Australian Cardiology Services Pty Ltd v Rudd (No 2)
[2020] VSC 839
•11 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2020 03703
| AUSTRALIAN CARDIOLOGY SERVICES PTY LTD (ACN 621 294 068) | Plaintiff |
| v | |
| NIMA RUDD | Defendant |
| - AND - | |
| NIMA RUDD | Plaintiff by Counterclaim |
| v | |
| AUSTRALIAN CARDIOLOGY SERVICES PTY LTD (ACN 621 294 068) & ORS (according to the attached Schedule) | Defendants by Counterclaim |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 November 2020 |
DATE OF RULING: | 11 December 2020 |
CASE MAY BE CITED AS: | Australian Cardiology Services Pty Ltd v Rudd (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 839 |
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PRACTICE AND PROCEDURE – Objection to the production of a subpoena issued to a third party – Application to set aside a notice to produce – Confidential information – Medical patient records – Inspection of subpoenaed documents prohibited as they contain confidential information under s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 – Notice to produce set aside – Fitzgerald (by her Litigation Guardian Jacobsen) v Munro [1998] VSC 30.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Logie-Smith Lanyon |
| For the Defendant | Mr M Felman | Sparke Helmore |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background and evidence................................................................................................................ 1
Defendant’s submissions................................................................................................................. 3
Notice to produce objection......................................................................................................... 3
Health Track subpoena objection............................................................................................... 7
Plaintiff’s submissions................................................................................................................... 10
Notice to produce........................................................................................................................ 10
Health Track subpoena.............................................................................................................. 12
Applicable principles – s 28(2) of the EMP Act.......................................................................... 13
Consideration: subpoena................................................................................................................ 17
Consideration: notice to produce.................................................................................................. 20
Conclusion......................................................................................................................................... 23
HER HONOUR:
This proceeding concerns a dispute between medical practitioners. This ruling determines the defendant’s objection to a subpoena and notice to produce.
The plaintiff caused a subpoena to be issued to Health Track seeking production of all documents it holds under licence to the defendant. The Health Track database is owned by a third party to whom the subpoena is addressed. It is a database used by both parties, and they each pay a licence fee to use it. The database stores the medical records of patients who consult medical practitioners, including patient details. Health Track has produced the subpoenaed documents to the Prothonotary. The defendant objects to their inspection.
The notice to produce seeks production of 45 categories of documents that the plaintiff says the defendant made reference to in an affidavit he filed in this proceeding. The notice to produce was served prior to affidavits of documents being exchanged by the parties. The defendant seeks the notice to produce be set aside.
Summary
The notice to produce is set aside, save for category 1, which the defendant has agreed to produce and, if still in dispute, category 7. Orders prohibiting inspection of the documents produced by subpoena will be made.
Background and evidence
An earlier ruling in this proceeding outlines the background to it.[1] The proceeding was commenced by writ and indorsement of claim on 23 September 2020. On 24 September 2020, interim injunction orders, later extended, were made against the defendant.
[1]Australian Cardiology Services Pty Ltd v Rudd [2020] VSC 645.
On 30 September 2020, the plaintiff issued a subpoena for production to Healthtrack Medical Systems Pty Ltd (‘Health Track’). The date for production was 23 October 2020. Health Track produced the documents and did not participate in this hearing. Prior to production, Health Track exchanged correspondence with both parties.
The subpoena lists the following for production.
The documents and things you must produce are as follows:
1.1all documents, electronically stored or otherwise which reveal the contents of the Health Track Database (operated by Healthtrack Medical Systems Pty Ltd or any of its subsidiaries or related companies) that appear under the account that has operated under the licence of Dr Nima Rudd (Rudd Database).
1.2all documents, electronically stored or otherwise, which reveal the dates and times when patient contact details and/or medical records were uploaded onto the Rudd Database.
On 2 October 2020, interlocutory injunction orders were made against the defendant.
On 9 October 2020, orders were made listing the proceeding for trial on 9 March 2021. The orders required the parties to make discovery and file affidavits of documents by 18 December 2020.[2]
[2]Since this application, by consent, the time for the filing of affidavits of documents has been extended.
On 12 October 2020, the plaintiff served the defendant with a notice to produce listing 45 categories of documents and referring to the defendant’s affidavit affirmed on 29 September 2020 (‘29 Sept 20 affidavit’). Pursuant to rr 29.09(2) and 29.10(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), production for inspection was required within 7 days of the notice, namely 19 October 2020.
On 22 October 2020, the plaintiff filed a statement of claim.
On 30 October 2020, the defendant filed a summons seeking the Court set aside the plaintiff’s notice to produce on the ground it constituted an abuse of process. It is supported by an affidavit of his solicitor, Samuel Wade Jackson, affirmed on 16 October 2020, and the defendant’s own affidavit affirmed on 12 November 2020 (‘12 Nov 20 affidavit’).
