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$15,000 award shows need to follow workplace policy Charles Mabbett
17 August 2015

medical privacy

People have a right to access information about themselves. When workplace policies reinforce this right, it is risky to deviate from them. This was recently underlined in a Human Rights Review Tribunal decision to award a former Capital Coast DHB (CCDHB) nurse $15,000 for being denied information about a harassment complaint she made against her manager.

The nurse made her harassment complaint during an investigation into complaints made against her by seven co-workers. The first investigation began in 2011 and took 15 months. During this time, the nurse was removed from her paediatric workplace and from May 2012, she was suspended without pay.

In August 2012, the nurse made her complaint against her manager who was responsible for the ward where she worked. She sought access to a written response made by her manager about the nurse’s complaint against the manager. The information sought had been given to the investigator by the manager and was in the form of two documents.

Initially, CCDHB refused to give the nurse the documents she requested, but later it provided the information to her in a heavily redacted form. This was despite CCDHB’s harassment prevention policy which stated “each involved party must be given the opportunity to be represented, and be given a reasonable opportunity to answer the allegations and rebut the defences”.

The Tribunal said the policy document was explicit about the procedure to be followed – while the person complained against must be given the signed written complaint and given an opportunity to answer the allegations, the complainant in turn must have the opportunity to rebut the defences.

The added difficulty in this case arose because the nurse’s manager specifically requested that her account be kept confidential to the investigation and not be provided to the complainant. However, the investigator gave no assurance of confidentiality to the manager.

The nurse said the first time she became aware of her manager’s response to her complaint was when she received the investigator’s report in March 2013, which included extracts of her manager’s account. The report found there was no substance to the nurse’s complaint that would warrant a fuller investigation. The CCDHB accepted the finding but the nurse did not.

The nurse told the Tribunal that being unable to access the documents of her manager’s account meant she was unable to tell which part or parts to challenge and to request that any corrections be made.

Under principle 6 of the Privacy Act, people can request access to personal information held about them by an agency. Under principle 7, people can request that a correction be made to that personal information.

To establish a breach of principle 6, a complainant must show they had made an information privacy request and that the agency refused to make the information available in response to that request or failed to respond to the request within the 20 working days.

When an agency relies on any of the withholding grounds in sections 27 to 29 of the Act, the agency has to prove the exceptions apply. CCDHB had relied on section 29(1)(a) which says an agency may refuse to disclose information if the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual. CCDHB had argued that the information sought by the nurse was as much about her manager as it was about the complainant.

The Tribunal disagreed. It said the information provided by the manager was potentially of a highly prejudicial nature and could affect the nurse’s return to work in the ward. There were compelling reasons in favour of disclosing the withheld information to the complainant.

Secondly, the Tribunal noted that CCDHB’s harassment prevention policy explicitly stated that, as the complainant, the nurse would have an opportunity to rebut the defences raised by her manager. On the face of that policy, there could be no expectation that the manager’s response in the two documents would be withheld from the complainant.

The Tribunal said it was satisfied there had been an interference with the nurse’s privacy and subsequent humiliation, loss of dignity and injury to feelings followed. It awarded $10,000 and ordered access to the unredacted documents.

It also awarded the nurse $5,000 damages for the loss of a benefit she might have expected to obtain if she had been able to access the unredacted documents. The documents, it said, were of potential relevance to her separate employment dispute with CCDHB.

Dissenting view

One of the Tribunal members, Mr Shirley, took a different view. In his dissenting decision, he noted that in the investigation into complaints made by seven co-workers against the complainant, the nurse had received written copies of all the complaints and witness statements. But the complainants or witnesses in that investigation were not given the opportunity to rebut the nurse’s response to those complaints.

Mr Shirley was of the view that CCDHB had fair and balanced procedures around staff inter-relationships and there was good reason for refusing the nurse’s request for personal information because it would involve the unwarranted disclosure of the affairs of another person – her manager.

Image credit: Medical privacy - Electronic Frontier Foundation (EFF)

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