Investigation of medical staff: Access to documents

Amos v Western NSW Local Health District; Arnold v Western NSW Local Health District [2017] NSWCATAD 359 arose following an incident when a cardiologist collapsed during a procedure, which later resulted in an investigation by the director of medical services at the hospital. Following that investigation, three doctors made a complaint about the handling of the incident.

The NCAT application sought a review of the hospital’s refusal to release certain documents which came into existence as part of the investigation.

The hospital’s decision was ultimately affirmed, with the Tribunal finding that the public interest factors against disclosure of the personal information were greater than the public interests in favour of disclosure.

The final part of the decision explains (at [109] – [113]):

According to Dr Amos, Dr Thomas made a medical assessment of him without a proper history or examination “which I consider to be against the law”, created a false record of their meeting on 9 December 2016, and damaged his reputation by making adverse and inaccurate input into a risk assessment. Dr Amos said he could not say whether he would provide to the media any information which he received from the LHD. It would depend on the contents. He said media were present at the meeting but he did not attend and he did not contact the media.

Dr Arnold was also critical of Dr Thomas’ conduct but denied that there were tensions or animosity between herself and Dr Thomas. She gave evidence that she asked members of staff to sign the complaint against Dr Thomas. Dr Arnold was involved in a meeting of the Cardiac Catheter Lab on 17 May 2016 which criticised another report concerning Dr Amos as “completely deficient” and “erroneous” and determined to raise issues with the review with the Ministry of Health, the AMA and the Cardiac Society.

She did not exclude the possibility that she would give any information received to the Medical Staff Council or the media. Her stated goal was to promote fairness and transparency in the LHD. She said she was not seeking the information with regard to Dr Thomas, it was about fair treatment in the workplace. I note that she stated in her affidavit, however, that in her opinion that Dr Thomas made a “false medical diagnosis” of Dr Amos, and that this could constitute professional misconduct. She expected that the Hiley report would contain findings on this as well as what she regarded as the “false file note” created by Dr Thomas. She stated that the file note contained details which she regarded “as potentially damaging to my professional reputation”.

Based on the above evidence, I am satisfied that the motives of Dr Amos and Dr Arnold include a desire to determine whether any disciplinary action could be taken against Dr Thomas, although they were not able to demonstrate how likely this was. Their evidence satisfied me that these motives were at least partly personal in nature.

I have found that the following public interests against disclosure of the personal information in the report have been established:

  • That disclosure of the background, findings and conclusions (but not the allegations) in the report would reveal the personal information of a number of staff employed by the respondent.
  • That disclosure would contravene s 18 of the PPIP Act by disclosing personal information in the background, findings and conclusions (but not the allegations), where none of the exceptions in that section apply.

The same public interests apply in favour of disclosure and the same considerations are relevant as applied to the information covered by s 14(1)(d) and (g).

In conducting the balancing exercise, I find that the public interest factors against disclosure of the personal information are greater than the public interests in favour of disclosure. While there is an assumption favouring access, in my view there is insufficient public interest in the matters raised by the applicants, which are personal in nature, to outweigh the public interest in protecting the personal information of persons which was canvassed in this investigation report.

 

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