Breen v Williams

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S66 of 1995

B e t w e e n -
JULIE BREEN
Appellant
and
DR CHOLMONDELEY W. WILLIAMS

Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 21 NOVEMBER 1995, AT 10.19 AM

MR P.K. CASHMAN: May it please the Court, I appear of behalf of Mrs Breen in this matter, with MRS V. CULKOFF. (of Cashman and Partners)

MR A.R. EMMETT, QC: May it please your Honours, I appear with my friend, MR J.P.A. DURACK, for the respondent. (instructed by E.H. Pike)

BRENNAN CJ: Dr Cashman?

MR CASHMAN: Your Honours, I have made available a copy to each of you of the outline and what I propose to do - - -

BRENNAN CJ: Perhaps you will give us a moment to read the outline.

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: Yes, Dr Cashman.

MR CASHMAN: Your Honours, the order in which I propose to deal with the contentions on behalf of the appellant is as follows: I propose to deal with some of the relevant factual material and, in particular, the purposes for which the patient in this case was seeking access to the information in question. Secondly, I propose to deal with the issue of fiduciary duty. Thereafter, the question of proprietary right or interest and, thereafter, the questions of whether or not there is an implied term such as would give rise to an entitlement of the sort contended for and then, in conclusion, to consider whether there may be some other common law basis of entitlement other than those that may fit strictly within the traditional concepts of fiduciary duty, proprietary right or implied term of contract. As far as the information which was sought in the present case is concerned your Honours will no doubt be well aware from the appeal books that there were, in fact, three purposes.

GUMMOW J: It is not the information, it is the documents, is it not?

MR CASHMAN: It is information contained in documents, your Honour. The first purpose was for the purpose of legal advice and evidence in connection with the pursuit of a personal injury claim for damages against a third party. In this particular case, the patient had received a prosthesis; there had been problems and she was bringing an action in the United States against the United States manufacturer of that product. What gave rise to the present proceedings was the request by her lawyers for the documents in the possession of the doctor, to answer your Honour Justice Gummow’s question. Although it was contended that she wanted, as it were, a copy of the documents, she was content to have an opportunity to inspect those documents for the purpose of obtaining such information as may be contained on them.

GUMMOW J: That sounds like discovery.

MR CASHMAN: In one sense it is, your Honour.

BRENNAN CJ: Is it anything more?

MR CASHMAN: Yes, your Honour, and that brings me to the second and third purposes for which she was requesting the information. The second purpose was in order to have the information relating to her personal health for her information, and she makes that clear in her evidence before the court, which was not, in my respectful submission, challenged.

The third purpose, and this again is apparent from the evidence, was to ensure that she is able to make decisions regarding her future treatment; in other words, the medical purpose of the information. In my respectful submission, it is important to bear in mind that there were three purposes for the information.

BRENNAN CJ: Was there not an agreement on the part of the doctor to provide the information?

MR CASHMAN: The doctor, on the advice of the lawyers for his insurers, offered to provide the records requested subject to an important condition - in other words, a release of any claim that may be made. The doctor offered a report which the doctor was prepared to provide which he indicated would present his version of whatever he considered relevant for her purposes. That offer was declined by the patient.

BRENNAN CJ: And was it shown that that offer fell short of purposes 2 and 3?

MR CASHMAN: In the absence of having accepted the offer and having had an opportunity to consider the content of the information to be provided in such a report, that question is unresolved, in our respectful submission, your Honour. We would contend, however, that, at least as far as the legal purpose is conserned, and arguably for the other two purposes, she was entitled, as it were, to have access to the primary source, ie, the contemporaneous records made during the time of her treatment and not to the doctor’s selective and subjective interpretations thereof some decade or more later.

I might add, your Honours, if it has not become apparent to your Honours from the appeal books, it was intended that this be a vehicle for the resolution of the general questions arising out of the question of whether or not a patient has a right of access to records in the possession of a treating doctor. It was, I believe this to be the case, accepted by the parties throughout that this was intended, as it were, to be a test case on that question. It was not intended simply to be an alternative means of obtaining discovery for the purpose of the litigation.

DAWSON J: It may be academic then. If your client can get all the relief she wants by a particular method, why should we be making declarations in the abstract.

MR CASHMAN: In part for the reasons referred to by his Honour Justice Kirby, albeit in dissent.

DAWSON J: Can you tell us what your reasons are?

MR CASHMAN: Our reasons are the same, your Honour, that the inconvenience, the cost and the delay of having to go through, as it were, a more formalised process, by way of letter rogatory issued out of the United States court.

McHUGH J: Why do you have to go that route? Why can you not approach the Supreme Court in its equitable jurisdiction?

MR CASHMAN: I am mindful of the fact that I have been made aware of that alternative, as it were, on Monday. That was not an option that we considered was available at the time ‑ ‑ ‑

GUMMOW J: Well, maybe you should have.

MR CASHMAN: That would have solved, as it were, the legal purpose, but would not have resulted in a resolution of the more fundamental legal questions which this case gives rise to.

GUMMOW J: It would have assisted your client quickly in getting what she needed in order to comply with the orders made in the US District Court.

McHUGH J: Is your client aware that this is a test case?

MR CASHMAN: Yes, your Honour. To answer your Honour Justice Gummow’s observation, this case was originally commenced on behalf of all plaintiffs with claims for personal injuries by the plaintiff in a representative capacity. It was not pursued as such because of a decision of this Court which, on one view, may have prevented relief being obtained, as it were, for the benefit of the class and, for that reason, and so as to avoid complicated legal disputation as to whether a representative action is an appropriate vehicle, it was confined to the specific facts of her case, albeit with a view to a resolution of the general legal questions.

BRENNAN CJ: But if there is a right which your client has in equity to the relief which she seeks in order to provide the material that was required for the purposes of her personal injuries action in the United States, and that relief was not sought, why should this Court be involved in a more general consideration of the sorts of problems that you seek to agitate?

MR CASHMAN: In my respectful submission, it is open to question whether that relief could have been obtained because of the two so-called impediments to the granting of discovery against a third party referred to in the note received from the Registry yesterday, that is, the decision of the English Court Queens Bench Division in Mercantile Group v Aiyela (1994) QB. In that case, the court expressed the view that it would be inappropriate to grant, as it were, discovery against a stranger to the litigation in circumstances where that person could in fact be a witness and be, as it were, compelled by order of process to either attend to give evidence or to produce documents.

It is common ground, your Honours, that the process of letter rogatory and enforcement of that through the Supreme Court could, in fact, have obtained an order for the production of the records. There is no dispute. However, had that procedure been required to have been taken, it would have been required to have been taken at least in the case of 2,000 other instances represented by my firm, 7,000 other cases which are presently pending on behalf of Australian women before the same United States court and, arguably, still would not have resolved the more general question of whether a patient has a right of access independently of the need to institute legal proceedings to give effect to that right.

TOOHEY J: In order for this Court to reach the general principle for which you contend we really have to put to one side what you describe as the first purpose for which the medical information is sought, do we not, and assume, as it were, that there were an action seeking some sort of a declaration in order to give effect to your second and third purposes?

MR CASHMAN: No, in my respectful submission, your Honour. The decisions to which I will take your Honour make it clear that in considering whether there is a legal right, as it were, independently of compulsory process, the fact that the records may be relevant to or needed for legal proceedings was an influential consideration in a number of decisions, including the English Court of Appeal in the case of Ex parte Martin where their Honours in that case, two of the three judges, expressly referred to the situation where the records may be relevant to or required for the purposes of any future legal claim that may need to be pursued by the plaintiff. Their Honours indicated that that was a factor in favour of their conclusion that there was, as it were, a common law right of access for a variety of purposes, one of which being in consideration of legal proceedings.

TOOHEY J: What I put to you was not necessarily against you, Dr Cashman. I was just seeking to identify the point at issue here and I put to you the proposition that putting to one side the actual existence of legal proceedings or the possibility of legal proceedings, do you still contend for some general principle of access to medical records?

MR CASHMAN: Yes, we do you, your Honour, indeed.

TOOHEY J: Then I understand that, but the Court is still faced with the problem of whether it should embark upon that general consideration when it is clear on the facts of this case that the material is sought for a more limited purpose.

MR CASHMAN: No, the material is sought for the three purposes to which I have referred, your Honour, and I might add in respect of the first there has been a subsequent event which does bear on the question of whether there is available alternative legal process. The company against whom the plaintiff has sought to bring a claim has filed for protection under the United States Bankruptcy Code. The effect of that is to automatically stay all legal process and proceedings pending the outcome of the bankruptcy proceedings. So although that option was historically available, it is no longer available at the moment as we understand it, at least through any District or other United States Federal District Court. In other words, the proceedings are stayed, including any application which could otherwise have been made for the purpose of obtaining a letter rogatory.

GUMMOW J: Have you obtained expedition in the Supreme Court and the Court of Appeal on the footing that there were orders from the United Stated District Court that had to be met by a particular date.

MR CASHMAN: That is correct, your Honour.

GUMMOW J: Now, that position has now changed, has it?

MR CASHMAN: Yes it has, your Honour.

GUMMOW J: Chapter 11 proceedings?

MR CASHMAN: As your Honour may be aware from the documents in the appeal book, there was litigation which culminated in a settlement. Under the terms of that settlement the defendant company and other manufacturers of breast implants agreed to pay women worldwide a sum of US$4.25 billion in compensation for all present and future claims. There are two problems that have arisen: first of all the court was persuaded to limit the entitlement of foreign claimants to no more than 3 per cent of that sum, even though 50 per cent of woman who are potential claimants were outside of the United States. More importantly, Dow Corning has filed for bankruptcy. That has the effect of staying the implementation of any settlement, and also there is an appeal pending, including by Australian women, against the settlement and that appeal is itself also stayed because of the effect of the bankruptcy proceedings.

BRENNAN CJ: Dr Cashman, if one leaves aside the relevance of the relief now sought to the United States proceedings, why is it that one would find any substance in the suggestion that these proceedings are for the purpose of obtaining relief for the second or third purposes nominated by you in the light of the refusal of the offer of the treating doctor? In other words, these proceedings have all the hallmarks of an action brought, using the situation of the plaintiff, in order to advantage the conduct of litigation on behalf of the mass, and why should this Court be involved in such an exercise?

MR CASHMAN: Well, your Honour, I am sorry if I have given the impression that the only purpose was to achieve a resolution of the legal issue for the benefit of the plaintiffs; the purpose is broader in the sense that any such resolution of the sort contended for by the appellant would create a benefit that would extend to all patients ‑ ‑ ‑

BRENNAN CJ: Exactly.

MR CASHMAN:- - - and in part, that was the essence of the argument.

BRENNAN CJ: And that seems to be the real nature of these proceedings, does it not?

MR CASHMAN: It is, your Honour.

BRENNAN CJ: And that is what you mean by a test case.

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: That seems to me to lead to the situation that one can give no real substance to the second and third purposes.

MR CASHMAN: There is substance in this sense, your Honour: if it be accepted that a patient is only entitled to such information as a doctor is, in the exercise of that doctor’s subjective discretion prepared to release, then that may be thought to be the end of the matter. What happens, however, in the situation where the doctor is deceased? What happens if the doctor simply refuses? What happens in the circumstances where there may be information which may be adverse to the interests of the doctor contained on the records? Could it seriously be suggested that the doctor would, in the discharge of his obligations to the patient, admit in written form to the ‑ ‑ ‑

DAWSON J: This is all in the abstract. You do not say that the information which the doctor is going to release is subjectively selected. You do not know.

MR CASHMAN: I accept that, your Honour, but the doctor has, through his lawyers and insurers, imposed a condition precedent to the access for which we request ‑ ‑ ‑

DAWSON J: He could give you a report giving you all the information that is there. You do not want the documents.

MR CASHMAN: We do want the documents, your Honour. The report may or may not assist in so far as the report simply contains what is in ‑ ‑ ‑

DAWSON J: It may contain all the information, every bit of it.

MR CASHMAN: It may, your Honour. In our respectful submission, there is no evidence ‑ ‑ ‑

DAWSON J: We would be hearing a case in which we simply do not know the facts.

MR CASHMAN: But the facts, whichever way one looks at it, your Honour, are that the patient has been denied access to the records which she contends she has a legal right of access to.

DAWSON J: Denied inspection of the records, but the inspection would only be an aid of something else: to pursue the cause based upon the failure of the doctor to provide the information, but that has not arisen yet.

MR CASHMAN: It has arisen in the sense that the primary contemporaneous records which are required both for the general purpose and more specifically for the narrow legal purpose - - -

DAWSON J: He is prepared to provide the information which is on the records. Whether it is all the information or not, we do not know. If it is not, and you said you had a right to all the information, you could commence an action for the additional information and then inspect the records, perhaps, to see whether he had provided the information. But that is not what we are talking about here.

MR CASHMAN: I accept that, your Honour, but in the ordinary course of events there would be further hurdles to be overcome in taking advantage of such an offer. One of those would be a cost which a patient would, no doubt, in the ordinary course of event be required to pay.

DAWSON J: The point is that it is no business of this Court to be declaring rights in the abstract.

MR CASHMAN: I understand and accept that, your Honour, but with great respect ‑ ‑ ‑

DAWSON J: It would be in the abstract in this case.

McHUGH J: There is another dimension to this question of access to the documents which does not seem to have been addressed and that is the question of copyright. The copyright in these records belongs to the doctors. What is to be done by them? Who is to have access to them? Who is to copy them? This is an issue that just does not seem to have been addressed at all. Are you after the information or are you after the documents themselves?

MR CASHMAN: The claim has been pleaded in the alternative, a request to inspect or copy, and in so far as the copyright question is concerned, your Honour, it was argued, as it were, against us and accepted, I believe, by all judges below, that information could not be the subject of a claim for property right in the context of this case, it having been our contention that any property right would have vested in the person who imparted the information rather than the person who had ‑ ‑ ‑

McHUGH J: But they are two separate questions. The question of copyright has got nothing to do with the question whether information is property ‑ ‑ ‑

MR CASHMAN: But, your Honour, with great respect, it could hardly be contended that the patient would be denied access to information concerning her medical history in part comprising information communicated to the doctor on the basis of a copyright claim by the treating doctor.

GUMMOW J: The distinction between literary works and the information given expression in the literal work is explained by Justice Mason in The Commonwealth v Fairfax and various other cases and it is fundamental. That is why I asked you whether you are after information or documents and you said “documents”. You are after documents because you want discovery to comply with the US court orders, I suppose.

MR CASHMAN: That is indeed one of the purposes, yes.

GUMMOW J: In so far as it is a question of information, well, there is an offer on the table, is there not, to supply it, but short of some compulsive process to get documents, some compulsive court process, the question will arise as to on what footing you could copy them.

MR CASHMAN: It was always the case that any reasonable expense associated with that would be borne by the applicant.

GUMMOW J: No, copy them without invading another legal right.

MR CASHMAN: As your Honour I believe has appreciated, in so far as we are concerned with the narrow legal purpose, for evidentiary purposes, the contemporaneous records are what were requested and, in my respectful submission, there are good reasons for that, not just in the interests of the patient, but in the interest of any other party to any proceedings. There may be a variety of circumstances where a report may convey some information which is not material to the legal purpose contended for and, in any event, if the patient has a right of the sort contended for, a right being upheld in other jurisdictions, one would not be required to go through the processes which exist as an alternative to obtain the material, it being accepted, as I understand it, by the court below and by my learned friends’ client that ultimately, if put to the expense and inconvenience, she would get what she contends she is entitled to obtain in any event, and no claim of copyright or other intellectual property assertion could defeat her entitlement to pursue access to those documents, as it were, for the forensic purpose for which she contends she wants access to them.

