VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H446/2019	
CATCHWORDS	
Health Records Act 2001; interference with privacy, ss 18, 78 Sch. 1 Health Privacy Principles 4 and 6; compensation.	

complainant	EXW	
RESPONDENT 	Dr Christopher Mulroney	
WHERE HELD	Melbourne via videoconference 	
BEFORE	Senior Member S. Burdon-Smith	
HEARING TYPE	Hearing	
DATE OF HEARING	1 March 2021	
DATE OF ORDER AND WRITTEN REASONS	13 April 2021	
CITATION	EXW v Mulroney (Human Rights) [2021] VCAT 322	

Order
Under section78 of the Health Records Act 2001 the Tribunal orders that- 
1	The application with respect to a breach of Health Privacy Principle 4.2 is not proven.
2	The application with respect to the breach of Health Privacy Principle 6.5 is not proven.
3	The application with respect to a breach of Health Privacy Principle 4.3 is proven and the following orders made-
a	The respondent shall correct the Complete Record of EXW as follows-
i	Inserting in the History section of the Complete Record following the date “2003” the words “Depressive anxiety disorder”, and strike them out. 
ii	Attach a note to the correction to the following effect- “Reinstated as per Order of VCAT dated 13 April 2021 in proceedings H446/2019.”
iii	The respondent shall pay the complainant the sum of $2,000.00 as compensation for the breach of Health Privacy Principle 4.3.
4	By consent, the respondent shall amend the consultation notes for 21 June 2018 as follows-
a	under the heading “Reason for contact:” after the words “Implant”, add the word “prescription”; and
b	under the heading “Actions:” and before the “Rx Questions”, insert the words “Not Implanted”; and
c	place a note beside each of the corrections of the date of the correction, the person making the correction and the association of the corrections with this Order.

S.M. Burdon-Smith
Senior Member			

APPEARANCES:		
For complainant	Ms J. Moir of Counsel	
For respondent	Mr A. Rooney of Counsel 	

Reasons
1	EXW’s claims arise under the Health Records Act 2001 (HRAct). She claims that there was an interference with her privacy by Dr Christopher Mulroney (the respondent) through breaches of Health Privacy Principles (HPP) 4.2, 4.3 and 6.5.
2	EXW was a patient of the respondent at the time the breaches are alleged to have occurred. She claims to have become aware of them when she requested a copy of her health records after being denied insurance on the basis of their content and the report provided by the respondent on her medical conditions. 
3	EXW claims that her medical records were amended in breach of HPP 4.2 and that her records are incorrect as they contain a description of a diagnosis which is incorrect and in breach of HPP 6.5.
4	The complainant lodged her complaint initially with the Health Complaints Commissioner (HCC). The matter was unable to be resolved through conciliation and the matter referred to the Tribunal pursuant to section 63(5) of the HRAct.
5	The respondent does not admit to any of the claims or allegations.
6	No questions arose as to the application of the HRAct or HPPs to the respondent as a health service provider, or the right of the complainant to make this application.
7	The complainant’s points of claim included a number of claims and allegations which were not pursued at the hearing. The complainant restricted her claims to the breaches of the HPPs 4 and 6.
The complaint and evidence
8	The complainant is a female in her early 30s. She was a patient at One Point Medical Clinic (the Clinic) from January 2017 to October 2018, and a patient of the respondent from 4 August 2017 to 2 October 2018.
9	On 26 November 2016, the complainant consulted Dr Lanka – a psychiatrist. This was prior to transferring her file to the Clinic. Dr Lanka indicated to the complainant that in her opinion the complainant had attention deficit hyperactivity disorder (ADHD). The complainant was commenced on a course of 5mg Dexamphetamine twice daily. On 12 December 2016, this prescription was doubled. After taking the drug for around four weeks, the complainant registered some side effects. She returned to Dr Lanka on 13 January 2017 to discuss the side effects. Dr Lanka attributed the symptoms to “life anxiety”. The complainant did not accept or agree with this diagnosis.
10	Prior to her return to Dr Lanka, the complainant says that she had researched ADHD and was interested in the Global Mind Screen Assessment offered by the Clinic. She completed the assessment on 12 January 2017 and then met with Dr Reshma Saseendran, a practitioner at the Clinic, to discuss the results.
