FTD v NSW Ambulance [2024] NSWCATAD 283 contains some lessons for supervisors of student paramedics, and for people who want to conduct their own litigation.  This case before the NSW Civil and Administrative Tribunal (NCAT) was brought by FTD, a paramedic student, who failed her last clinical placement with NSW Ambulance. 

The case was brought alleging breaches of the Privacy and Personal Information Protection Act 1998 (NSW) (‘PIPPA’).  It did however go down many sidetracks despite the Tribunal’s efforts to keep the application focused on the matters raised by the applicant and within the jurisdiction of the Tribunal. The judgment runs for 178 pages and 344 numbered paragraphs so it’s very long.  Much of the judgement is spend discussing the conduct of FTD in the litigation and whether she, and her non-legally qualified agent, had complied with the Tribunals orders, whether they had put on relevant evidence and whether Senior Member Riordan could work out what it was that FTD alleged. 

The applicant also spent much of the case questioning her preceptor on the preceptor’s skills and ability to assess students. The Tribunal determined that this was not relevant as the Tribunal was being asked to determine whether there had been a breach of PIPPA not to rule on the procedures in place to assign preceptors or the arrangements between UTAS and the Ambulance Service for student assessment or who, ultimately, determined whether a student had met the requirements for their degree. NCAT does not have a jurisdiction to resolve all issues, it has jurisdiction under relevant Acts and an applicant has to understand what remedies they are asking for and bring evidence relevant to that issue only.  As Member Riordan said (at [54]):

… I understand that the applicant feels aggrieved this was the assessment that she was given and she disagrees with it and she wants to challenge it. She is welcome to challenge it, but not in this venue under the guise of a privacy dispute.

The lesson perhaps is to confirm that the person who represents themselves (or asks a non-lawyer for help) ‘has a fool for a client’ (https://quoteinvestigator.com/2019/07/30/lawyer/).

The case against the ambulance service

The opening statement from the lawyer for the ambulance service (at [38]) identified the relevant facts. On the last day of her last clinical placement, FTD presented her paramedic preceptor with a form from the University of Tasmania (UTAS) that was to be completed at the end of the clinical placement.  The student had filled in the parts she was required to complete and handed the from to her supervisor and asked her to fill out the form. The paramedic preceptor completed the form but was uncomfortable about that as she had not previously seen the form, was being asked to complete it in the presence of the student and did not have time to reflect on her responses. When the student, FTD, left the room, the preceptor took photos of the forms using her personal mobile phone but then sent them to her own ambulance service email address.  There she added file notes to the photographed form and changed her assessment from ‘met expectations’ to ‘below expectations’.  She sent those file notes to UTAS and, as a result, FTD failed her final assessment.

FTD made applications for the release of information held by NSW Ambulance about her preceptor’s reports and also made allegations that the conduct of her preceptor, and the ambulance service was a breach of PIPPA.  Counsel for the ambulance service summed up the allegations:

In the first proceedings, there’s a submission that the respondent breaches the PPIPA by failing to provide the applicant with access to her personal information without excessive delay or expense. And the claim that the respondent holds further information arises if the application has not undertaken reasonable searches for that information. The respondent, of course takes the contrary position.

In the second proceedings, the applicant submits that the respondent breached the PPIPA in relation to the alleged collection using disclosure of her personal information at the conclusion of her clinical placement. The respondent submits it did not do so. The respondent’s position is, it simply must be able to deal with information regarding the performance of a student on a clinical placement, including by collecting it, using it and disclosing it to the student’s University in the fashion which has occurred.

It was alleged that the ambulance service breached s 14 of PIPPA.  Section 14 says:

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

This report will not detail the allegations regarding how long it took for the ambulance service to locate and provide copies of emails etc as that is not of direct relevance to the paramedic preceptors. 

The applicant argued that the preceptor’s act of taking the photo of the report, and then sending it to UTAS was an example of the unlawful collection of and then distribution of the student’s personal information contrary to ss 8, 9 and 10 of PIPPA. Those sections say:

8   Collection of personal information for lawful purposes

(1)  A public sector agency must not collect personal information unless—

(a)  the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b)  the collection of the information is reasonably necessary for that purpose.

(2)  A public sector agency must not collect personal information by any unlawful means.

9   Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless—

(a)  the individual has authorised collection of the information from someone else, or

(b)  in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

10   Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following—

(a)  the fact that the information is being collected,

(b)  the purposes for which the information is being collected,

(c)  the intended recipients of the information,

(d)  whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)  the existence of any right of access to, and correction of, the information,

(f)  the name and address of the agency that is collecting the information and the agency that is to hold the information.