McHUGH J: But that could only be because she had a right to the information, and that does not seem to be your case at all.

MR CASHMAN: Well, we do contend that she has a right to the information, your Honour.

McHUGH J: So if the doctor has got the information in his head and not recorded, do you have a right for him to give you that information?

MR CASHMAN: No, we do not, your Honour, other than in so far as it may be information of particular relevance to ongoing treatment if she requested it for that purpose, in the sense that in Rogers v Whitaker, I believe this Court accepted that the obligation to provide information relevant to medical treatment arises not just prior to the carrying out of surgical procedure, but extends beyond the actual conduct of the surgical procedure in question. In other words, a patient’s right to material information concerning her medical health, as it were, is not frustrated by the fact that the procedure has been carried out. Their Honours below accepted, I believe, that she had a right to information concerning her medical treatment.

DAWSON J: Doctors are not prepared to give it. Maybe in the form of a report, be prepared to give it.

MR CASHMAN: Some of it, we believe, your Honour, but there is no finding of fact.

DAWSON J: We do not know, you do not know. It might contain every bit of information in the report that there it is.

MR CASHMAN: If that were to be true, your Honour, it is hard to see why the doctor would decline to make it available in the form requested by the patient.

DAWSON J: No, it is not.

MR CASHMAN: Well, I accept the force of the argument, your Honour, but it has never contended by the representatives of the respondent that what is to be provided is all that which is contained in the records. For example, it is - - -

DAWSON J: We are talking about information. We have established that now, not documents, have we not?

MR CASHMAN: Well, I did not want to unnecessarily limit it categorically. One of the documents comprises photographs of the plaintiff with her injuries. She wants access to those. That has been denied. That information could hardly be conveyed in a written report, and if it was, it would be a far less satisfactory solution than the actual photographs as at the time that the injuries occurred at the time when she was treated.

DAWSON J: We are talking about documents, are we?

MR CASHMAN: Yes, your Honour.

TOOHEY J: What was originally sought were documents. I mean, what was sought were copies of medical records. That appears at page 145 in the judgment of the trial judge.

MR CASHMAN: The original request. Yes. Initially, a claim for all information and documents, we accept that. There were no exceptions conceded by the applicant before his Honour Justice Bryson. In the Court of Appeal, for the purpose of the resolution in that court, the ambit of the claim was narrowed considerably and a variety of exceptions and exemptions were conceded and those are set out in the judgment, I believe, of his Honour Justice Mahoney. If I could take your Honours to that, I think it is of some significance. It appears at pages 285 and 286, of the appeal book, and the relief claimed was, in paragraph 1, which appears at line 10 on page 285:

To examine and/or copy -

so they were alternative claims:

records or information concerning the Appellant created or obtained for the benefit of the Appellant -

in other words, what was clearly excluded from the ambit of the claim on appeal was documents that may fall foul of the Court of the Appeal decision in Wentworth v de Montford, documents that the doctor had created for his own benefit: accounting records, communications with his insurers. It was limited to those created for her benefit, arising out of her treatment and excluding what were considered to be the problematic categories by his Honour below, and in other instances, ie, one category that I have referred to, documents created for the benefit of the doctor. Secondly, any document or information which may be adverse to the health of the patient such as to give rise to a therapeutic privilege to withhold it. And, thirdly, any information, the disclosure of which, may give rise to an action for breach of confidence. All of those were excluded from the ambit of the request and the relief that was being sought and the Court of Appeal proceeded to deal with the matter on the more limited terms of that relief.

Your Honours, perhaps I could elaborate a little more on why a report would simply not serve the patient’s purposes.

GUMMOW J: Just before you do that can you assist me this respect; what is the date of the insolvency proceeding of Dow Corning, do you know?

MR CASHMAN: 15 May 1995, your Honour.

GUMMOW J: So it was just after the grant of special leave.

MR CASHMAN: I believe that is correct, your Honour.

GUMMOW J: Special leave was granted on the 12th. What is the present force of the orders of the US District Court? I do not understand really. Are they now stayed, are they?

MR CASHMAN: Yes, your Honour, for all purposes.

GUMMOW J: But they are not abrogated. They may revive in some way. The stay may be lifted.

MR CASHMAN: In the event that Dow Corning ceases to be, as it were, in bankruptcy, then the automatic stay provisions contained in section 362 ‑ ‑ ‑

GUMMOW J: You say in bankruptcy, but is this a Chapter 11 administration?

MR CASHMAN: It is a Chapter 11, your Honour.

GUMMOW J: Yes, I see.

MR CASHMAN: As your Honours will be aware, Chapter 11 is not, as it were, a procedure for an insolvent corporation. It is an opportunity to reorganise one’s affairs in the hope of continuing to trade. It would be expected that a settlement will be fashioned as part of the plan of reorganisation to come out of the bankruptcy proceedings in the same way as it did, for example, in the Dalkon Shield litigation and pursuant to any such settlement there would be a continuing legal entitlement for persons suffering injuries as a result of the allegedly defective product subject to proof of those injuries and subject to providing appropriate evidence of ‑ ‑ ‑

GUMMOW J: There is no time limit, is there, on a Chapter 11 administration? They go for years, do they not, sometimes?

MR CASHMAN: The debtor is required within 60 days to formulate a plan of reorganisation. That has been extended by agreement and it would be likely to continue for a period of several years, your Honour.

GUMMOW J: Yes, thank you.

DAWSON J: Dr Cashman, one can understand that you have a remedy in relation to the American proceedings, that is to say, you can obtain, it would appear, discovery of the documents. Now, putting that to one side, what is your cause of action? Do you say, “I have a right to a declaration of a right”?

MR CASHMAN: Yes, your Honour.

DAWSON J: That is not known to this Court.

MR CASHMAN: I am sorry, your Honour.

DAWSON J: That is an extraordinary proposition, is it not, that a cause of action exists merely in an allegation of a right to a declaration of a right?

MR CASHMAN: Is your Honour concerned with the jurisdiction of the Court to make a declaration in an inter partes dispute of the sort in question?

DAWSON J: It is a question of whether there is any cause of action.

MR CASHMAN: If our submissions are accepted, and that is that there has been a breach of fiduciary duty, that would be, in our respectful submission, appropriate for relief in some form.

DAWSON J: But you can get the relief you really want. You can see the documents. Putting that to one side, you allege that you have a right to a declaration of a right anyway, irrespective of that.

MR CASHMAN: That is correct, your Honour.

DAWSON J: And that is really what you are seeking, is it not?

MR CASHMAN: Yes, your Honour.

DAWSON J: The fact that there are the American proceedings and so on is a mere background to what you want.

MR CASHMAN: It is not insignificant background, your Honour, but it is background. The primary claim for relief is in a form ‑ ‑ ‑

DAWSON J: The real cause of action is an allegation of a right to a declaration of a right.

MR CASHMAN: Depending upon which legal category - assuming that the plaintiff could succeed on one of the bases upon which we contend, whether it be breach of fiduciary duty, whether it be because of a proprietary interest in the records or whether it be because of an implied term in the contract for the provision of professional services, each of those, in our respectful submission, would entitle the applicant to declaratory relief and other orders. The other orders being sought are an order that she be permitted to inspect and/or copy the documents.

TOOHEY J: This only arises, does it not, because of the condition attached by the doctor to the production of the material or to the granting of access to the material.

MR CASHMAN: As we understand it, were it not ‑ ‑ ‑

TOOHEY J: Well, presumably you would not be here if the doctor had simply said, “Yes, I’ll make the records available to you”.

MR CASHMAN: Indeed, your Honour, indeed,

TOOHEY J: So the right for which you contend is a right unencumbered by any condition of the sort that the doctor wishes to attach; in this case to access to medical records as between doctor and patient.

MR CASHMAN: Subject to the exceptions and limited to the particular type of documents that has been narrowed for the purpose of the appeal below; those created for the benefit of the patient arising out of the treatment, excluding confidential material, anything that may fall within the notion of therapeutic privilege, et cetera. With those exceptions and limitations, yes, your Honour.

BRENNAN CJ: Well then, your proposition can put to one side the three purposes that you have listed in your note of argument. It says it does not matter for what purpose, there is a legal or equitable right of access to medical records.

MR CASHMAN: I would accept that, your Honour.

BRENNAN CJ: Has that right been sought to be enforced and denied?

MR CASHMAN: In our respectful submission, yes, your Honour.

BRENNAN CJ: And that right exceeds the right to have information provided by the doctor of what the treatment is, or the diagnosis, or any other relevant aspect of medical history?

MR CASHMAN: As contained in the contemporaneous notes and records and other materials, such as photographs, yes, your Honour.

TOOHEY J: Because you are not content with information. You cannot be on your case as presented, and again, that is not putting this for you or against you, just trying to identify what is involved, because if it was information, that could no doubt be produced through a report. You want copies of the material in the doctor’s possession, or access to that material to decide whether or not you wish to copy it.

MR CASHMAN: Yes, your Honour, and if that were denied we would still press for access.

DAWSON J: But it is not denied because you could have it.

MR CASHMAN: We do not know what we have been offered, your Honour, with great respect.

DAWSON J: No, I mean, there is a procedure by which you can have it.

MR CASHMAN: Yes. your Honour.

DAWSON J: I am sorry, I phrased that badly. If it is denied, then there is a remedy.

MR CASHMAN: There is ‑ ‑ ‑

TOOHEY J: Is there? Do you accept that there is a remedy?

MR CASHMAN: Well, now there may not be. One of the ironies, perhaps, of this case, is that in so far as there are presently bankruptcy proceedings, it is our understanding that we can no longer go back to the Federal District Court and seek a letter rogatory in the way that - and has been found below, this did happen in other cases of similar clients, and those requests were made and they were enforced by order of the Supreme Court of New South Wales. That involved two sets of proceedings; the issuing of orders; service of orders and the production to the court and the obtaining of the material from the court registry. The argument is very simple. If a right exists independently of having to resort to that legal process, then it is obviously, in our respectful submission, in the interests of all parties that access be granted without the necessity for such expensive, protracted and problematic procedures.

BRENNAN CJ: Dr Cashman, is this the situation: leaving aside any purpose that the plaintiff might have in seeking the information, the plaintiff or any other patient is entitled to go to a doctor’s surgery and require copies of all medical records relating to that patient for whatever purpose the patient has in mind, subject only to the exceptions which are noted at page 286.

MR CASHMAN: Yes, your Honour. Reasonable access; it does not mean the right to come in and demand the doctor to stop whatever he is doing at the time.

BRENNAN CJ: No, but if you go into a doctor’s surgery and you come out and pay the bill at the counter, you can say, “And give me a copy of the records that have just been taken”.

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: Yes, I see.

McHUGH J:And is it the doctor who has to give the copy or can you take the copy, because I am still troubled by this question of copyright. You have a federal statute which gives the exclusive right to the doctor to copy or reproduce the documents. Now how can the common law right stand with that federal statutory right of the doctor?

MR CASHMAN: We would be content for the doctor to make a copy for the patient, in the same way as their Honours in the Supreme Court of Canada held that the records that were to be made available would still require the patient to pay a reasonable fee for the time and expense incurred by the custodian of them, the doctor, in making a copy for the patient.

McHUGH J:But that means your right then is not a right to copy the documents but a right to require the doctor to copy them.

MR CASHMAN: We would be content with it in that limited form, your Honour, yes. If the same result is achieved, ie possession of the information and/or a copy of the documents through that vehicle, then we would have no difficulty, your Honour. If there is some copyright constraint on the plaintiff physically carrying out the copy for the purpose of the present case and if the matter had been considered below, we would be content with a provision of a copy. And that was what was requested in the original letter from the patient’s solicitor.

DAWSON J: +But I thought at one stage you were saying you wanted the documents; you were referring to photographs.

MR CASHMAN: Below, your Honour, there was a desire to avoid categorisation of different types of documents in order to try and obtain a resolution of the broader principles, because if one ended up in a Wentworth v de Montford situation, it would have required, in my respectful submission, a painstaking analysis of what was in fact there and what the property rights were of the contending parties in respect of each several document.

DAWSON J: Well that requires you to identify with some precision what it is you are asking for; .....to information?

MR CASHMAN: We have asked for all documents other than those that have now been excluded.

DAWSON J: Copies of documents?

MR CASHMAN: Copies.

DAWSON J: Copies made by the doctor?

MR CASHMAN: We would be content with that, your Honour, yes.

TOOHEY J: You do not mind whether they are copies made by the doctor or copies made by yourself.

MR CASHMAN: No. Presumably the doctor could waive any copyright claim which he may have if he was content to allow someone ‑ ‑ ‑

GUMMOW J: Yes, you seem to be saying you have some equitable right to compel the medical practitioner to waive his legal right bound up in his copyright, which would be an interesting idea, I suppose.

MR CASHMAN: If it be accepted that he has a copyright interest in all of the documents of the type in question, that may present a difficulty. It was not a difficulty that has ever been adverted to.

GUMMOW J: But is not an equitable right that arises because of particular conduct between particular parties in some way. It arises as some absolute. It is a cause of action. He must be asserting some cause of action. Somehow that overcomes the statute in some way.

MR CASHMAN: If there be a right of the type contended for to obtain access in the manner contended, in our respectful submission, it is hard to see how that right could be legally frustrated by a claim of copyright. No such claim has ever been made.

McHUGH J: Why? It is a federal statute. It gives the doctor the right. It overrides any State law or any common law right. You have got to show some right that would overcome the doctor’s statutory federal right.

MR CASHMAN: That right has never been invoked in these proceedings by anybody.

McHUGH J: Somebody has got to give some thought to these things, that when judgments are written ‑ ‑ ‑

MR CASHMAN: Presumably there is similar legislation in Canada and in the United Kingdom. That was not a factor which in any way was either adverted to or ‑ ‑ ‑

GUMMOW J: The fact that other people overlook things is no encouragement for us to overlook it - if they did overlook it.

MR CASHMAN: I accept that, your Honour, but in our respectful submission it would be an odd result if an intellectual copyright claim, if asserted, could deny the existence of a right of the type contended for - if there be a right of the type contended for. If we were to succeed in respect of the proprietary claim, presumably there would be no copyright entitlement that would be enforceable if it were to be accepted that the legal right over the information and some or all of the documents was a legal right vested in the patient.

McHUGH J: That may be because, on that hypothesis, the doctor in some way holds these documents in trust for you. I raise these questions with you because it seems to be that they require exploration and they may point the way to what the answer is in this case. It may be that they point to the fact that you have not got a case, or they may point to the fact that you have got a case, but they are significant issues - at least to my mind, anyway.

BRENNAN CJ: The problem, Dr Cashman, is that we are not here to discuss generalities.

MR CASHMAN: I accept that, your Honour.

BRENNAN CJ: We are here to discuss precise legal principles and to define the law as best it can be defined for the purposes of the Australian people. That requires us to consider the relevant frames of legal reference.

MR CASHMAN: I accept that entirely, your Honour, and save for the copyright issue, we would respectfully contend that the relevant frames of legal reference are those addressed expressly by the Court of Appeal and, for our part, given currency by his Honour Mr Justice Kirby in upholding the claim contended for on behalf of the appellant, albeit on only one of the several legal bases contended for on her behalf in the court below.

BRENNAN CJ: So we can identify it quite precisely, am I right in saying that forgetting altogether the purposes for which your client seeks a remedy, the remedy that is sought is either a copy of all medical records provided by the defendant, or a right to copy those records subject only to the exceptions that are contained in the listed exceptions in the Court of Appeal’s judgments, or acknowledged in the Court of Appeal?