Also on 30 October 2020, the defendant filed a summons objecting to inspection of the Health Track documents produced in response to the subpoena. He seeks orders that no person, including the plaintiff, be permitted to inspect any documents produced by Health Track in response to the subpoena and that any documents produced be returned to Health Track. The summons is supported by an affidavit of the defendant’s solicitor, Samuel Wade Jackson, affirmed on 23 October 2020.
On 11 November 2020, the plaintiff filed submissions and an affidavit of its chief executive officer, David Andrew Hodge, sworn that day, in opposition to both applications.
The plaintiff no longer presses production of the documents enumerated in categories 2–4, 18–20, 23 and 43–45 (inclusive) in the notice to produce.[3] The defendant has agreed to provide the document enumerated in category 1. This leaves the following categories of documents in dispute: 5–17, 21–22, 24–42.
[3]The defendant’s submissions refer to an email from Talitha Thomas, solicitor for the plaintiff, to Madeleine Armstrong, solicitor for the defendant, at 2.50pm on 11 November 2020. This document is not in evidence. However, the reference to it was uncontroversial.
By letter dated 12 November 2020, the defendant gave notice to the Attorney-General and Victorian Equal Opportunity and Human Rights Commission under s 35 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
On 12 November 2020, the Court received a letter from the Victorian Government Solicitor’s Office indicating the Attorney-General declined to intervene in this application pursuant to s 34 of the Charter, and reserved the right to intervene in the substantive proceeding should further Charter issues arise.
On the same day, namely 12 November 2020, the defendant filed submissions and his further affidavit affirmed that day.
Defendant’s submissions
Notice to produce objection
The notice to produce was issued pursuant to r 29.10 of the Rules. Rule 29.10 is a discrete provision and does not form part of the discovery process. The considerations that apply to setting aside a subpoena are applicable to a notice to produce. The party resisting the production of a document bears the onus of establishing why production should not be ordered.
The objection to the notice to produce is made on the basis that the defendant is prohibited by s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (‘the EMP Act’) from producing the majority of documents sought.
The defendant says that from the authorities Medical Board of Australia v Kemp,[4] Tikiri Pty Ltd v Fung (‘Tikiri’),[5] and National Mutual Life Association of Australia Ltd v Godrich (‘Godrich’)[6] the following principles emerge. Section 28(2):
[4][2018] VSCA 168
[5](2016) 50 VR 786 (‘Tikiri’).
[6](1909) 10 CLR 1 (‘Godrich’).
(a) prescribes a rule of evidence or procedure applying in a civil proceeding, not a general substantive right to medical confidence;
(b) intersects various interests: the patient’s interests in protecting medical confidence, the interests of parties to the suit who are denied the material and the public interest that the administration of justice shall not be frustrated by withholding documents. Section 28 does not operate in favour of any one particular interest;
(c) overcomes the common law and provides further protection of medical confidence in a ‘large class of forensic controversies’. It was said in Godrich, that the purpose of the predecessor to s 28(2) was to prevent, within certain limits, any public tribunal being made the instrument to violate the confidence a patient has in their medical advisor;
(d) ought be read as to render real protection to the confidence of a patient;
(e) includes the word ‘necessary’ which is to be construed in a wide sense so as to include any information relevant in determining proper treatment of the patient and it is not material whether the information given is actually followed by treatment or not; and
(f) includes the word ‘information’: it ought be construed as conveying all information acquired by the doctor in attending the patient, from the doctor’s personal communications or those of persons acting on behalf of the doctor, or to form the doctor’s own observations of the patient’s condition, provided the information acquired was necessary to enable the doctor to prescribe or act in attending the patient. The ‘information’ captured by s 28(2) includes the name of the patient.
Each of the documents contains information acquired by the defendant in attending his patients which was necessary to enable him to prescribe or act for the patient. It is apparent from the description of the various categories and the defendant’s own evidence.
Section 28(2) prevents the disclosure by the defendant of the documents. In those circumstances, the notice to produce constitutes an abuse of process and ought be set aside.
The defendant’s 12 Nov 20 affidavit responds to the categories sought. It evidences that the documents contain information that sits within s 28(2). Categories 14, 27, 33 and 38 contain confidential contact details that the defendant has stored on his mobile telephone. The contact details were, he deposes, acquired by him to attend to his patients and are necessary for him to act for the patients because he may need to contact them in the course of treating them. Categories 12–13, 16–17, 24–25, 30–31 and 35 are documents containing notes he took during consultations with his patients to inform himself of their health status, diagnosis and treatment plan. They also refer to imaging and other test results. Categories 10–11, 15, 22 and 26 refer to patient files created in the course of consulting patients. Categories 6–9, 21, 28, 32, 37, 39–41 relate to patient referrals, including referral forms from general practitioners and a hospital. They contain patient contact information and a brief medical history. The background information is necessary for the defendant to continue to treat the patient. Categories 5, 29, 36 and 42 concern written communications with patients by email or text. The defendant has communicated with patients in the course of providing essential clinical care. It is essential to confirm attendance at initial and follow up appointments. The defendant has also contacted patients to notify them of his new clinic so that he could continue to treat them if they wished. He obtained their contact details during prior consultations.