11	Subsequently, after some research, the complainant approached Dr Saseendran to discuss the use of antidepressants as an alternative to stimulant medication such as Dexamphetamine as a treatment for ADHD.
12	Dr Saseendran agreed and prescribed Pristiq, an antidepressant - at the complainant’s request. However, the complainant did not commence the course as she was concerned how she might feel on the drug. She had an experience of Zoloft (another antidepressant) as a year 12 student when she had some depressive symptoms. 
13	On 23 January 2017, the complainant consulted Dr Peter Holsman, a general practitioner and naturopath, with the aim of managing her ADHD holistically. The complainant did not follow up with further consultations. 
14	This was a very stressful time in the complainant’s life, and she commenced her course of Pristiq. The complainant found herself sleeping a lot and gaining weight. She again approached Dr Saseendran. At this consultation on 18 April 2018, the complainant asked for a referral to Dr Jaya Reddy at the MediBrain Clinic. The complainant had made some enquiries and thought this would be of benefit to her. The referral was provided.
15	The complainant’s evidence is that she told Dr Reddy that she wished to avoid stimulant medication. He suggested Concerta for her ADHD. Her understanding was that she would continue on Pristiq to counter any adverse side effects.
16	On 4 August 2017, the complainant had her first appointment with the respondent. She says that they discussed her lethargy and weight gain on Pristiq and that he recommended changing to Brintellix. This she says she was told was a new type of antidepressant that was not on the Pharmaceutical Benefits Scheme (PBS) but it had been found to improve ADHD symptoms. The complainant agreed to commence a trail on Brintellex and cease Pristiq. Dr Mulroney suggested that he take on the stimulant permit from Dr Reddy. From this time on, the complainant was taking Concerta and Brintellix but without significant improvement.
17	On 26 October 2017, the complainant says that she was convinced to change from Dexamphetamine to Vyvanse by Dr Mulroney. This was to be in conjunction with Brintallex.
18	The complainant’s life continued to be busy and eventful. She engaged with a counsellor at work to help her.
19	In May 2018, the complainant completed an application to increase her life insurance. In August 2018, she was informed that her application had been declined. The reason given was that-
The report from One Point Medical Centre confirmed a history of ADHD which was complicated in 2017 due to an episode of major depression. It was due to the recency of the major depression which led to the decline of TPD and SCI cover.
20	On further enquiry the complainant was informed that the respondent had advised that she was being treated for Major Depressive Disorder (MDD).
21	On 24 August 2018, the complainant states that she met with the respondent. She says that the respondent skimmed her records and said “you are right, there is no history of depression here. Why are you taking antidepressants?” and that she told him that Dr Saseendran had prescribed them as an alternative treatment to stimulant medication as the complainant had read that they were used as an off-label treatment for ADHD.
22	The complainant states that in that meeting the respondent wrote a letter to the insurer acknowledging that he had made an error and stating that the complainant was being treated for Generalised Anxiety Disorder (GAD) and not a MDD. The letter says -
… I filled out a report for [EXW] which stated that she was suffering from a depressive/anxiety disorder. This was not in fact true. She was suffering from a Generalised Anxiety Disorder as a complication of her Adult ADHD. There was no documented evidence of Depression. I include a letter from her Psychiatrist Dr Jaya Reddy attached to this letter.
She is currently on Brintellix for the Anxiety disorder.
23	The complainant said that she was confused as she had never heard of GAD. She left the Clinic and accessed the Diagnostic and Statistical Manual of Mental Disorders. After reading the relevant information she formed the view that she did not meet the diagnostic criteria and to her knowledge had never been diagnosed with GAD or told that she was suffering from GAD.
24	The complainant requested further information from the Clinic by email on 24 August 2018 – most particularly when she had been diagnosed with the GAD.
25	The Clinic responded by email dated 30 August 2018 that the complainant had originally been diagnosed with anxiety by Dr Saseendran. This information was not accepted by the complainant who says that she was never told this by Dr Saseendran and because Dr Saseendran had not been seeing her long enough to form the diagnosis applies where the “symptoms are continuous for 6 months or greater, more days or not”.
26	On 4 September 2018, the complainant requested in writing that she be provided with her medical records. She was informed that they could not be provided at that time and that the respondent had requested a face to face appointment to talk about her request.
