Francis and Department of Defence [2009] AATA 549 (24 July 2009)

Last Updated: 27 July 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 549

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3586

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RONALD WILLIAM FRANCIS

Applicant

And

DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal

Senior Member R W Dunne

Date 24 July 2009

Place Adelaide

Decision

The Tribunal: (a) varies the decision under review as detailed in paragraph 49 of these reasons; and (b) otherwise affirms the decision under review.

..............................................
R W DUNNE
(Senior Member)

CATCHWORDS

FREEDOM OF INFORMATION – application for amendment of personal records – existence of contemporaneous evidence relating to applicant’s injuries – respondent agreed to make one amendment, refused to amend remaining records – whether records incomplete, incorrect or misleading – decision varied

Freedom of Information Act 1982 (Cth) ss 4(1), 48, 50, 55(1) and (6)
Re Denhollander and Department of Defence [2002] AATA 866
Re Francis and Department of Defence [2004] AATA 33
Francis v Department of Defence [2005] FCA 100

REASONS FOR DECISION

24 July 2009

Senior Member R W Dunne

INTRODUCTION

1. This is an application for review by Ronald William Francis (“applicant”) under s 55(1)(g) of the Freedom of Information Act 1982 (Cth) (“Act”). Mr Francis served with the Royal Australian Navy (“Navy”) between 1965 and 1972. On 14 February 2007, he sought access under the Act to documents, in the possession of the Department of Defence (“respondent”), relating to his service. The respondent subsequently granted access to a number of documents. On 25 March 2008, the applicant requested amendment of a number of the documents to which he had been granted access (“FOI Request”). After the exchange of correspondence, on 11 August 2008 the respondent made a decision agreeing to make one amendment, but refusing to amend the remainder of the documents. It is this decision that is effectively the subject of review by the Tribunal.
2. At the hearing, the applicant appeared with the assistance of his friend, Mr Denhollander, and gave oral evidence. Mr Davidson from the Office of the Australian Government Solicitor represented the respondent. The respondent called Captain E Rushbrook, a medical officer in the Navy, to give oral evidence. The T documents (Exhibit R1), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), were tendered before the Tribunal, along with the following documents:
   • medical examination records and other documents of the applicant (Exhibit A1);
   • letter from the Department of Veterans’ Affairs dated 13 January 1992 relating to the applicant (Exhibit A2); and
   • affidavit of Captain E Rushbrook dated 2 February 2009 (Exhibit R2).

ISSUES FOR THE TRIBUNAL

3. The following issues arise for the Tribunal’s consideration as a result of Mr Francis’ application:
   • (a) Whether, and to what extent, the documents in issue contained personal information about the applicant which was incorrect, incomplete, out of date or misleading.
   • (b) Whether, and to what extent, the personal information about the applicant comprised medical or other opinion, and where it was opinion, whether the opinion could be said to be based on a mistake of fact, or tainted by the author’s bias, lack of qualification or improper action in conducting the factual inquiries that led to the formulation of the opinion.
   • (c) What form any amendment to the applicant’s personal information should take.

LEGISLATION

4. The legislative provisions that relevantly apply to this application for review are contained in ss 4, 48, 50 and 55 of the Act.
5. To the extent that it applies, s 4(1) of the Act provides:

“4 Interpretation
(1) In this Act, unless the contrary intention appears:
...
personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

6. Section 48 of the Act reads:

“48 Application for amendment or annotation of personal records

Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.”

7. To the extent that it applies, s 50 of the Act provides:

“50. Amendment of records
(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.”

8. To the extent that it applies, s 55 of the Act provides:

“55 Applications to Administrative Appeals Tribunal
(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
...
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
...
(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(c) the amendment relates to a record of an opinion to which neither of the following applies;
(i) the opinion was based on a mistake of fact;
(ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.”

BACKGROUND AND EVIDENCE

9. It is not in dispute that, on 26 January 1968, while travelling to Vietnam on board HMAS Sydney, Mr Francis was injured as a result of falling down a ladder. He was evacuated back to Australia due to his injury and received treatment at Balmoral Naval Hospital. In early 1972 he applied to become a submariner. On 17 March 1972 he was examined by Dr Clarke, a medical officer with the Navy, for “sub suitability”. On 14 June 1972 the applicant wrote to the Commanding Officer, HMAS Nirimba, requesting discharge from the Navy on compassionate grounds. On 14 July 1972 he underwent a “free discharge” medical examination, again conducted by Dr Clarke. He was discharged on 16 July 1972.
10. Following his FOI Request, the applicant’s Navy medical file was referred to Colonel C van der Rijt, Director Joint Health Support Agency, to consider the request. Colonel van der Rijt’s decision in relation to the request (Exhibit R1, T11, pages 51-55) was forwarded to the applicant on 11 August 2008 and contained an analysis of the documents referred to by the applicant in the FOI Request.
11. At the suggestion of the Tribunal, Mr Francis referred to the following documents comprised in the FOI Request considered by Colonel van der Rijt. He was then asked to outline his contentions in relation to each document.