There is a serious dispute whether the defendant stole records. The plaintiff’s submissions are based on such a premise that he did.
In response to the plaintiff’s submission that the defendant did not ‘acquire’ the patient records and so s 28(2) does not apply, the defendant says that it is not about proprietary ownership of records. The plaintiff complicates the issue by inserting into the debate who owns the patient records. That is irrelevant to the application of s 28(2). Section 28(2) is not directed to who owns the patient information but to the patients who have consulted the doctor. If that information is in the doctor’s possession, then they cannot divulge it. The submission concerning proprietary ownership is inconsistent with the purpose of s 28(2) and the need to give real protection to the patient. If proprietary ownership were the test, it would be impractical to apply s 28(2).
The plaintiff’s reference to Tikiri being distinguished is an irrelevant distinction. [In that case, it was held that the plaintiff could not inspect and copy a list of the patients of the defendant medical practitioner.] It did not matter in that case that the defendant doctor had left the plaintiff’s practice. It was information that she acquired in attending the patient and was necessary for her to act for the patient. Tikiri is confined to a narrower point than here, that is, whether patient names could be disclosed by the defendant doctor.
As to waiver, it would need to be a waiver made by the patients, not the doctor. The defendant did not act on behalf of the patients to waive s 28(2).
The plaintiff’s reliance on Piesse v Medical Board of Australia (Review and Regulation) (‘Piesse’)[7] is misplaced as it has very different facts. It concerns a disciplinary Board investigating facts. It had obtained medical records pursuant to a lawful statutory notice. The records were divulged to the Board through a lawful process. Piesse does not stand for the proposition that information in the hands of the defendant has already been divulged because it is also in the possession of the plaintiff. It may not be. For instance, there are notes made since [the defendant’s departure from the plaintiff’s practice]. Further, it is a case from the Victorian Civil and Administrative Tribunal and so is not binding on this Court.
[7][2018] VCAT 742 (‘Piesse’).
Health Track subpoena objection
The defendant has a software licence agreement with Health Track. He cannot locate a signed copy of his contract but there is a pro forma agreement annexed to his affidavit.[8] It is a relationship where the [defendant] doctor takes notes and loads them onto the cloud and Health Track stores them there and is obliged to keep them in confidence. For the purposes of the subpoena, it is the defendant’s information. The Health Track subpoena objection is made on two grounds.
[8]Exhibit ‘NR-7’ to the defendant’s 12 Nov 20 affidavit.
Firstly, s 28(2) of the EMP Act applies. On a proper construction, that prohibition in s 28(2) of the EMP Act ought extend to other persons in possession or custody of that information where the physician or surgeon has recorded the information in circumstances contemplated by the provision. It ought include circumstances where third parties hold such information on behalf of the physician or surgeon. There are three reasons why this construction ought be adopted.
(a) Fitzgerald (by her Litigation Guardian Jacobsen) v Munro (‘Fitzgerald v Munro’)[9] is authority for the proposition that the protection afforded by s 28(2) extends beyond documents in the possession or custody of the physician or surgeon themselves. In that case, the hospital’s medical records which recorded the treatment of a patient were subpoenaed. It was common ground that the records included entries made by medical practitioners. Beach J concluded the entries made by hospital staff were protected.
(b) The construction accords with the purpose of s 28(2). The purpose of the legislation should be taken into account pursuant to s 58AA of the Acts Interpretations Act. In a modern medical profession, it would undermine the protections afforded by s 28(2) if a third party (such as a provider of ‘cloud’ storage services to the medical profession) who was in possession of documents that contained information within the confines of s 28(2), was required to disclose those documents. A party seeking documents otherwise protected by s 28(2) from third parties could do through the back door, what could not be done through the front door. That is, to avoid the operation of s 28(2), they could simply subpoena the IT company running the doctor’s cloud services. This would not provide ‘real’ protection to the confidences of a patient.
(c) There is some ambiguity as to whether s 28(2) is applicable. The construction is compatible with s 13 of the Charter. It contains an important human right to privacy. The right to privacy would be undermined by a construction of s 28(2) that could so easily be subverted by simply seeking production of documents that are otherwise protected by that provision from third parties. Section 32(1) of the Charter provides, that so far as is possible with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. The construction sought by the defendant is consistent with the purpose of s 28(2) to protect confidence.
[9][1998] VSC 30 [18]–[19], [22].
Secondly, the Health Track subpoena objection is too broad. The database contains a comprehensive set of details for each patient referred to by a medical practice. It contains a vast array of information about a patient, including their: name, address, birth date, heritage, next of kin, medical conditions, consultation notes, and all test results.
