AIN v Medical Council of New South Wales [2017] NSWCATAP 22

Catchwords: ADMINISTRATIVE REVIEW – application under Privacy and Personal Information Protection Act 1998 – collection of personal information – meaning of lawful purpose – failure to exercise jurisdiction by not addressing Appellant’s case on unlawfulness - disclosure of information – effect of non-publication order - Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AIN v Medical Council of New South Wales [2017] NSWCATAP 22 Hearing dates: 15 & 18 July 2016 and 10 August 2016 Date of orders: 31 January 2017 Decision date: 31 January 2017 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President Durack SC, Senior Member Decision: 1. The appeal is allowed. 2. The decision of the Tribunal to dismiss the application in relation to the alleged breaches of s 8 of the Privacy and Personal Information Protection Act 1998 is set aside. 3. That part of the case that relates to alleged breaches of s 8 of the Privacy and Personal Information Protection Act 1998 is to be reconsidered by a differently constituted Tribunal with further evidence if allowed, in accordance with these reasons. 4. The decision of the Tribunal to dismiss the application in relation to the alleged breach of s 18 of the Privacy and Personal Information Protection Act 1998 is set aside. 5. That part of the case that relates to an alleged breach of s 18 of the Privacy and Personal Information Protection Act 1998 is dealt with by way of a new hearing. 6. The application in relation to alleged breaches of s 18 of the Privacy and Personal Information Protection Act 1998 is dismissed. 7. Any application in respect of the costs of the proceedings 1230226 below are to be determined by a differently constituted Tribunal at first instance. Catchwords: ADMINISTRATIVE REVIEW – application under Privacy and Personal Information Protection Act 1998 – collection of personal information – meaning of lawful purpose – failure to exercise jurisdiction by not addressing Appellant’s case on unlawfulness - disclosure of information – effect of non-publication order - Legislation Cited: Administrative Decision Review Act 1997 (NSW), ss 7, 9 and 63 Civil and Administrative Tribunal Act 2013 (NSW) ss 36, 52, 60, 80 and 81 Health Practitioner Regulation National Law, ss 25(f), 221, 225(k) and 41l Medical Practice Act 1992 (NSW) (repealed), Sch 1, Sch 2 cl 6 Privacy and Personal Information Protection Act 1998 (NSW), ss 8, 18, 21, 25 and 55, Part 2 Div 1 Cases Cited: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Collins v Urban [2014] NSWCATAP 17 Dranichnikov v Minister for Immigration and Multi-Cultural Affairs [2003] HCA 26 PN v Department of Education and Training [2009] NSWADT 287 PN v Department of Education and Training [2010] NSWADTAP 59 Rodger v De Gelder [2015] NSWCA 211 Category: Principal judgment Parties: AIN (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: Z Heger (Respondent) Solicitors: AIN (Appellant in person) Crown Solicitor’s Office (Respondent) File Number(s): AP16/05060 Publication restriction: Disclosure of the name of the appellant is prohibited.Note: the name of the Appellant includes a reference to any information, picture or other material that identifies the appellant or is likely to lead to the identification of the Appellant. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: AIN v Medical Council of New South Wales [2016] NSWCATAD 6 Date of Decision: 5 January 2016 Before: N Isenberg, Senior Member File Number(s): 1230226 REASON FOR DECISION Overview AIN, who was first registered as a medical practitioner in 1980, alleged that the Medical Board (the predecessor to the Medical Council) breached Information Protection Principles in the Privacy and Personal Information Act 1998 (NSW). This appeal relates to alleged breaches in collecting personal information and in disclosing personal information. The Medical Council says the information was collected for the purpose of determining whether AIN was suitable for general registration as a medical practitioner after a period when she had had no direct patient contact. There has never been a complaint about AIN’s conduct to any medical authority. In December 2011, the Medical Council acknowledged that AIN had always had the status of general registration. AIN submitted that the Medical Board never believed that she needed to re-apply for general registration and that, in those circumstances, the collection of her personal information was for an unlawful purpose: PPIP Act, s 8. The Tribunal below failed to exercise its jurisdiction and denied AIN procedural fairness because it did not address her evidence and submissions about the Medical Board’s belief. Nor did the Tribunal apply the second part of the test in s 8(1)(b) of the PPIP Act. We have directed that this part of the case be reconsidered by a differently constituted Tribunal. The second part of AIN’s appeal relates to the disclosure by the Medical Council to the Australian Health Practitioner Regulation Agency (AHPRA) of her name and the revised conditions imposed on her general registration. The Medical Tribunal made consent orders imposing certain conditions following an application by AIN. AIN submitted that the disclosure to AHPRA was a breach of a non-publication order made by the Medical Tribunal and a breach of the Information Protection Principle which prohibits disclosure of a person’s personal information: PPIP Act, s 18. The Tribunal decided that one of the exceptions in the IPP against disclosure applied, but, in our opinion, that decision was based on an incorrect understanding of the terms of the non-publication order and did not explain why the exemption could apply in light of the non-publication order. We have decided to re-hear this part of AIN’s application on the merits. Our decision is that the disclosure is not in breach of s 18 of the PPIP Act. Parties to this appeal On 1 July 2010, responsibility for the registration of medical practitioners passed from the Medical Board to the Australian Health Practitioner Regulation Agency (AHPRA) under the Health Practitioner Regulation National Law (National Law). At the same time the Medical Council was established and the Medical Board was abolished. We have referred to the respondent as the Medical Board where the conduct took place before 1 July 2010 and to the Medical Council where the conduct took