MR CASHMAN: Those are certainly within the ambit of the claim, but I am not sure that the claim for access independently of the right to copy should be abandoned, as it were, on the appeal, having been maintained in the court below.

BRENNAN CJ: That is a right to inspect as well as to copy?

MR CASHMAN: Or in the alternative.

TOOHEY J: That is the relief that you seek, is it not, as appears on the top of page 319. You speak of access “to examine and/or copy records”.

MR CASHMAN: That is correct, your Honour. Could I perhaps make a further comment in relation to his Honour Justice McHugh’s observation about copyright. In all of the cases to which I have had regard concerning the rights of people involved in relationships with professionals whether they be auditors, solicitors, architects, it has never been suggested in any judgment to which I have been referred that a question of copyright would frustrate the claim made by either the beneficiary of the trust, the client of a solicitor, the various other categories of ‑ ‑ ‑

GUMMOW J: There may be three reasons for that. One, the claim is made in litigation, so there is discovery, it is compulsive, it is court process; second, it may be that the relevant legal right would be held under some equitable obligation because of the personal relationship of the parties, Justice McHugh was saying to you; there might be a trust. The third possibility is that the relevant dealing might amount to a fair dealing under the Copyright Act, but that could only be determined by looking at the particular material and how much was going to be copied, its nature, why it was needed and so on and so forth. It could not be determined in the abstract, which is one of the matters the Chief Justice has put to you more than once. These things have to be looked at very specifically.

MR CASHMAN: I accept that, your Honour, but in order to avoid different conceptualisations for different categories of documents, the claim has been very narrowly limited ‑ ‑ ‑

DAWSON J: That difficulty arises because of the way in which you framed your claim. It is just an action for a bare declaration or series of declarations.

MR CASHMAN: No, it goes beyond that, your Honour. It does seek ‑ ‑ ‑

DAWSON J: It does not seek any relief other than the declaration against the defendant, does it?

MR CASHMAN: Yes, it does, your Honour, an order for access, paragraph 4, referred to on page 286, at line 10.

BRENNAN CJ: Dr Cashman, am I right in thinking that the relief that you have indicated that you seek now is based upon paragraphs 13 and 14 of the applicant’s affidavit on pages 7 and 8 and the letters which are the annexures referred to there?

MR CASHMAN: I am sorry, what were the pages?

BRENNAN CJ: Pages 7 and 8, paragraphs 13 and 14, that is, a letter of request and a letter of qualified refusal.

MR CASHMAN: Those were certainly the relevant communications that gave rise to the legal proceedings, I am accepting that, your Honour.

BRENNAN CJ: I am not interested in the history. I am endeavouring to discover the factual basis which, in your submission, gives rise to the contested legal right which is now right for determination by this Court.

MR CASHMAN: The request and the refusal.

BRENNAN CJ: Simpliciter?

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: And the remedy which arises from that is the remedy referred in paragraphs 1 and 4 of your notice of appeal?

MR CASHMAN: Yes, your Honour. Your Honours, unless this not be clear, I should clarify that in her affidavit evidence and,as it were, it was accepted, I believe, below, that although her solicitors requested information for a purpose, her stated reasons for wanting the information were not limited to those narrow legal proceedings.

BRENNAN CJ: No, we are not concerned about purpose, we are concerned simply with the request for the information - or request for the documents, or copies of the documents, qualified refusal and the relief that flows from there.

MR CASHMAN: Yes, your Honour, I accept that.

TOOHEY J: In so far as relief is concerned, I am not sure why you even asked for a declaration. Why do you need a declaration? I mean, why do you not need an order, and I am not saying that you can make good such a case, but I would have thought the appropriate orders were in terms of either the respondent providing copies of the material or providing access to the appellant for the purposes of examination and, if appropriate, the taking of copies.

MR CASHMAN: I accept that, your Honour. It was considered more appropriate in so far as this was intended to be a test case that declaratory relief be claimed and it was our understanding and it is still our understanding that there is no legal impediment on the declaratory relief sought in the sense that there could be no argument that the court did not have jurisdiction to make declarations in respect of the rights inter partes of the sort that were sought and it is my understanding that that was accepted by all judges in the Court of Appeal based on Forster v Jododex and the provisions of the Supreme Court Act, et cetera.

What was not being sought was a declaration at large, as it were, of the rights of all patients. That was expressly disavowed. It was a declaration as between the rights of the parties to the dispute arising out of the request and the denial and it sought a declaration of the legal basis of the claim of entitlement.

DAWSON J: This is the difficulty that troubles me because if you put aside the declarations, it becomes merely an action for discovery. Now, once you get to consider the declarations, they are declarations at large, albeit sought in relation to this particular plaintiff, but the Court is in great difficulty because it does not know what the documents are that are there, what the information is, and it really is not in a position to make a declaration of the sort which you seek. If it were pursued as an action pursuant to some cause of action then there would be discovery, there would be identification of the information and the documents and the court would know where it was, but it does not.

MR CASHMAN: Your Honour, in my respectful submission, the need to identify the particular categories of documents may only be of legal significance if the court were required to embark upon an analysis of the sort done in Wentworth v de Montford in respect of proprietary claim. In so far as the broader claim for relief is able to be established on the basis of the alleged fiduciary obligation, in our respectful submission, it does not require the court to have regard to the nature of the documents, particularly given the exceptions and limitations conceded by the applicant. More importantly, the respondent himself chose to put on evidence, as it were, at large about the sorts of information in medical records generally rather than confine his evidence to the narrow question of what records were in issue here because of what was understood to be a desire on the part of the doctor and the patient to achieve a resolution of the broad question of principle, albeit on the specific facts.

BRENNAN CJ: It may be, Dr Cashman, that you are faced with this situation: that if you seek to proceed on the basis of the simple demand and refusal, the assumption may have to be made that copyright in all the documents, including photographs, for example, resides in the doctor. Now, that is an hypothesis that may legally arise and which, I take it, we could not as a matter of evidence dispel, so that the appeal may have to proceed upon that basis.

MR CASHMAN: I accept the difficulty, your Honour, in so far as copyright may loom large as a legal issue.

BRENNAN CJ: That is a problem that you have to face.

GUMMOW J: Once you get beyond framing your case as one involved with information, and you put your case as one of documents, that is the area you get into, I think.

MR CASHMAN: Accepting that, your Honour, but we have not, as it were, abandoned the lesser claim to access for purpose of obtaining information independently of being provided with a copy. We have not abandoned that claim; it has been pressed before the Court of Appeal, albeit with the exceptions and limitations referred to.

BRENNAN CJ: Well, let us get it quite clear now. There was a request and a denial of access to the documents.

MR CASHMAN: Yes.

BRENNAN CJ: Are you seeking information that is contained in the documents and if so, in what form?

MR CASHMAN: In the form in which it is contained on the documents.

BRENNAN CJ: That is access to the documents.

MR CASHMAN: Yes. It does not necessarily mean a copy thereof, although we would contend that it should but someone could transcribe, as it were, verbatim, the information, presumably without breaching any ‑ or, arguably, without breaching any problem of the sort that might arise for reproduction purposes.

BRENNAN CJ: Who is the “somebody” who can do this, or will do this?

MR CASHMAN: The patient’s solicitors sought that opportunity.

BRENNAN CJ: That may be so. I am endeavouring simply to understand what is the factual basis and the legal relief that is sought on the footing of that factual basis. We had the request and the qualified denial. Now that request was for the documents or for access to the documents.

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: And that was what was denied.

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: Now, are you saying that you want some other relief other than access to the documents, or copies of the documents provided?

MR CASHMAN: It would not be necessary to obtain relief beyond that. In our respectful submission, it may be desirable ‑ ‑ ‑

BRENNAN CJ: It is not a question of necessary; the question is what is your claim, so that we can deal with it as a legal concept?

MR CASHMAN: The claims were for the declarations on the issues which the declaratory relief adverts to, and the orders for access ‑ reasonable access ‑ either as an alternative to copying or in addition to copying.

BRENNAN CJ: Then, in relation to the declaration, a declaration as to what entitlement other than access to the documents for the purpose of copying or inspecting or copies of the documents themselves?

MR CASHMAN: The only purpose would be, as it were, to declare the legal right inter partes.

BRENNAN CJ: Access or copies, leave that to one side; is there anything else that you are seeking?

MR CASHMAN: No, your Honour.

BRENNAN CJ: Not information, as distinct from access to the documents or copies?

MR CASHMAN: No, we are not seeking to deal with his Honour Justice McHugh’s concern about information in the head of the doctor, no, we are not seeking that.

BRENNAN CJ: Well, whether in the head of the doctor or elsewhere?

MR CASHMAN: No, only - and it is quite clear, your Honour, the relief framed is limited to the documentary material; it does not extend beyond it and is narrower than the sum total of the documents in the possession of the doctor.

BRENNAN CJ: Well, on that basis, perhaps you can proceed to develop your argument.

MR CASHMAN: Thank you. Your Honour, it may be appropriate, although in our respectful submission nothing turns on it, but it may be appropriate to have regard to the different types of medical information which may be contained on the documentary records, and there is reference in the judgment of his Honour, the President, at page 248, to the categorisation adopted at least by the Australian Medical Association in its resolution for the benefit of its members, where a distinction was drawn between so-called factual information, which the AMA concedes:

The patient has a right to be informed of -

and so-called deductive medical opinion, which at least in the opinion of the AMA -

remains the intellectual property of the doctor -

and is only to be released at the discretion of the doctor. We do not limit the claim to the so-called factual information. In so far as the records may contain opinion, then that falls within the claim pressed on behalf of the appellant.

I need not trouble your Honours with the facts of the case, although there are some elements of it that I will need to turn to in due course.

BRENNAN CJ: Well again, let us understand it, are the facts anything other than the request and the denial?

MR CASHMAN: In the sense that the applicant’s affidavit goes beyond the limited purpose encompassed within the letter from her solicitors. In that sense, yes. She says, “I want the information, not just for the legal purpose, because it concerns me and I want it, and I want it for my future medical purposes”. That is a fact ‑ ‑ ‑

BRENNAN CJ: I thought we had been through this. We are not concerned with purposes. We are concerned with the legal right of access, or a right to copy, for whatever purpose the patient may choose or for no purpose at all.

MR CASHMAN: Indeed. I accept that, your Honour.

GUMMOW J: The letter of denial is at page 78, is that right?

MR CASHMAN: I believe so, your Honour. In one sense it is an offer to provide what was requested subject to a condition.

GUMMOW J: With a condition.

MR CASHMAN: Yes.

GUMMOW J: At page 283 in the judgment of Justice Mahoney there is a reference to an open offer made before the primary judge - line 30, there. That does not seem to have the condition attached.

MR CASHMAN: It does not, your Honour, that is correct.

GUMMOW J: So there was an open offer to provide a report containing information?

MR CASHMAN: Yes, your Honour.

TOOHEY J: Is that what is referred to at page 146 of the appeal book. line 21?

MR CASHMAN: Yes, your Honour.

TOOHEY J: That is a report, is it not? An offer to provide a report.

MR CASHMAN: Yes, it has always been the position that the doctor in this case was happy, as an alternative to providing access of the type requested, to provide his report. There has been no issue about that.

TOOHEY J: But a report as to what?

MR CASHMAN: In so far as the forensic necessity of the information arose, page 146 indicates the ambit of the information to be provided in the report.

DAWSON J: It makes it clear that it is the contents of the file.

MR CASHMAN: It may or may not be, your Honour.

DAWSON J: But it says so:

provide a report in writing to the plaintiff as to the contents of the file maintained by the defendant relating to the plaintiff.

MR CASHMAN: In the course of cross-examination of the doctor, it became apparent, in my respectful submission, that his understanding of what he was offering was somewhat at odds with what the plaintiff was requesting.

GUMMOW J: But you never subpoenaed the file.

MR CASHMAN: No, your Honour.

GUMMOW J: The unfortunate primary judge had to infer what was in it. What on earth was going on?

MR CASHMAN: The defendant gave an extensive affidavit directed at the contents of his medical records to lay the factual foundation for the resolution in issue, your Honour, and there was cross-examination directed at aspects of the ‑ ‑ ‑

GUMMOW J: Well, why was that necessary when you could have subpoenaed the file?

MR CASHMAN: In the benefit of hindsight, your Honour, it would not have been necessary had the file been subpoenaed but, equally, the doctor could have provided it, as it were. Your Honours, might I deal with the question of fiduciary duty? As your Honours will be aware, this was the basis upon which, at least in Canada and in the United States, it has been, we would say, almost now universally accepted that a patient does have a right of access of the type contended for here because of the nature of the fiduciary relationship that exists between the doctor and patient.

DAWSON J: Why is it a fiduciary relationship?

MR CASHMAN: I am going to come to that, your Honour, in a moment if I might. There are a variety of indicia which, we would submit, are clearly present both on the facts of this case and at large in the relationship between doctors and their patients such as would give rise to a fiduciary duty to provide access of the type contended for. His Honour Justice Mahoney and his Honour Justice Meagher were, of course, not persuaded that in Australia, at least, any such fiduciary obligation exists and therefore it is necessary to have close regard, in our respectful submission, to the reasons why his Honour the President ‑ ‑ ‑

GUMMOW J: That is not what Justice Meagher found at all. He said there may well be a fiduciary relationship in its characteristics ‑ ‑ ‑

MR CASHMAN: For some purposes, yes, your Honour, I accept that.

GUMMOW J: In saying what he said, he was reflecting what Sir William Deane said in Chan v Zacharia in this Court. Its characteristics are concerned with conflicts between duty and interest and making secret profits and so on.

MR CASHMAN: I accept that, your Honour.

GUMMOW J: None of which bears upon this case. That is what Mr Justice Meagher was saying.

MR CASHMAN: In his conclusion, that is correct, your Honour, and in so far as the ‑ ‑ ‑

GUMMOW J: You have got to overcome that.

MR CASHMAN: I do, your Honour. In so far as the doctor is in the possession of property arising out of the professional relationship, whether that be information or not, then it is accepted by all judges below that there are fiduciary obligations in respect of that property and there are also fiduciary obligations in respect of confidentiality. There is no issue or argument about that. The doctor could not release the information, sell it, as it were, profit from it. No issue, in our respectful submission, turns on that.

GUMMOW J: Well, that would be a classic instance, if the patient was a celebrity and the doctor thought he could sell the patient’s secrets and confidences and so on, and make a profit out of it. Justice Meagher, I think, would have said, “Well, that’s a clear case of breach of duty.”

MR CASHMAN: Yes. And your Honours will be aware, there is considerable force, in relation to that, in respect of all of the proprietary interests that have founded most of the cases where fiduciary relationships are found to have existed between professionals and either clients or other persons with whom they are having dealings. Against the proposition for which I contend, there is one judgment, at least, of the English courts in Sidaway where, as your Honours would be aware, Lord Scarman in dissent in that case rejected the notion of a fiduciary relationship between doctor and client.

His Honour below at first instance, Justice Bryson, accepted that for some purposes there may be a fiduciary relationship between doctor and patient. What his Honour Justice Kirby was persuaded of was that the historical constraints on the application of the doctrines giving rise to the existence of a fiduciary relationship (a), were not fixed; (b), were flexible; and (c), ought to be applied in the facts of this current case. The first two of those propositions were agreed to as a matter of, as it were, abstract legal principle by at least one of the other two judges.