FOI Request Documents – Applicant’s Contentions

(a) Item 1 – Exhibit R1, T5 at page 31

This AF Med 1 (dated 17 March 1972) was a record of a medical examination undertaken for the applicant’s submarine suitability. The Naval Medical and Hospital Instructions (ABR 1991) required that this document, including the category recommended in Box 62, had to be completed by the examining medical officer. In comparing the writing in Box 62 with the writing in Box 60, the letter “A” in Box 62 had been tampered with. The reference to Category “A” should have been to some other Category. The handwriting in the document, which had been signed by Dr Clarke, was different to the handwriting in the document in Item 2 below, also signed by Dr Clarke. The applicant was unable to suggest what other Category should appear in Box 62. No examination of the applicant’s “Emotional stability” and “Mental capacity” in Boxes 48 and 49, whether assessed as normal or abnormal, had been conducted by the examining medical officer. The letters “NE” (meaning “Not Examined”) appeared in Boxes 48 and 49. Again, it was a requirement of ABR 1991 that a full medical examination be conducted. The Pulheems classification in Box 58a, which assessed the functional status of the applicant as required by ABR 1991, had also not been completed. The applicant referred to his AM 146z (Medical Statement on Discharge or Demobilisation) dated 14 July 1972 (Exhibit R1, T5 at page 33) and to his back injuries recorded in the Statement and contended that particulars of the injuries should have appeared in Box 58a of his AF Med 1.

(b) Item 2 – Exhibit R1, T5 at page 32

This AF Med 1 (dated 14 July 1972) recorded the medical examination of the applicant undertaken by Dr Clarke at the time of his discharge from the Navy. His evidence was that he had a history of an accepted disability which was a cross fracture of the first lumbar vertebra. Particulars of this injury should have appeared in Box 59 of his discharge AF Med 1 or his spine noted as abnormal in Box 42. As to the applicant’s post traumatic depression, he contended that this was now known as post traumatic stress disorder and an abnormal notation should have appeared in Box 49 (“Mental capacity”). The presence of post traumatic depression appeared in his Navy medical records and these would have been available to Colonel van der Rijt in reaching her decision. Box 60 (“Previous category and date”) was wrong and required correction. As his sub suitability AF Med 1 had been completed earlier, the date in Box 60 of the discharge AF Med 1 (15 July 1969) required correction to read “17 March 1972”.

(c) Item 3 – Exhibit R1, T5 at page 33

This was the demobilisation form (AM 146z) that the applicant was required to complete at the time of his discharge. His evidence was that he may have signed the form, but he did not complete it himself. He referred to the disabilities recorded in Boxes 7, 8 and 9 (including “Back pain caused when I fell down a set of ladders on HMAS Sydney 26.1.68. Have trouble lifting heavy weights”), which should have been noted in his discharge AF Med 1. As he had not filled out the AM 146z, he had been denied the right to have his medical history included in the form. It was the applicant’s contention that, based on ABR 1991, information relating to fractures of the 1st, 3rd, 4th and 5th lumbar vertebrae and his depression should be reflected in the discharge AF Med 1. In relation to the completion of the AM 146z, Mr Denhollander referred to Regulation 4488 of ABR 1991 (“MEDICAL AND DENTAL EXAMINATIONS PRIOR TO DISCHARGE”) and to sub-paragraphs 2b and 2c of the Regulation (“ROUTINE DISCHARGES”), which he submitted read:

“b. The member is to be instructed to complete the Form AM 146z – ‘Medical Statement of an Officer or Sailor on Discharge’ – any disability claimed is to be investigated and treated without delay.
c. A full medical examination including X-ray examination of the chest (70mm or larger film) is to be made and recorded on Form AF Med 1 – ‘Medical Examination Record’. When compiling AF Med 1 the examining medical officer is to comment on any disabilities claimed on Form AM 146z and whether further treatment is indicated.”

He said there was a clear direction to the examining medical officer to follow Regulation 4488 and Dr Clarke had failed to do so. He had not commented on the applicant’s disabilities recorded in the AM 146z when completing his AF Med 1.

(d) Item 4.1 – Exhibit R1, T5 at page 34

This was a medical survey report for the applicant. Box 11 referred to a principal disability, being “Fracture L1 vertebral body”. The other disability recorded in Box 13 was “Post traumatic depression”. The applicant argued that, although post traumatic stress disorder (“PTSD”) was a term not used during the period 1965 – 1972, post traumatic depression was a “co-morbidity” of what was now known as PTSD. In the circumstances, he contended that the AM 146z and the discharge AF Med 1 should reflect his history of what was previously post traumatic depression. Box 11 of the report should include fractures to the 1st, 3rd, 4th and 5th lumbar vertebrae, and Box 13 should include reference to PTSD. Box 15(b), under “Recorded History”, should also contain reference to fractures of the 1st, 3rd, 4th and 5th lumbar vertebrae and PTSD. The words “I feel fine” (under “MEMBERS STATEMENT”) were not a true reflection of the applicant’s health at the time and should be removed, unless the actual question that gave rise to the response was inserted. The applicant indicated that he accepted the offer of annotation from Colonel van der Rijt (Exhibit R1, T11, at paragraph 25) to read:

“Mr Francis believes that the recorded Member’s Statement of ‘I feel fine’ has no context and is not a true reflection of his health at that time.”