The subpoena does not identify with precision which content is under the licence of the defendant. The subpoena seeks production of the entirety of the database under licence to the defendant. It does not discriminate in any way the nature of the information sought in the records. How could the medication that the defendant prescribed for patients or their family history, be relevant to this proceeding? The subpoena does not discriminate between patients that were patients of the plaintiff and those who were not. It would appear to include all of the defendant’s patients regardless of whether they have previously been patients of the plaintiff. New patients are not carved out from the subpoena. They are clearly not relevant to this proceeding. If allowed, the subpoena would result in the confidential health information of patients who have no connection to the plaintiff being produced.
On their face, the subpoenas are too broad and should be set aside on that basis as an abuse of process: Suzhou Haishun Investment Management Co Ltd v Zhao (Ruling No 2).[10] It is accepted here that there is a truncated timetable for the trial. However, the subpoena was issued prematurely on 30 September 2020. The plaintiff ought to have waited for the discovery process to be complete and then assess the documents provided as part of that process.
[10][2018] VSC 144 [99] (‘Suzhou Haishun’) quoting Volunteer Fire Brigades v CFA (Discovery Ruling) [2016] VSC 573.
In reply to the plaintiff and its reliance upon White v Arbuthnot Sawmills Pty Ltd (‘White v Arbuthnot Sawmills’),[11] the defendant says it may be distinguished. It concerned discovery of the patient records of the plaintiff’s late husband. It does not apply to setting aside a subpoena. Further, it refers to Elliott v Tippett[12] and the analysis there by Judd J of Fitzgerald v Munro. Judd J expressed reservations about Fitzgerald v Munro however proceeded on the basis of that authority. Moreover, White v Arbuthnot Sawmills did not consider the impact on the Charter.
[11][2017] VSC 443 (‘White v Arbuthnot Sawmills’).
[12](2008) 20 VR 195.
Plaintiff’s submissions
The applications ought be dismissed.
Notice to produce
The defendant must prima facie produce the documents he has referred to in his 29 Sept 20 affidavit, as identified in the notice to produce. The defendant swore an affidavit of documents and deposed to having consulted 122 patients at his clinic between 8 September 2020 and the date of his affidavit. The defendant revealed the identity of those patients. It would constitute a waiver of any privilege.
The plaintiff expected to receive documents by 9 October 2020 as a consequence of orders made on 2 October 2020. The two documents disclosed by the defendant in his affidavit were fairly paltry. In the meantime, a statement of claim was served and the parties agreed to consent orders providing for discovery by 18 December and mediation by 22 December 2020. Rule 29.10 applies. The tight time frame [for pre-trial steps] makes things different. The plaintiff did not have to wait for discovery before seeking the documents in the affidavit.
Part of the plaintiff’s claim is that the defendant took a copy of all referral forms of patients that he saw, maintained a physical hard copy patient file and typed up his own patient notes and stored them on his phone. He now says that he does not have to disclose them because of the application of s 28(2) of the EMP Act. The documents are clearly relevant.
The disposition of documents in categories 10 and 11 would apply to most if not all of the disputed documents. They are described as follows:
10.The small physical hard copy files kept for the defendant’s patients, including any ‘key notes’, referred to at paragraph [50] of the Affidavit;
11.The electronic patient files on the defendant’s computer, referred to at paragraph [50] of the Affidavit;
In paragraph [50] of his 29 Sept 20 affidavit, the defendant states:
I maintained a small physical hard copy file for each of my patients, which I keep in either Mildura or Melbourne. I also had electronic files on my computer. During patient consults, I would handwrite patient notes that I called ‘key notes’ which I would place in the physical file. Key notes typically included the patient’s name, phone number, next of kin name and contact details, date of birth, GP/referrer, diagnosis and treatment plan. Most of this information was obtained from the patient during their first appointment. As a result of this practice, I did not need to access Health Track to review my patient notes.
Section 28(2) of the EMP Act does not apply to categories 10 and 11 of the notice to produce.
The patients referred to in the defendant’s 29 Sept 20 affidavit were not the defendant’s patients. They were patients of the plaintiff. Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak[13] is relevant. The information that the defendant refuses to produce was never ‘acquired’ by him within the meaning of s 28(2). ‘Acquire’ is defined in the Cambridge online dictionary as: ‘to get or buy something’.[14] The defendant never bought, came into control or came into ownership of the patient records that he refused to produce. Consequently, he never ‘acquired’ that information and s 28(2) does not apply. These circumstances are distinguishable from Tikiri because Tikiri concerned the defendant doctor’s patients after she left the practice, not before. Here, the plaintiff is seeking records that the defendant himself took while still providing services to the plaintiff. He took the plaintiff’s property and it ought be disclosed what he has.
[13][2006] NSWSC 844.
[14]Cambridge Dictionary (online at 12 November 2020) ‘acquire’.
The defendant would not be divulging information to the plaintiff because the plaintiff already has it. The plaintiff relies on Piesse, discussed further below.
There is an exemption to Health Privacy Principle 2.2 of the Health Records Act 2001 that an organisation must not use or disclose health information about an individual for a purpose other than the primary purpose for which the information was collected, unless the individual has consented to the disclosure. The Health Records Act does not prevent the Court from making orders for inspection of a confidential exhibit.
