1 Feb 2003, 09:00

An ACC case manager sent a letter to a client initiating the development of a rehabilitation plan, and attaching a document for the client to sign.

The client referred ACC’s letter and document to his solicitor, who replied to the case manager questioning the legality of the document ACC wished the client to sign.

The case manager wrote back to the solicitor clarifying what the letter meant and requesting a meeting to discuss the matter. The case manager copied this letter to the client and also copied it to the client’s general practitioner.

Correspondence between the client’s solicitor and the case manager followed and every time the case manager replied she copied the letter to the client and to his GP.

The client complained to me that the correspondence between his solicitor and the case manager had nothing to do with his rehabilitation and should not have been copied to his GP. He said it involved a legal matter that the GP was unqualified to comment on and had no need to be aware of.

His complaint raised issues under rules 3 and 11 of the Health Information Privacy Code 1994. Although I found ACC had breached rules 3 and 11, in my view, its actions had not interfered with the client’s privacy.

Rule 3

Rule 3 of the Code provides that a health agency that collects health information directly from the individual concerned must take such steps that are reasonable in the circumstances to ensure that the individual is aware of, among other matters, the purpose for which the information is being collected and the intended recipients of the information.

ACC stated that general practitioners had, for years, been involved with the rehabilitation of ACC clients, and that it was important to keep parties involved in a client’s rehabilitation aware of matters surrounding rehabilitation so that they could help in the process. In this case, ACC considered that the client’s GP needed to know the contents of the letter and wanted to draw the GP’s attention to the difficulty ACC was having in getting the client to accept a rehabilitation plan.

Authorisation clause

ACC also believed that it had adequately notified the client that it would disclose information to third parties, including the client’s GP. ACC sent me a copy of an authorisation form the client had signed which authorised ACC to collect information from third parties and those parties to release the requested information to ACC.

In my view the authorisation clause merely allowed ACC to collect health information and for other health agencies to provide that information to ACC. It was silent about to whom that information would be passed. The wording of the authorisation did not allow ACC to disclose the information to other agencies or individuals. I did not see that ACC could rely on the authorisation clause as adequate notification of the matters in rule 3.

Further, the requirement is to take steps to make the individual aware of the matters set out in rule 3 before collecting the health information or, if that is not practicable, as soon as practicable after it is collected. ACC said that part of the purpose for collecting the information was to assist with rehabilitation, and to disclose that information to health providers who could assist in that process. There did not appear to be any indication that ACC attempted to ensure that the client was aware of the intended disclosure before it collected information from him, although it could easily have done so.

Note of other recipients at end of letter

ACC also said that noting at the end of the letters that it was also being copied to the client’s GP was adequate notification of the purposes for which it collected health information and of the intended recipients of that information.

I did not think that informing the client by noting at the foot of letters that had already been copied to the GP was adequate notification under rule 3. There was no reason this notification could not have been given before disclosing the information. I formed the opinion that ACC had breached rule 3.

Rule 11

Rule 11 of the Code provides that a health agency must not disclose health information that it holds unless an exception applies.

ACC sought to rely on the exception in rule 11(1)(c) which provides that a health agency may disclose health information if it believes, on reasonable grounds, that disclosure is one of the purposes in connection with which the information was obtained.

The copies of correspondence provided to me did not explain why ACC had chosen to disclose the information at issue to the GP. ACC explained in response to the complaint that the GP was a key player in the client’s rehabilitation and it was important that he be kept up to date with rehabilitation matters.

I could accept that in most cases where an individual was commencing or undergoing rehabilitation, a GP might need to be informed of certain matters. The difficulty in this case was the nature of information copied to the GP, which did not bear upon rehabilitation. Rather, it was a discussion between ACC and the client’s lawyer about the legal nature of ACC’s request.

A further difficulty was that ACC did not copy its original letter to the GP. That letter set out ACC’s intention to implement a rehabilitation plan. If the GP was to have been any use in rehabilitating the client, it was most likely to have been at that stage. Instead, the GP was copied various legal arguments between ACC and the client’s lawyer without having any real knowledge of how the debate had started. Unless the GP had been provided with a covering letter explaining the situation (which did not appear to be the case) he may have wondered why he had been copied the letters at all.

ACC also said that it wished to show the GP that it was having difficulty implementing a rehabilitation plan for the client. I did not see that the GP needed to know this.

I was of the opinion that ACC could not rely on the exception in rule 11(1)(c) and had acted in breach of rule 11.

Adverse effect or harm – section 66

To form the opinion that ACC’s actions had interfered with the client’s privacy, I had to be satisfied that ACC’s actions had had an adverse effect upon the client (section 66).

The man felt ACC’s actions caused him considerable embarrassment. He did not want his doctor to be involved in his dealings with ACC over what he felt to be ACC’s attempts to remove him from the compensation scheme. He said that he felt marginalised and powerless as a result of ACC’s actions.

In my view, while ACC’s actions may have caused the client some embarrassment, and perhaps annoyance, I did not consider that this embarrassment was of the significance required by section 66. In my opinion, ACC’s actions did not amount to an interference with the client’s privacy.

In response to my opinion, ACC conceded that its intentions for copying the information to the client’s GP were unclear, and offered to apologise to the client. My office wrote to the client setting out ACC’s offer of an apology. However, the client failed to respond. I then decided to close my file.

Indexing terms: Collecting personal information – ACC – Letters about legal question copied to GP – Notification of intended recipient after disclosure – Authorisation to collect information – Breach – Insufficient harm – Privacy Act 1993, s 66(1) – Health Information Privacy Code 1994, rule 3(1) and 3(2)

Disclosure of personal information – ACC – Letters about legal question copied to GP – Whether disclosure a purpose in connection with which information was obtained – Breach – Insufficient harm – Privacy Act 1993, s 66(1) – Health Information Privacy Code 1994, rule 11(1)(c)