Te Koeti v. Otago District Health Board

. (The tribunal noted that the request should have been made under the Health Information Privacy Code 1994, but accepted that this was immaterial for the purposes of the case.)

 TK made it clear that he specifically wanted all the names of the nurses who had attended him. Although accepting that these names were part of TK’s ‘health information’ as defined by Clause 4 of the Health Information Privacy Code 1994, the ODHB declined to give the names to TK relying on s 27(1)(d) of the Act. Section 27(1)(d) provides: ‘An agency may refuse to disclose any information requested pursuant to Principle 6 if the disclosure of the information would be likely… (d) to endanger the safety of any individual.’

The ODHB justified this refusal on the grounds that TK was a difficult patient, known to be sometimes aggressive and abusive, and believed to be capable of inflicting harm. The most significant concern was TK’s persistence in demanding the names, leading ODHB to be concerned about what he might do with the information. The matter was referred to the Privacy Commissioner, who upheld ODHB’s decision, leading TK to file the proceedings before the Human Rights Review Tribunal.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the claim, and upholding the decision by the ODHB to withhold the nurses’ names, it was held that:

(1) The meaning of ‘likely’ in s 27(1) is the existence of a ‘serious or real and substantial risk to a protected interest’ (dicta of Cooke P in Commissioner of Police v Ombudsmen [1988] 1 NZLR 385 applied, Director of Human Rights Proceedings v Police [2007] NZHRRT 22, Stoves v Police [2008] NZHRRT 30, Nicholl v Chief Executive of the Department of Work and Income [2003] 3 NZLR 426 and Commissioner of Police v Ombudsmen [1988] 1 NZLR 385 considered). The issue in this case, therefore, is whether there is a serious or real and substantial risk that the safety of the nurses would be endangered by the release of their names to TK.

(2) A prima facie right exists to have the nurses’ names disclosed, but this must be weighed against the interests of the nurses in question.

(3) The characteristics of TK are that he has been known to be abusive, aggressive and violent, and has a history of mental health problems. There are thus legitimate concerns that he could perpetuate some harm to the nurses at some point in the future whilst in an unfortunate frame of mind. This is especially so in light of his determination to be given their names even after all the other relevant information has been provided. These circumstances amount to a serious or real and substantial risk that the safety of the nurses would be endangered by release of their names to TK, and thus the ODHB is justified in refusing to disclose this information.

[Adapted from INTERIGHTS summary, with permission]

"[16]   The question for us in this case, therefore, is whether the disclosure of the nurses’ names to this plaintiff would give rise to a serious or real and substantial risk (that is, a risk that might well eventuate) that their safety would be endangered.

[17]   We find that the plaintiff is capable of being an intimidating person, is not immune from abusive and even aggressive outbursts, and has a history that raises legitimate concerns as to how he might conduct himself if prompted by events and circumstances when he is not in control of himself.  Like the ODHB witnesses, we consider that after weighing the interests of the nurses in question against the plaintiff’s rights under the Health Information Privacy Code, the proper course is not to require disclosure of the names of the nurses to him."