Health Track subpoena
The defendant’s solicitors have not indicated any legal basis upon which the defendant seeks to prevent the inspection of the Health Track subpoena documents. This is not an application to set aside the subpoena. The summons seeks to restrict inspection of the documents.
The plaintiff is prepared to limit inspection of the documents. A regime could be put in place where the defendant first inspects the documents and redacts references to patients that are not on the plaintiff’s patient list defined in order 2 of the orders made on 2 October 2020 (and exhibited to the affidavit of Dr Vivek Mutha sworn on 23 September 2020). The reference to the treatment the patient received while at the defendant’s clinic could also be redacted.
The defendant’s application should be dismissed for the following reasons:
(a) Section 28(2) would not apply to Health Track. There is no evidence that Health Track is a physician or surgeon. Piesse is relied upon in relation to the word ‘divulge’:[15]
[15]Piesse (n 7) [61].
The purpose of s.28(2)of the EMP Act is to stop physician/surgeon(s) divulging particular kinds of information. If, however, that information is already in the possession of the disciplinary Board, by operation of law, I am satisfied that section 28(2) no longer has, to use the words of the Board, “any work to do”.
White v Arbuthnot Sawmills is relied upon:[16]
[16]White v Arbuthnot Sawmills (n 11) [88].
It is clear from paragraph 21 of Judd J’s reasons that he ‘very much doubt[ed]’ that the plaintiff could resist production if she held the documents herself but accepted that s28(2) had been treated in the case law as creating a form of medical privilege. His discussion of the case law supports, in my view, the proposition that ordinary waiver principles apply, but does not support the proposition that a ‘medical privilege’ would be conferred on records in the hands of someone other than a medical practitioner.
Fitzgerald v Munro did not make a finding about records made by nursing staff. It concerned a fishing expedition. That is not the case here. The documents sought are referred to in the defendant’s affidavit.
(b) The Health Records Act would not apply to prevent the plaintiff inspecting the Health Track subpoena documents, especially if the Court ordered that those documents were confidential to the parties in this proceeding. Hera Project Pty Ltd v Bisognin [No 4] (‘Hera Project’)[17] is relied upon. The plaintiff has a legitimate forensic purpose to inspect the Health Track subpoena documents. The information will help disclose what confidential information [owned by the plaintiff] has been utilised by the defendant in the establishment of his cardiology clinic.
(c) Health Track has not objected to the subpoena and has produced the documents. The defendant’s application is limited to a right to inspect. It would be very unfair to disallow the plaintiff to inspect the documents.
(d) The defendant is relying upon a type of privilege that is there for the benefit of the patients in circumstances where they were patients of the plaintiff’s clinic.
[17][2017] VSC 270.
Applicable principles – s 28(2) of the EMP Act
Section 28 of the EMP Act is entitled ‘Confessions to doctors’. Section 28(2) is relied upon by the defendant and follows.
(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
I reiterate the principles I outlined in Tikiri, namely at paragraphs [41]–[47].
The word ‘necessary’ has been interpreted in a wide sense, to include any information which is, or is likely to be relevant in determining the proper treatment of the patient.[18]
[18]Godrich (1909) 10 CLR 1, 8 (Griffiths CJ), 19 (Barton J).
In Elliott v Tippett, the Court observed that s 28(2) is:
…limited to divulging, in a civil proceeding or prescribed investigation, information of a particular kind namely, that which has been acquired in attending the patient and then only so much of that information as was necessary to enable the practitioner to prescribe or act for the patient.[19]
[19](2008) 20 VR 195, 200 [18] (Judd J).
There is authority that reflects the important public policy to protect the identity of patients. In PQ, a medical practitioner was asked to identify a patient from a file which was produced on subpoena.[20] The subpoena required the production of medical records relating to four people. It was submitted that the evidence in the case identified by name a particular patient or patients of a hospital. While the case concerned the application of s 141, the Court observed that although the operation of that section is not identical to that of s 28(2) of the Evidence [(Miscellaneous Provisions)] Act, the underlying policy is similar.[21] The Court held that the effect of s 141 is to preclude a witness from giving information, acquired by reason of the witness being an employee doctor of a hospital, if the patient could be identified in any way from the information. Further, the expression ‘could be identified from the information’ in s 141(2) is not confined to the person being identified from the piece of information or evidence alone:
[20](1992) 1 VR 19 (McGarvie J).
[21]Ibid 25.
There is a breach of the provision if the person who is or has been a patient… could be identified from that piece of evidence considered together with other evidence or available information.[22]
[22]Ibid 28.