27	After lodging a complaint with the HCC, the complainant was provided with a copy of her medical records. She asserts that the records confirmed that -
a	Dr Saseendran had diagnosed her with ADHD and prescribed antidepressants as an off-label product to treat ADHD and avoid adverse effects of stimulant medication.
b	Dr Saseendran had never diagnosed her with GAD and there were no markers on her Global Mind Screen Assessment.
c	Her past medical history had been changed for the year 2003. On the medical record provided by the HCC, the entry under 2003 stated “Generalised Anxiety Disorder (GAD) 17 yrs & 21 yrs & 25 yrs & 28 years”. However, the referral letter from Dr Mulroney to Dr Reddy dated 14 August 2017 stated “Depressive Anxiety Disorder”.
28	On 1 October 2018, the complainant requested that her records be corrected. 
29	On 31 October 2018, the complainant received the response from the respondent which refused to correct the records.
30	The complainant seeks correction of her medical records in the following respects – 
a	That her medical record be amended to substitute “ADHD” for “Depressive Anxiety Disorder” where it appears as a reason for the prescription of Brintellix. The complainant’s claim is that she has not and could not have been diagnosed with a depressive disorder and its retention on her record is incorrect.
b	That the date against the entry “Brintellix last Script” be corrected by placing a line through the date “14/03/2018” and inserting “Discontinued 24/08/2018”.
c	That the entry “Implanon Last Script on 12/06/2018” be corrected with the inclusion “prescribed but not implanted”.
d	That the entry for 2003 be deleted in its entirety or replaced with the original content, and corrected by striking it out and inserting the reason for the strike out as “no basis”.
e	That the reason for contact notes of 4 August 2017 be corrected by the strike out of the wording “Depressive Anxiety Disorder” and insertion of the wording “ADHD” with a date and note confirming the error.
The response and evidence
31	The respondent did not give evidence at the hearing relying on the submitted written material and the submissions of his Counsel.
32	In the respondent’s reply to the HCC he informs from the records of the Clinic that the complainant first attended the Clinic on 13 January 2017. She completed a New Patient Details form and answered the question “do you suffer from any of the following?” – she ticked depression.
33	The records include the completed the Global Mind Screen Assessment conducted by Dr Saseendran. The assessment for ADHD and MDD was “severe” and reported suicidal intention but no intent. The Treatment Plan which followed the assessment was prepared by Dr Saseendran. In the area of MDD – it included the comment “Depressive Symptoms” but where the notation was required in relation to the clinical confirmation the box “NO” was ticked. 
34	The complainant was referred to a psychiatrist who commenced her on stimulant medication for her ADHD. According to the notes she reported feeling anxious taking the medication. Based on her research she requested an antidepressant (Pristiq), which was prescribed by Dr Saseendran.
35	When the respondent first saw the complainant, she reported a side effect of weight gain on Pristiq. The respondent changed her medication from Concerta and Pristiq to Concerta and Brintellex on 4 August 2017.
36	He says that he wrote a referral letter to her then treating psychologist (Dr Reddy) requesting the cancelation of the stimulant permit held by Dr Reddy so that it could be transferred to him. Attached to that letter was a patient history extracted from the Full Patient History.
37	There is no dispute that the medical record contains the entry “2003 Generalised Anxiety Disorder (GAD) 17yrs & 21 yrs & 25 yrs and 28 yrs.” or that the referral letter to Dr Reddy has the notation “2003 – Depressive Anxiety Disorder”.
38	On or about 10 May 2017, the respondent was requested by the complainant’s insurer to provide information on the following conditions –
BMR re;
(a)	ADHD and history of depression including mental health questionnaire completed.
(b)	Factor V Leiden including any history of thrombosis and treatment.
39	In the space provided he wrote –
a	For question 1 - “Please provide the mental health diagnosis and date of diagnosis”, the response was “2016 ADHD 2017 Major Depressive Disorder”.
b	For question 2 - “Who made the diagnosis?”, The response was to cross the box for “Specialist” and provide the following information “2016 Dr Lanka Cooray[.] 2017 Dr Jaya Reddy”.
c	For question 3 - “Has the patient been advised of their diagnosis?”, the box “Yes” was crossed.
d	For question 4 - “Date of onset of symptoms”, the response was “ADHD (lifelong) MDD (2017)”.
e	For question 5 – “What were the initial symptoms?”, the response was “Hitting a brick wall with progress in her life. Irritability; mood swings; headaches; poor concentration; hypersensitivity.”
f	For question 9 – “Has the patient fully recovered without impairment, recurrence and requiring ongoing treatment?”, in the box “No” was crossed and in response to the question “”How have the symptoms changed since the initial diagnosis?”, the response was “Depression resolved. ADHD lifelong.”
g	For question 11 – “Please indicate all management modalities used and whether they are still current”, the response was “Counselling – GP CBT based psychotherapy still current[.] Medication Vyvanse and Brintellix still current[.] Specialist Dr Jaya Reddy Still current”.
h	For question 12 – “How does the condition currently affect the patient’s functional capacity?”, the response was “Not applicable”.