In other words, there was no suggestion, as I understand their Honours judgments, that there was any inevitable constraint in Australia arising out of the way in which the notion of fiduciary duty has been considered by this Court, in particular, in the Hospital Products Case - and I will come to that in a moment - that would inevitably lead to the conclusion that there was not, as it were, scope for application of the notion of fiduciary relationship in the context of the present.

GUMMOW J: It is not a notion. The question is, “What is its particular content?”

MR CASHMAN: I accept that, your Honour.

GUMMOW J: In Hospital Products its particular content was said to be - and it did not ultimately prevail - using the advantage to set up in competition to undermine the former principal. That is a long way from this case.

MR CASHMAN: It is, your Honour.

GUMMOW J: There is no conflict of interest in duty here.

MR CASHMAN: We submit there is, your Honour.

GUMMOW J: Well, what is it?

MR CASHMAN: The doctor’s desire to achieve, because of the condition proposed, a legal advantage out of the release of the information. The legal advantage is the release of any claim, any and all claims that may be made.

GUMMOW J: That is gone now because of the open offer.

MR CASHMAN: No, it has not, your Honour. The open offer is still not to provide the documents that are requested.

McHUGH J: But the offers are anterior to that. I mean, the doctor could have said, “I won’t give you anything at all,” and that is what we have got to treat this case on, that basis. Now, where is the conflict of interest there. If the doctor says, “I don’t have to give you the information,” where is his breach of fiduciary duty?

MR CASHMAN: It arises if one accepts that his primary obligation as a medical practitioner is one of loyalty to his patient and one which requires him to act in the interests of his patient. If he asserts, as he did in this case, (a) a property right and (b) a condition precedent, those are, in our respectful submission, considerations which are at odds with the nature of the obligation to act in the interests of his patient and to ‑ ‑ ‑

DAWSON J: Not the interests of his patient in general. He has an obligation to act in the interests of the patient in the treatment of the patient.

McHUGH J: In the treatment. He has not got an obligation to give her money or to give her some educational advice.

MR CASHMAN: Yes, but in so far as there may be documents that are brought into existence as a fundamental component of the doctor/patient relationship, in our respectful submission, a fiduciary obligation arises to make available the content of those records upon reasonable request by the person whom the professional relationship was designed to benefit, the patient.

DAWSON J: You assert that, but why?

MR CASHMAN: For the reasons that his Honour the President found that gave rise in the circumstances of this case to what his Honour accepted was such a fiduciary obligation: the position of trust, the position of loyalty, the position of vulnerability and all of the other indicia that have been historically regarded as relevant to the existence of a fiduciary relationship in a professional context, leaving aside for a moment the purely commercial context. His Honour was persuaded and, in our respectful submission, it is clear that the Supreme Court of Canada was equally persuaded that those indicia were in existence in the circumstances of this particular case. There was a duty arising out of those considerations and, furthermore, there had been a breach ‑ ‑ ‑

GUMMOW J: But a duty to do what?

MR CASHMAN: To afford access, reasonable access - - -

GUMMOW J: How is that bound up with traditional formulations like that of Justice Deane in Chan v Zacharia? Where is the conflict? Where is the profit?

MR CASHMAN: I am sorry, your Honour.

GUMMOW J: Where is the conflict of interest and duty? Where is the profit being made, et cetera? What you are trying to do is to create a tort I think in some broad sense somehow to use fiduciary duty as the means to do that. So you may be able to create a new tort - I do not know - but I do not think you can do it through the prism of fiduciary duty which is a much more, in a sense, narrow concept as to its incidence.

MR CASHMAN: It may be narrow, your Honour, but, in our respectful submission, the indications are that it has a widening ambit for the reasons referred to by his Honour Justice Kirby.

GUMMOW J: What are those reasons?

MR CASHMAN: Well, his Honour indicated on the pages to which I will refer your Honours to a number of what he considered to be relevant considerations. As it were, one was a change in social conditions and the emergence of a more complex society referred to by his Honour on pages ‑ ‑ ‑

DAWSON J: What has that got to do with it?

MR CASHMAN: Only this, your Honour, that as his Honour then held, and I quote:

The stamp of history does not freeze the development of equitable principle

his Honour was of the ‑ ‑ ‑

DAWSON J: That does not advance you; no doubt that is so.

MR CASHMAN: No, your Honour, but if it be contended that the strict application of the doctrine as it has arisen in a number of cases in the past is a necessary impediment to the application of that doctrine on the facts of this case, that is a proposition that his Honour did not accept and, in our respectful submission, his Honour is ‑ ‑ ‑

DAWSON J: All his Honour is saying is we must be progressive. Well that is all right, but one has to find some.....along which one progresses.

MR CASHMAN: His Honour went further, and his Honour adopted, as I understand it, the reasoning of Dr Finn in the article which is referred to in his Honour’s paper dealing with the fiduciary obligation, which is published, as your Honour Justice Gummow would know, in the same set of papers as your Honour’s article is published in. His Honour respectfully adopted Dr Finn’s analysis that where there was a relationship involving trust and confidence, which according to his Honour was the underlying concept behind the imposition of fiduciary obligations, and I quote from his Honour’s judgment:

to secure observance of these fundamental duties in relationships in which it is the role of one party to act in the service and interests of the other who is specially vulnerable to harm if that party does not conform to such duties.

His Honour was of the view that those were principles which had direct application to the circumstances ‑ ‑ ‑

DAWSON J: It has been pointed out to you that you have got to add to that; it is not only act in the interests of another, but it is to act in the interests of another where it conflicts with a person’s own interests or that no conflict should be allowed to arise, and there is no conflict here.

MR CASHMAN: Well, your Honour, we would submit there is a conflict created in the manner in which a condition was sought to be imposed.

McHUGH J:But I pointed out to you - let us assume the doctor says, “I am giving you nothing at all”; where is the conflict there? Where does he conflict with any fiduciary duty that he owes, in respect of the treatment?

MR CASHMAN: By not giving effect to his obligation to act in the interests of the patient, and if she says, “I want the information” and if it be accepted that there is reasonably a good purpose for that ‑ ‑ ‑

McHUGH J:This is just circular reasoning. I mean, if there is a fiduciary obligation, it can only be in respect of the treatment.

MR CASHMAN: We do not accept that, your Honour, any more than in a solicitor/client context the fiduciary obligation is not limited to the nature of the professional service provided to the client; the fiduciary obligation extends to the dealing with documents arising out of that relationship, as I believe is common ground in the court below. It was never suggested that a solicitor does not have a fiduciary obligation in respect of documents any less so than a trustee may have in respect of documents in the possession of the trustee, any more than any other professional ‑ ‑ ‑

McHUGH J:It depends what the documents are - this is the problem. He has not got a fiduciary obligation in respect of his trust account, has he?

MR CASHMAN: No, and that is why we expressly excluded from the ambit of the claim any documents that may fit into that category. The only documents in respect of which we contend there is a fiduciary obligation are those brought into existence for the purpose of the treatment of the client and excluding the ambit of those other problematic categories of information which may run fowl of the principle which we contend for.

BRENNAN CJ: Dr Cashman, I think we understand that you are saying that those are the documents that it relates to, but the problem is not going to be solved by saying that he has an obligation in respect of them; our problem is to discover why it is that he has an obligation, given the peculiar relationship of doctor and patient. Now there are some reasons I think which you embrace from Justice Kirby’s judgment, is that correct?

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: What pages are they?

MR CASHMAN: Your Honour, pages 262 through to 264 we would adopt in relation to the general principles to be taken into consideration on the question of whether a fiduciary relationship exists in the present circumstances, and whether that fiduciary obligation gives rise to the right on the part of the patient, or conversely, the obligation on the part of the doctor.

BRENNAN CJ: Well now, I do not think it is open to dispute that the relationship is such that in connection with some transactions a fiduciary duty exists; for example, not to disclose confidential information.

MR CASHMAN: Yes.

BRENNAN CJ: Where do we find that link, if there be one, between the existence of the relationship and the existence of the duty for which you here contend, either in Justice Kirby’s judgment, or in the Canadian judgment or wherever?

MR CASHMAN: Your Honour, if one starts with the nature of the records, and the purpose for which they are created, and the use which it is intended that they be put, one finds the constellation of factors which are highly relevant to considering whether the fiduciary obligation, if it exists, gives rise to an obligation to provide that information.

BRENNAN CJ: Would you develop that.

MR CASHMAN: Yes. What his Honour identified, in part adopting Dr Finn’s analysis, was that where the alleged fiduciary becomes implicated in the affairs of the other person is one of the indicia to which his Honour pointed, on the facts of this case. When I say “implicated in the affairs”, he is the author of documents which the patient says, for the purpose of her affairs, are relevant for a number of purposes: to her future health, to her legal claim, for legal advice. On any view, the doctor has become implicated, not just in her medical treatment, but in her legal claim.

On the facts of this case, the doctor saw her after she suffered injuries of the type for which she claims compensation. He treated her. He carried out a procedure. Capsulotomy involves application of force to the breasts so as to rupture the membrane and the hardening which develops around the implanted prosthesis. He subsequently was in communication with her when she was seeking further information and advice at a time when she was consulting other doctors, well beyond the time of his original treatment of her. He has inextricably become, as it were, a relevant party, and his records have become a relevant source of information in relation to her future affairs.

His role has not, as it were, been limited or terminated in terms of fiduciary obligations at the time of last treatment, and that is one of the factors which we point to as indicating that his records, over which he asserts his proprietary right, are something which she contends are in her interest that she obtain. Now, your Honours, in a sense, have to accept, with great respect, her assertion. It has never been challenged.

BRENNAN CJ: Why? We are talking about a legal concept here. We are not talking about a ‑ ‑ ‑

MR CASHMAN: As your Honour will be well aware, the legal concept can only be applied on the specific facts that give rise to the application of it, and one of the problematic aspects of fiduciary duty is determining those specific factual circumstances in which an obligation is said to arise to do something.

McHUGH J: You keep assuming that there is a general fiduciary duty, and that ‑ ‑ ‑

MR CASHMAN: I accept that the duty needs to be, as it were, moulded to the circumstances in which it is invoked. It is not, as it were, some overriding concept that has application independently of the particular use to which it is proposed to be put.

DAWSON J: Really, it is obvious that the doctor has various duties. He has a duty to exercise due care.

MR CASHMAN: Yes, your Honour.

DAWSON J: He has a contractual duty. Probably the contractual duty extends to providing information to someone else who is treating the patient, but his duty is to treat the patient, taking all due care in doing so. That is the relevant duty here, and that is not a fiduciary duty.

McHUGH J: That is not a fiduciary duty. I was just going to put to you: if this operation had gone wrong you would not have brought an action for equitable compensation against the doctor for the loss suffered as a result of a breach of fiduciary duty on his part.

MR CASHMAN: We would not need to consider it because I accept that in those circumstances there would clearly be an actionable claim for breach of duty of care, accepting that. But, the action is for access to documents and information.

McHUGH J: If there is no fiduciary duty in respect of the operation itself, then it seems to me you are really in trouble in trying to erect some sort of fiduciary obligation to provide information when the patient requests it.

MR CASHMAN: It has been, as it were, conceded and trite law that there is a fiduciary obligation in respect of the information and the confidentiality in the records. For the purposes to which we have already referred, he could be restrained by a Court of Equity for seeking to deal with that information in one of a number of obvious ways. So, if it be accepted that fiduciary obligations relate to the records for some purposes, it is not a quantum leap ‑ ‑ ‑

McHUGH J: Not to the records, to the information.

MR CASHMAN: Records and/or information.

McHUGH J: It is the information that he would be restrained from using.

MR CASHMAN: In our respectful submission, it is not a quantum leap for the nature of that fiduciary obligation to extend to grant access to the information.

McHUGH J: Supposing the doctor wanted to destroy his records. Could you get an injunction to restrain him from destroying his own records because it was a breach of fiduciary duty owed your client?

MR CASHMAN: Yes, I believe we could obtain an injunction and it would not be necessary to consider the question of equitable relief because it is, I believe, accepted that it is part of the duty of care of a doctor and an ethical obligation that he maintain records and, now, statutory provisions provide for the compulsory keeping of medical records and provide penalties for failure to do so. So, in a sense, the answer ‑ ‑ ‑

McHUGH J: For what period?

MR CASHMAN: I would have to look at the more recent legislation, but there is now legislation in most States which create a statutory obligation and impose penalties for failing to keep records.

McHUGH J: Was it there in 1978?

MR CASHMAN: I do not believe it was, your Honour, but it is in force now. In the absence of such statutory or ethical obligations, I accept, your Honour, that it would be an interesting question as to whether equity could be called in aid to prevent the destruction of records and, in my respectful submission, it could in circumstances where the destruction of those records would create prejudice to the patient. If the court were to accept that these were relevant evidence in a court proceeding, and as contended in the letter which was sent to the doctor, “She will suffer prejudice if she does not have this material” - that was what was said, it was not an abstract theory - and if the response was, “I’m going to burn them next week”, in my respectful submission, she could approach the court and, in my respectful submission, the equitable obligation which we contend for would extend to obtaining relief to prevent the destruction if that were to be contrary to her interests.

If, however, they had been destroyed in the ordinary course of business without knowledge that this was going to prejudice the interests of her, I would not, for a moment, suggest that she would have a claim for damages, as it were, in those circumstances, equitable or otherwise.

BRENNAN CJ: We have got the situation where there is a confidential obligation in respect of medical records, therefore, in your submission, that boundary should be pushed out a little to extend to an obligation to produce the records or to give access to the records. Well, now, what other grounds have you got for submitting that there is such a fiduciary obligation?

MR CASHMAN: Your Honour Justice Dawson, I apprehend, is not persuaded of this submission, but in our respectful submission, what ‑ ‑ ‑

DAWSON J: I do not want to be persuaded.

MR CASHMAN: Thank you, your Honour. What has arisen has become, on one view, a conflict of legal interest. What was merely a doctor/patient relationship in the context of medical treatment has now, in our submission, become a clear conflict of legal interest between the two parties. On the one hand, the patient says, “It is in my legal interests that I have access to the contemporaneous records for a variety of purposes, including the litigation”. On the other hand, the doctor’s insurers say, “Yes, you can have them on condition that you waive your legal rights”. The doctor’s legal interest is invoked as the basis of denying the right requested.

GUMMOW J: What is the plaintiff’s, quote, “legal interest”?

MR CASHMAN: Her legal interest is having available, for the purpose of advice and the pursuit of a legal claim, the contemporaneous records relating to her treatment.

GUMMOW J: That is not how you framed your right in response to a question from the Chief Justice earlier.

MR CASHMAN: No, I am not suggesting that that is the all‑embracing indication. I am saying that is one of the elements. The way that I answered the Chief Justice was to refer to the way in the doctor had become, as it were, inextricably linked ‑ ‑ ‑

GUMMOW J: No, in answer to an earlier question of the Chief Justice that you formulate your case. It was much wider than that I thought.

MR CASHMAN: I accept that, your Honour, but part of the narrow indicia and in some respects, in our submission, a compelling consideration is, if it be accepted there is a conflict of legal interests, that is precisely where a Court of Equity ought to intervene to protect, as it were, the vulnerable party and to further that person’s interests and, in our respectful submission, there is nothing radical about that if one accepts the proposition that it is the doctor’s obligation to act in the best interests of his patient. Why should he be permitted to put his legal interests as a hurdle in the way of the pursuit of his patient’s legal claim? Is that not precisely the sort of conflict of legal interest in which a Court of Equity ought to intervene and say, “You have, as it were, sought to obtain personal advantage by denying ‑ ‑ ‑”

BRENNAN CJ: Dr Cashman, it would not be open to argument that if your client has a legal right of the kind that you seek a refusal to grant that legal right except upon condition which is unacceptable would be overridden.