The Court also observed that the obligation under s 141(2) is not ‘limited to identification by name’[23] but:
the practical effect of s 141(2) is that a person must not give any information acquired in respect of a patient as an employee of a relevant health service unless the information can be given without its being recognised who is the subject of that information. Put another way, a person is not entitled to give any item of acquired information if from the whole of the acquired information which is given the patient could be identified.[24]
The Court held that it was not open to a medical practitioner to give evidence in respect of a patient, from which the person could be identified, and this extended to being ‘recognised by counsel or solicitor for a defendant, or by a representative of a defendant present in court.’[25]
The Court also considered s 141(2) reflected an important public policy to protect the confidentiality of a person who has been a patient or who has received health services from an institution such as a public hospital. Further, this protection of confidentiality is similar to that given to a person treated by a medical practitioner in a private practice.[26]
Section 28(2) of the Evidence [(Miscellaneous Provisions)] Act has sometimes been referred to as a ‘medical privilege’. It should not, however, be equated with legal professional privilege. In Elliott v Tippett, the Court noted the public policy considerations underpinning the protection of confidential communications between legal practitioner and client were quite different to those which might justify the maintenance of confidentiality between a medical practitioner and patient.[27]
[23]Ibid 26.
[24]Ibid 29.
[25]Ibid 27.
[26]Ibid 25.
[27](2008) 20 VR 195, 201 [22] (Judd J).
In addition to the principles above, I add the following.
Firstly, and unsurprisingly, s 28(2) does not contain any reference to the proprietor of the information disclosed by a patient to the doctor or surgeon. The plaintiff’s submission that the word ‘acquired’ limits s 28(2) to information owned or controlled by the doctor or surgeon must be firmly rejected. ‘Acquired’ is defined by the Macquarie Dictionary as: ‘1. to come into possession of; get as one's own 2. to gain for oneself through one's actions or efforts’.[28] The word ‘acquired’ must be read in context, namely as part of the whole sentence that comprises s 28(2). So too it must be read with its underlying policy, discussed above. Section 28(2) is directed to protection of the information divulged by the patient. The information divulged is protected regardless of whether the record containing the divulged information is owned by an individual doctor, a company that operates a medical clinic or a hospital.
[28]Macquarie Dictionary (online at 10 December 2020) ‘acquire’ (def 1, 2).
Secondly, s 28(2) applies to information that is stored on behalf of the doctor or surgeon to whom the information is disclosed. The information may be stored in medical records held by a hospital, as was the case in Fitzgerald v Munro, or it may be stored electronically, as is the case here.
Thirdly, the obligation to protect the information divulged to a doctor or surgeon by their patient is not waived by the actions of the doctor or surgeon. Such an analysis would be contrary to the words in s 28(2): ‘without the consent of his patient’.
Given the above, it is unnecessary to address the defendant’s submissions concerning the Health Records Act and the Charter.
On the plaintiff’s reliance upon the following cases, I say the following.
(a) The plaintiff’s reliance on Piesse is misplaced. That decision concerned very different circumstances. A statutory board had obtained material ‘using its coercive powers to investigate Dr Piesse’s conduct. It was entitled to do so’.[29]
(b) Hera Project is not an authority interpreting s 28(2). The general propositions relied upon by the plaintiff do not answer the questions in dispute here.
(c) The plaintiff’s reliance upon White v Arbuthnot Sawmills is misplaced. It concerned very different circumstances. The plaintiff made a claim for damages arising from the impact of her husband’s illness until his death. Her husband was alleged to have suffered a crush injury resulting in amputation of his right leg and Hepatitis C, and then some years later, liver failure and death. The defendants were respectively alleged to be responsible for the crush injury, and contaminated blood products given to her husband while hospitalised. A defendant sought medical records of the plaintiff’s late husband. It relied upon the exception in s 28(5) of the EMP Act which excludes actions for damages brought under the pt III of the Wrongs Act 1958. Given that the proceeding included a claim by the plaintiff as executor of the deceased estate, s 28(5) was applicable and s 28(2) was not.[30] Moreover, s 28(2) was not applicable to the claim made in the plaintiff’s personal capacity because it did not address whether a patient or patient’s representative may divulge the information.[31] It was observed that s 28(2) contained a prohibition on it being adduced by medical professionals.[32] Clayton JR observed that s 28(2) did not protect a patient who held their own medical records.[33] There is then reference to authority in support of that proposition and authority that a patient may waive privilege.[34]
[29]Piesse (n 7) [51]–[52].
[30]White v Arbuthnot Sawmills (n 11) [71]–[73].
[31]Ibid [75].
[32]Ibid [78].
[33]Ibid [81].
[34]Ibid [82]–[95].
Consideration: subpoena
Rule 42A.08 of the Rules enables a party to object to inspection of a subpoena. The relevant principles are not in dispute.[35]
[35]Suzhou Haishun (n 10).
Turning first to the application of s 28(2).
I find that Health Track and the defendant are in a contractual relationship which requires Health Track to electronically store the patient information that the defendant doctor enters into the Health Track database. The actual contract is not in evidence. A pro forma software licence agreement between Health Track and a licensee is in evidence and no issue was taken with that. Clause 1 includes the following definitions of ‘patient data’ and ‘personal information’.