40	The respondent admits that he saw the complainant on 24 August 2018 and that the medical record of the consultation states –
…
(2) Insurance company refuses her disability insurance as MDD mentioned by me.
Plan
Letter to Insurance Company
Long chat re other issues
Reduce Brintellix to 10mg 2 months and cease.
41	The respondent wrote to the insurance company by letter dated 24 August 2018 as follows –
… I filled out a report for [EXW] which stated that she was suffering from a depressive/anxiety disorder. That in fact was not true. She was suffering from a Generalised Anxiety Disorder as a complication of her Adult ADHD. There was no documented evidence of Depression. I include a letter from her psychiatrist Dr Jaya Reddy attached to his letter.
She is currently on Brintellix for the Anxiety disorder.
42	On 28 August 2018, the complainant emailed the respondent requesting information on when she was diagnosed with GAD and a revision of the letter to the insurance company removing the diagnosis of GAD.
43	The respondent did not provide a written response to the requests but indicated that he would like to meet with the complainant.
44	On 29 August 2018, the complainant emailed the respondent again requesting a written response and stating that she had obtained a second opinion from her psychologist who “agreed on the basis of his knowledge and relationship with me that this diagnosis would be a shock to him, and further questioning the inclusion of the diagnosis.”
45	On 30 August 2018, an email was sent on behalf of the respondent to the complainant in the following terms –
Dr Mulroney has let us know that you were originally diagnosed with anxiety by Dr Saseendran. In addition the medication you are currently taking can only be prescribed for patients with Major Depression or Generalised Anxiety Disorder…
46	The complainant responded on 4 September 2018 challenging –
a	that she had ever been diagnosed with GAD; and
b	that such a diagnosis was not appropriate to her.
47	In that correspondence she requested that her records be corrected and the letter to the insurance company rewritten to exclude the GAD diagnosis. Alternatively, the provision of evidence of Dr Saseendran “completing a diagnostic assessment and where I have met the diagnostic criteria, including how Dr Saseendran came to the conclusion”. She wrote –
I am deeply concerned that I have been labelled with a disorder without clinical basis. My primary concern is to having my medical records corrected. I have never suffered depression or anxiety – nor have I sought treatment for either.
48	The respondent continued to reply to the complainant’s requests requesting that she attend the Clinic in person to which she refused.
49	The respondent says that he did prescribe the Implanon NXD Implant on 12 June 2018 at the request of the complainant. He confirmed that it was prescribed but not implanted by him on that day or any future date. He does not agree that the record is incorrect or deficient, but offers to provide a correction to include the words “not implanted”.
50	The respondent does not agree to correcting the record in relation to the cessation of Brintellix. As at 24 August 2018, he has noted that the “Plan” is “Reduce Brintellix to 10mg 2 months cease”. He is unable to confirm whether the complainant has done so as he has not had a consultation with her since that date.
51	In relation to the requested correction of the Reason for Contact annotation on 4 August 2017 from “Depressive Anxiety Disorder” to “ADHD”, the respondent’s positions that his is an annotation which is made by the practitioner on the basis of the patient’s presentation, and indications. It is not dictated by the patient’s request. The respondent’s position is that this is an appropriate annotation given the content of the notes. 
The Law
52	Section 18 of the HRAct provides most relevantly that –
…an act or practice of an organisation is an interference with the privacy of an individual if and only if –
(a)	the act or practice breaches part 5 or a Health Privacy Principle in relation to health information that relates to the individual.
53	The relevant part of HPP 4 is as follows –
4.2 	A health service provider must not delete health information relating to an individual, even if it is later found or claimed to be inaccurate, unless— 
(a)	the deletion is permitted, authorised or required by the regulations or any other law; or 
(b)	the deletion is not contrary to the regulations or any other law and occurs— 
(i)	in the case of health information collected while the individual was a child, after the individual attains the age of 25 years; or 
(ii)	in any case, more than 7 years after the last occasion on which a health service was provided to the individual by the provider— 
whichever is the later. 