MR CASHMAN: I accept that, your Honour, but ‑ ‑ ‑

BRENNAN CJ: That is all that you are saying.

MR CASHMAN: ‑ ‑ ‑ but somewhat paradoxically in determining whether the legal right exists it is relevant, in our submission, to have regard to the legal interest which he is seeking to pursue with the information of which he seeks access to and that is precisely what a Court of Equity would, in our respectful submission, have proper regard to in considering whether or not it is appropriate to deny what is requested on the ground which is invoked, which is clearly not even the doctor’s personal stated interests. It is the insurer saying, “I would be happy.” So what is further complicating an otherwise simple relationship between doctor and patient is the intervention of a corporate party, ie, the insurer of the doctor, who is seeking to advance its interests presumably in protecting the doctor from the disclosure of any information which may be prejudicial, but significantly, your Honours - and his Honour Justice Kirby picked this up - the release was not limited to the liability arising out of the disclosure of information.

It was not suggested, “If information in the records leads to a legal liability or complication I want a release from that”. It was a blanket immunity and, in our respectful submission, that can only be construed as an indemnity in respect of a third party claim which is being demanded, as it were, by a commercial party through the vehicle of the professional from the patient which would have the legal effect of her becoming the doctor’s insurer because if one could accept the argument that this would, in fact, amount to an indemnity - and let us take the not entirely hypothetical possibility that in the course of medical treatment in applying force to her breasts he has caused her further injury - she would be entitled, as against the primary manufacturer, to recover damages for that because medical negligence is a foreseeable consequence of injury arising from a defective product. No difficulty.

What if the manufacturer turns to the doctor and brings a claim. She would have, as it were, given him immunity. So, one would achieve the somewhat extraordinary result that at the instigation of the doctor’s insurer she, as it were, protects him from having to pay an element of a claim which he could otherwise pursue against the manufacturer.

BRENNAN CJ: Dr Cashman, I thought we had earlier disposed of all of this. Your argument is that a request followed by a denial of the request for access to, or copies of the documents, enlivens a cause of action which can be enforced by the courts to give precisely that relief?

MR CASHMAN: Yes, your Honour.

BRENNAN CJ: Now, you are seeking to go to the question of the terms which the doctor wished to impose in his letter, and you are not addressing at all the question of whether there is an antecedent legal right of the kind for which you first contended. Now, you are not going to illuminate that problem by speaking about something that happened in the course of the doctor’s letter. You either have to make good your proposition of law or you fail. If there is no obligation of the doctor to produce the documents, it does not matter what he said. If there is an obligation, then it exists independently of whatever he said.

MR CASHMAN: Your Honour, with great respect, could it not be the case that an obligation that may not otherwise exist may be brought into existence where an attempt is made by someone in a professional relationship to use information or documents, as it were, for advantage? That, as I understand the position, has been accepted in other contexts, would be the case if the doctor sought to make use of the records, as it were, for personal profit and, in our respectful submission, is relevant in the present context to a consideration of whether the narrow form of the issue, if you like, concerning the - - -

DAWSON J: But he is not seeking to make use of the documents. He is seeking to prevent her making use of the documents, and that raises the question of whether she has any right to the documents.

MR CASHMAN: It does, your Honour, and if it be accepted that there is a fiduciary relationship, we would contend that if she wishes to make use of the documents it ought to be encumbered upon him to assist her.

McHUGH J: But that is the whole point. She has either got a right or she has not got a right. Your last submission seems to lead to the conclusion that you might fail if he said, “No, you can’t have the documents,” but she succeeds if he says, “Well, you can have the documents on condition X.”

MR CASHMAN: We are putting it both at the broad principle and on the narrow grounds. Our broad principle is the nature of the relationship between doctor and patient is such as to give rise to a fiduciary obligation to provide the records arising out of that relationship. We do not shy away from the generality of that proposition and nor did the Supreme Court of Canada. There are bases which we would contend that give her that right, apart from the fiduciary basis, and I am going to come on to those in a moment, your Honour, but whilst we are on the question of fiduciary, we say the very nature of the vulnerability, all of the other indicia adopted by his Honour Justice Kirby and by other courts in other contexts have equal force in a doctor/patient relationship where a party to that relationship wishes to obtain benefit from information arising out of the relationship.

Now, the benefit may be intangible benefit; information about my medical history. It may be legal benefit; I want to pursue a claim. It may be medical benefit; I want these records to give to my next doctor. Those latter considerations were adopted by their Lordships in the English Court of Appeal as relevant to their finding that there was a right vested in the patient; a legal right at common law to have access to the information, including for that very specific purpose, in other words, to pursue a legal interest.

McHUGH J: You see, once your start ‑ you are back talking about information again. That just throws up the problem. Your submissions must lead to the conclusion that the doctor has an equitable obligation, for example, to give evidence for the appellant in these proceedings, and that he would be in breach of his fiduciary obligation if he said, “I won’t go and give evidence for you”.

MR CASHMAN: I would not wish to push the point to that ‑ ‑ ‑

McHUGH J: Why not, it must follow. He has got information about her medical history; about the treatment he gave her. It is in her best interest, you say, for her to pursue this action. Why has he not, on your argument, got an equitable obligation to go and give evidence for her?

MR CASHMAN: For a number of reasons, your Honour. One, it is a far cry from seeking an order for the production of, or access to, information contained in historical records, to compelling someone, against their will, to be a witness in a legal proceeding.

McHUGH J: I must say I find this a very strange proposition that, simply because it is written on a piece of paper, a whole new set of obligations come in. On your argument there is no equitable obligation to disclose the information, but there is an equitable obligation to disclose the piece of paper, or the computer file, or whatever it might me.

MR CASHMAN: Your Honour, it was accepted below and I believe by the respondent ‑ ‑ ‑

McHUGH J: I do not mind about whether it was accepted below, we are trying to test this as a matter of principle.

MR CASHMAN: I accept that, your Honour, but the principle that has been accepted, that is not under challenge, is an obligation to provide information concerning her medical treatment. On one view, maybe the argument is as to the form in which that is to be provided, but it is not suggested against me, or by authority elsewhere, that a doctor can, as it were, withhold disclosure of what happened in the course of treatment. I do not believe any proposition has been asserted to that effect. If a patient wants to know what happened, it seems to be common ground that the doctor is under an obligation to convey that information.

BRENNAN CJ: What is the best case that says that?

MR CASHMAN: The Court of Appeal in this case, your Honour, by all three judges accepted an obligation to disclose information about the medical condition and treatment of the patient ‑ not in challenge as I read their Honours’ judgments. What, however, two of their Honours were of the view, was that the content of that, and the form was a matter for the subjective exercise of discretion by the treating doctor. The information, if it existed in another form, was not available or accessible to the patient, hence the present case.

The reasons why this equitable obligation to disclose such information has arisen are apparent, your Honours, from those other decisions which are referred to in Justice Kirby’s decision. I believe it is common ground that in the United States at large, and in Canada even prior to McInerney v McDonald, courts had accepted that ‑ first of all the courts had extended the fiduciary relationship to the medical practitioner and patient context, and in those decisions referred to, in Canada Kenny v Lockwood and Henderson v Johnston and in the United States, Emmett and Cannell, the courts had moved towards acceptance of the proposition for which we contend here.

In McInerney, of course, in the Supreme Court of Canada, the court went the full way and said on analogous facts if you are the holder of information or documents arising out of the medical treatment of the patient, the patient has a legal right to that. That legal right arises out of the interest of the patient in those records. His Honour Justice Kirby, at page 265 of his judgment, refers to a number of those considerations that were considered paramount: the relationship of trust and confidence, all of the other circumstances which were said by his Honour to be wholly convincing as to why he was persuaded that such fiduciary relationship existed and why it should translate into an enforceable right of access to the documents in the possession of the doctor.

TOOHEY J: In McInerney, Dr Cashman, the court, at least in respect of information provided by the patient, seems to have said that that information - and I am quoting from page 424:

remains, in a fundamental sense, one’s own. The information conveyed is held in a fashion somewhat akin to a trust.

Does the court confine that approach in McInerney to the information that is provided by the patient as distinct from information that the doctor made gather from other sources such as radiology or pathology?

MR CASHMAN: It did not confine it, in my submission, and interestingly, on the facts of McInerney, what were really in issue were records arising from other doctors which were in possession of the particular doctor in the appeal. The judgment, is, as it were, all‑embracing. It does not seek to differentiate any particular categories, and in the outline I referred your Honours to the most recent application of McInerney in Canada which was a case where a patient went to a doctor for a report at the instigation of her employer’s insurer; was examined; a report was prepared and given to the employer’s insurer; she requested it and the court she was entitled to it, by applying McInerney, because it arose out of the doctor/patient relationship et cetera, even though in that case the insurer had paid for the medical consultation. In a sense, it is a broader application of McInerney than arose on the facts of that case, but one which we say, respectfully, follows as a matter of logic and good legal principle if it be the case that such an equitable obligation or right arises.

As his Honour Mr Justice Kirby noted at page 266, a Court of Equity can intervene, as it were, to overcome this problem of trying to disentangle the legal rights. His Honour was concerned that there was a problem of trying to “disentangle the ownership of the paper” - and I will come back to that in a moment. The Court of Equity can intervene:

in an established fiduciary relationship -

which, of course, begs the question:

out of regard to the special and intimate interests of the patient in the content of the medical information which concerns nobody more directly than the patient.

And it is because, in a sense, of the intimate and very personal nature of the information that is in issue, that a fiduciary obligation to disclose, in our submission, arises. It may be very different if it were other categories of information, but as your Honours will be aware the courts of equity have consistently upheld the view that people are entitled to information concerning their financial affairs arising out of a professional relationship. The classic example referred to in the list of authorities is the decision of Wentworth v de Montford. It was accepted in that case by his Honour Justice Hope, with whom Justice Mahoney and the other judge on appeal agreed, that Ms Wentworth had a right of access to the information concerning her financial affairs in the possession of her solicitors, even if she did not have a right to the paper on which that information was contained, and in determining the property rights, which I will come onto, it involved a very special consideration of whose interests the documents were created for. Precisely because of that focus, we have limited the claim in the present proceedings to documents created for the benefit of the patient. We have expressly left out anything that could be considered to be a document created for the benefit of the doctor. Very different considerations would arise, particularly in the equitable context.

His Honour Justice Kirby of course held that the breach extended to both the denial of the access to deal with the broad principle and also to the specific requirement of the release. So, in our respectful submission, even independently of the condition precedent imposed, excepting his Honour’s argument, the mere denial of access, as it were blanket terms, would create a breach if your Honours were persuaded that a fiduciary relationship comes into existence in the circumstances of this case. And your Honours, what could be more in the interests of the patient than information about their own medical treatment, their medical history, photographs of the injuries which they have alleged to have suffered, and the other sorts of intimate information? That is precisely one of the indicia to which we point as evidencing the existence of a fiduciary context, as it were, between doctor and patient, and the relief, as I repeat, is limited to those documents and information created for the benefit of the patient.

His Honour went on to find, as I have already suggested, that the doctor place the protection of his own position before his duty of loyalty to his patient. And, in our respectful submission, it is again common ground before their Honours below, that the doctor did have such a duty of loyalty. His Honour Justice Mahoney, at page 300, said the doctor is required to act with the utmost good faith and loyalty. His Honour Justice Meagher said the doctor/patient relationship is a relationship of influence. In our respectful submissions, it is a logical and a legal consequence of those facts that give rise to the fiduciary relationship between doctor and patient ‑ ‑ ‑

GUMMOW J: This is not a case where the doctor persuades a patient to make a gift to the doctor.

MR CASHMAN: No, your Honour.

GUMMOW J: That is what is being spoken about in this reference to influence; that is a rather special area, not this area.

MR CASHMAN: I do not believe that his Honour was concerned to limit the influence context to that narrow example, with great respect. The influence, in this case, extended well beyond what we would consider to be appropriate in the sense that that influence was used for the purpose of seeking a legal advantage. Leaving that aside, the obligation of good faith and loyalty, in our respectful submission, translates into an obligation to make available, upon reasonable request, information of the type for which access was sought.

On what other good legal or other policy basis could the doctor be heard to say, “I’m not going to provide it”? Your Honours will no doubt be taken to some of the so-called policy considerations sought to be relied upon both below and in other contexts as a basis for refusing to accept that a legal right of access exists in the context of the doctor/patient relationship. His Honour Mr Justice Kirby exhaustively considered all of those so-called policy considerations and was persuaded, as was the Supreme Court of Canada, that they all were in favour, bar possibly one or two where there were qualifications, I might add, of a sort that do not concern us because of the concessions that have been made exclude from the ambit of the request the very types of information which the doctor, in his own evidence, expressed concern about, information obtained in confidence, information the disclosure of which may adversely affect the health and welfare of the patient. They are out of contention.

What other good justification is there suggested for withholding access to the notes? The indications are that there is only one good legal ground sought to be relied upon, and that is a concern about potential personal liability. Whether that be the doctor’s view, we do not know. It, on any view, is paramount in the considerations influencing the insurer and their legal advisers, and that is a relevant factor which, we say, is to be taken into account in considering the fiduciary relationship in question.

It has long since ceased to be the case that doctors and patients are involved in relationships purely as human beings simpliciter. The fact of insurance cannot, in our respectful submission, be entirely disregarded by a court of equity in having regard to the interests of a patient in circumstances where the judgment of the professional may, in part, be influenced by commercial considerations of that professional’s insurer. Is that not the very context in which the law ought to be protect the interests of the otherwise vulnerable and exploitable patient?

BRENNAN CJ: Dr Cashman, is there any instance where a fiduciary duty has been held to impose an obligation to act where such an obligation does not arise also pursuant either to contract or to express trust?

MR CASHMAN: It is hard to think of a circumstance from those reported cases where there was not an element of contract or trust in existence. Yes, your Honour, I can point to the recent developments in North America where the relationship between parent and child has now been said to give rise to fiduciary obligations and ‑ ‑ ‑

BRENNAN CJ: To do something?

MR CASHMAN: To act in the interests of the child and Norberg v Wynrib, I believe, was a case although there was a contractual relationship, the principles adopted by the Supreme Court in holding that a fiduciary obligation existed transcend the mere contractual relationship between doctor and patient. I was going to hand up to your Honours ‑ ‑ ‑

BRENNAN CJ: I find it very difficult to conceive, I must confess, because I can understand how a fiduciary duty may arise not to place oneself in a position of conflict of interest and duty or to exercise a power that exists otherwise in a fashion which is for the best interests of the fiduciary, but to create an obligation to do something, as, for example, to provide documents, strikes me as being alien to the notion of fiduciary obligation.

MR CASHMAN: With great respect, not if that obligation of the professional or person is to act in good faith and in the interests of the person. Why would that be such, as it were, a quantum leap?

BRENNAN CJ: One can understand that where there is a power to do a particular act, for example, to realise trust property.

MR CASHMAN: Or to take the parent/child context: is that not a classic illustration of a relationship where one party may act, as it were, to the disadvantage of the other and where one of the parties is in a position of greater power?

BRENNAN CJ: To do what?

MR CASHMAN: To do whatever it is that is going to adversely affect the interests of the child.

BRENNAN CJ: So there is an equitable obligation now to be a good parent, is there?