place after that date. The PPIP Act and the Tribunal’s role The PPIP Act obliges public sector agencies to collect, store, use and disclose personal information in accordance with certain principles called information protection principles (IPPs): PPIP Act, Part 2, Div 1. A person may apply to a public sector agency for the review of any conduct said to be in breach an IPP: PPIP Act, s 21(2). If the person is not satisfied with the internal review decision, he or she may apply to the Tribunal for an external review of the conduct: PPIP Act, s 55 and Administrative Decision Review Act 1997 (NSW) (ADR Act), s 7 and s 9. The Tribunal’s role when conducting an administrative review “is to decide what the correct and preferable decision is having regard to the material then before it”: ADR Act, s 63(1). That material includes “any relevant factual material” and “any applicable written or unwritten law”: ADR Act, s 63(1). In the context of the PPIP Act, “decision” refers to the conduct in which the administrator is alleged to have engaged and which is the subject of a request for internal review: ADR Act, s 7. After the Tribunal has reviewed the conduct of the agency, it may decide not to take any action on the matter, or it may make certain orders including damages and injunctive style relief: PPIP Act, s 55(2). We refer to the issue of whether the conduct is in breach of an Information Protection Principle as the liability issue. We refer to the issue as to whether the Tribunal should take any action and, if so, what that action should be, as the remedy issue. Appeal addressed in two parts We have addressed this appeal in two parts – the collection of personal information and the disclosure of personal information issue. We describe the circumstances in which the Medical Council collected information from AIN below. The conduct relating to collection of personal information From May 2009 to April 2010, the Medical Board, as it then was, collected personal information from AIN. Section 8 provides that: 8 Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means. The Medical Council submitted that the information was collected for the purpose of determining whether AIN was suitable for general registration as a medical practitioner. In December 2011, the Medical Council conceded that her registration did not require amendment and that she had retained general registration at all times. According to the Medical Council the collection of the information was nevertheless for a lawful purpose that was directly related to a function or activity of the agency and the collection of the information was reasonably necessary for that purpose: PPIP Act, s 8. The Medical Council said that that was the case because it believed at the time that re-registration was required. AIN disputed that belief and submitted that the Medical Council knew that it was prohibited by s 8 of the PPIP Act from collecting the information. The conduct that remains in issue in this appeal is what we have called the collection of “re-registration information”, “further re-registration information”, “supplementary re-registration information” and “current employment information”. We will refer to the collection of this information as “pre-Inquiry collection”. AIN also challenges the conduct of the Medical Board in collecting written submissions in relation to a Schedule 1 inquiry. Re-registration information It was not in dispute that in May 2009, the Medical Board required AIN to complete a re-registration application form which asked her to make declarations in relation to her “fitness to practise”. At that time AIN was registered in a “Limited Prescribing and Referral” category of registration, which was not provided for in the relevant legislation. AIN wanted to return to practice after an extended absence. The matters the subject of the declarations she was asked to make included declarations about any criminal record, physical or mental health issues and the extent of her participation in continuing professional education. The form also contained a re-registration questionnaire. The questionnaire asked why AIN had left medical practice, what she had been doing since that time, the extent of her experience prior to leaving medical practice, whether she had maintained her professional knowledge, what her practice plans were if she was re-registered and whether she had a written job offer. We will refer to the material AIN provided in the re-registration application and her response to the questionnaire as the “re-registration information”. Further re-registration information On 29 May 2009 the Medical Board emailed AIN referring to her re-registration application and asking her when she had retired from clinical practice and details of her proposed practice plans. The Medical Board also requested evidence that she had completed the GP Re-Entry Program. AIN provided information in relation to those requests in an email dated 3 June 2009. On 10 June 2009 the Medical Board emailed AIN again asking her to clarify whether there was any clinical aspect to positions she held from 1996 to 2000. AIN provided further information in response to that email on the same day. We will refer to this information as the “further re-registration information”. On 21 July 2009 the Registration Committee refused AIN’s application. Supplementary re-registration information In September 2009 the Medical Board invited AIN to provide further information for the Registration Committee’s consideration, including as to clinical practice and any supervision arrangements. AIN provided further information. We will refer to this information as “supplementary re-registration information”. Schedule 1 Inquiry In October 2009, the Medical Board referred AIN’s application for unconditional general registration to a formal inquiry under Schedule 1 to the (now repealed) Medical Practice Act 1992 (NSW). The Medical Board requested that AIN provide submissions as to the grounds on which her application was made, details of any prospective employment and details of medical or other activities that she believed to be relevant to her application. We will refer to this information as the “Inquiry information”. In December 2009 the Medical Board imposed conditions on AIN’s registration. Current employment information On 27 April 2010 the Medical Board wrote to AIN acknowledging receipt of information