VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H380/2020	
CATCHWORDS	
Health records – complaint that records incomplete or falsified – previous complaint between the same parties about the issue had been resolved by agreement including discharge from all future legal proceedings about the subject – complainant did not dispute agreement had occurred – complainant declined opportunity to make later written submissions – complaint dismissed – section 75 Victorian Civil and Administrative Tribunal Act 1998.	
COMPLAINANT	CPO	
RESPONDENT 	St John Of God – Ballarat Hospital	
WHERE HELD	414 La Trobe Street, Melbourne	
BEFORE	Senior Member B. Steele	
HEARING TYPE	Directions Hearing	
DATE OF HEARING	2 April 2024	
DATE OF ORDER	2 April 2024	
DATE OF WRITTEN REASONS	7 May 2024	
CITATION	CPO v St John of God – Ballarat Hospital (Human Rights) [2024] VCAT 422	

Order
The complaint is dismissed, for the reasons given at today’s hearing, and the Tribunal notes that the complainant’s representative states the complainant is also present at the telephone conference and they do not seek to make further submissions and accept that the matter be dismissed. 

B. Steele
Senior Member			
APPEARANCES:		
For Complainant	CPO in person (with a family member speaking)	
For Respondents	Mr J Teng of Counsel	
Reasons

1	On 2 April 2024, I dismissed the complaint in this proceeding, giving brief oral reasons. The respondent sought written reasons and I set these out below. 
2	My reasons here refer more fully to the legislation and the details than I did in oral reasons at the hearing, as we had discussed those details during the hearing. 
3	The matter was listed before me for directions. At the hearing, CPO’s husband spoke by telephone  on her behalf and said she was also present. The hearing had been listed for the parties to appear in person, but CPO and her husband had sought and been given permission to attend by telephone.
4	The respondent submitted that the proceeding should be dismissed, for the reasons which appear below. I offered the complainant and her husband an opportunity for an adjournment so they could make written submissions in response, as they may not have expected that submission. 
5	CPO’s husband said no; he said he did not want any extra time. He said: “I’ll go along with whatever you say.” 
History of this complaint
6	In June 2020, CPO’s husband complained on her behalf to the Health Complaints Commissioner (HCC), concerning a medical procedure CPO had undergone at the respondent hospital in 2012. The complaint was about the “failure of the respondent to provide accurate medical reports”. CPO and her husband considered that the records of the procedure were incomplete and were inconsistent with their understanding of subsequent symptoms they said CPO had displayed. 
7	In October 2020, at the request of the complainant, the HCC referred the complaint to VCAT and so this proceeding began.
8	This was not the first complaint which CPO (or her husband on her behalf) had made about the issue. In October 2016, the HCC had referred to  VCAT CPO’s complaint (also brought by her husband) that the respondent had not kept and not provided accurate records for her. I will return later to the previous complaint. 
9	In June 2021, VCAT conducted a compulsory conference about the complaint in this proceeding. The parties were each represented by solicitors. At the end of the conference VCAT ordered that there would be  an administrative mention about the matter two weeks later and ordered that if the parties did not by then seek further hearing, the proceeding would be marked as struck out. 
10	On 20 December 2022, CPO’s husband applied for the claim to be reinstated. No party attended the hearing of that application, which was listed for February 2023, but CPO’s husband sought a further hearing, and the proceeding was reinstated on 13 April 2023. I was the presiding member on that occasion. 
11	On 22 August 2023, at a directions hearing, Deputy President Nihill made the following orders, with brief reasons as set out below:
1.	The directions hearing is adjourned for approximately two months.
2.	If the complainant wishes to withdraw the complaint she may do so in writing to VCAT. 
VCAT makes this order because:
1.	The respondent said today, and the complainant agreed, that the complainant has been given access to the medical records about her that are held by the respondent. 
2.	The complainant asserts that the records have been falsified and seeks to have action taken about this under section 81 of the Health Records Act 2001 (Vic). This is not a matter that VCAT can make orders about, and it appears to go beyond the referral which is the basis of this application.
3.	The complainant said today that he would speak about these matters with the Health Complaints Commissioner.
12	CPO’s husband sought and was granted an extension of time, and the matter was referred to an administrative mention on 13 January 2024. CPO’s husband then wrote to VCAT saying he still seeks CPO’s full medical records from the respondent and the matter was listed for directions before me on 2 April 2024.
13	On 2 April 2024, CPO’s husband sent correspondence offering a compromise which involved the respondent agreeing to ask for a review of images of CPO which CPO and her husband  claimed were inconsistent with the respondent’s records.
The respondent’s submissions
