Key published decisions applying Section 44(3) FOI Act

S and the Medical Board of Queensland (1994) 2 QAR 249

The applicant sought access to a letter sent by the applicant’s former psychiatrist to the Medical Board of Queensland (the Board) in response to the applicant’s complaint to the Board. The Board provided access to a health care professional under section 44(3) of the FOI Act on the basis that direct disclosure to the applicant might be prejudicial to the applicant’s physical or mental health or wellbeing.

The Information Commissioner adopted the test identified in Re K and Director-General of Social Security,¹³ which was a decision concerning the equivalent Commonwealth FOI provision.

1. Does the relevant matter contain ‘health care information’ of the applicant?

The Information Commissioner was satisfied that details in the letter about the applicant’s psychiatric treatment and prescribed medication was information of a medical or psychiatric nature concerning the applicant. [14]

2. Is the principle officer of the agency or Minister satisfied that direct disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant?

Adopting the test identified in Re K and Director-General of Social Security,¹⁴ the Information Commissioner was satisfied that the words ‘might be prejudicial’ mean that there is a real and tangible possibility, as distinct from a fanciful, remote or far-fetched possibility, of prejudice to the physical or mental health or wellbeing of the applicant. [12]

Balancing the opinions of the applicant and the applicant’s current psychiatrist with the opinions of the former psychiatrist and the Board psychiatrist, the Information Commissioner was satisfied that direct disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant. [15] Since the former psychiatrist and the Board psychiatrist were aware of the precise nature of the relevant matter (and applicant and current psychiatrist were not) more weight was given to their opinion that direct disclosure might be prejudicial. [15]

3. If direct disclosure might be prejudicial, should the discretion be exercised to give access to a nominated health care professional?

Having regard to the nature of the possible prejudice and the likelihood of its occurrence, the Information Commissioner was satisfied that access should be given to a nominated and approved health care professional. [16]

Accordingly, the matter in issue was referred to a qualified health care professional under section 44(3) of the FOI Act.

NKS and Queensland Corrective Service Commission (1995) 2 QAR 662

The applicant sought access to his medical record book. The Queensland Corrective Services Commission (QCSC) refused direct access to a clinical note prepared by a psychiatrist concerning the applicant under a number of FOI provisions. The Information Commissioner referred to section 44(3) to determine whether access should be granted to a health care professional on the basis that direct disclosure might be prejudicial to the applicant’s physical or mental health or wellbeing.

1. Does the relevant matter contain ‘health care information’ of the applicant?

The Information Commissioner was satisfied that the clinical note, which concerned a psychiatric diagnosis of the applicant and the psychiatrist’s observations and impressions about the applicant, was information of a medical or psychiatric nature about the applicant. [18]

2. Is the principle officer of the agency or Minister satisfied that direct disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant?

Balancing the opinion of the applicant with the psychiatrist’s evidence and the content of the clinical note, the Information Commissioner was satisfied that there was a real and tangible possibility of prejudice to the applicant’s mental health or well being as a result of disclosure. [19]

3. If direct disclosure might be prejudicial, should the discretion be exercised to give access to a nominated health care professional?

The Information Commissioner was satisfied that the nature of the possible prejudice and the likelihood of its occurrence was sufficient for access to be granted to a qualified health care professional. [19]

Accordingly, access to the matter was referred to a qualified health care professional under section 44(3) of the FOI Act.

¹³Re K and Director-General of Social Security (1984) 6 ALD 345 at pages 356-7.
¹⁴Re K and Director-General of Social Security (1984) 6 ALD 345 at pages 356-7.