about compliance with Practice Condition 2. That condition was that prior to commencing practice, AIN spend a minimum of four sessions of four hours as an observer with a general practitioner. The condition also set out reporting requirements in relation to these periods of observation. In the same letter, the Medical Board asked AIN to “confirm the details of your current employment by 4 May 2010 in order that I may brief the committee appropriately prior to its meeting”. These details were supplied. We will refer to this information as the “current employment information”. Tribunal’s decision as to collection of personal information The Tribunal found in relation to each incident of collection that the information was personal information and that the Medical Board collected that information. No ground of appeal relates to these findings. The remaining issues before the Tribunal when applying s 8(1)(a) and (b) of the PPIP Act were: whether the information was collected for a lawful purpose directly related to a function or activity of the agency; and whether the collection of the information is reasonably necessary for that purpose. The Tribunal adopted the description of “lawful purpose” set out by the Administrative Decisions Tribunal in PN v Department of Education and Training [2009] NSWADT 287 at [153] and endorsed on appeal in PN v Department of Education and Training [2010] NSWADTAP 59 at [23]: "Lawful purpose" has been stated to generally mean, a purpose that is not forbidden, rather than positively authorised, by law: NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 at paragraph [22]. AIN did not challenge this statement of the law. The Tribunal’s reasoning and decision on the collection of the re-registration information is at [30] to [34]: 30.The alleged unlawfulness was said to arise because the Applicant had, in effect, held general registration since November 2008 as her purported LPR registration was, as was later held, ultra vires and, accordingly, it was not necessary for her to reapply for general registration. 31.The Respondent submitted that that collection was lawful because it believed at the time that it was necessary for the Applicant to reapply for general registration. At the time that the Applicant submitted the re-registration form, the Board, and probably the Applicant, understood that it was necessary for her to re-apply for general registration. 32.As far as I could ascertain no decisions have considered whether collection of information in connection with administrative actions that were later found (or conceded) to be ultra vires would be otherwise than for a "lawful purpose" as that term is used in s.8 PPIP Act. 33.The Respondent submitted that to apply this view of “unlawful purpose” in s.8 PPIP Act would paralyse agencies from ever acting in accordance with a policy or delegated legislation, in the event that such policy or delegated legislation were later held to be ultra vires. I agree that “unlawfulness” due to what is subsequently identified as administrative error cannot, of itself, found an action for a breach of s.8 PPIP Act. 34.I therefore find that at the time of the Council's collection of the Applicant's personal information it was for a "lawful" purpose in accordance with s.8 PPIP Act. I find that the collection of the applicant's information by the Board was in connection with its functions under the MP Act of registering medical practitioners. It was, therefore, collection for a "lawful purpose" and thus did not contravene s.8 PPIP Act. The reference to the MP Act in [34] of the Tribunal’s decision is a reference to the (now repealed) Medical Practice Act 1992 (NSW). The supplementary re-registration information was considered by the Registration Committee at its meeting on 21 July 2009. The Tribunal found at [38] that: 38.There was no dispute that the collections in May/June 2009 were for the purposes of the decision ultimately taken by the Registration Committee at its meeting on 21 July 2009 in relation to the Applicant’s registration. The Minutes of that meeting make clear that the decision-maker and the "delegate" were centrally concerned with the length of absence from general clinical practice and the structured plans for return to work. The Tribunal concluded, for the reasons it had already given, that the collection of the further information was for a lawful purpose in accordance with s 8 of the PPIP Act. According to the Tribunal, the fact that the Medical Council’s conduct was subsequently found to be ultra vires did not mean that the collection of the information was done otherwise than “for a lawful purpose”. In relation to the current employment information, the Tribunal accepted the evidence of Ms St Hill, the Medical Council’s then Acting Director Legal, that the Medical Council was in the practice of soliciting relevant information from registrants with conditions on their registration to determine whether those conditions have been complied with. For the reasons it had already given, the Tribunal held at [45] that the collection of the current employment information was for a lawful purpose in accordance with s 8 of the PPIP Act. In relation to the Inquiry information, the Tribunal referred to AIN’s submission that the information was not collected for the purpose of affording her procedural fairness because the outcome of the Inquiry had been determined before it was held. At [49] the Tribunal found that it was not satisfied that the Inquiry had already made its decision. At [51] the Tribunal found that the collection was for the lawful purpose of the Medical Board conducting an inquiry into AIN’s eligibility for general registration. The Tribunal repeated its conclusion that: The fact there was, at that time, a mistaken understanding as to the Applicant’s registration status does not detract from its lawfulness. Our understanding is that the Tribunal found that the Medical Board’s purpose in collecting the information was to assist it to determine whether AIN’s status should change from a limited practice registration to a general, unconditional, registration. That is implicit in the finding as to purpose at [38]. Integral to that conclusion was a finding that the Medical Board understood or believed that AIN had a limited practice registration and therefore needed to re-apply for general registration (at [31]). We also understand the