Case Note: Nepean Blue Mountains Local Health District v ENY

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

Summary

Nepean Blue Mountains Local Health District (the Appellant) appealed the interlocutory decision and orders made by the Tribunal in ENY v Nepean Blue Mountains Local Health District [2021] NSWCATAD 382 (Tribunal Decision). In that matter, ENY (the Respondent) filed an application for administrative review of a decision made by the Appellant with respect to the Respondent’s request to amend or correct the health information and/or personal information of their deceased father pursuant to the HRIP Act and/or the PPIP Act. The Tribunal at first instance held that if the Respondent was a valid executor of their father’s will/estate, they were an “authorised representative” under s. 7 of the HRIP Act, and therefore able to apply under the HRIP Act and/or the PPIP Act to amend or correct the health information and/or personal information, respectively, about their late father held by the Appellant.

The Appeal Panel granted the appeal, set aside the Tribunal’s Decision at first instance and dismissed the Respondent’s application. The Appeal Panel held that unless s. 7 of the HRIP Act is enlivened, an “authorised representative” is not empowered under s. 8 of the HRIP Act to exercise any rights of an individual pursuant to the HRIP Act. The Appeal Panel found that s. 7 of the HRIP Act defines “incapacity” by reason of five identified criteria (age, injury, illness, physical or mental impairment), of which “death” is not one, all of which can only occur whilst an individual is alive. Therefore, the Respondent was not an “authorised representative” of their deceased father and could not apply for the amendment of his personal and health information under the PPIP Act and HRIP Act respectively.

What you need to know

An executor cannot apply for the amendment of personal information or health information of a deceased person under the PPIP Act and HRIP Act respectively. The wording of the provisions in the PPIP Act and HRIP Act relating to the amendment of personal information and health information make it clear that they only apply where a living person applies for the amendment of their own personal or health information.

PPIP Act

  • Section 15 alteration of personal information

HRIP Act

  • Section 7 capacity
  • Section 8 definition of “authorised representative”
  • Schedule 1 clause 8 (HPP 8) amendment of health information
Factual background

The Appellant appealed the decision made by the Tribunal at first instance in ENY v Nepean Blue Mountains Local Health District [2021] NSWCATAD 382. In that matter, the Tribunal held that if the Respondent was a valid executor of their father’s will/estate, they were an “authorised representative” under s. 7 of the HRIP Act, and therefore able to apply under the HRIP Act and/or the PPIP Act to amend or correct the health information and/or personal information, respectively, about their late father held by the Appellant.

Submissions of the Privacy Commissioner

The Privacy Commissioner’s submissions included:

  • it was important to identify the statutory purpose and scope of the protection given to personal and health information under the PPIP Act and the HRIP Act
  • the PPIP Act and the HRIP Act, as currently enacted, do not clearly make provision for deceased persons with respect to the amendment of records in the way accepted by the in principle finding made by the Tribunal
  • that “incapacity” pursuant to s 7 of the HRIP Act is by reason of age, injury, illness, physical or mental impairment. The section does not refer to death, nor is there any other provision in the HRIP Act which expressly provides that the death of the individual to whom personal or health information relates can trigger the operation of s. 8 of the Act.
Tribunal findings

The Appeal Panel agreed with the Privacy Commissioner’s submissions with respect to the purpose and objects of the relevant provisions of the PPIP Act and HRIP Act.

The Appeal Panel held that upon the death of a person, save in limited circumstances, the legitimate interests of others in accessing the personal health information of a deceased person pursuant to the legislation must be limited. The Appeal Panel further noted that declining to grant the relief sought by the Respondent did not prevent or impede them from pursuing any remedies arising out of the death of their father.

The Appeal Panel also noted that relevant personal or health information of a deceased person can be subpoenaed and examined in civil and criminal proceedings in courts, and the accuracy or reliability of such information can be challenged in the course of those proceedings.

The Appeal Panel held that it is significant that the HRIP Act defines “incapacity” by reason of five identified criteria, of which “death” is not one, all of which can only occur whilst an individual is alive. Therefore, the Respondent was not an “authorised representative” of their deceased father and could not apply for the amendment of his personal and health information under the PPIP Act and HRIP Act respectively.

Tribunal outcome

The Appeal Panel respectfully disagreed with the “in principle” finding of the Tribunal at first instance that “incapacity” in s. 7(1)(d) of the HRIP Act must include death” and found that its construction of the provision was erroneous in law.

Leave to appeal was granted, the Tribunal’s decision at first instance was set aside and the Respondent’s application was dismissed.