The parents of a profoundly disabled boy took a case to the Human Rights Review Tribunal [2020 HRRT 13] on their son's behalf in relation to the provision and accuracy of his health information while he was in the custody of IDEA Services.

IDEA Services is New Zealand’s largest provider of services to people with intellectual disabilities and their families. Eamon Marshall was first placed in the custody of IDEA Services when he was 18 months old and was cared for by foster families (under the supervision of IDEA Services) for 11 years.

The proceedings centred on two claims: a breach of rule 6 and rule 8 of the Health Information Privacy Code 1994.

The Marshalls sought $300,000 in damages and a declaration that IDEA Services had interfered with their son’s privacy, causing him to suffer a loss of dignity.

Eamon’s father Glenn Marshall represented his son before the Tribunal.

Facts of the case

In 2015, Eamon’s parents became concerned for their son’s welfare after they suspected he was not receiving the medication he needed in foster care. After the Marshalls complained, IDEA Services conducted an internal investigation into Eamon’s care arrangements and provided a report in December 2015. No summary of the investigation was sent to the parents.

In January 2016, the Marshalls requested the findings of the IDEA Services investigation. On 15 May 2016, the Marshalls made the first of several requests for information under the Health Information Privacy Code 1994.

The Marshalls received a summary of the investigation report. Sometime later, a four-page internal report was released to them stating they had been interviewed during the internal investigation. This had not occurred. When comparing the full report to the summary they had received, the Marshalls formed the view that IDEA Services had been involved in a “cover up”. They made a series of subsequent requests for information from IDEA Services.

Complaint to Privacy Commissioner

The Marshalls believed the response from IDEA Services had been inadequate and in June 2016, they lodged a complaint with the Privacy Commissioner. The Commissioner undertook an investigation and found that IDEA Services had withheld personal information about Eamon that should have been provided. This amounted to an interference with Eamon’s privacy.

There was significant correspondence between the Marshalls and IDEA Services about the information that the Privacy Commissioner had reviewed.

Rule 6 - Access to personal health information

Where health agencies hold health information that is readily retrievable, the individual concerned is entitled to know whether the agency holds the information and to have access to that information. Agencies must decide whether the request is to be granted and must communicate that decision to the requester within 20 working days of receipt of the request (Privacy Act, s 40(1)).

The Tribunal considered the timeline of requests for health information from the Marshalls and the responses from IDEA Services.

Section 22F(1) of the Health Act 1956, together with Rule 11(4) of the HIPC entitles a child’s representative (their parent or guardian) to request access to the child’s health information. Any such request is treated as an access request under Rule 6.

The Tribunal considered the extensive chronology of correspondence between IDEA Services and the Marshalls.

In their correspondence with the Marshalls in June 2016, IDEA Services said that some of the omissions from the files they had provided were inadvertent and not deliberate. They also raised the point that as their organisation’s record keeping was predominantly hard copy based, Eamon’s file was in hardcopy and not all information, such as email correspondence, was “readily retrievable”.

The Tribunal commented that “the matter for consideration is not whether the emails that were not printed and placed on the hard files, were retrievable, but whether they were readily retrievable” [para 85]. The cost and time and manner in which the information was stored were relevant factors. The Tribunal accepted that some of the documents were not readily retrievable, noting that “documents only discovered after a thorough forensic search cannot be said to be readily retrievable” [para 87].

Determination on Rule 6

The Tribunal concluded [para 78], in agreement with the findings of the Privacy Commissioner, that IDEA Services had interfered with the privacy of Eamon Marshall by failing to supply certain personal information without undue delay. Specifically, this was:

• an audit undertaken by its health advisor
• a file note dated 18 April 2016
• file notes made between 10 - 18 December 2015.

Rule 8 – Accuracy of information

Under rule 8 of the Health Code, a health agency must take reasonable steps to check that information is accurate, complete, relevant, up to date and not misleading before it uses or discloses health information. The Tribunal noted that rule 8 “focuses on the reasonableness of the steps taken to check information, having regard to how that information is to be used” [para 107].

Failure to interview

The Marshalls alleged that during the compiling of their internal investigation report, IDEA Services failed to interview or speak to them and that this amounted to a breach of rule 8 [para 111].

IDEA Services accepted that in conducting its investigation it did not interview or speak to the Marshalls. IDEA Services said however the investigator was in regular daily contact with Mr and Mrs Marshall and it was reasonable to assume the she was well acquainted with the Marshall’s concerns. The Tribunal said Mr Marshall had not shown why interviewing him or his wife was a reasonable step to ensure the information in the investigation report was accurate, complete and not misleading [para 112].

Determination on Rule 8

The Tribunal found the plaintiff had not proved a failure to interview Eamon’s parents gave rise to a breach of Rule 8, stating that Mr Marshall had failed to establish why any matters listed in his statement of claim gave rise to a breach of Rule 8. The Tribunal found the evidence on this point to be lacking. The claim of a breach of Rule 8 was therefore unsuccessful.

Apology given

The Tribunal gave significant weight to the apologies the Marshalls received [para 127]. IDEA Services said it had stressed to the Marshalls that they did not intend to withhold any information. They repeatedly apologised to the Marshalls regarding the handling of their request. The CEO also wrote a personal letter to the Marshalls on two occasions in which he offered to meet with them and to engage with an independent mediator.

Damages application dismissed

Although there had been an interference with Eamon’s privacy, the Tribunal noted: “Eamon’s dignity has not been diminished at all by the failure to provide information in a timelier fashion. No evidence has been shown establishing that Eamon suffered any loss of dignity by the delay in providing the documents...” [para 142].

The Tribunal went on to say they saw “no justification for Eamon’s rights to be further vindicated by any additional award of damages” [para 143]. The bid for $300,000 in damages was therefore dismissed.

Costs

Costs were reserved.