Tribunal to have concluded, either directly or inferentially, that: the Medical Council had a function of re-registering medical practitioners; collection of information for that purpose was lawful; there was no legal requirement, or any written policy, that a person such as AIN, who had held general registration since November 2008, had to apply to be re-registered or that the Registration Committee could conduct an Inquiry and impose conditions. The Tribunal did not go on to address the requirement in s 8(1)(b) of the PPIP Act that “the collection of the information is reasonably necessary for that purpose”. Grounds of appeal on collection issues Summary AIN has appealed on many grounds which she characterises as questions of law and also seeks leave to appeal on questions which are not questions of law: NCAT, s 80(2)(b). The grounds include that the Tribunal made findings without evidence, gave no, or inadequate, reasons for some findings, made the finding as to lawful purpose without considering her evidence as to the Medical Board’s belief and was biased or denied her procedural fairness in other ways. It is not necessary to address all these grounds of appeal because we have concluded that the Tribunal made two legal errors which justify the decision on the collection of personal information being set aside. The first error is that the Tribunal failed to respond to substantial evidence and submissions by AIN that the Medical Board knew that she did not need to re-apply for general registration. In those circumstances it was AIN’s case that the Medical Board was not collecting the information for a lawful purpose. The error is a breach of procedural fairness or a failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multi-Cultural Affairs [2003] HCA 26 at [24] and [94]; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [48] to [51]. The second error is that, having found that the information was collected for a lawful purpose, the Tribunal did not go on to address the requirement in s 8(1)(b) of the PPIP Act that “the collection of the information is reasonably necessary for that purpose”. The Tribunal’s failure to address that part of the test was also a failure to exercise jurisdiction. Despite being urged to do so, we have decided not to determine the merits of this part of the application. The factual findings to be made depend in part, on the view the Tribunal takes of Ms St Hill’s evidence and the evidence of any other witnesses on the state of mind of the Medical Council. We did not hear that evidence. We understand from correspondence on the Tribunal file that the President has replaced the member who heard this matter at first instance because she has become unavailable: NCAT Act, s 52. In those circumstances at least some of the evidence will have to be re-heard by a differently constituted Tribunal. Evidence additional to that already filed can be provided but it will be a matter for the new Tribunal as to whether to accept that evidence: NCAT Act, s 81(1)(c) and (e). It follows that we refuse AIN leave to adduce new evidence of the Medical Council’s Fitness to Practice Policy and a letter of Dr Tim Furlong dated 26 April 2016. AIN may seek to rely on that evidence in the remitted hearing. First error - failure to respond to evidence and submissions about Medical Board’s belief Evidence and submissions to Tribunal below as to belief At the hearing below (and on appeal) AIN strongly disputed that the Medical Board believed that she needed to re-apply for general registration. In her submissions to the Tribunal below dated 2 May 2014, at [4], AIN “disputes that the Council had any such belief, that any such policy was lawful, and that any such policy required any of the steps taken in order to be given effect to”. AIN goes on to provide evidence to support what she refers to as the “shifting positions” of the Medical Council in relation to her registration. She says the “shifting positions” evidence supports her contention that the Medical Council could not have consistently held that belief at any relevant time. AIN adduced evidence, questioned witnesses and made submissions on the Medical Council’s belief and the reasonableness of any such belief. AIN contended that in collecting the information the Medical Board knew that they were acting without lawful authority. It was, at least implicit in AIN’s submissions to the Tribunal below that the Medical Board acted for an improper purpose. We understand part of AIN’s case to be that if the Medical Board knew that she did not need to re-apply for general registration, it was not collecting the information for a lawful purpose. On the other hand, if the Medical Board genuinely believed on reasonable grounds that AIN did need to re-apply for general registration, we understand that AIN accepts that the Board had a lawful purpose in collecting the information. AIN did not expressly identify the Medical Board’s purpose in collecting the information to the Tribunal below. We understand from her submissions to the Appeal Panel that she believes that one purpose was to damage her reputation. Because of our conclusion that the Tribunal erred in failing to address AIN’s evidence and submissions as to the Medical Board’s belief, we need not say anything further about this aspect of her argument. On the appeal the Medical Council submitted that the purpose of collecting the information was to assess AIN’s suitability to return to practice. Relevant to that suitability were her fitness to practice, recency of practice and the nature of the work she proposed to undertake. We make three comments about this submission. First, there was no express finding by the Tribunal that this was the Medical Board’s purpose. Secondly, to the extent it might be said that such a finding is implied in the Tribunal’s reasons, the basis for it must include, in part, the ‘flawed’ finding as to the Medical Board’s understanding of AIN’s status and need to re-apply for general registration. Thirdly, it may not be a matter of controversy between the parties that if the Tribunal below were to find that the Medical Board did not genuinely believe that AIN needed to apply for re-registration, its purpose in collecting that information was not a lawful purpose. It was also part of AIN’s case, at least to the Appeal Panel, that even if the Medical Council did honestly believe that she needed to