occurred.

42 The most contemporaneous record of what had occurred on the day in question was the transcript of the police record of interview with SW on that day. SW did not dispute the correctness of the transcript. Accordingly, to the extent there is a dispute about what had occurred on the day in question, I have given preference to that recorded in the transcript of interview.

43 While it is not essential to the determination of SW's complaints, I note that the transcript of SW's record of interview states that the events giving rise to SW's complaints occurred on 4 and not 14 September 2009.

44 Complaint 1 I accept SW's evidence that he became very anxious, annoyed and frustrated when told by Ms Cooke that Dr Maclean would not provide a report as he had requested. I also find that due to his anxiety SW responded to Ms Cooke in an angry, agitated and intimidating tone and said words to the effect that he would not accept Dr Maclean's response and that he would make him respond.

45 I accept Ms Cooke's evidence that she was very shaken up and felt threatened by what SW had said to her. However, on the basis of her evidence this was not the reason she called the police. Her evidence was that she had called police primarily because Dr Maclean had asked her to do so.

46 I find that during the subsequent telephone call Ms Cooke made to SW, he said words to the effect 'tell Dr Maclean I'm coming up there and its going to be on. Call the police 'cause it's going to be on and I'll use this as my defence.'

47 I find that Ms Cooke only provided the police with a copy of SW's one page request, addressed to Dr Maclean, for a further report. I also accept Ms Cooke's evidence that she provided this document because the police had asked for it.

48 Complaint 2 I accept SW's evidence that he was concerned that no one, other than Dr Maclean, should have access to the documents he had provided to the respondent. Yet, on the material before the Tribunal, I find that at no time did the respondent lose the documents. I also find that at no time, on the day in question, did Ms Cooke say to SW that his documents had been lost. Had she said this, SW would undoubtedly have raised it during his interview with the police. This he did not do. In my view, the most probable explanation for SW's concern about the whereabouts of his documents arose as a result of having been arrested and detained that day and the delay, while short, in Ms Yap informing him that the documents had been posted back to him.

49 Complaint 3 It is not disputed that when Ms Cooke telephoned SW in the presence of the police that she did not tell him that they were listening in on the conversation. I accept Ms Cooke's evidence that during this telephone call she informed SW that Ms Herbert was in the room and she could hear everything that was being said. I also accept SW's evidence that he did not at any time hear Ms Cooke say that she had her telephone on loud-speaker. This is not inconsistent with the evidence of Ms Cooke as she did not at any time say words to this effect.

50 In my opinion, there is no evidence to support SW's assertion that Ms Cooke telephoned him on this occasion with the intention of provoking him to make further threats so that the police would come and arrest him. However, she was clearly aware from her first telephone call that SW was annoyed and distressed that Dr Maclean would not provide a report as he had requested.

Alleged breaches of health privacy principles

51 It is not the role of the Tribunal to make disciplinary findings against the police or Ms Cooke in regard to the events that occurred on the day in question in September 2009. The role of the Tribunal is to review the conduct of Ms Cooke as complained about by SW in his internal review request. That conduct SW identified as being conduct that breached the disclosure and retention and security health information principles under the HRIP Act.

52 Complaint 1 On the basis of my findings, the issue for determination is whether Ms Cooke's disclosure of the one page written request of SW to Dr Maclean was a breach of clause 11 of Schedule 1 of the HRIP Act (the disclosure health privacy principle). That clause relevantly provides as follows:

'11 Limits on disclosure of health information

(1) An organisation that holds health information must not disclose the information for a purpose (a " secondary purpose ") other than the purpose (the " primary purpose ") for which it was collected unless:

(a) ..., or

(b) ..., or

(c) the disclosure of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent:

(i) a serious and imminent threat to the life, health or safety of the individual or another person, or

(ii) a serious threat to public health or public safety, or

(d) the disclosure of the information ...

...

(j) the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or

(k) ...'

53 The respondent did not contend that the personal and health information about SW in his request for a further report was 'unsolicited' information and not 'colleted' information (see section 10 of the HRIP Act and subsection 4(5) of the PPIP Act). In this regard I note the recent decision of the Appeal Panel in ZR v Department of Education and Training (GD) [2010] NSWADTAP 75, where at [70] to [71] the Appeal Panel agreed with the purposive approach, adopted in other decisions of the Tribunal, in regard to information that was at origin unsolicited. Such information, the Appeal Panel agreed should be treated as 'collected' once the agency takes the information under its control for one of its administrative purposes. In this case, while the information in SW's request was unsolicited, the respondent did take the information under its control for one of its administrative purposes, namely for the preparation of a further report by Dr Maclean. The fact that he did not prepare a report, in my view is immaterial.

