MetLife investigator 'broke privacy laws'
An insurance company and its private investigator have been accused of breaching the privacy of a police officer by disclosing his confidential medical and personal information to the superior accused of bullying and harassing him.
The private investigator discussed details of the police officer's psychiatric report, outlining the allegations against the superior and asking him for comment.
He also volunteered fresh personal information about the claimant and his family.
"It is a clear breach of privacy laws for an insurance company to provide a private investigator with a private and confidential medical report with the intent of providing that information to unrelated third parties," said the police officer's lawyer John Cox, pointing out the report was commissioned by a different insurer.
"More outrageous is for the private investigator to take that report, discuss its contents with the person accused of causing the claimant's psychological illness, disclose other personal information and then seek comment from that person in response to the medical report."
Mr Cox said apart from the fact neither of these parties were doctors, the police officer was entitled to know any information obtained from him "is limited in its use to those directly employed by the insurers and not to remote and unrelated third parties through private investigators".
"And certainly not to parties who may very well end up the subject of legal proceedings," he said.
The police officer was medically discharged in 2012 with major depression and post-traumatic stress disorder.
His workers' compensation claim was accepted following vigorous investigation by the NSW Police Force and its insurers into the conduct of his supervisor.
He was medically discharged hurt on duty with no question about the bona fides of his illness or the circumstances in respect of which it arose, said Mr Cox, who heads Slater and Gordon's police compensation group.
After a formal investigation, it was accepted he was honest and his claim was "as he told it".
In late 2012, the officer lodged a claim for Total and Permanent Disability benefits under the NSW Police Blue Ribbon Superannuation scheme through the trustee and the insurer of the scheme, MetLife.
The client signed a product disclosure statement giving MetLife authority to provide certain private information to third parties.
These parties included doctors, other health professionals, private investigators and the claimant's employer.
However, Mr Cox said that such authority does not extend to providing private information such as the medical report to the person accused of bullying and harassing the claimant.
MetLife has been sued in similar circumstances for disclosing other claimants' private information to people at the centre of allegations.
MetLife assigned Brooksight Investigations private investigator Peter Bailey to investigate the claim, arming him with the medical report.
Mr Bailey then conducted an interview with one of the claimant's superiors who was at the centre of the allegations. It is not clear whether MetLife directed Mr Bailey to conduct the interview or whether he did so of his own accord.
The Mercury has obtained a transcript of the interview in which Mr Bailey put to the superior specific allegations from a psychiatrist report prepared after a medical examination organised by the police force insurer.
Some of the wording Mr Bailey used in his questions is identical to the wording in the officer's medical report.
The private investigator quoted directly from the medical report and provided personal information relating to the claimant's private life since his employment - in particular, information concerning his family.
Mr Cox and his client confirmed neither of them had consented to this information being disclosed to unrelated third parties such as the superior in question.
Professor Rick Sarre, from the University of South Australia's School of Law, said: "Based upon the facts as I read them, the insurer and the PI got this completely wrong.
"If those facts are true, it's now a matter for the court and privacy commission as to what the consequences may be."
Professor Sarre said an insurance company was able to access medical data from the medical practitioner in order to assess a claim but only if the patient gave his permission for these records to be passed on.
"He may have given permission for these records to be used by others associated with the insurance company for the purposes of assessing the claim but it would need to be informed consent, namely that he was told of the possibility that a PI might be given access to them," Prof Sarre said.
"It is not conceivable that the patient would have known about, therefore consented to, that information being passed on to his former bully," he said. "Revealing personal details is a definite breach."
The former police officer said he had not given MetLife permission to give that report to a private investigator to then discuss details with his former supervisor.
"I was devastated by the breach of my privacy. I believe it's bordering on criminal what they've done and the fact that a bloke has used private medical reports of mine the way he has done is horrible," he said.
"The trauma this has caused me has affected my relationships with my wife, our marriage and with our children.
"I really don't know what MetLife thought they might achieve by arranging for this investigator to speak to this man. It is completely irrelevant to the question the insurer needs to decide, which is basically my ability to work."
Mr Cox said his client did not object to MetLife properly assessing his claim and if appropriate even using the services of investigative agents if they had reason to doubt the merits of a claim.
"The use of such agents, however, must be done with integrity, with rigorous regard to ethical and privacy considerations and subject of course to the law," he said.
"As I've indicated before there are numerous examples just from my own case files where this has not occurred.
"Time and time again, I am confronted by circumstances where MetLife retained investigators to engage in conduct that is inexcusable and at times arguably illegal."
Mr Cox took action as soon as he became aware of the alleged privacy breach.
"Unfortunately the response received was, I believe, unsatisfactory and the issue is yet to be resolved."
MetLife and Brooksight have refused to comment on the case.
The Mercury's attempts to contact Mr Bailey have been unsuccessful.
One of the private investigators who has the task of gathering information about police officers seeking total and permanent disability payments is a former cop with 40 years’ experience.
Peter Bailey, who has worked for Brooksight Investigations, said in a 2012 interview that police were not helping themselves which was why he was looking forward to retirement.
‘‘It seems one dead body and a bad dream is all that is required nowadays for an officer to go out with post-traumatic stress and a compensation payout,’’ he is quoted as saying in an interview about his retirement.
Mr Bailey reportedly said ‘‘certain people going with so-called PTSD, is a real concern and is, in a way, embarrassing’’.
‘‘This job is hard but somebody has to do it and somebody has to be there to support the community during death and tragedy,’’ he said.
‘‘And it’s quite obscene that some people have borrowed the grief of victims and the community to feign, in my opinion, psychological injury.
‘‘It’s a contact sport and if you don’t like it you should do something else,’’ he said.
Police compensation lawyer John Cox said private investigators were entitled to their opinion.
‘‘However, investigation agents, to be suitable for the job, must be objective, open-minded and not show bias or have preconceptions,’’ he said.
‘‘I have previously been so concerned and affronted by the involvement of some private investigative agents who publicly hold views I consider to be biased and unobjective, that I have written to the trustee of the superannuation scheme and made my position clear.’’