MR CASHMAN: In some jurisdictions, yes, your Honour, and I am going to refer your Honours to the paper which her Honour Justice McLachlin of the Supreme Court of Canada gave to a conference in Melbourne in September of this year on the Mason Court and Beyond in which her Honour sets out in some length the way in which common law courts have extended the equitable obligations and the fiduciary relationships to a variety of contexts that go beyond the historical property focus of many of the cases that no doubt my learned friend will seek to rely upon.

Her Honour in that paper summarises a number of those decisions where courts have created or given effect to enforceably legal obligations outside of the context to which your Honour referred, that is, outside of contract and trust. As your Honours will also be aware, this Court and others have, in the trust context, as it were, extended or at least given effect to obligations to provide information and documents, albeit, and I accept that there are constraints within that body of law on what the beneficiary may be entitled to but there are a number of decisions which your Honours will no doubt be aware of where beneficiaries have been entitled to documents and information in the possession of trustee in the same way that the courts in some jurisdictions are now extending the notion of fiduciary duty to contexts that go far beyond those historically accepted by courts of equity, at least, in the United Kingdom.

GUMMOW J: It just becomes a new tort, really.

MR CASHMAN: I am sorry, your Honour?

GUMMOW J: It just becomes some sort of tort.

MR CASHMAN: Well, interestingly, Dr Finn, in his article on the fiduciary - - -

GUMMOW J: That may be a good thing or a bad thing, but it has got to be faced up to, I think.

MR CASHMAN: Well, I would commend to your Honours Dr Finn’s analysis of the distinction between the various categories of unconscionably, tortious duty, and equitable obligation, in his article which is referred to, I believe, on the list to which I have referred your Honours. In that context, Dr Finn seeks to analyse what is similar and what is different about the legal obligations arising in those different contexts.

GUMMOW J: One of the reasons for this development is to escape statutes of limitations. They apply more loosely in equity than they do in tort.

MR CASHMAN: That no doubt may be true, your Honour.

GUMMOW J: There is an intellectually unattractive atmosphere about what is being done, because it smacks of a device.

MR CASHMAN: Well, that may be correct, your Honour, but, equally, the courts of equity have decided to endeavour to fashion a new remedy in circumstances where historical property interests and narrowly construed legal rights may not achieve the desirable outcome.

BRENNAN CJ: In the present context you say that even if there is no contractual obligation on the part of a doctor to provide copies of medical records to a patient, that, nonetheless, the relationship between them gives rise to a fiduciary duty to do so?

MR CASHMAN: We contend that, your Honour, but we also contend that it is an implied term of the contract, which I will come on to - - -

BRENNAN CJ: I appreciate that you might find some comfort there, but to say that there is a fiduciary duty absent a contractual obligation strikes me as a very curious notion indeed.

MR CASHMAN: With great respect, it is not all that curious if one has regard to what courts have been doing around the world in a variety of contexts outside of contract.

BRENNAN CJ: Well, give us your best cases that can help in that so that we can have some understanding of what you are speaking about.

MR CASHMAN: I would refer your Honours to the section in Justice McLachlin’s paper dealing with - if your Honours have a copy of that; if not, I can hand up one.

BRENNAN CJ: Perhaps you had better hand them up. We do not seem to have it.

MR CASHMAN: I have copies here, your Honour.

Could I take your Honours to page 35 where her Lordship considers the category of special relationships? Prior to that, she reviews those traditional categories of commercial relationships and economic relationships, but as her Honour observes at page 35 at about point 2:

Persons holding professional callings have long been held to be subject to fiduciary obligations their clients, including most notably, a duty of confidentiality. The scope of this duty may be seen to be expanding in two ways. First, it has been extended to persons and situations who have not in the past been thought of as trustees in strict equity doctrine: parents to children; doctor to patient; and parties in an arms length commercial relationship. In Canada -

and there is reference to the case of Hodkinson v Simms -

and New Zealand -

and reference to Liggert v Kensington ‑ ‑ ‑

GUMMOW J: Liggert v Kensington was reversed in the Privy Council. The Privy Council is called Re Goldcorp,I think, but I may be wrong about that.

MR CASHMAN: Her Honour observes that, confining it to Canada:

where courts have extended the categories of relationships subject to fiduciary duty to people in arms length business transactions.
Second, fiduciary duties are being extended to non‑economic interests to provide personal remedies in new situations. The fiduciary duty owed by a professional has traditionally been related to property - to the way the professional dealt with the property of another which was entrusted to him or to her - be it land, money or information. Recent developments suggest that courts in professional relationships are prepared to extend the fiduciary duty to what Sir Anthony Mason has called certain “fundamental human and personal interests”. Even more recent developments suggest that the duty may not be confined to professionals, but may extend to anyone in a relation of trust, like parents. The potential of these developments is enormous, and there is much work to be done in refining their limits. It may be in the end that the court will develop a new independent doctrine of obligations in special relationships of trust. But for the present, the “fiduciary obligation” has served as the practical peg upon which these advances have been hung.

In Norberg v Wynrib two members of the Supreme Court held that a physician’s fiduciary duty to his client extends to not abusing her vulnerability in order to obtain sexual favours from her. These judges would have held that a doctor who provides illegal drugs to a client he knows to be addicted in exchange for sex is in breach of his fiduciary duty and liable in damages to her on this ground. In the courts below, the judges had concluded that the fiduciary duty of the physician was confined to a duty of confidentiality.

In a subsequent case, the Supreme Court unanimously accepted that a parent owes a fiduciary obligation to his child which extends to not molesting her sexually. The Court was unanimous that the indicia of a fiduciary relationship were all evident in the case of parent and child, and the non-economic interests of an incest victim are particularly susceptible to protection from the law of equity. Once again we see the courts using equitable doctrines to meet new problems for which pre-existing legal rules afford relief which they find to be inadequate.

GUMMOW J: Now the real problem in K v H was a statute of limitations problem, was it not, in tort.

MR CASHMAN: I am sorry, your Honour; the real problem?

GUMMOW J: The real problem in K v H, which is referred to there in her Ladyship’s paper, at page 37, was a problem of the statute of limitations because many years had expired.

MR CASHMAN: It may have been the impediment, your Honour, I accept that.

GUMMOW J: And it was only when the plaintiff became an adult that there was a realisation of what had happened.

MR CASHMAN: Yes. If I take your Honours to the footnote 83 on page 37, her Honour then refers to the judgments of their Lordships L’Heureux-Dube and McLachlin who:

held that the doctor-patient relationship is fundamentally characterized by the trust inherent in its fiduciary nature. The essence of this duty - in contrast to the contract and tort relationship between relatively equal parties acting in their own self-interest - is that one party exercises power on behalf of another and pledge him/herself to act in the best interests of the other. La Forest, Gonthier and Corry JJ permitted the recovery of damages under the tort of battery -

and I need not read the rest. It may be, as your Honour Justice Gummow indicates, that this was an equitable remedy in a situation where otherwise a legal claim may be frustrated because of the operation of some other law, be it a limitation law, but, in my respectful submission, the equitable remedy was designed to fashion a form of relief that may not have hitherto been available under traditional legal doctrines arising out of the relationship in question.

Now, I need not take your Honours to any more of that but, in my respectful submission, it is apparent from the way in which the Canadian courts have grappled with this difficulty, it is equally apparent from the way in which academic writers such as Dr Finn have characterised these developments, that this is an emerging area of law, or to use Dr Finn’s phrase, “the law of fiduciary duties appears to be undergoing a renaissance” and there are those contexts that I have referred to which go well beyond the traditional contract and trust relationship to which your Honour the Chief Justice referred me.

His Honour Justice Mahoney was only prepared to concede, as I read his judgment, that in so far as the doctor/patient relationship is concerned, the equitable obligation arose and ceased in the context of items of property. His Honour conceded that there were fiduciary duties in respect of items of property, but that was the beginning and end of his Honour’s acceptance of the fiduciary obligation - I am sorry, in addition there was the duty of non‑disclosure, but leaving those aside for a moment. His Honour was of the view that the decision of this Court in Hospital Products was a constraining influence, in his Honour’s assessment, such that he was not prepared, in the light of that authority and others, to find that the term “fiduciary” is a proper one to be applied to the relationship of patient and doctor.

In our respectful submission, there is nothing in Hospital Products nor, for that matter, nothing in Mabo which would lead to the conclusion that the nature of a fiduciary relationship should be constrained by historical concepts of property. The two judgments in question, in our respectful submission, indicate a flexibility and a willingness to accept that fiduciary obligations may extend beyond boundaries that have been traditionally the subject of judicial resolution.

Her Honour Justice McLachlin, in fact, extracts relevant sections from the decision of this Court in Hospital Products, to which I will not refer your Honours in view of limitations of time. His Honour Justice Mahoney, however, rejected the notion that the information provided by a patient to a doctor is, in a fundamental sense, the property of the patient; that having been the conclusion derived by the Supreme Court of Canada in McInerney to which I have referred your Honours before.

GUMMOW J: But that seems to treat it as confidential information. Property cannot exist in information, per se, surely?

MR CASHMAN: The High Court appears to have held that, your Honour, in the case referred to in the outline, and that is the case of Federal Commissioner of Taxation v United Aircraft Corporation.

GUMMOW J: How could it be otherwise?

MR CASHMAN: We do not necessarily contend that it may be otherwise but what we contend is, “How does the information, as it were, become the property of the doctor?”, because it is he who is asserting the proprietary right as the ground for denying access to the patient. The only basis upon which that can be defended, and in our respectful submission, it is one which leads to an absurd result, is on the basis that he is the owner of the paper on which the information is recorded and, in our respectful submission, it would be an odd legal result if the mere ownership of the paper on which the information becomes recorded gives rise to a property right such as would deny access to that information to a person about whom it concerns and to a person who seeks access to it.

GUMMOW J: Well, we are getting confused, I think, again, Mr Cashman, between confidential information and the formulation of information as a literary work.

MR CASHMAN: I am sorry, your Honour, I did not hear.

GUMMOW J: We are getting confused again, I think, between the formulation of information as in a particularly literary form, which may generate copyright in someone, and the ownership of the information in a broader sense irrespective of its particular literary formulation.

MR CASHMAN: Yes, we accept that, your Honour.

GUMMOW J: The law of confidential information may protect the second, the law of copyright the other; the same person may not own both.

MR CASHMAN: However, with great respect, it would be an odd situation if the law of copyright prevented the patient from getting back the information which he gave to the doctor. It would be, in our respectful submission, an anomalous result.

McHUGH J: Why? I just do not follow that at all. You are not getting back the information, you are getting back the document. You are getting back the literary expression of it, if you like, which the statute says is the doctor’s.

MR CASHMAN: I am going to have to deal, I concede, in more detail with that contention, your Honour, and it is not one that we came here prepared to argue, I confess, and it is not one that has appeared on the horizon at least in the history of this litigation, but I do not for a moment suggest that there may not be good legal impediments in the way of the relief which we seek if that be the case, but, in our respectful submission, it would be a somewhat odd result if the doctor were, as it were, to have exclusive copyright over information arising out of the doctor/patient relationship.

McHUGH J: But there are two separate problems and the Canadian cases do not seem to me to deal with it on the quick reading I have had of them. There may be an equitable obligation in respect of information that the patient gives to the doctor but that is not exhaustive of what is in the records.

MR CASHMAN: I accept that, your Honour.

McHUGH J: So now you get into a completely different area.

MR CASHMAN: But, your Honour, take the situation where the record records the advice or medical opinion that the doctor has already communicated to the patient at the consultation, “I advised you that - I have examined you and my diagnosis is X.” Could it be seriously contended that the law of copyright would preclude the disclosure of that medical opinion, particularly if it has already been communicated at an earlier point in time?

McHUGH J: It is not a question of disclosure of the opinion. It is a question of the right to copy the literary expression of it.

MR CASHMAN: I can see a fertile field for the lawyers acting for the doctors in the area of intellectual property and copyright, your Honours, but so far I believe that has not been considered by them to be an argument.

McHUGH J: Some of the problem seem to me to be because you throw the whole weight of your argument on access to the documents and to copy them. In so far as you ever relied on information, it was secondary, and now you have put your case squarely on the letter that appears at page 77 of the record. That is your claim. At the moment, I would have thought that your best ground would have been some argument in relation to the information but that apparently has never loomed large in your submission.

MR CASHMAN: It did loom large, as it were, in the context of the argument about proprietary right, and I perhaps should move onto that now, your Honours. I was going to spend some more time on fiduciary duty but I think in view of the time I am not going to be able to deal with the rest of the arguments if I dwell too long on that.

GUMMOW J: The reason why you did not have to worry about copyright before was that the case was really coloured by the discovery aspect of it. What you are really claiming was discovery in aid of the US proceedings, and that seems to have disappeared now.

MR CASHMAN: No, it has not disappeared, your Honour. It is still a primary consideration. It has become somewhat more of a consideration in view of the unavailability ‑ ‑ ‑

GUMMOW J: That is not how the proposition for which you now contend was formulated in response to a question by the Chief Justice about an hour and a half ago. Unless I have some footing as to what your case is that is clear - something in which I will not skid, I cannot stand still on it, and write a judgment.

MR CASHMAN: I accept that, your Honour. Perhaps I might just make one further submission in relation to the fiduciary obligation. This focuses on what his Honour Justice Mahoney held. His Honour, in rejecting the notion of fiduciary relationship, in our respectful submission, fails to refer to a number of relevant considerations, one of which was the stated reasons for which these records were requested and the use to which they were to be put.

However, the fact that his Honour accepted the obligation to act with good faith and loyalty and accepted an obligation to inform her of her medical records makes it somewhat odd that she is denied access to the information in the form in which she requested it. In our respectful submission, it ought to follow as a matter of logic, as a matter of legal principle and as a matter of policy that such obligations as arise out of the doctor/patient relationship encompass or give rise to a legal right of access in the manner contended for subject to the limitations which we concede. In our respectful submission, it is hardly in the utmost good faith or with any degree of loyalty to one’s patient for a doctor to deny a request in the circumstances in which it was made in this case or, for that matter, in any other case.

Your Honours, might I move to the question of proprietary right or interest. I have already noted that his Honour Justice Meagher made a number of observations and I will not repeat what I have already said. In so far as the appellant claimed to have a proprietary right and interest either in the records or in the information contained on the records - and we suffer the disadvantage of having a 3:0 result in the court below, as your Honours would be well aware - his Honour Justice Kirby was not convinced that Mrs Breen had established a proprietary right and interest. His Honour was concerned that it was not possible to disembody the information, as it were, from the medium in which it was contained and his Honour was persuaded that the paper on which the information was recorded was in this case the property of Dr Williams.

However, his Honour took the view, because he found in her favour on the grounds of fiduciary obligation, that it was unnecessary to enter into the controversial area of ownership of information as such. So his Honour simply did not, as it were, go on to deal with that in any detail at all. He accepted the conclusion of the trial judge, Justice Bryson, that the media in which the medical information was kept was the property of the doctor, in other words, the paper. No contention was advanced to the contrary, on one view, as it were, before the Appeal Court. The claim was not for possession of the paper, or possession of the file. The appellant did not seek to divest the doctor of the pieces of paper. At common law, according to his Honour Justice Kirby, what Dr Williams does with the paper is within his control and decision, and his Honour referred to the authority of Wentworth v de Montford.

BRENNAN CJ: What are you saying? What is your argument?

MR CASHMAN: We say that applying Wentworth v de Montford leads to the precise opposite conclusion which his Honour found and their other Honours found, because what Wentworth v de Montford stands for, if it stands for anything, is that in considering the proprietary claim, which was made in that context by a client, Mrs Wentworth, against her solicitors ‑ ‑ ‑

BRENNAN CJ: What do you say your client owns?