re-apply for general registration, there was no reasonable basis for that belief or the Medical Council was reckless in holding that belief. The Medical Council’s position in relation to that submission is not clear. We make no finding as to the effect that such a state of affairs, if proved, would have on the issue of lawful purpose. If AIN presses that submission, the Tribunal below will have to address it. Consideration There was a dispute as to whether the Medical Board had, at any stage, a mistaken understanding as to AIN’s status. The Tribunal made a finding of fact based on Ms St Hill’s evidence, that the Medical Council held that belief at all times. The Tribunal did not consider any of AIN’s evidence or submissions on that point. That was an error of law. The Court of Appeal recently summarised the applicable principles where a decision maker does not squarely address the case put forward by one of the parties: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [46] – [51]. Our understanding of these principles is that: failing to consider the substance of an applicant’s application may constitute a constructive failure to exercise jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81]; failing to respond to a substantial, clearly articulated argument relying upon established facts is a breach of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24]; there is no obligation on the decision maker to consider every piece of evidence presented: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22]; and the concern of the law in this area is to avoid practical injustice: Rodger v De Gelder [2015] NSWCA 211 at [93]. The Tribunal’s decision does not refer to AIN’s evidence or submissions of the so-called “shifting positions” of the Medical Council. Failing to respond to that evidence and those submissions, which were critical to the proper determination of the issue of the state of mind of the Medical Board, is a breach of procedural fairness and a failure to exercise jurisdiction. Second error – failure to apply s 8(1)(b) The second error is that, having found that the information was collected for a lawful purpose, the Tribunal did not go on to address the requirement in s 8(1)(b) of the PPIP Act that “the collection of the information is reasonably necessary for that purpose”. As we have said, the Tribunal’s failure to address that part of the test was also a failure to exercise jurisdiction. On the basis of these two errors, the decision of the Tribunal to dismiss the application in relation to the alleged breaches of s 8 of the PPIP Act should be set aside. That part of the case should be reconsidered by a differently constituted Tribunal with further evidence, if allowed, in accordance with these reasons. The conduct relating to disclosure of personal information On 19 October 2010, following a hearing in the Medical Tribunal, the Medical Council notified AHPRA of certain conditions imposed on AIN’s general registration. AIN submitted that that disclosure breached s 18 of the PPIP Act because there was a non-publication order in place and for other reasons. Section 18 of the PPIP Act prohibits the disclosure of personal information except in certain circumstances listed in s 18(1)(a) – (c): 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. … Various exemptions on the s 18 obligation not to disclose personal information are set out in s 25: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle 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 ). Tribunal’s decision on disclosure of personal information The Tribunal found, in accordance with s 18(1)(b) of the PPIP Act, that the Medical Council had not breached s 18 because AIN was aware that the information was of a kind which is usually disclosed to AHPRA by the Medical Council. At [76] and [77], the Tribunal referred to Ms St Hill’s evidence about the correspondence it sent to medical practitioners about the transition to the national registration scheme: 76.Ms St Hill’s evidence was that all medical practitioners, including the Applicant, were sent a letter in April 2010 advising of the transition to the national registration scheme on 1 July 2010, and that AHPRA would be managing the "National Register of Practitioners". Further, in the Medical Tribunal proceedings, AHPRA’s historical information about the Applicant’s registration status was brought to the Applicant’s attention. The Tribunal then set out s 25(a) of the PPIP Act and the parties’ submissions about the applicability of that provision at [78]: 78.The disclosure of information to AHPRA was, therefore, the Respondent contended, permitted under the terms of s.25 of the PPIP Act, as it was a disclosure lawfully authorised under transitional provisions associated with the introduction of the National Law. The outcome of the proceedings needed to be notified to AHPRA to allow it to fulfil its statutory function of maintaining its register (in accordance s.225 of the National Law). The Applicant contended that, s.25 had no work to do in circumstances where the information in question was the Order of a Tribunal and background information derived from the Tribunal hearing and where the disclosure of that information was in breach of a non-disclosure order of that Tribunal and where the Respondent, and the individual officer of the Respondent responsible for the disclosure, was aware of the non-disclosure order of the Tribunal. She contended that no reasonable person knowing of the non-disclosure order could have believed the disclosure was not in breach of the non-disclosure order. At the end of that paragraph the Tribunal rejected AIN’s submission that disclosure was clearly in breach of the non-publication order and that no reasonable person knowing of the order could have believed disclosure would not be in breach of the order, but did not explain why this was so. The Tribunal ultimately concluded at [79] that the exception in s 18(1)(b) applied. The Tribunal made no finding as to the applicability of any of the exemptions in s 25: 79.The Applicant was therefore aware that the information (conditions of registration) was of a kind which is usually disclosed to AHPRA by the Council in accordance with s.18(1)(b) of the PPIP Act. The Respondent did not breach the PPIP Act in providing the applicant's conditions of registration to the relevant registration authority in accordance with