4.3	A health service provider who deletes health information in accordance with HPP 4.2 must make a written note of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted.
54	The relevant parts of HPP 6 relate to correction of information and are as follows –
Correction 
6.5 	If an organisation holds health information about an individual and the individual is able to establish that the information is inaccurate, incomplete, misleading or not up to date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up to date but must not delete the information otherwise than in accordance with HPP 4.2. 
6.6 	If—
(a) 	the organisation is not willing to correct the health information in accordance with a request by the individual; and 
(b) 	no decision or recommendation to the effect that the information should be corrected wholly or partly in accordance with the request, is pending or has been made under this Act or any other law; and 
(c) 	the individual gives to the organisation a written statement concerning the requested correction— 
the organisation must take reasonable steps to associate the statement with the information.
6.7	If the organisation accepts the need to correct the health information but— 
(a)	the organisation considers it likely that leaving incorrect information, even if corrected, could cause harm to the individual or result in inappropriate health services or care being provided; or 
(b)	the form in which the health information is held makes correction impossible; or 
(c)	the corrections required are sufficiently complex or numerous for a real possibility of confusion or error to arise in relation to interpreting or reading the record if it were to be so corrected— 
the organisation must place the incorrect information on a record which is not generally available to anyone involved in providing health services to the individual, and to which access is restricted, and take reasonable steps to ensure that only the corrected information is generally available to anyone who may provide health services to the individual. 
6.8	If an organisation corrects health information about an individual, it must— 
(a)	if practicable, record with the correction the name of the person who made the correction and the date on which the correction is made; and 
(b)	take reasonable steps to notify any health service providers to whom the organisation disclosed the health information before its correction and who may reasonably be expected to rely on that information in the future.
HPP 4.2 – Discussion and findings
55	The onus is on the complainant to prove that the respondent deleted the words “Depressive Anxiety Disorder” and replaced them with the words “2003 Generalised Anxiety Disorder (GAD) 17yrs & 21 yrs & 25 yrs and 28 yrs.”, and that this was done after the rejection of her insurance claim. 
56	Both parties agree that there is no note on the record of a deletion.
57	The basis of the claim is the difference between the “history” attached to the referral letter from Dr Mulroney to Dr Reddy dated 4 August 2017 and the Full Summary as at 16 October 2018.
58	The respondent’s position is that the letter to Dr Reddy contained information taken from the records, but not necessarily a word for word replication. The information was extracted from clinic notes and not necessarily the Full Patient History.
59	The respondent’s submission on this matter was that to the extent that any change may have occurred to the record, it was to reflect the change in information provided to the complainant’s insurer and the complainant was aware of the change. The complainant was asked on cross-examination if she understood that the change in the letter by Dr Mulroney in his letter to the insurance company which amended the information to “anxiety disorder” would be reflected in her records, the complainant answered “No.”
60	I accept the complainant’s evidence that the words “Depressive Anxiety Disorder” were deleted from her medical record and that “2003 Generalised Anxiety Disorder (GAD) 17yrs & 21 yrs & 25 yrs and 28 yrs” was inserted and that this is a deletion of part of the record. However, in order to be a breach of HPP 4.2 it must be shown to have been deleted other than as permitted, authorised or required by the regulations or any other law.
61	The respondent’s submission is that the respondent is required by HPP 3 to take steps that are reasonable in the circumstances to make sure that, having regard for the purpose for which the information is to be used, the health information it collects, uses , holds or discloses is accurate, complete, up to date, and relevant to its functions or activities. A revision of the information in the history should be updated as more information becomes available, and therefore, the expansion of the information provided in the patient’s history would be permitted by law under HPP 3.
62	The respondent says that the description of the condition or diagnosis is a matter of professional opinion and represents a more accurate description of the complainant’s history than the earlier entry. The complainant does not accept the diagnosis of GAD, and indeed says that she has never had or been treated for depression.
63	If the complainant’s position is accepted, then the original comment in the history at “2003 – Depressive Anxiety Disorder” is also inaccurate. 