MR CASHMAN: What we say is that the doctor does not own records or information created for her benefit in the course of providing her with medical treatment.

McHUGH J: Who owns them then?

BRENNAN CJ: Records being the things themselves?

MR CASHMAN: If Wentworth v de Montford is correct ‑ ‑ ‑

BRENNAN CJ: Forget Wentworth v de Montford. That it is not binding on this Court. Give us the principle.

MR CASHMAN: A document brought into existence for the purpose of a professional relationship, for the benefit of the, in this case, patient, or in a solicitor/client context, the client, does not become the property of the professional.

BRENNAN CJ: Whose property is it?

MR CASHMAN: If it is anyone’s property, we would contend, it is the property of the patient or the client. If it is nobody’s property, a proprietary claim cannot be invoked to defeat a request for access.

TOOHEY J: Do you mean that propriety claim is not being used as the foundation of the claim but as some sort of answer to a defence?

MR CASHMAN: Yes, thank you, your Honour. The doctor invokes property interest. It is his property as the basis for denial of the request, and their Honours ‑ ‑ ‑

BRENNAN CJ: What is it that gives you a right?

MR CASHMAN: It is information and documents created for the patient’s benefit, that gives her the right, out of a relationship for which she paid for the professional service.

BRENNAN CJ: What has property got to do with that right?

MR CASHMAN: In determining who has the property right, it is relevant, in our submission, to have regard to two factors: who paid for the creation of whatever it is in contention and, secondly, for whose benefit it was created. That is what Wentworth v de Montford stands for. Applying those principles, nobody other than her paid, leaving aside an insurer. Secondly, we have narrowed the request to only those documents created for her benefit.

BRENNAN CJ: And do you say that the doctor still owns the paper?

MR CASHMAN: It becomes moot if we are given access. In the event that we are not ‑ ‑ ‑

BRENNAN CJ: It is not a question of if you are given access. Do you say that the doctor owns the paper?

MR CASHMAN: On the better view, yes, your Honour, the doctor does own the paper.

BRENNAN CJ: How is it that the doctor owns paper and the patient owns the records?

MR CASHMAN: The patient is requesting access, not possession.

BRENNAN CJ: It is not a question of what is requested. Do you say the patient owns the records?

MR CASHMAN: It may depend upon the particular record we are talking about and it is that very analysis that we tried to shy away from below, because that is what Wentworth v de Montford requires, a record-by-record examination of who paid for it and for whose benefit it was created, and Mrs Wentworth succeeded in extracting out of her solicitors vast numbers of documents which they claim were their property, and the principle upon which she succeeded was either she paid for it or, secondly, it was created for her benefit and the solicitors had no right to withhold it. In so far as they owned the paper, and his Honour Mr Justice Hope deals expressly with this issue in relation to the information on the computer, he says, “She is entitled to access to the information, and if that requires them to make a copy of it, then give it to her and she pays the cost, so be it”.

That, as it were, sidestepped the argument about who owns the paper, but upheld the claim of entitlement to the information recorded on it. If, your Honour, it were the case that the mere ownership of the paper determines the access, would we have the somewhat odd result that the patient who goes to the doctor and said, “Here is the paper to write my records on”, then becomes the owner of the records. That, in our respectful submission, would be a somewhat odd result.

TOOHEY J: But you do not claim, do you, that the patient is the owner of the records?

MR CASHMAN: No, we do not seek to divest the doctor of it, but the doctor claims he is the owner.

BRENNAN CJ: What has property got to do with the right?

MR CASHMAN: Because if he is the legal owner and if the legal owner ‑ ‑ ‑

BRENNAN CJ: With your right?

MR CASHMAN: Because if he is the legal owner and if it follows that that gives him a right to deny access, that denies, we say, our entitlement to access to the information arising out of the relationship. In other words, the property right may defeat our claim if it be the case that the mere ownership of the records leads to the result that that gives exclusive control over them adverse to the interest of the person who was the beneficiary of the professional relationship. It is not as if Mrs Breen is a third party coming along and saying “Disclose the information”. It is information that only came into existence as a result of the professional relationship which we would contend was for her benefit.

If it would be accepted that the primary purpose of a doctor/client relationship is for the doctor to make money, if that be contended to be the paramount purpose, then the property claim looms large as a valid claim to defeat a claim by the patient. If, as we contend, the primary purpose of the relationship and the primary purpose for which the records were created, or at least those requested, is to benefit the person who was, as it were, the payer in a professional relationship, how can a property claim defeat an entitlement or a claim for access to the information?

TOOHEY J: Does it follow on that argument, Dr Cashman, that no one owns the records?

MR CASHMAN: It may be the case, as the High Court said, that in so far as it is information it cannot be the subject of a proprietary right, leaving aside copyright for a moment, and we do not shy away from that proposition. In terms of strict property rights - well that does not mean that anyone else could come along and get access to it, but that is dealt with because of the confidential nature of it, which would preclude access to a third party.

TOOHEY J: No one could steal it, apparently.

MR CASHMAN: I am not sure what we can do about that, your Honour.

TOOHEY J: It seems a very odd result that you have this series of records which do not belong to anybody.

MR CASHMAN: Your Honour, with great respect, we are dealing with a series of odd results; it is an equally odd result if mere ownership or supply of the paper gives rise for all purpose ‑ ‑ ‑

TOOHEY J: That is a different question. Your question really, as part of your argument, rather presupposes that the Court will be invited to conclude that no ones the records. Although, it is enough for your purposes to say that the doctor does not own them and ‑ ‑ ‑

MR CASHMAN: We conceded that the ownership of the paper is the doctor’s. The paper, per se, without - I want to qualify it to this extent: if Wentworth v de Montford is strictly applied, one needs to determine this issue, to go through every single record, as the Court of Appeal did in Wentworth v de Montford, identify every single piece of paper and ask two questions in respect of each: who paid for it ‑ ‑ ‑

GUMMOW J: That cannot be done here because of the way you ran your case.

MR CASHMAN: I accept that, your Honour. That is why we do not press any claim for proprietary right in the paper on which the information is recorded. That is the very reason why we do not press beyond the ambit of the relief sought.

BRENNAN CJ: Looking at your outline of argument, the heading “Proprietary Right or Interest”, if I understand it correctly, seems to relate to a right to acquire information, not a right to a copy of or access to a document. Am I wrong in reading it that way?

MR CASHMAN: I think you are, your Honour.

TOOHEY J: I must confess I read it differently. I read it as meaning that the doctor had no proprietary right or interest which would entitle the doctor to refuse access to the patient. In other words, it is being used as some sort of answer, not as a cause of action in itself.

MR CASHMAN: I am grateful to your Honour for putting it somewhat more eloquently than I have. That is the essence of the claim.

BRENNAN CJ: So it is just a question that the doctor has not got any defence once you have a right established?

MR CASHMAN: Yes.

BRENNAN CJ: I see.

MR CASHMAN: I concede that below it was argued on a broader footing and I think his Honour Justice Meagher was persuaded that the High Court, in the case I have referred to, was binding authority, at least on him, to the effect that any claim in the ambit terms in which it appeared was simply not sustainable, and that is why the claim was recast to be a much narrower one and why, for the present appeal, we contend, as your Honour Justice Toohey observes, that the defence of our claim cannot arise out of an alleged property right on the part of the doctor.

BRENNAN CJ: Dr Cashman, how much longer do you expect your argument to take?

MR CASHMAN: Your Honour, I do not wish to have a lot more to say about proprietary right. I do need to deal with implied terms of the contract. I do need to say something about the Court of Appeal and the other common law basis, and I want to say something very briefly about the so-called right to know and the line of authority following Rogers v Whitaker. I think probably 20 minutes, your Honour, at the most.

BRENNAN CJ: We will adjourn until 2.15.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN CJ: Yes, Dr Cashman.

MR CASHMAN: Your Honours, might I move on to deal with the question of an implied term of the contract. As your Honours may be aware, in the Canadian court this argument was successful in the New Brunswick Court of Appeal but did not find favour with their Lordships in the Supreme Court. In the court below his Honour the President was of the view that the argument about implied terms could not succeed because of what his Honour described as the stringent requirements applicable in Australia in connection with the implication of implied terms. For that reason the claim contended now on behalf of the appellant is considerably narrower than that previously contended for and your Honours may have appreciated ‑ ‑ ‑

GUMMOW J: Was the President of the Court of Appeal talking about a Moorcock implied term, an efficacy term or a term implied ‑ ‑ ‑

MR CASHMAN: His Honour took the view that in view of Codelfa and the other tests adopted that ‑ ‑ ‑

GUMMOW J: Was he talking about a term implied by law, a particular class of contract?

MR CASHMAN: Yes, your Honour, a term implied by law as I read his Honour’s judgment.

GUMMOW J: That is not a Codelfa ‑ ‑ ‑

MR CASHMAN: I am sorry, your Honour.

GUMMOW J: That is not a Moorcock term, is it?

MR CASHMAN: I am not sure I can answer that, your Honour.

GUMMOW J: There are two species of implied term, at least, are there not?

MR CASHMAN: Probably more than that, your Honour, I suspect. In any event, in so far as it would be necessary to imply such a term to give efficacy to the relationship between the parties, his Honour was of the view that that was not established. His Honour was of the view that it was far from self evident that a term should be implied in the manner contended, and thirdly, his Honour was of the view that any such implication of the term would be inconsistent with what his Honour understood to be the existing practice ‑ or pre‑existing practice ‑ vis-a-vis doctors and patients.

All of that, we accept, is weighty authority and argument for the view that a broad term in the manner contended for below could not be implied. However, your Honour, it still leaves open the question, in our respectful submission, as to whether or not there may not be a narrower basis upon which a term could be implied for a more limited basis and the basis of our argument stems from what we understand to be the unchallenged proposition that the doctor is, or does, impliedly contract to act at all times in the best interests of his patient. That we believe to be a proposition which is not open to challenge.

BRENNAN CJ: “Act” in what respects?

MR CASHMAN: Indeed, your Honour. In considering the question of what respects, it is in that context that we limit the term to one that only deals with the narrow purpose contended for in the present case for documents for the purpose of the legal claim, it being our argument that if that had been, as it were, expressly to the minds of the parties at the time when the contract was entered into, it does not necessarily follow that it may not have been as it were within the contemplation or something that might be appropriately to be implied had it not been expressly considered. In the sense that if the doctor - let me put it this way - if the doctor were to take the view that it was in the best interests of the patient to have the records for the purpose for which she sought them then presumably, acting in accordance with the implied term to act in the patient’s best interests, he would have made them available.

It is nowhere contended, as we understand it, by anybody, that the patient’s view that it is in her best interest to have the contemporaneous records is not a reasonable or a proper view to take. The doctor says, “I will give you the information in another form. That, in my view, will serve your interests”. But, should it be the case that the doctor becomes the ultimate arbiter of what is in the patient’s best interests where the patient takes a different view and where the doctor is under an obligation, as an implied term of his contract, to act in accordance with the best interests of the patient.

It is somewhat analogous to the Rogers v Whitaker situation where the Court has, of course, expressly rejected the idea that in terms of disclosure of material risk it is no longer the sole province of the medical practitioner to make that determination. It becomes, as it were, a more objective determination and one which the Court can give effect to, notwithstanding the practice of the profession or the views of the doctor.

TOOHEY J: I am not clear where this argument is going, Dr Cashman. Are you saying that this is an implied term or a term that is implied by law?

MR CASHMAN: We are starting from the premise that there is an implied term to act at all times in the best interests of the patient. That is Lord Templeman’s view as expressed in Sidaway, and we do not see any challenge from any court to that proposition.

TOOHEY J: Well, then, how is it a narrower footing on which you are now putting the argument.

MR CASHMAN: In the present case we say, leaving aside matters of medical judgment on which the doctor can be heard to have a say and whose views may be paramount, in so far as determining what is in her best legal interests in pursuing the claim, how can he, as it were, countermand the demand of the patient if she says, “It’s in my best interest to have access to those contemporaneous records for that purpose.” In other words, he can only do so by saying either he is not under an implied obligation to act in her best interest, or by forming the view that he thinks it is not in her best interest to have it. Neither of those contentions have been advanced against us.

TOOHEY J: He may be under an implied obligation - I am not sure whether you mean as a matter of contract or as possibly giving rise to an action in tort - but, you seem to be formulating it now on the footing that however it arises it is an implied term that if the material is required for legal process the doctor will make it available.

MR CASHMAN: If he takes seriously his implied obligation to act in her best interest.

TOOHEY J: That is a somewhat emotive expression, but that is how the implied term arises in the narrow context of legal proceedings.

MR CASHMAN: Yes.

TOOHEY J: Well, that seems to take you back to where we were at 10.15 this morning.

MR CASHMAN: Well, that is a problem, your Honour, and I accept that. For the purpose of only the implied term argument, I do not think I can put the argument any broader, because if it were to be put in broad terms and terms of an implied contractual obligation to provide all records for all purposes in all circumstances, I do not think I can put that proposition in the light of the weight of authority against me on how implied terms are to be - or in relation to the circumstances in which terms are to be implied into contracts.

McHUGH J:But that is not the only way that terms are implied into contracts. I mean, terms are implied into contract as a matter of fact, by implication, but also by law. Warranties such as fitness of purpose, merchant ability. They do not depend upon factual situations; they are implied by law. Now do you address any argument as to whether or not independently of the particular facts of the case, the law implies a term that the doctor will make the records available, if and when required.

MR CASHMAN: Yes, your Honour, and on the basis that I have already adverted to, as an incident of the implied obligation to act at all times in the best interests of the patient.

McHUGH J:That leads me nowhere. I mean, you just leave the words “best interest” up in the air.

MR CASHMAN: Well, they are up in the air, your Honour.

McHUGH J:They are not, and that is, I think, one of the difficulties of your whole argument, that you treat the relationship and the obligation to act in the best interest as though it was up in the air; that it could just attach in respect of anything. If you spell out the shorthand, what you are saying is that there is an implied term that he would act in the best interests in any litigation that she undertakes.

MR CASHMAN: Yes, your Honour, I accept that.

McHUGH J: If there is such an implied term, I do not see how you can avoid saying that the doctor has got an obligation to give evidence for her if she wants to.

MR CASHMAN: I accept that and I did not press that this morning. I do not accept that he does have an obligation, but if it is genuinely an obligation to act in her best interests and where a conflict of opinion emerges as to what is in her best interests, then to give effect to the obligation, the patient’s view must be paramount, particularly in the legal context. It may be a different argument if a medical treatment there is a difference of opinion between a lay patient and a medical practitioner about what is in the patient’s best interests for the purpose of that context, but here, how can a doctor properly be heard to say, “I take the view that your best interests are served by this course and I don’t give effect to your contention that your best interests are served by that course.”?

McHUGH J: Well, the argument against you is that “best interest” has got nothing to whatever to do with this particular situation. He has got an obligation to act for her in respect of the treatment, carry that out in the best interest, and there may be some incidence of that, but that is the beginning and the end of the content of “best interests”. You want to say, “Well, if something emerges 20 years later, he still has an obligation to act in her best interest”.

MR CASHMAN: I do say that, your Honour, and take the situation where she requires ongoing medical treatment, and the further doctor wants the records and asks for them. Is it to be the original doctor who determines whether he thinks it is in her best interest? Is it the subsequent doctor who takes the view that he wants them or is it the patient? Ultimately, in my respectful submission, it must be the patient who can determine what is in her best interest.