14	The respondent was represented by Mr Teng of counsel at the directions hearing. In summary, Mr Teng submitted:
(a)	CPO’s husband had been provided with the respondent’s medical records on three occasions.
(b)	At the directions hearing on 22 August 2023, the parties had agreed on significant matters and that was the reason for the adjournment.
(c)	The order of 22 August 2023 made clear that VCAT had no power to do what the complainant was seeking and there was nothing left for the respondent to do.
(d)	The correspondence in this matter showed that the complaint had a fundamental misunderstanding of the records and a mistaken belief they had been falsified.
(e)	While the respondent always dealt with the complainant’s correspondence there was no substance to it.
(f)	In any case, this proceeding should have been barred because in 2017 the complainant had signed a deed of release in a previous complaint about the same subject, in VCAT’s file H230/2016. That complaint had also been referred to VCAT by the HCC.
(g)	The deed of release was not available at the hearing that day, but Mr Teng was able to read it from an electronic copy which included the words: “…complainant discharges the respondent from any and all claims, demands, …legal proceedings whatsoever arising out of or connected with the facts of this claim”.
(h)	The respondent had continued to engage with CPO’s requests for documents because they understood the complainant’s distress and wanted to provide all the records to her and reassure her that was all they had. 
(i)	Mr Teng added that if any further work or attendance was required in this proceeding, the respondent would be seeking its costs.
the complainant’s response
15	CPO’s husband agreed with the description of the previous complaint. He said the complaint in H230/2016 was about the same matters as the 2020 complaint in this proceeding. He said that in 2017 the respondent had provided documents and legal costs had been paid and he (or CPO, I am not sure which) had signed a document like the one read out by Mr Teng. 
16	CPO’s husband said that subsequently they obtained “images” of CPO which showed something different had occurred in CPO’s procedure and so he had made the further complaint. He said also that CPO had been billed for items not mentioned in the medical records. 
17	CPO’s husband referred to the correspondence he had sent to the respondent and to VCAT on the morning of the directions hearing. It suggested that if  VCAT and the respondent would support obtaining a review of a relevant image by the Royal College of Radiologists, that would help obtain the necessary review and he and CPO would accept the results of that review of the images. He said without the support of the respondent and perhaps VCAT, “no one wants to get involved” in dealing with the fact that, as he sees it, the respondent’s medical records for CPO are not consistent with the images.
18	I told CPO’s husband that VCAT could not make any further orders about his proposal because we first needed to consider whether the proceeding should be dismissed as the respondent had asked. 
19	I explained to CPO’s husband that if what Mr Teng had told me was correct then I considered the proceeding should be dismissed or struck out, because he and CPO had agreed in 2017 not to bring any further proceedings about the issue. I offered time for CPO and her husband to make any submissions about this that they wanted to make. I said they could do this later, in writing. 
20	CPO’s husband said he understood they could make further submissions, but he also agreed this proceeding was about the same matters as in the 2016 complaint, except that in this proceeding they did not ask for compensation, only for the records.
21	CPO said he was content for me to dismiss the matter on the basis that the 2017 agreement meant he could bring no further proceedings. He said that his wife CPO was there with him and agreed. 	
conclusion
22	Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 gives VCAT power to dismiss a proceeding which is an abuse of process. It is an abuse of process for one party to bring a proceeding against the other after they have signed and acted on an agreement that they will not bring further proceedings about the same issue. I note the complainant was acting without the benefit of legal advice and was not  deliberating abusing VCAT’s process. However,  that is still the appropriate description of this situation. It would be an abuse of process to continue this proceeding.
23	 I checked the electronic records of VCAT’s orders in H230/2016, which showed that an order dated 20 October 2017 had struck out the proceeding in that file, with no order as to costs and a note that parties’ correspondence of 19 October 2017 had been noted. I did not have access to the paper file which would have provided more information, but this material was consistent with what the parties had told me. There was no dispute about this.
24	In these circumstances, where the respondent submitted the proceeding was barred by a previous agreement and the complainants said they had indeed signed a previous agreement to the effect that they would bring no further proceedings connected to the facts of the claim in H230/2016, and where the complainants specifically said they did not want further time to make written submissions, I dismissed the complaint.  

B. Steele
Senior Member