54 It is the respondent's contention that Ms Cooke's conduct fell within the terms of paragraphs 11(1)(c)(ii) and 11(1)(j) of Schedule 1 of the HRIP Act.

55 In regard to the exemption in paragraph 11(1)(c)(ii) it must be shown that at the time Ms Cooke gave SW's request to the police that she reasonably believed it was necessary to do so to lessen or prevent a serious and imminent threat to life, health or safety of herself or another person. Accordingly, it must be shown that Ms Cooke had the requisite belief and that it was reasonably held.

56 In my view while I have found that Ms Cooke was shaken and felt threatened by what SW had said, her evidence did not go so far to say that SW's comments made her believe that there was a serious or imminent threat to the life or safety of herself or Dr Maclean. In the event I am wrong and she did have that belief, in my view, on the basis of my findings as to what SW said and the circumstances in which they were said, that belief was not reasonably held.

57 Paragraph 11.2.3 of the NSW Health Privacy Manual sets out a guide as to when this exemption may apply. It sates that the situation where this will apply will be 'relatively uncommon'. An example of where it may apply is said to be where 'a client of a community health service arrives in agitated state, making threats against a close family member over a custody dispute, and leaves. The client has a history of violence and faced previous assault charges over the same matter ...' In my view, while I have found that SW was anxious, annoyed and agitated, his behaviour in the circumstances was not of such a degree that he had made a serious and imminent threat to the life of Ms Cooke or Dr Maclean. SW's behaviour was nevertheless far from being acceptable in the circumstances. However, as I have said it was not sufficient to give rise to a reasonable belief of serious and imminent threat to the life or safety of another person.

58 In regard to the exemption in paragraph 11(1)(j) it is not disputed that the police officers to whom Ms Cooke gave SW's request to Dr Maclean were officers of a law enforcement agency falling within the terms of the definition of a 'law enforcement agency' in section 4 of the HRIP Act.

59 Paragraph 11.2.7 of the NSW Health Privacy Manual sets out a guide as to when this exemption may apply and the nature of the material that should be provided if the exemption does apply. As explained in the manual, this exemption is very broad in that it covers 'any information relating to an offence which has or may be committed, provided that the information is "reasonably necessary" to assist the law enforcement agency to perform its functions.' The guideline goes on to say that the exemption does not 'oblige' health services to provide the information. What is required is of the Health service is a balancing of the public interest in assisting law enforcement agencies to pursue their functions with their own obligations of confidentiality to their patients and the sensitive nature of health information.

60 On the basis of my findings, I am satisfied that Ms Cooke's conduct in providing the police with SW's request to Dr Maclean fell within this exemption. Having heard what SW had said to Ms Cooke during her subsequent telephone call, the police had clearly formed the view that SW had possibly committed an offence, or was possibly about to commit an offence. It is not for the Tribunal to question this belief of the police officers. SW's request to Dr Maclean was a document relevant to the circumstances in which SW had said what he had said and it was a document the police had requested for the purpose of their functions in prosecuting or preventing the commission of an offence. In such circumstances Ms Cooke had a reasonable ground to believe that an offence may have been committed, or may be committed and it was reasonably necessary to provide the police with SW's request to Dr Maclean.

61 Complaint 2 On the basis of my findings that at no time did Ms Cooke say to SW that his documents were lost, or that they had in fact been lost, there is no need for me to deal with this complaint any further.

62 Complaint 3 In my view Ms Cooke's motivation in telephoning SW after the police had arrived is not conduct concerning a health information principle under the HRIP Act. However, her use, if any of SW's health information or personal information for a purpose other than the purpose for which that information was collected would involve consideration of the 'use' health information principle in clause 10 of Schedule 1 and the 'use' information protection principle in section 17 of the PPIP Act.

63 As SW's complaint did not involve an allegation that Ms Cooke inappropriately 'used' his health information or personal information held or collected by the respondent, I have not considered these principles any further.

Conclusion

64 On the basis of my finding that Ms Cooke's conduct (i.e. the respondent's conduct) did not breach a health information principle as alleged by SW, the appropriate decision is a decision, pursuant to subsection 55(2) of the PPIP Act, to take no further action on this application and an order that the application be dismissed.

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Decision last updated: 18 February 2011