(e) Item 4.2 – Exhibit R1, T5 at page 35

This was a further medical survey report for the applicant. Box 11 was misleading and should include reference to fractures to the L3, L4 and L5 lumbar vertebrae. The applicant referred to the report of Dr C M Bradley, orthopaedic surgeon, dated 19 August 1991, which was annexed to his written Submission at pages 22-26. He contended that Dr Bradley’s report had acknowledged the existence of fractures to the L4 and L5 lumbar vertebrae.

(f) Item 4.3 – Exhibit R1, T5 at page 36

This out-patient record for the applicant failed to record the L4 and L5 fractures referred to in Dr Bradley’s report and in the documents contained in his Navy medical file. Colonel van der Rijt had failed to take account of these contemporaneous documents in reaching her decision. The details in the out-patient medical record were misleading and incomplete.

(g) Item 4.4 – Exhibit R1, T5 at page 37

In this medical survey report, Box 11 failed to record the fractures to the applicant’s L4 and L5 lumbar vertebrae. The same fractures should be recorded in Box 15(b) of the report. Box 13, which referred to “Post traumatic depression”, should refer to the applicant’s PTSD.

(h) Item 4.5 – Exhibit R1, T5 at page 38

This in/out patient record (continuation) made reference to the stability of the L5 fracture. The record should also make reference to the fractures to the L1, L3 and L4 lumbar vertebrae. The applicant then referred to a clinical record cover sheet in his name, dated 3 February 1968 (annexed to his written Submission at page 16), which contained the following details:

“Fracture, compression, L4-5 (lumbar 4th and 5th vertebrae). No artery or nerve involvement.”

(i) Item 4.6 – Exhibit R1, T5 at page 39

In Boxes 15 and 16 of this in-patient record for the applicant, references were made to fractures of the L4-L5 vertebrae. The record should also reflect the fractures to the L1 and L3 vertebrae.

(j) Item 5 – Exhibit R1, T5 at pages 40-41

This in-patient case sheet (continuation) referred to the fracture to the L1 lumbar vertebra. The sheet should also refer to the fractures to the L3, L4 and L5 lumbar vertebrae.

(k) Item 6 – Exhibit R1, T5 at page 42

This was a record of a Determination made by a delegate of the Commissioner for Employees’ Compensation in respect of the applicant. In it was a reference to the fracture to the L1 lumbar vertebra. It was the applicant’s contention that the Determination should also refer to the fractures to the L3, L4 and L5 lumbar vertebrae. In support of his contention he referred to the Determination (dated 6 July 1987) made under the Veterans’ Entitlements Act 1986 (annexed to his written Submission at page 27) that the fracture to the L4-5 vertebrae was war-caused.

12. The applicant then referred to the offer of annotation made by Colonel van der Rijt in her decision (Exhibit R1, T11, at paragraph 25). He stated that he would not accept any of the annotations that had been offered. He again referred to the handwriting in the AM 146z (Exhibit R1, T5 at page 33). When questioned by the Tribunal, he confirmed that he had signed the AM146z.
13. In cross-examination by Mr Davidson, he was again referred to the sub suitability AF Med 1. He admitted that the submarine suitability testing had been cancelled, but was unaware whether the cancellation occurred because he was medically unfit.

Evidence of Captain Rushbrook

14. Mr Davidson referred Captain Rushbrook to her affidavit dated 2 February 2009 (Exhibit R2). She acknowledged that every statement in her affidavit was correct. He then showed the witness a folder which comprised part of the medical documents of the applicant, in particular, the sub suitability AF Med 1 dated 17 March 1972. Captain Rushbrook identified the AF Med 1 form as the original of the document she had referred to in paragraph 5 of her affidavit.
15. In cross-examination, Captain Rushbrook said that the AF Med 1 record reflected the medical officer’s opinion of the medical status of the applicant at the time of the examination. When asked about the applicant’s spinal condition at the time of the examination, she said that the opinion of the medical officer in Box 42 of the form was that it was normal. The witness was referred to the form AM 146z (which referred to the back pain the applicant was experiencing at the time) and the discharge AF Med 1, both of which were signed by the applicant on 14 July 1972. As to why the medical officer (Dr Clarke) did not investigate the applicant’s back pain, Captain Rushbrook said:

“I’m not aware that the doctor saw this form. In ABR 1991, it says that at the time of a discharge medical being completed, both forms need to be completed, but it doesn’t say that that form needs to be completed, either in the presence of, or before or after a medical officer examination. So I’m not sure what order these forms were actually completed at that time.” [Transcript, page 66]