usual practice. Grounds of appeal on disclosure AIN appealed on questions of law and sought leave to appeal on other grounds: NCAT Act, s 80(2)(b). One of AIN’s grounds of appeal on questions of law was that the Tribunal erred when it stated that the disclosure to AHPRA was a disclosure lawfully authorised under the transitional provisions associated with the introduction of the Health Practitioner Regulation National Law and was therefore authorised under s 25 of the PPIP Act. The error, she said, was that the Tribunal asked itself the wrong questions. The questions the Tribunal should have asked were first, whether the National Law or the transitional provisions of the National Law required or authorised the publication of the conditions. Second, whether that requirement overrode a non-publication order of the Medical Tribunal. In fact, the Tribunal made no finding as to the applicability of s 25. Its decision was based on the applicability of the exception in s 18(1)(b). The Tribunal relied on the evidence of Ms St Hill as to the circumstances in which the Medical Tribunal made the non-publication order and the terms of that order. At the hearing on appeal, AIN provided a bundle of documents which she said had been tendered in the Tribunal proceedings below. The folder includes the transcript of the proceedings before the Medical Tribunal on 18 and 19 October 2010. The Tribunal below did not refer to that evidence in its decision. Whether the Tribunal overlooked that evidence, or it has been tendered for the first time in the Appeal Panel proceedings, it is the best evidence of the terms of the non-publication order and the reason the order was made. The terms of the non-publication order relied on by the Tribunal differ in a significant respect from the terms of the order as stated by the Medical Tribunal. (We have set out the terms of the order at [69] below.) The order as made by the Medical Tribunal prohibits publication, not disclosure of AIN’s name. Because of this inconsistency between the order as made by the Medical Tribunal and the Tribunal’s findings, we have decided to give AIN leave to appeal from this part of the decision on grounds other than questions of law: NCAT Act, s 80(2)(b); Collins v Urban [2014] NSWCATAP 17 (9 April 2014) at [84]. The Tribunal did not need to make a finding as to whether any exemptions in s 25 of the PPIP Act applied but it failed to give reasons for its implied finding that the non-publication order had not been breached. The Tribunal also failed to give reasons for rejecting the contention that no reasonable person knowing of the order could have believed that it was not in breach. Because we have granted leave to appeal, it is not necessary to determine whether these deficiencies constitute legal errors. It suffices to say that we consider that the matters we have outlined warrant this issue being determined again on the merits. It will facilitate the “just quick and cheap resolution of the real issues in the proceedings” if we re-determine this part of AIN’s application ourselves: NCAT Act, s 36 and 80(3)(a). Because there are no factual issues in dispute, we are in a position to determine AIN’s application based on the evidence before the Tribunal below, including the transcript of the proceedings in the Medical Tribunal and the parties’ submissions on appeal. We asked the Medical Council to provide further submissions on the question of whether its disclosure to AHPRA was a breach of the non-publication order made by the Medical Tribunal and, if so, how that impacts on the question of whether the Council breached s 18 of the PPIP Act in disclosing the conditions to AHPRA. Having made that decision, there is no need to address any of AIN’s other grounds of appeal in relation to this part of the application. Those grounds included that the Tribunal was biased or had otherwise acted in a procedurally unfair manner. Re-consideration of application relating to disclosure of personal information Evidence The background to the disclosure was that following the Schedule 1 inquiry, the Medical Board decided that although it was appropriate to grant AIN general registration, the registration was to be subject to conditions, including as to supervision. AIN appealed the Medical Board’s decision to the Medical Tribunal. The hearing commenced on 18 October 2010 and on 19 October 2010 the parties settled the proceedings, apart from the issue of costs, by agreeing to orders imposing revised conditions on AIN’s general registration. The Medical Tribunal stated at [1] of its judgement that the application being dealt with was “an application for costs in relation to an appeal against the conditions imposed on general registration following the Schedule 1 inquiry”. The Tribunal noted that “the appeal was resolved this morning … by the tender of Exhibit X, being revised agreed conditions”. The Tribunal went on to say that it considered that those conditions were appropriate. On the first day of the hearing before the Medical Tribunal, Mr Lynch, representing AIN, applied for a non-publication order. There were two bases for that application – to prevent details about AIN’s son being revealed and because, in circumstances where there was no disciplinary element to the conditions, there was no public interest in the “world at large” being informed of the conditions agreed to by AIN. The Medical Council did not oppose the order and the Deputy Chairman of the Medical Tribunal made the following order during the course of the hearing: “I consider it appropriate that the name of the practitioner and the name of her son, and anything that might tend to identify them, not be published.” Neither party sought a formal, sealed copy of the orders. We find that the order was made in the terms set out above. The Deputy Chairperson went on to say: So, just for the edification of anybody present in court, you’ll hear the name of the doctor in question, which is [name deleted], and possibly her son. That is not to be repeated outside this room. Thank you very much. The next day, 19 October 2010, after the matter had settled, Mr Lynch made the following submission as to the negotiations with AHPRA and the Medical Council about the terms of the conditions on AIN’s general registration: LYNCH: Your Honour, the matter I was going to inform the tribunal of was that, in the course of … pending the hearing in