64	The respondent submitted that the Tribunal has no jurisdiction to enter into the area of diagnosis when hearing complaints under the HRAct. In Kitson v Dennerstein, DP Lambrick stated that HPP 3 is not a vehicle through which to challenge a health diagnosis or assessment or seek to substitute another opinion for the opinion of the author of the report. Although this matter does not claim a breach of HPP 3, I formed the view that the same constraints apply. The Tribunal’s role in this matter is to determine whether the record has suffered a deletion, and if so whether there is a failure to comply with HPP 4.3. Where the issue is one of diagnosis and opinion the Tribunal is not qualified to decide. 
65	It is possible that the respondent deleted the reference to “Depressive Anxiety Disorder” to better reflect his opinion about the complainant’s history, or to assist her in her claim for insurance. It has not been demonstrated to me to the requisite standard that the respondent deleted the health information other than in compliance with HPP 3 and therefore the claim of a breach of HPP 4.2 is not proven.
66	However, there has been a deletion of health information, and there has been no compliance with HPP 4.3. The intent is not relevant to this provision. I find the claim for breach of HPP 4.3 proven and will order that the words “Depressive Anxiety Disorder” be reinstated, and struck out and a note attached to the deletion to the effect that it was ordered by the Tribunal.
HPP 6.5 – discussion and findings
Brintellix reason
67	The complainant seeks the deletion on page 1 of the “Complete Record” of the words “Depressive Anxiety Disorder” where they are ascribed as the reason for the prescription of Brintellix. Her reason is that she has never been diagnosed with Depressive Anxiety Disorder. This is consistent with the respondent’s statement in his letter to the insurer where he states that “There was no documented evidence of Depression”. 
68	In his letter to the HCC dated 30 October 2019 in response to the complainant’s claim, the respondent wrote that –
[EXW] incorrectly believes that the antidepressant medication she was on was being used to counteract the side effects of stimulant medication that was for her ADHD. This was definitely not the case. As stated above, Dr Saseendran noted clear evidence of MDD on her initial consultation. As a medical professional, I have reviewed the detailed consultation notes taken by Dr Saseendran on that occasion, and the GMS completed, and from my own knowledge of [EXW] after having myself treated her for a year, I consider Dr Saseendran made a clinical decision to initially treat the primary medical issue –[EXW’s] ADHD, to see if the depressives symptoms settled. The reverse occurred and they were amplified by the stimulant medication, leading to antidepressant medication which continued to be used.
69	The statement made by Dr Mulroney in his letter dated 24 August 2018 to the insurance company to correct his report is somewhat at odds with the Global Mind Screen Assessment but appears consistent with the clinic notes made by Dr Mulroney after 4 August 2017. There are regular references to anxiety, but no obvious references to depression.
70	The reason for prescribing Brintelix has been ascribed by Dr Mulroney. It is a matter of medical opinion, and one which the complainant disagrees with. As stated previously, it is not for the Tribunal in this matter to make a decision about the appropriateness of a diagnosis or prescription. The error or accuracy of the record has not been demonstrated to satisfy me that the information is inaccurate, incomplete, misleading or not up to date and requiring correction. This claim will be dismissed.
Implanon last script
71	The complainant says that the entry for 12 June 2018 is misleading because it refers to the reason for the consultation as “Contraception – Implant”. It includes a reference to Implanon and the prescription but does not show that the product was prescribed but not implanted.
72	The respondent has not conceded that this is misrepresentation but he has offered to add a further note to the Complete Record to the effect “Correction to consult note on 12 June 2018 – Implanon script provided on this date. Implanon was not implanted on this date.”
73	I will make an order that this be done by consent without a finding in relation to HPP 6.5.
Entry in history for 2003
74	The complainant seeks the deletion of all entries for 2003. I have already made my findings in relation to the deletion of the words “Depressive Anxiety Disorder”. She has requested that the information added, by Dr Mulroney is also deleted. On the basis of her reading of her medical history and comparison of her symptoms with the Diagnostic Criteria for GAD, she does not believe that she has GAD and that this is an error on her record.
75	The respondent said  in his letter to the HCC dated that his diagnosis was made on the basis of his own observations of over a year and available history.
76	It is not open to the Tribunal to order that the entry is struck out unless satisfied that it is inaccurate, incomplete, misleading or not up to date and requiring correction. I have been presented with information of a medical diagnosis which is not accepted by the complainant but confirmed by the respondent. There is insufficient evidence to support a finding of breach of HPP 6.5 and that part of the claim will be dismissed. 
