Greenleaf, Graham --- "S and the Medical Board of Qld" [1995] PrivLawPRpr 46; (1995) 2(4) Privacy Law & Policy Reporter 72

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S and the Medical Board of Qld

Information Commissioner (Qld), Decision 94028, 12 October 1994

Freedom of Information Act 1992 (Qld) - s 44(3) - disclosure prejudicial to health of applicant - disclosure to intermediary - medical records

S applied to the Medical Board (the Board) for access to all documents on her file held by the Board. She had complained to the Board about the delay by her former psychiatrist, Dr X, in preparing a report concerning her which she needed for a worker's compensation claim. The Board refused to allow her direct access to a letter forwarded to the Board by Dr X, but offered to provide access via a medical practitioner nominated by her and approved by the Board. S's current psychiatrist, Dr K, stated in a letter to the Commissioner that he was of the opinion that no harm would occur to S's mental health if she read 'any kind of report about her'. The Board (represented by a psychiatrist) maintained its view that it was her 'unresolved feelings about [Dr X] which are likely to mean that she needs some support when she reads his report', and that unmediated access to the report 'would mean an exacerbation of her anger and depression, and inability to sort out her thoughts in a therapeutic manner'.

Section 44(3) provides that, in relation to applications to access documents containing information of a medical or psychiatric nature concerning the applicant, if it appears to an agency that disclosure to the person 'might be prejudicial to the physical or mental health or wellbeing of the person', the agency can require that access be via a medical practitioner nominated by the person and approved by the agency. This provision is almost identical to s 41(3) of the Freedom of Information Act 1982 (Cth).

Section 41(3) was considered by the Commonwealth Administrative Appeals Tribunal in Re K and Director -General of Social Security (1984) 6 ALD 354, where it was held that where there was a 'real and tangible possibility' of prejudicial effect, the agency decision-maker had to exercise a discretion as to whether to direct that access via a medical intermediary was required. This exercise of discretion required the balancing of factors such as the seriousness of the possible prejudice and the likelihood of it occurring.

The Commissioner accepted the approach taken in Re K as correctly stating the approach to be taken by decision-makers under the Qld provision. He held that there was here a real and tangible possibility of prejudice to S's mental health if she was given direct access, taking into account the views of both the Dr X and the Board's psychiatrist, both of whom had seen the document whereas Dr K and the applicant had not. He upheld the exercise of discretion by the Board to require access via an intermediary doctor.

Graham Greenleaf