Privacy and Personal Information Protection: A Judicial Interpretation of a Legislative Response in NSW.

Introduction Personal and privacy concerns regarding personal information which is disclosed by consumers to government departments and health care agencies for the purpose of seeking benefits, advice or assistance is a high priority for the consumers, and must therefore be given diligent attention by those who are the recipients of the information. Sensitive and personal information is only disclosed by a person to those who are in many cases a stranger to them in order to obtain the best possible outcome for themselves or their families. To supplement the legal and ethical obligations of privacy and confidentiality owed by health care professionals and others towards patients, Commonwealth and State governments have enacted, and in some cases, strengthened existing privacy laws. One such Act in New South Wales is the Privacy and Personal Information Protection Act 1998 No 133 NSW (hereinafter referred to as ‘the Act’). The Act defines ‘personal information’ in S4 as: ‘... information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information and opinion’. The definition of personal information includes fingerprints, retina prints, body samples or genetic characteristics. There are some exclusions, including information about an individual who has been deceased for more than 30 years. The Act provides for the appointment of a Privacy Commissioner, and for the making of privacy-related complaints. The Act also prescribes specific information protection principles and requirements for privacy codes of practice. Whilst a Parliament might enact a specific law, it remains the province of judges to interpret the legislative provisions and apply them to the facts of a dispute which comes before them for determination on a case by case basis. This report will provide an overview of a specific case involving the provision of health care which was decided by reference to the above Act: KD v Registrar, NSW Medical Board [2004] NSWADT 5, heard by the Administrative Decisions Tribunal of NSW.