16. Captain Rushbrook was then referred to subparagraphs 2b and 2c of Regulation 4488 of ABR 1991 (“MEDICAL AND DENTAL EXAMINATIONS PRIOR TO DISCHARGE”). She acknowledged that there seemed to be no comment about the applicant’s disabilities recorded in his AM 146z when Dr Clarke compiled the AF Med 1. She was also referred to the Pulheems classification appearing in Box 58a of the AF Med 1. She said that, when examining a random sample of the AF Med 1 forms, she had not found any forms where the Pulheems classification had been filled out in a Naval record at the time of the applicant’s discharge. Notwithstanding what might have been said in ABR 1991, she had not seen any evidence that the Pulheems classification was actually used. There were multiple systems of classification and, when asked to classify someone, a medical officer could use whatever system he or she was told to use. Although she had never been required to use the Pulheems system, if she had been required to do so, she would have read the system reference and undertaken the classification in accordance with the reference. When asked by the Tribunal why the Pulheems classification had not been completed in both of the applicant’s AF Med 1 forms, Captain Rushbrook said:

“I don’t know, which is why I pulled a random sample of medical documents to have a look about what was the – yes, the contemporary practice of the day. What I discovered, which is in my affidavit, was of the 19 examinations that I looked at, five had the PULHEEMS classification box and none of them had it filled out. All the other examinations had no PULHEEMS classification box available to be filled out.
...
On three [occasions] ... between 1970 and 1973 I found five medical examinations that did contain that box. It was not filled out on any of the occasions, and on three occasions it was crossed out.” [Transcript, page 75]

17. In re-examination by Mr Davidson, Captain Rushbrook said that, in dealing with the applicant’s medical file, she had never seen any evidence that suggested the medical officer, in fact, conducted a Pulheems assessment and failed to record it on the AF Med 1 forms. Mr Davidson referred Captain Rushbrook to paragraph 8 of her affidavit where she said:

“... The medical examination on discharge is not intended to be a comprehensive review of the member’s history and circumstances. ...”

When asked about the assessment given to the applicant’s spine in Box 42 of the AF Med 1, she said that it was possible for a person to suffer a fracture of their back in 1968, receive medical treatment, and in 1972 have a back that was capable of being classified as normal.

CONSIDERATION AND APPLICATION OF THE LAW

Whether and to what extent do the documents in issue contain personal information about the applicant which is incorrect, incomplete, out of date or misleading

18. Part V of the Act allows a person to seek amendment (or annotation) of personal information about him or her, where that information is contained in a document of an agency to which he or she has been lawfully provided access. The document must contain personal information about that person that is incorrect, incomplete, out of date or misleading and has been used, is being used or is available for use by the agency for an administrative purpose: s 48(a) and (b) of the Act. Before it may amend a record of personal information, the agency must be satisfied, amongst other things, that the information is incomplete, incorrect, out of date or misleading: s 50(1)(b) of the Act. When s 48 and s 50(1) are read together, it is apparent that the amendment (or annotation) provisions do not apply to the whole of the document that contains the personal information, but only to the personal information itself contained in the document. The Tribunal notes that, in Re Denhollander and Department of Defence [2002] AATA 866 (before Deputy President Forgie) and in Re Francis and Department of Defence [2004] AATA 33 (before Senior Member Purcell), this Tribunal considered in some detail the question of amendment (or annotation) of personal information under Part V of the Act.
19. In the present case, initially it appeared that the main documents involved in Mr Francis’ FOI Request were the AF Med 1 (sub suitability), the AF Med 1 (free discharge) and the AM 146z. However, as events transpired, all the documents comprised in the FOI Request and the relevant decisions of Colonel van der Rijt, were considered during the hearing. The Tribunal’s findings in relation to these documents, and the decisions relating to them, follow.

Item 1 – Exhibit R1, T5 at page 31

20. It was Mr Francis’ contention that Box 62 in his AF Med 1 (sub suitability), which contained the Category “A”, had been tampered with. Box 62 is where medical Categories are inserted to define the type of service in which officers and sailors of the Navy may be employed. ABR 1991 (Section 0250) sets out the possible categories and the types of service and reads:
    

Category	Type of Service or Limitation of Service
A	Fit for service anywhere
B	Fit for posting to a ship or establishment where a full-time or part-time Medical Officer is borne.
BY	Fit for posting to a ship or establishment where a full-time Medical Officer is borne
C	Under medical treatment and unfit for duty anywhere
D	Unfit for sea service temporarily but fit for duty on shore
E	Unfit for sea service but fit for duty on shore
K	Temporarily unfit for duty in a potentially malarious area
T	Under medical supervision, unfit for posting but fit for light duty
Y	Temporarily unfit for sea service and for service on shore north of Brisbane or Fremantle

21. In his closing and in analysing Dr Clarke’s handwriting, Mr Denhollander submitted that the letter “C” had been inserted and had been changed to “A”. In the Tribunal’s view, there was no evidence to support the argument that Box 62 had been tampered with. Moreover, the Tribunal notes that a similar shaped “A” appears directly below in Box 64, which suggests that both Boxes were completed by the same person, Dr Clarke. When the Tribunal invited the applicant to state what should appear in Box 62 instead of Category “A”, the response was along the lines of “Any Category except an ‘A’”. Section 49(b)(v) requires the applicant to specify the amendment that is requested. As Mr Francis did not do this, the Tribunal is unable to address the matter upon review.
22. Mr Francis contended that, as Box 48 (“Emotional stability”) and Box 49 (“Mental capacity”) were recorded as “Not Examined”, and the Pulheems classification in Box 58a had not been completed with the injuries recorded in his AM 146z, a full medical examination in accordance with ABR 1991 had not been conducted. On the evidence of Captain Rushbrook, the Tribunal is satisfied that it was quite common for Box 48 and Box 49 to be ticked “NE”. This was because of the extensive nature of the mental state examination in its own right.
23. The issue of the endorsement of items in Mr Francis’ AF Med 1 as “normal” rather than “abnormal” was discussed by Senior Member Purcell in Re Francis (supra) where, at paragraph 34, she said:

“34. ... I am satisfied on the evidence that the question being asked of Dr Clarke was whether aspects of the body were normal, or abnormal, in terms of function; he was not being asked whether they were anatomically normal or abnormal. He formed an opinion that at the time of the examination these aspects of the body were ‘normal’; and in my view these opinions were not based on errors of fact. In relation to the back condition there was a radiological history in respect of the applicant's spine, but in terms of what was occurring at the time of the examination there was evidence that he was working in his ordinary duties, and not regularly receiving treatment for the condition at that time. There was a sound basis, in my view, for Dr Clarke's opinion, that from a functional point of view the applicant's back was ‘normal’.”

I adopt, with respect, the Senior Member’s reasoning and approach in relation to Dr Clarke’s completion of the applicant’s AF Med 1.

24. As to completion of the Pulheems classification in Box 58a, based on random sampling of members’ AF Med 1 forms covering the period of Mr Francis’ Naval service, the Tribunal notes Captain Rushbrook’s evidence that the contemporary practice at that time was not to undertake a Pulheems assessment of Navy members. Moreover, it was Mr Davidson’s submission, which the Tribunal accepts, that the fact the Pulheems classification in Box 58a was not completed does not render the AF Med 1 incomplete. It was open to Dr Clarke to fill in the requisite details elsewhere if he thought it appropriate to do so. The form was not incomplete in the sense that the Tribunal was left wondering what Dr Clarke thought about Mr Francis. In fact, Dr Clarke’s recommendation about the Category (in Box 62) was that he thought Mr Francis was fit for service anywhere. With regard to Mr Francis’ injuries in his AM 146z, Captain Rushbrook said that she was not aware that Dr Clarke had seen the AM 146z at the time of the applicant’s discharge medical examination. ABR 1991 said that both the AM 146z and the AF Med 1 needed to be completed, but it did not say that the AM 146z needed to be completed in the presence of the medical examiner or before or after the medical examination.
25. Mr Francis submitted that Box 42 (spine) was incomplete, incorrect and misleading. He said the Box marked the spine as normal, whereas he could not possibly have had a normal spine. In this regard, the Tribunal again notes what was said by Senior Member Purcell about Mr Francis’ back condition in Re Francis (supra) and referred to above in paragraph 23.
26. It is the Tribunal’s understanding that the applicant did not wish to put Dr Clarke’s opinion into issue. If he did, s 55(6) would require the Tribunal to refuse to amend the opinion, unless it was satisfied that there was a mistake of fact. For the same reasons found by Senior Member Purcell in Re Francis, the Tribunal is satisfied that no mistake of fact occurred. In his closing, Mr Francis referred to the decision of the Military Rehabilitation and Compensation Commission communicated to him and dated 16 August 2005. In the reasons for decision, the delegate said:

“I have examined all the evidence available to me and I have taken note of the reasons put forward in your request for reconsideration, mainly that your L4 and L5 injuries and PTSD arose from the same incident as your accepted condition on 26 January 1968.”

The Tribunal notes, however, the decision given by the Commission which reads:

“It is my decision to affirm the determination dated 8 March 2005 in which MCRS refused to extend liability in respect of your accepted condition to include L4 vertebra and L5 vertebra injuries and PTSD.” (emphasis added)

27. In the Tribunal’s view, on the evidence, the information contained in the applicant’s AF Med 1 (sub suitability) was not incomplete, incorrect or misleading and no amendment is required.

Item 2 – Exhibit R1, T5 at page 32

28. In relation to his discharge AF Med 1, Mr Francis contended that the cross fracture of the first lumbar vertebra, which was an accepted disability, should have appeared in Box 59 or his spine noted as abnormal in Box 42. In his written Submission, he argued that fractures of the 1st, 3rd, 4th and 5th lumbar vertebrae should be recorded in the AF Med 1. It is clear that there was initial confusion as to which vertebra Mr Francis had fractured in his fall on HMAS Sydney. It appears the confusion arose due to the poor quality of the x-rays available. Evidence of medical examinations submitted by Mr Francis (as annexures to his written Submission) suggested that there were fractures to the 4th and 5th lumbar vertebrae. However, the Tribunal is satisfied that the further x-ray taken on 26 July 1968 (Exhibit R1, T11 at page 60) confirmed a fracture of the first lumbar vertebra only. The AF Med 1 reflected the opinion of the medical officer that, at the time of examination, he did not observe any disability insufficient to cause rejection. There was no evidence to suggest that the medical officer’s opinion was biased, unqualified or affected by any improper process.
29. Mr Francis contended that Box 59 should also refer to “Post-Traumatic Stress, Acute Anxiety & Anxiety Neurosis”. In the Tribunal’s view, there was no evidence that the applicant was suffering these conditions at the time of the medical examination and that they constituted a disability at that time. As was said by Senior Member Purcell in Re Francis (supra) at paragraph 18:

“There is no record of the applicant being referred for any psychiatric treatment or assessment between September 1969 and 26 April 1972, when he was diagnosed with ‘anxiety neurosis’ at HMAS Nirimba. ... He was reviewed two days later on 28 April 1972 when he was noted as feeling better, and again on 15 May 1972 when he was much better, and only taking Valium if required.”

30. Mr Francis also contended that Box 60, which recorded a medical assessment dated 15 July 1969, was erroneous because it failed to mention the more recent sub suitability assessment on 17 March 1972. The Tribunal notes that, in her decision, Colonel van der Rijt offered the following suggested annotation to Mr Francis’ discharge AF Med 1 to reflect the request to amend the date in Box 60:

“Although the last formal Medical Survey was 15 Jul 69, Box 60 could have referred to the Category recommendation noted in the members Submarine Suitability examination of 17 Mar 72.”

In the Tribunal’s view, the annotation to the applicant’s discharge AF Med 1, in the form suggested by the decision-maker, is appropriate.

31. According to Mr Francis, the discharge AF Med 1 was also “incomplete” and “misleading” because it had not been confirmed by a “Confirming Authority” in Box 66. In her affidavit, Captain Rushbrook noted that the medical examination for submarine suitability on 17 March 1972 had not been confirmed by a Confirming Authority in Box 66. Based on her random examination of AF Med 1 forms between 1964 and 1976, it was her deduction that it was not contemporary practice at the time to confirm all medical examinations. In the Tribunal’s view, the absence of confirmation in Box 66 in the applicant’s case did not make his AF Med 1 “incomplete” or “misleading”.
32. In the circumstances, the Tribunal is required by s 55(6) of the Act to refuse to amend the discharge AF Med 1.

Item 3 – Exhibit R1, T5 at page 33

33. As outlined by Mr Davidson, the AM 146z was a form which was intended to be completed by Naval personnel on their discharge. Mr Francis did not dispute this. However, in his Submission, he stated that he “did not fill out the AM 146z thereby being denied my right to have this history included on the form”. In his evidence, he stated that he did not personally fill out the form, but admitted that he had signed it. In the Tribunal’s view, by signing the AM 146z, Mr Francis is (or must be seen as) adopting its contents as a statement of his medical condition upon discharge. Although he might now prefer the record to say something else, it is not incorrect, incomplete or misleading as it accurately recorded the statement that he agreed at the time should form part of his medical record. As was stated in paragraphs 28 and 29 above, the amendments sought by Mr Francis to the medical details relating to his back and his psychiatric complaints are not substantiated by the best evidence available.
34. Mr Denhollander referred to Regulation 4488 of ABR 1991 and the fact that Dr Clarke had not commented on Mr Francis’ disabilities recorded in the AM 146z when he completed the discharge AF Med 1. In her affidavit at paragraph 24, Captain Rushbrook’s evidence was that ABR 1991 did not require the details recorded in the AM 146z to be recorded in the AF Med 1. Section 0332 of ABR 1991 stipulated that the AM 146z was to be enclosed in “Med 4” (the medical envelope for all medical forms), along with the completed discharge AF Med 1. Whilst the two documents would always travel together, it was not necessary for one to refer to the other.
35. On the evidence, the Tribunal is again required by s 55(6) of the Act to refuse to amend the applicant’s AM 146z. However, The Tribunal notes that, in her decision, Colonel van der Rijt offered the following suggested annotation to Mr Francis’ AM 146z:

“Mr Francis states that he did not personally write to fill out the information on this form.”

In the Tribunal’s view, the annotation to the applicant’s AM 146z, in the form suggested by the decision-maker, is appropriate.

Items 4.1 to 4.6 – Exhibit R1, T5 at pages 34-39

36. These documents comprised various medical survey reports and in-out patient records. In the case of the medical survey reports, Mr Francis sought amendments relating to the description of the back injury he sustained (fractures to the lumbar vertebrae) and the nature of his psychiatric complaints (post-traumatic depression or PTSD). As was mentioned in paragraph 28 above, the totality of the evidence before the Tribunal indicated that Mr Francis suffered a fracture of the 1st lumbar vertebra only. Boxes 11 and 15(b) are, therefore, correct and do not require amendment. As to the reference to PTSD in Box 13, it is noted from Colonel van der Rijt's decision (at paragraph 12) that at the time (1968/1969) PTSD was not an officially recognised condition. PTSD was only recognised as such and included in the Psychiatric Diagnostic and Statistical Manual as a formal condition in the early 1980s. Colonel van der Rijt also explained that the term post-traumatic depression was believed to be used in the applicant’s case as a descriptor as he had suffered mild anxiety/depression following his injury. The symptoms associated with the condition known as PTSD were not described or identified in the applicant’s case. In the Tribunal’s view, it would be incorrect and misleading to include reference to PTSD in Box 13 of the reports.
37. The report at page 34 notes that “Since September 1968 [the applicant] has been feeling normal. No trouble with back. Member’s statement: ‘I feel fine.’” The words “I feel fine” are consistent with the preceding words relating to the applicant’s back and represent the medical examiner’s view of the applicant’s condition at the time. In the circumstances, the Tribunal, in accordance with s 55(6) of the Act, must refuse to amend the report. Again, the Tribunal notes that, in her decision, Colonel van der Rijt offered the following suggested annotation of the report:

“Mr Francis believes that the recorded Member’s Statement of ‘I feel fine’ has no context and is not a true reflection of his health at that time.”

In the Tribunal’s view, the annotation to this report, in the form suggested by the decision-maker, is appropriate.

38. In the survey report at page 35, the applicant sought amendment to Box 11 (disclosing fracture to the L1 vertebral body) and to Box 13 (disclosing post-traumatic depression). The applicant has referred to the report of Dr C M Bradley dated 19 August 1991. The Tribunal notes that the report was prepared nearly 23 years after the applicant sustained his back injury. Moreover, in his evidence, the applicant said:

“Now, when I came across Dr Bradley he actually threw all – every x-ray in my file out the window, and had a complete new set re-done, you know, to make sure that they were clear Now, the original x-rays are all destroyed seven years after you leave the service, so there’s no reference to go back to them, to actually find out. ...” [Transcript, page 40-41]

Given that Dr Bradley had disposed of the original x-rays and arranged for fresh prints, there must be serious doubt whether those x-rays would have reflected the applicant’s condition at the time of his injury in 1968 and be able to form a proper basis for the opinions given by him in his 1991 report. It is also certainly not clear that he had before him the results of the radiological examination referred to in the report from the surgeon Captain at the RAN hospital, HMAS Penguin, dated 1 August 1968 (Exhibit R1, T11 at page 60) which read:

“This sailor is considered to have suffered a fracture of the body of the first lumbar vertebrae.”

39. Box 11 and Box 13 contain medical opinion given by a qualified medical practitioner. As mentioned above in relation to Item 2, the evidence before the Tribunal indicates that Mr Francis suffered a fracture of the 1st lumbar vertebra only. As to post-traumatic depression, Mr Francis was diagnosed with various different anxiety or depressive conditions at various points, but never PTSD. In the Tribunal’s view, the report at page 35 correctly reflects the opinion of the medical examiner involved in assessing Mr Francis at the time. There is no evidence to suggest that the opinion expressed in the survey report was biased, unqualified or affected by any improper process. The Tribunal is required by s 55(6) of the Act to refuse to amend the report.
40. Mr Francis sought to have the out-patient medical report at page 36 amended to record the L4 and L5 fractures referred to in Dr Bradley’s report and in the documents in his Navy medical file. The report contained the following clinical notes:

“Fractured lumbar spine six months ago. Confusion as to which vertebrae were actually fractured, has arisen. Request X-Ray to determine the answer please.
...
Wedging deformity of the body of L1 is present and there is no essential change in the radiographic appearances of the lumbo-sacral spine except that the fractured body of L1 now appears to be well united.
...
Dr. Diethelm’s report of 20.2.68 ‘S1 is an intermediate type of vertebra. There is moderate wedging deformity of the body of L1 undoubtedly traumatic in background. No other abnormality detected’.”

The report referred to confusion that arose in relation to which vertebrae were actually fractured, and focused on the injury to the L1 vertebra. The Tribunal is satisfied that the record correctly reflects the opinion of the examining medical officer in assessing Mr Francis at the time. Again, there is no evidence to suggest that the opinions expressed in the clinical notes in the report were biased, unqualified, or affected by any improper process. The Tribunal is required by s 55(6) of the Act to refuse to amend the report.

41. In the medical survey report at page 37, Mr Francis again sought to have Box 11, which referred to fracture of the lumbar L1 vertebral body, and Box 15(b) amended to include reference to the L4 and L5 lumbar vertebrae. He also requested amendment to Box 13, which referred to post-traumatic depression, to instead include reference to PTSD. For the reasons given in paragraphs 28 and 29 above, the Tribunal is required by s 55(6) of the Act to refuse to amend the report.
42. Mr Francis requested that the in/out patient record at page 38, which referred to the “Stability of L5 Fracture”, should also include reference to the L1, L3 and L4 lumbar vertebrae. He also sought to have Boxes 15 and 16 in the in-patient record at page 39, which referred to “Fracture L4-5 vertebrae”, amended to refer to fractures to the L1 and L3 vertebrae. Again, for the reasons given in paragraph 28 above, the Tribunal is required by s 55(6) of the Act to refuse to amend the records.