Reasons for contact 
77	The entry on 4 August 2017 in the Complete Record which was the first consultation with Dr Mulroney – is “Depressive Anxiety Disorder”. The complainant submits that this is an error based on an assumption about the reason for prescribing Brintellix. She says that her reason for attending was ADHD and that should be correctly recorded.
78	The respondent through his Counsel said that the patient notes are written by the practitioner essentially for their own, or other medical practitioner’s information. They are not dictated or determined by the patient. The record stands as the opinion and assessment of Dr Mulroney at the time of the consultation and is not an error or misrepresentation of fact which requires correction.
79	I accept the respondent’s submissions on this claim and find that the record does not require correction and will dismiss this part of the claim.
Remedy
80	The complainant described the impact of this claim on her. She described her feelings of distrust of the medical profession arising from her treatment by the Clinic and the respondent and the feeling that her trust has been breached.
81	Additionally, the complainant says that the refusal to correct her records in the way that she sought, and from providing her with a letter to her insurer consistent with her wishes has prevented her from obtaining the insurance that she applied for.
82	The respondent in reply says that the complainant was offered numerous opportunities to discuss her concerns with the respondent but refused to do so. By doing so, the complainant has deprived herself of an explanation for the issues and an early resolution of the matter. The claim is also defended because the complainant has not shown that she has been denied the insurance. She has not provided the letter of amendment provided by the respondent to the insurer. There is therefore no refusal of insurance based on the events subject to these proceedings.
83	The respondent noted that although this issue with Implanon was not part of the original complaint to the HCC, the respondent has shown his willingness to assist and support the complainant by making the requested correction.
84	The Tribunal has power to make orders provided in section 78 of the HRAct. They include order requiring the performance of any reasonable act to redress any loss or damage suffered by the complainant, including injury to the complainant’s feelings or humiliation suffered by the complainant by reason of the act which is the subject of the complaint. The Tribunal may order that the complainant is entitled to an amount of compensation for loss, damage and injury to feelings and humiliation. Where a complaint is proven the Tribunal may make orders declining to take further action, and where the complaint is not proven – all or in part, the Tribunal may make orders dismissing the claim as appropriate. In any case, the Tribunal may order that the complainant is entitled to a specific amount for expenses reasonably incurred in connection with making the complaint.
85	I accept the complainant’s evidence that the making of this claim has been time consuming and stressful for her. I do not accept that she has been denied insurance, because she has not provided any evidence that she has been denied insurance after being provided with the opportunity to seek a review of the original decision by the insurer. In relation to her humiliation and hurt feelings, I accept that the appearance on her written record of a diagnosis which she did not recognise as applying to her was upsetting, and her attempts to have it resolved exhausting. Unfortunately, this apparently caused her to withdraw from the source of the information which may have given her some deeper understanding of the information which she rejected.
86	The complainant’s health record has been shown to have been deleted without proper annotation contrary to HPP 4.3. It has been necessary for the complainant to bring this claim to the Tribunal to have this matter addressed, and deal with the humiliation of having her medical history and condition become the subject of these proceedings. For that reason, I will order that the complainant is entitled to compensation for $2,000.00 for the breach of HPP 4.3.
Summary
87	The complainant has failed to satisfy me on the balance of probabilities that the respondent has breached HPP 4.2 and HPP 6, and those claims are dismissed.
88	The complainant has demonstrated that the words “Depressive Anxiety Disorder” were deleted from her Complete Health Record. The respondent will be ordered to replace those words in the Past Medical History Section of the complainant’s Complete Health Record against the date “2003”, and strike them out. The respondent will be ordered to annotate the correction with the words “Reinserted at the direction of the VCAT per order dated 13 April 2021 Ref H446/2019” and to attach a copy of my orders to the Complete Health Record.
89	The respondent has consented to amend the Complete Record for 12 June 2018 to reflect that Implanon was prescribed on, but not implanted on that date, and my orders will reflect that amendment and note as required by HPP 4.3.
90	I will also order that a copy of the complainant’s Letter of Complaint to the HCC be attached and form part of the complainant’s Complete Health Record.
91	The complainant has requested the respondent to provide a further letter to her insurer. Given my findings in relation to that issue, I refuse to make such an order or direction.

S.M. Burdon-Smith
Senior Member