FTD’s argument was that the form that had to be submitted to UTAS was her form. She took the form to her preceptor to complete and then she, FTD would deliver it to the University . There was no power or agreement between UTAS and the ambulance service where the ambulance service would send any documents directly to the University.  If the preceptor wanted to add anything it was incumbent upon her to send that to FTD, not to the university (see [41]).  The applicant alleged that photographing the form and attaching the photograph to the notes sent to UTAS represented an unlawful collection and distribution of personal information, even though UTAS had the form that had been photographed as FTD had submitted that form as part of her final assessment. 

In [153] the applicant gave evidence that she did not think the preceptor and the right to make a copy of the assessment form that she was required to complete and sign without the student’s permission.

Another allegation was a breach of s 16 which says:

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

The issue that the applicant wanted to argue wat that the assessment that FTD’s performance was ‘below expectations’ was not accurate and that by releasing that report to UTAS, the service had not taken ‘such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading’.  That is of course a difficult argument to make when the information was the opinion of the preceptor, an opinion which she stood by in her evidence.

There was also an allegation that providing a file note to UTAS that included photos of the assessment form the ambulance serviced breached s 18 which says:

A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a)  the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)  the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)  the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

Outcome

The tribunal rejected all of the applicant’s claims.  The Tribunal held that PIPPA does not apply ‘to the internal movement of personal information about an individual’ so taking photos of the documents and sending them to her work email address did not constitute collecting personal information about the applicant.  At [313] the Tribunal said it was satisfied that the paramedic preceptor did not collect personal information.

She recorded handwritten comments about the applicant’s performance on the evaluation form and retained a copy of those comments by photographing them. This did not constitute a collection of the applicant’s personal information.

Section 8 requires any personal information is collected for a lawful purpose. At [318] the Tribunal said:

In this matter, the purpose of relating comments, including concerns, about the applicant’s performance during the clinical placement to the applicant’s university, is a lawful purpose as it is not forbidden by law. Further, it was closely related to the respondent’s function of administering student clinical placements.

As for s 10 the Tribunal said (at [321]:

I also accept … that the evaluation form was collected directly from the applicant and that it took reasonable steps to make the applicant aware of the matters in s 10 of the PPIPA. In this matter, the applicant was aware that her personal information contained in the evaluation form was being collected by the respondent because she gave her preceptor the document to complete.

There was no breach of s 16 because disclosing the information to UTAS was not a ‘use’ by the ambulance service.  At [330] the Tribunal said ‘There is no evidence that the respondent made any use of the information … other than disclosing those documents to UTAS, which is not a use in the relevant sense’.  In any event s 16 does not require ‘that the agency must, in every circumstance, ask a person to corroborate the accuracy of information that it holds about the person before the information it used’ rather it must take reasonable steps to ensure the matters set out in the section.   In this case the information shared with UTAS was the preceptor’s opinion which is necessarily subjective but in this case were honestly held.

Finally with respect to s 18 ‘The essence of disclosure under s 18 is making known to a person information that the person to whom the disclosure is made did not previously know’ ([339]) but of course UTAS already knew the personal information that was contained in the evaluation form that was in the photos taken by the preceptor because that form had been delivered to UTAS by the student.

The Tribunal found no breach of PIPPA.

Discussion

The result is consistent, in my opinion, with common sense.  Of course, a person such as the preceptor can make a copy of a document where they are asked to record their opinion and sign off on the document.  And a preceptor has to be able to reflect on their assessment and if, on reflection, decide that their initial assessment was incorrect then they can adjust that assessment.  The implications for patient safety if that were not the case are obvious.  Whilst it would have been preferrable if the preceptor ‘had included her genuine concerns about (FTD’s) performance in the original evaluation form’ ([240]) that did not mean there was a breach of PIPPA. As the Tribunal said at [243]:

… it should not have come as a surprise that [the preceptor] … did not take the preferable course about expressing her genuine concerns in the original evaluation form. She did not have the opportunity to do so, nor should it come as a surprise that when she had the opportunity to reflect in an environment where she felt comfortable to do so, she had second thoughts about her evaluation of (FTD). Second thoughts are sometimes better than first thoughts.

The case reflects some of my own experience as a university academic. If some students put as much effort into their assessment as they did in trying to challenge the outcome of their assessment, they may do much better in their courses.

As for preceptors the lesson is to insist on having time and time away from the student to complete any evaluation and to be confident in one’s assessment.  It is not a breach of PIPPA to keep a copy of forms you are asked to complete or to communicate your honest opinion to the relevant assessors.  And if, on reflection, you think your original assessment was not accurate you can and for patient safety I suggest must, take steps to correct that assessment.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.