Item 5 – Exhibit R1, T5 at pages 40-41

43. In relation to this in-patient case sheet, Mr Francis sought the same amendments as those for Items 4.1 to 4.6. For the reasons set out in paragraphs 36 to 42 above, the Tribunal is satisfied that the case sheet record is not incorrect and correctly reflects the opinions of the examining staff involved in assessing Mr Francis at the time, Again, there is no evidence to suggest that the opinions were biased, unqualified or affected by any improper process. The Tribunal is required by s 55(6) of the Act to refuse to amend the record in the case sheet.

Item 6 – Exhibit R1, T5 at page 42

44. Mr Francis sought to have this record of a Determination made by a delegate of the Commissioner for Employees’ Compensation, which referred to the fracture to the L1 lumbar vertebra, amended to also include reference to the L4 and L5 vertebrae. In the course of his evidence, he also referred to the report of a medical officer made under the Commonwealth Employees’ Compensation Act dated March 1968, which referred to fractures of the L4-5 vertebrae. As was observed by Colonel van der Rijt in her decision, these documents were not created by or owned by the respondent and do not form part of Mr Francis’ medical file. The Tribunal agrees that, as these documents are not documents of the respondent, they do not fall within the ambit of s 48 of the Act and the applicant’s request for amendment must be refused. Moreover, the Tribunal observes that s 55(6)(a) prevents the Tribunal from making a decision that requires an amendment to be made to a record that is a record of a decision under an enactment by a court, tribunal, authority or person. In these circumstances, the Tribunal is barred from amending the record of Determination by the operation of s 55(6)(a) of the Act.

Whether the personal information about the applicant comprised medical or other opinion based on a mistake of fact, bias, lack of qualification or improper action

45. In relation to s 55(6)(c)(ii) of the Act, there was no assertion by the applicant in the course of the hearing that the personal information which was the subject of the FOI Request contained opinion that was biased or where the author was unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formulation of the opinion. With regard to Dr Clarke, a similar finding was made by Senior Member Purcell in Re Francis (supra). Mr Francis asserted that certain procedures were not followed in the preparation of his medical record, but these assertions related to an alleged departure from usual or appropriate procedure.
46. Apart from those matters where the contentions made by the applicant were not factually correct or based upon contemporaneous evidence to the contrary, the Tribunal is prohibited by s 55(6) of the Act from making a decision that requires an amendment to any of the personal information contained in the records that were the subject of the FOI request. Apart from the offers of annotation that have been made by the respondent and are referred to in these reasons, the applicant cannot succeed in his application for review.

Summary

47. Mr Francis repeatedly submitted that his sub suitability AF Med 1 and his discharge AF Med 1 were incomplete, incorrect or misleading because the Forms did not reflect his true medical status at the time. Certain parts of the Forms had not been filled in and other parts were deficient. He argued that no examining medical officer could form an opinion on any of the Categories in the Forms without a full medical examination taking place in accordance with ABR 1991. Mr Francis pointed to the decision of Selway J in Francis v Department of Defence [2005] FCA 100 where at paragraph 15, the learned Judge said:

“I point out however that there is nothing in this analysis nor in any of the material that has been put before me which would seem to me to establish as at todays date that the applicant was not suffering from spinal injuries or from post-traumatic stress syndrome as at the date he left the Navy.”

Based on this finding, Mr Francis argued that the AF Med 1 forms were incomplete, incorrect or misleading. Notwithstanding the opinion expressed obiter by Selway J, the Tribunal is bound to observe the provisions of s 55(6) of the Act when reaching its decision.

48. The amendment regime under Part V of the Act is not intended to be a re-examination of the decisions that have been taken in the past. The question that is being asked is whether the personal information in the documents in issue is a correct representation of what occurred at the time. In the context of Mr Francis’ case, the answer to the question is not whether the medical examinations conducted of him were undertaken correctly. It is whether the documents correctly reflect the medical examinations that were, in fact, undertaken. Mr Francis’ case was very much one of what should have occurred, and the respondent’s case was that the documents involved and the personal information in them correctly and accurately reflected what actually occurred. Subject to what appears elsewhere in these reasons, it follows that the personal information in the documents was not incorrect, incomplete, out of date or misleading.

DECISION

49. For the reasons outlined above, the Tribunal:

(a) varies the decision of the respondent dated 11 August 2008 by:

(i) making the following annotation to the applicant’s discharge AF Med 1 dated 14 July 1972:

“Although the last formal Medical Survey was 15 July 1969, Box 60 could have referred to the Category recommendation noted in the member’s Submarine Suitability examination of 17 March 1972.”

(ii) making the following annotation to the applicant’s AM 146z dated 14 July 1972:

“Mr Francis states that he did not personally write to fill out the information on this Form.”

(iii) making the following annotation to the applicant’s Medical Survey Report dated 3 July 1969 (and confirmed 15 July 1969):

“Mr Francis believes that the recorded Member’s Statement of ‘I feel fine’ has no context and is not a true reflection of his health at the time.”

(b) otherwise affirms the decision under review.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed: ...........J Coulthard.............................................

Associate

Date of Hearing 11 February 2009

Date of Decision 24 July 2009

Advocate for the Applicant Self-represented

Advocate for the Respondent Mr J Davidson

Solicitor for the Respondent AGS