this tribunal, my instructing solicitor approached the national registration body – The Australian Health Practitioners Regulation Authority, I think it is, AHPRA – to request that a distinction be drawn between [AIN], who is neither the subject of any complaint nor disciplinary action nor impairment, and that that fact be made clear or that distinction be made clear on the medical register, which is now public. Because all doctors now are publicly subject to publication of any conditions which are applicable to them. The federal body referred the matter to the Medical Council of New South Wales and ultimately indicated that the request could not be accommodated because of the terms of s 226 of the Health Practitioner Regulation National Law, which provided only two bases upon which such information not be published. We subsequently said, “Well, if you must publish it, you should include an indication in the conditions that they’re the result of a period out of practice.” That was declined and that accounts for the initial words in para 1. Because the only way, we can see, it would be guaranteed that the distinction in [AIN’s] case is made on the public register is to include those words, “Due to a period out of direct patient contact, not as a result of impairment or disciplinary action, the practitioner is –” DEPUTY CHAIRMAN: I think the tribunal is very happy with that distinction being made. On 19 October 2010, the Medical Council gave notice to AHPRA in a document headed “Notice of Information to be recorded in the National Register”. The notice set out, under the heading “Information to be recorded on the Public National Register” the conditions the parties had agreed to and which were recorded in Exhibit X. The Notice stated that: Information to be recorded on the AHPA Pivotal system (not publically available) The Notice also stated, under the heading “Additional Information”: These conditions were imposed by the Medical Tribunal of NSW as a result of an appeal under section 17 of the Medical Practice Act 1992 (repealed). The practitioner appealed against the imposition of conditions by a Schedule 1 Inquiry. The Medical Tribunal imposed the conditions as the practitioner had been out of direct patient contact, and were not as a result of impairment or disciplinary action. The decision is publicly available. As it was an ex tempore the judgment is not yet available but will be published on www.mcnsw.org.au>hearings and decisions. Note: There is a non-publication order on the practitioner’s name. The outcome is not related to the practitioner’s health or conduct/performance. Findings and Consideration There is no dispute that the Medical Council disclosed AIN’s name to AHPRA. That is a breach of s 18 of the PPIP Act unless one of the exemptions in that provision, or in s 25, applies. The Medical Council relied on the exemptions in s 18(1)(b) and s 25(a). Neither of those exemptions will apply if the non-publication order prohibited disclosure of AIN’s name. If a non-publication order prohibits the disclosure of AIN’s name, then it cannot be said that: the agency is “lawfully authorised or required not to comply” with s 18; or AIN is reasonably likely to have been aware that information of that kind is usually disclosed to AHPRA. For the reasons which we give below, we find that the non-publication order did not prohibit the disclosure of AIN’s name to AHPRA. The non-publication order was made pursuant to cl 6 Sch 2 of the Medical Practice Act 1992 (NSW) (repealed). Although, by that stage, the Health Practitioner Regulation National Law (NSW) (National Law) had been in operation since 1 July 2010, the repealed legislation still applied because the matter was referred to the Medical Tribunal prior to that date. That provision gave the Medical Tribunal the following powers to restrict disclosure and publication of information: 6 Release of information (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the practitioner concerned or any other person): (a) direct that the name of any witness is not to be disclosed in the proceedings, or (b) direct that all or any of the following matters are not to be published : • the name and address of any witness, • the name and address of a complainant, • the name and address of a registered medical practitioner, • any specified evidence, • the subject-matter of a complaint. (Emphasis added) The Medical Tribunal has power to prohibit disclosure of the name of any witness in the proceedings and, so far as is relevant to this case, to prohibit publication of the name and address of a registered medical practitioner and any specified evidence. The specified evidence in this case was AIN’s son’s name. The Tribunal has no power to prohibit the disclosure of the name of the medical practitioner. Consistently with the powers in this provision, the terms of the order related only to publication . It follows that, if disclosure to AHPRA is not publication of AIN’s name, there has been no breach of the non-publication order. The Macquarie Dictionary defines “publish” to mean verb (t) 1. to issue, or cause to be issued, in print or digital formats, for sale or distribution to the public, as a book, ebook, blog, periodical, images, sheet music, sound recordings, or the like. 2. to issue to the public the works of (an author). 3. to announce formally or officially; proclaim; promulgate. 4. to make publicly or generally known. We are satisfied that notification to AHPRA of the conditions on AIN’s registration was a disclosure, not a publication. The Medical Council did not publish AIN’s name by conveying information about the conditions on her registration to AHPRA. Rather, the Medical Council disclosed AIN’s name and the conditions on her registration to AHPRA. That conclusion accords with the reason for applying for the non-publication order and the Medical Tribunal’s understanding of its effect. AIN’s lawyer applied for the order to prevent the “world at large” being informed of the conditions on AIN’s general registration. Mr Lynch knew when applying for the non-publication order that “all doctors now are publicly subject to publication of any conditions which are applicable to them”. After making the order, the Deputy Chairman said that the order was made for the purpose of ensuring that AIN’s name “would not be repeated outside the court room”. It is convenient to address, first, whether