“Patient Data” means
(a) information or an opinion about:
(i) the health or a disability (at any time) of an individual; or
(ii)an individual’s expressed wishes about the future provision of health services to him or her; or
(iii)a health service provided, or to be provided, to an individual;
that is also personal information; or
(b)other Personal Information collected to provide, or in providing, a health service; or
(c)other Personal Information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Clauses 2, 4.4, 7.4(g) and 8 of the software licence agreement follow:
2. Licence
2.1HealthTrack grants the Licensee a non-exclusive, non-transferable, limited license to use the Software for the Approved Purposes, subject to the following conditions:
(a) the payment by the Licensee of the Licence Fee in full;
(b)the Licensee’s compliance with all the terms and conditions of this Agreement and the Software Maintenance Agreement;
(c)Licensee has a current, valid ‘Software Maintenance Agreement’.
2.2The Licensee acknowledges that it may not disclose, use or reproduce the Software for any purpose other than the Approved Purposes, unless otherwise agreed in writing with HealthTrack.
...
4.4HealthTrack acknowledges that:
(a)all Patient Data supplied, entered or otherwise captured by the Licensee and processed using the Software is owned by the Licensee,
(b)the Licensee is entitled to access that Patient Data at any time using HealthTrack Authorised Access facilities to the Database.
…
7.4 Upon termination:
...
(g)each party must deliver to the other party all property held in care, custody or control, including all Confidential Information and other material received from or through this Agreement.
...
8 Confidentiality
8.1The Licensee and HealthTrack undertake to keep secret and protect the confidential nature of all information and documentation provided to it, learnt by it or to which it has or has had access, arising out of or in connection with any aspect of the negotiation or performance of this Agreement or the Software Maintenance Agreement including, without limitation, the source code and object code for the Software and any information provided to HealthTrack or to which HealthTrack has access in performing its obligations under the Software Maintenance Agreement (“Confidential Information”). To this end neither party may use, disclose or in any way communicate to any other person the details of any Confidential Information without the prior written consent of the other party.
These clauses reveal that Health Track provides a licence to use its software. The patient information entered by the licensee is intended to be stored confidentially. Section 28(2) applies to the patient information divulged to the defendant and stored electronically by Health Track.
Here, there is no evidence of patients’ consent to disclosure of their information. The listing of patients’ names by the defendant is not a waiver by the patients.
I should add that confidentiality orders were made in respect of the patient names and information disclosed in affidavits filed by both parties.
I make no findings about the proprietorship of the patient records in dispute. That is a matter for trial. It is unnecessary to determine that issue now because, as discussed above, it does not answer the question of whether s 28(2) of the EMP Act applies.
I reject the plaintiff’s submission that they already have the patient information they now seek and hence s 28(2) does not apply. I am not satisfied that they do have all the patient information they seek. In particular, they will not have information relating to patients of the defendant’s clinic who have never been patients of the plaintiff’s clinic.
The inspection of the documents subpoenaed from Health Track will be prohibited. Section 28(2) is applicable to patient records subpoenaed.
Even if s 28(2) were not applicable, the subpoena would be set aside on the basis it is too wide. There is no legitimate forensic purpose to subpoena all of the Health Track files pertaining to the defendant’s account. The records of patients who have consulted with the defendant and who have never had a relationship with the plaintiff are not probative of the issues in this proceeding. Nor are the details of all the medical records. As the defendant asks, how can a patient’s family history be probative of the issues in dispute here?
The plaintiff says that Health Track could not distinguish between the patients of the defendant who were previously patients of the plaintiff and the defendant’s new patients. Accordingly, the subpoena was not so confined. This does not assist the plaintiff. It does not answer how the subpoenaed material has a legitimate forensic purpose. It leads to the next issue.
The subpoena was issued prematurely. It was issued after the statement of claim but before the defence was filed.[36] Consequently, it was issued before the plaintiff had analysed the defence to determine whether or not there were facts admitted by the defendant and therefore were not in dispute. That analysis was necessary to determine whether there was a legitimate forensic purpose for the subpoena. I reject the plaintiff’s submission that the expedited timetable provides a legitimate rationale for the timing of the subpoena. This is not a case where the subpoena informed the statement of claim. Moreover, the expedited timetable also provided for discovery.
[36]Defence and counterclaim filed on 20 November 2020.
Here, there has been contravention of the principle that a subpoena should not be used as a substitute for discovery. I anticipate that the defendant will discover some of the subpoenaed records (although s 28(2) may apply to preclude inspection). A third party, Health Track, ought not to have been put to the trouble and expense of complying with the subpoena prior to discovery.
Consideration: notice to produce
Rule 29.10 of the Rules is applicable and follows.
Inspection of documents referred to in pleadings and affidavits
(1)This Rule applies to any proceeding.
(2)Where, in the originating process filed by a party or in any pleading, interrogatories or answers, affidavit or notice filed by a party, reference is made to a document, any other party, by notice to produce served on that party, may require that party to produce the document for inspection.
(3)Except as provided by paragraph (4), Rule 29.09, with any necessary modification, applies to the production and inspection of a document under this Rule.
(4)A party upon whom a notice to produce is served under paragraph (2) shall not be required to produce a document for inspection where—
(a)the party claims that the document is privileged from production, and that party makes and serves on the other party an affidavit in which the party—
(i) makes that claim; and
(ii) states sufficiently the grounds of the privilege;
(b)the document is not in that party's possession, and the party makes and serves on the other party an affidavit in which the party—
(i) states that fact; and
(ii)states to the best of the party's knowledge, information and belief where the document is and in whose possession it is; and
(iii)where the document has been but is no longer in the party's possession, when the party parted with it and the party's belief as to what has become of it.
(5) A notice to produce under paragraph (2) shall be in Form 29C.
Here, save for categories 1 (which the defendant has agreed to produce) and 7 (discussed below), the notice to produce ought be set aside on the basis that s 28(2) is applicable to the remaining categories in dispute. I shall now outline these categories. It is evident from a brief description of the category, read together with the defendant’s 12 Nov 20 affidavit, that s 28(2) is applicable.
(a) Categories 5–6, 8–9, 21, 28, 32, 37, 39 and 40–41: the defendant’s letters to patients and referrals to him, including photographs of referrals, referred to in paragraphs [44]–[45], [47], [77], [93], [100], [107], [115]–[116] and [122] of his 29 Sept 20 affidavit and paragraphs [6] and [8] of his 12 Nov 20 affidavit.
(b) Categories 10–11, 22 and 26: physical and electronic copies of patient files referred to in paragraphs [50], [77] and [93] of the defendant’s 29 Sept 20 affidavit and paragraph [5] of his 12 Nov 20 affidavit.
(c) Categories 12–13, 24 and 30–31: copies of the defendant’s notes taken during consultations with patients referred to in paragraphs [50], [52], [77] and [100] of the defendant’s 29 Sept 20 affidavit and paragraphs [4]–[5] of his 12 Nov 20 affidavit.
(d) Categories 14, 27, 33 and 38: client [patient] contacts stored in the defendant’s mobile telephone referred to in paragraphs [53], [93], [100] and [114] of the defendant’s 29 Sept 20 affidavit and paragraph [3] of his 12 Nov 20 affidavit.
(e) Category 15: information and records maintained by the defendant for his patients referred to in paragraph [54] of his 29 Sept 20 affidavit and paragraph [5] of his 12 Nov 20 affidavit.
(f) Categories 16–17 and 34–35: notes of consultations with patients made by the defendant referred to in paragraph [55], [101] and [103] of his 29 Sept 20 affidavit and paragraph [4] of his 12 Nov 20 affidavit.
(g) Category 25: patient notes and tests results referred to in paragraph [90] of the defendant’s 29 Sept 20 affidavit and paragraph [4] of his 12 Nov 20 affidavit.
(h) Categories 29 and 36: text messages sent to the defendant’s patient base in early September 2020 referred to in paragraphs [95] and [105] of his 29 Sept 20 affidavit and paragraph [8] of his 12 Nov 20 affidavit. Pausing there, it is the patient contact details which are protected by s 28(2). The generic text itself, without the patient contact details is not protected. I observe that it is not in dispute that a generic text was sent and that during the course of the interlocutory injunction application, such a text message was before the Court.[37]
(i) Category 42: text messages sent by the defendant, after he ceased work for the plaintiff, to patients who had consulted him while he worked at the plaintiff’s practice. They are referred to in paragraphs [123]–[124] of his 29 Sept 20 affidavit and paragraph [8] of his 12 Nov 20 affidavit. The same analysis applies as with the sub-paragraph immediately above.
[37]Exhibit ‘AD-1’ to the affidavit of Alaiza Diez sworn 22 September 2020.
As to category 7, the referral form template developed by the defendant for use by general medical practitioners or a hospital is referred to in paragraph [46] of the defendant’s 29 Sept 20 affidavit. Section 28(2) is not applicable to a generic form. There is no reference to this category in the defendant’s 12 Nov 20 affidavit. Perhaps it is no longer in dispute.
Conclusion
Orders will be made setting aside the notice to produce save for category 1 and category 7 (if the latter remains in dispute).
Orders will be made prohibiting the inspection of the documents produced by Health Track pursuant to the subpoena. Orders will also be made that the Prothonotary may delete any copies of the documents produced by Health Track that they may hold.
SCHEDULE OF PARTIES
S ECI 2020 03703 BETWEEN: AUSTRALIAN CARDIOLOGY SERVICES PTY LTD (ACN 621 294 068) Plaintiff v NIMA RUDD Defendant AND BETWEEN: NIMA RUDD Plaintiff by Counterclaim v AUSTRALIAN CARDIOLOGY SERVICES PTY LTD (ACN 621 294 068) First Defendant by Counterclaim VIVEK MUTHA Second Defendant by Counterclaim MUHAMMAD ASAR AL-HAQ Third Defendant by Counterclaim
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