the exemption in s 25 (a) applies. The Medical Council is not required to comply with s 18 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned Having decided that the non-publication order did not prohibit the disclosure of AIN’s name to AHPRA, we consider whether the National Law “lawfully authorises or requires” the Medical Council to disclose AIN’s name to AHPRA: PPIP Act, s 25(a). At the time when the Medical Tribunal made the disclosure to AHPRA in October 2010, AHPRA had the function of maintaining a publicly accessible national register of health practitioners: National Law, s 25(f). The information to be recorded in the National Register was to include details of any conditions imposed on a practitioner’s registration: National Law, s 225(k). The National Law permits a person exercising functions under the law, such as an officer of the Medical Council, to disclose “protected information” to a “registration authority” such as AHPRA, if the disclosure was “necessary for the authority to exercise its functions”: s 221. 221 Disclosure to registration authorities A person exercising functions under this Law may disclose protected information to a registration authority if the disclosure is necessary for the authority to exercise its functions. (Emphasis added.) “Protected information” is defined in s 221: In this Division- " protected information " means information that comes to a person’s knowledge in the course of, or because of, the person exercising functions under this Law. We find that it was necessary for the Medical Council to disclose AIN’s name to AHPRA in order for it to exercise its functions. One of those functions is to ensure that “any conditions imposed on the registration of the practitioner” “is made available to the public on request”. Compliance with that function is deemed to have occurred if the information is available on AHPRA’s register: National Law, s 41I. 41I Information to be made available to public [NSW] (1) A Council for a health profession must ensure the following information, in relation to a registered health practitioner registered in the profession, is made available to the public on request— (a) any conditions imposed on the registration of the practitioner; (b) any other order made in respect of the practitioner under this Law. (2) Without limiting subsection (1), the Council is taken to have complied with that subsection if the information is available on the Register kept by the National Board for the health profession. (3) This section does not require a Council to disclose anything the Council considers relates solely or principally to the physical or mental capacity of a person to practise the person’s profession. We find that s 221 of the National Law “lawfully authorises” the Medical Council to disclose AIN’s name to AHPRA and the exemption from compliance with s 18 in s 25(a) of the PPIP Act applies. Even if that conclusion is not correct, the exemption in s 25(b) and the exemptions in s 18(1)(a) and (b) of the PPIP Act apply. Section 25(b) applies because disclosure is permitted by s 221 of the National Law. Section 18(1)(a) applies because the disclosure is directly related to the purpose for which the information was collected, and the Medical Council had no reason to believe that AIN would object to the disclosure. That finding is made on the basis that AIN’s lawyer, Mr Lynch, told the Medical Tribunal that “all doctors now are publicly subject to publication of any conditions which are applicable to them”. Section 18(1)(b) applies because AIN “is reasonably likely to have been aware that information” about the conditions on her registration “is usually disclosed” to AHPRA. That finding is made on the basis of Mr Lynch’s submissions to the Medical Council and a letter sent to all medical practitioners in April 2010 advising of the transition to the national registration scheme on 1 July 2010. Costs in each of the Tribunal proceedings AIN applied to the Appeal Panel to make an order for costs of the proceedings below. The general rule is that each party is to pay their own costs: NCAT Act, 60. Costs may only be awarded where there are “special circumstances” warranting an award of costs. The Appeal Panel has power to make a costs order in the proceedings below because costs is defined as including “the costs of, or incidental to, the proceedings giving rise to the application or appeal …”: NCAT Act, s 60(5)(b). But we decline to determine the application for costs because the merits of AIN’s application have not been finally determined. AIN relied on “the relative strengths of the claims made by each party” as one of the factors warranting an award of costs. The re-constituted Tribunal will be in a position to make an assessment of the strengths of the claims when it has determined the matter. At that stage, the Tribunal will also be able to take into account any other factors relating to both the proceedings before Senior Member Isenberg and the proceedings before the re-constituted Tribunal. The Appeal Panel remits the questions of costs to a differently constituted Tribunal below. Costs of the Appeal Panel proceedings Neither party applied for costs in this appeal and we make no order in respect of such costs. Orders 1. The appeal is allowed. 2. The decision of the Tribunal to dismiss the application in relation to the alleged breaches of s 8 of the Privacy and Personal Information Protection Act 1998 is set aside. 3. That part of the case that relates to alleged breaches of s 8 of the Privacy and Personal Information Protection Act 1998 is to be reconsidered by a differently constituted Tribunal with further evidence if allowed, in accordance with these reasons. 4. The decision of the Tribunal to dismiss the application in relation to the alleged breach of s 18 of the Privacy and Personal Information Protection Act 1998 is set aside. 5. That part of the case that relates to an alleged breach of s 18 of the Privacy and Personal Information Protection Act 1998 is dealt with by way of a new hearing. 6. The application in relation to alleged breaches of s 18 of the Privacy and Personal Information Protection Act 1998 is dismissed. 7. Any application in respect of the costs of the proceedings 1230226 below are to be determined by a differently constituted Tribunal at first instance. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 31 January 2017