BRENNAN CJ: What do you say is the precise term that should be implied or is implied?

MR CASHMAN: In the context here to make available the contemporaneous records as requested given the stated purpose for which she wants to advance her interests in litigation. No more, no less.

TOOHEY J: You might be better off on an officious bystander approach because if the officious bystander had said to the doctor and the patient, “What is to happen if as a result of inserting this prosthesis it turns out that the product is defective? Will you make the records available to the patient?”, the answer might well be yes, but that is not the case that you are putting to us.

MR CASHMAN: Indeed, your Honour, and I think it is important in the factual context of this case to have regard to the fact that she was seeking treatment as a result of a problem that had arisen with the prosthesis.

BRENNAN CJ: Do you say in that situation the doctor would say testily, “Of course”?

MR CASHMAN: The doctor may. Whether his insurers would share his view and whose view would be paramount is another matter and that is at the heart of the difficulty, your Honour, with great respect, and ultimately what is being put is not the doctor’s view, it is his insurers. That is what she is facing and we have an interesting conflict of contractual interests: is his contractual obligation to her to supersede his contractual obligations to his insurers, et cetera? An interesting question, but in essence, we would submit, it is at the heart of the circumstances in this situation. More so where there may be concern about his own contractual liability, if there be such concern, and presumably that is why his insurers are, as it were, interested.

TOOHEY J: But the more you describe the situation in that way, it seems to me the less scope there is for implying a term.

MR CASHMAN: That may be so, your Honour, but then one would have to narrowly circumscribe what is accepted to be the existing implied term to act in the best interests of the patient. If that not be the correct position at law at the moment then there is considerable legal authority which seems to have been misguided in coming to the conclusion that that is an implied term in the same way as it is an implied term to carry out any treatment using the requisite degree of care and skill such as would found an action both in tort and in contract if that were not to be the case. Those are, of course, implied terms in the same sense as we contend that this is, but for a very narrow purpose we concede the weight of authority against us on implying a term that broadly creates a right or entitlement to all records for all purposes or without reason, for example, and that is why for the purpose of the present appeal we have narrowed it down to what we consider to be the bare minimum of the implied contract claim and put it as an incident of the implied duty to act in the best interests or, if your Honours were persuaded that it really is a factual context that needs to be taken into consideration, the officious bystander test on one view may give rise to the implication of a term such as that which we contend.

Your Honours, I do not wish to say much more about the question of implied terms. Their Honours below dealt with the much broader proposition and, in my respectful submission, raised a number of formidable difficulties in the way of a broader approach to implied terms being accepted. His Honour Justice Mahoney referred to the officious bystander test at page 295, but it is important to note that in considering the implication of the term their Honours only confine their analysis to ongoing medical treatment, as I read the judgments and, interestingly, their Honours accepted that there was an implied obligation to make information available. His Honour Justice Mahoney was clearly of the view, at page 295, the “doctor is contractually bound to make such information available”, at least as far as they go to the ongoing treatment of the patient, but his Honour, with great respect, does not deal with the other objective of obtaining the information in question.

His Honour was concerned that there was a lack of clarity as to the context of that obligation, for example, was it to be provided for a fee; in what form and in what circumstances. If one accepts that there is a contractual obligation to make such information available, then ultimately it is a question of the form in which it is provided, rather than whether the entitlement exists and, your Honours, it would be a strange result, would it not, if there was no obligation on the part of the doctor to provide information arising out of his treatment? That could not be possibly the case, even if the professional relationship had long ceased. For obvious reasons, the medical records are relevant to ongoing treatment, possibly to other doctors, et cetera.

Interestingly, on the factual material, in this case the doctor would not make his records available to another doctor. In the exercise of his claim that they are his property, he would, like he would with a patient, make a report available but he took the view - and as I understand it, maintains the view - that even for ongoing medical treatment, if another doctor were to request the contemporaneous records, they would not be provided. It leaves one to wonder what would happen in the event of the death of the doctor. Does it become a matter in which a claim is pursued against his estate? Who knows.

In any event, your Honours, might I now deal with the question of the other possible common law basis of the entitlement and refer your Honours to the decision of the English Court of Appeal in Ex parte Martin. As your Honours will be aware, their Honours below were not overly impressed with the legal analysis, if I might describe it as that, which was said to form the basis of the right which was accepted by all three of their Lordships in the Court of Appeal, as a matter of law that a patient has a right of access.

What his Honour Lord Justice Nourse said, in referring to the obligation “to act at all times in the best interests of the patient”, and this appears at page 256, at least, extracted from the judgment of his Honour Justice Kirby, his Lordship referred to the obligation on the doctor “at all times to act in the best interests of the patient, and he went on to say, whose:

interests would usually require that a patient’s medical records.....be.....made available to the patient’s legal advisers if they are reasonably required for the purposes of legal proceedings in which he is involved.

And his Honour Justice Kirby underlined the relevant sentence from that judgment. His Lordship, Lord Justice Evans, concurred and found that there was no good reason for doubting either that a right of access does exist or that it was qualified in material respects, and his Lordship in his judgment refers to a number of the qualifications on the right of access. None of those qualifications concern us in the present case. None of them could be used to defeat the claim in the narrow form in which it is now asserted.

His Honour then goes on, and this appears in the judgment of the learned President below ‑ and again I am taking your Honours to Lord Justice Evans’ decision:

Those purposes would be frustrated if there were no duty to disclose the records to medical advisers or to the patient himself, or to his legal advisers if they were required in connection with a later claim.

So, two of their Lordships found that the obligation was one, as it were, at large, or at least there was a general legal right of access, including in the specific circumstances that I have just referred to

GUMMOW J: This is a right as against the health authority, is it not?

MR CASHMAN: In this case it was, your Honour, but their Lordships, I believe, were at some pains to point out that in their opinion the position was the same as that with a doctor.

GUMMOW J: But it would not be, would it? There would be no contract with the health authority, would there?

MR CASHMAN: In the circumstances of this case, I am not sure of the answer to that, your Honour.

TOOHEY J: They were proceedings for judicial review of an administrative decision, were they not?

MR CASHMAN: They were, but the records were in the possession of the health authority as I understand, arising out of its responsibilities ‑ arising out of the care of the person whose records they related to. But it may be that the absence of any direct contractual relationship was a basis for their Honours not expressly dealing ‑ their Honours did not find on the basis of contract, their Lordships found that there was a common law right. Sir Roger Parker, in the section referred to on page 256, was of the opinion that:

the circumstances in which a patient or former patient is entitled to demand access to his medical history as set out in the records will be infinitely various, and it is neither desirable or possible for this or any court to set out the scope of the duty or afford access or, its obverse, the scope of the patient’s right to demand access.

His Lordship was of the view that each case must depend on its own facts. Notwithstanding that qualification, all three of the judges in the Court of Appeal in a recent case, albeit unreported, have held that a patient has a right of access to the medical records arising out of their treatment.

GUMMOW J: Records held by whom?

MR CASHMAN: I accept, your Honour, in this case they were in the possession of an authority but their Honours, I do not believe, sought to draw any meaningful legal distinction arising out of that fact. They quite expressly said, as I understand their reasoning, the same would apply in a doctor/patient context. Now, his Honour the President below was of the view that there was some difficulty in giving effect to their Lordships’ opinions because they did not identify the precise basis in the common law for which they appear to have assumed the right to exist and as I have already indicated to your Honour Justice Gummow a basis in implied contract was rejected, so his Honour was of the view that their expression of reasons were not able to be explained in terms of any known common law basis or right.

However, as his Honour went on to say, they provide an indication at a high level in the English court outside of the obligations of statute, and I might add North America, that an assertion by a medical practitioner of absolute ownership and control of his medical records concerning a patient is unacceptable to the common law of England. Your Honour, we would respectfully adopt that contention. In the present case the assertion of absolute ownership and control, in our respectful submission, ought not to be upheld.

However, the learned President goes on to say, as I have already indicated, that their Lordships have not provided, at least in his opinion, any coherent convincing legal principle which formed the foundation of the right. Now, with respect, we would contend to the contrary. If it be accepted that such right arises out of the obligation of the doctor to act in the interests of the patient which was expressly referred to in at least one, if not two of their Lordships’ judgments, then is that not a sufficiently coherent and convincing legal basis for the foundation of the right, however it may be characterised, whether as an incident of fiduciary obligation, or as an implied term, or to defeat a claim of proprietary interest on the part of the doctor. Whichever way it is characterised, we would contend that the doctor cannot in a blanket manner assert total ownership and control in a manner which would frustrate the access requested by the patient.

In relation to whether this would apply to a private doctor, I am reminded by my friend, Mrs Culkoff, at page 117E of the Weekly Law Reports in the judgement of Lord Justice Nourse, his Lordship says:

It is inherent in the views above expressed that I do not accept that a health authority, any more than a private doctor, has an absolute right to deal with medical records in any way that it chooses. As Lord Templeman makes clear, the doctor’s general duty, likewise the health authority’s, is to act at all times in the best interests of the patient. Those interests would usually require that a patient’s medical records should not be disclosed to third parties; conversely, that they should usually, for example, be handed on by one doctor to the next -

something which this doctor will not do -

or made available to the patient’s legal advisers if they are reasonably required for the purposes of legal proceedings in which he is involved.

BRENNAN CJ: How would it ever arise that the doctor was involved in legal proceedings?

MR CASHMAN: I think what their Lordships are contemplating is precisely the present factual situation, where the patient wants them for legal proceedings.

BRENNAN CJ: If he is speaking about the ordinary situation, he would be speaking about the obligation to answer compulsory process.

MR CASHMAN: In this context, my recollection is that the patient was the subject of an involuntary care or commitment order. It was, as it were, under some legal order and a factual foundation - sorry, let me withdraw that. The records were relevant for the purpose of some disputation about that issue, I presume. I do not recall in clear terms the precise circumstances that gave rise to the claims. The person was alleged to have some psychiatric injury. It appears from the headnote that there was a background of psychological problems; had “repeatedly requested access to” the records; they were refused. Interestingly, an offer was made for the applicant’s medical adviser to be permitted to see the records. So, in fact, more was offered on the facts of that case than, as if were, is offered here. Their Lordships then considered a number of bases of the legal claim, one of which was, of course, the argument arising out of the provisions of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

There was, as your Honours will be aware, in the first instance and in the Court of Appeal an argument on similar lines in the present case. That argument is not pressed before this Court.

In any event, their Honours found in favour of the right of access not on the basis of the convention or any human rights entitlements, but on what they divined to be the common law entitlement of the patient to the records of the doctor, albeit in the possession of the authority in the facts of that particular case. So, your Honours, we add to the Supreme Court of Canada at least the decision of the English Court of Appeal in aid of the contention that in this country a similar right should be given force.

BRENNAN CJ: I have not read this case, Dr Cashman, but the headnote says, on the one hand:

that the applicant had no right of access to his medical records at common law.

MR CASHMAN: With great respect to whoever wrote the headnote, that proposition does not arise from the case. What happened was that in the exercise of their discretion in relation to the exemptions, therapeutic privilege, it was held that it would be contrary to the health or welfare of the patient to get the records. So they only got to deal with the exception, if the right existed - would have been a very short argument if there had been no right - and their Lordships went on, as it were, to deny entitlement but based on the argument that it was not in the interests of the person to obtain the particular records in the factual context of this case. But that does not, in any way, undermine the claim here, (a) as a matter of fact there is no assertion that these records contain anything that would be adverse to the mental or physical health of the appellant and, in any event, we disavow, or at least we do not press a claim in so far as the therapeutic privilege may exist for the purpose of precluding from disclosure such records as may be considered by the doctor to be contrary to the interests of the patient.

Your Honours, in that context, we concede the doctor is the ultimate arbiter of that question. If the doctor is of the view that the patient’s best interests are not served by disclosure because of a good medical reason, no basis for challenge to that. That is fully conceded, or at least ‑ ‑ ‑

TOOHEY J: It is on that footing, presumably, that the appeal was dismissed.

MR CASHMAN: Yes, your Honour. I do not need to take your Honours to the other parts of their Lordships’ judgments which deal with medical practitioners. In my respectful submission, it is quite clear that their Lordships were intending to create, or give effect to, or at least state a right in terms which was directly applicable to private doctors and it was not limited, in any way, to health authorities.

Your Honours, might I quickly deal with an argument that was put, at first instance, by the Public Interest Advocacy Centre on behalf of, as it were, the public interest as amicus curiae. I mention it in passing only because we do not press the same argument before your Honours. It was contended that the patient’s right to know as established by cases such as Rogers v Whitaker, F v R, Reibl v Hughes and a string of authorities to which your Honours are no doubt familiar, gave rise to an enforceable legal right to the records. We do not make that claim.

We go no further than his Honour the learned President did before the Court of Appeal and what we contend - and this is set out in paragraph 8 of the submissions - in our respectful submission, it is clear that the law in Australia governing the relationship between doctor and patient has moved in the direction of the five factors that I have identified in the submissions: first of all, an acceptance of the principle of personal inviolability; secondly, a rejection of a paternalistic approach which may have been hitherto

acceptable; thirdly, the rejection of the notion that the patient’s interests are to be determined by standards exclusively fixed by the medical profession; fourthly, in the direction of judicially imposed standards rather than those imposed by the profession; and, finally and with significant weight from our perspective, the acceptance of patient autonomy.

If his Honour’s assessment of the direction of the law in this country be accepted, we would respectfully submit that all of those are strong considerations weighing in favour of giving effect to a right such as is contended for in the present circumstances. Now, your Honours, his Honour the President in the Court of Appeal dealt at some length with a variety of policy considerations, as did their Lordships in the Supreme Court of Canada. I have referred in the outline to the relevant pages. I do not wish to take your Honours to them. If there is time or if your Honours wish to raise any matters about those, maybe I could deal with those by way of reply. Subject to any questions your Honours may have, those are the submissions on behalf of the appellant.

BRENNAN CJ: Thank you, Dr Cashman. Mr Emmett.

MR EMMETT: May it please your Honours, if I could just make one or two points first.

BRENNAN CJ: Do we have an outline of argument, do we?

MR EMMETT: While they are being distributed may I just make these points. It was said a moment ago that Dr Williams had declined to hand over documents to another doctor. He has never been asked to and that never has been an issue in these proceedings. Second, time and time again we have come back to the terms of the refusal and the request for a release. That never was an issue at the trial. Dr Williams gave evidence. He was not asked a single question about the terms of that letter. The third matter is we are appearing for Dr Williams as appears from the record and references to the insurers are really quite unbecoming. Having said that, your Honours now I think have the outline. It is somewhat more fulsome than perhaps it should be.

BRENNAN CJ: Yes, Mr Emmett. Have you anything to add?

MR EMMETT: To this document?

BRENNAN CJ: Yes.

MR EMMETT: I was proposing to say something, your Honours. I apologise for the length of it, but it is a matter that seemed to us to perhaps, in the long run, to shorten things by writing a lot down, but unless your Honours do not want to hear from me, I was proposing to say something.

BRENNAN CJ: Yes, Mr Emmett.

MR EMMETT: One thing can we say, your Honours, is that the proceedings have been bedevilled by a degree of imprecision as to precisely what is sought by the appellant, as to whether what is sought is information or physical access. Your Honour the Chief Justice we thought had pinned the appellant down early this morning as to that matter and it seems clear that what is sought is a right to physical access for no reason other than that the patient wants physical access ‑ ‑ ‑

GUMMOW J: Access, plus copy.

MR EMMETT: Plus the right either to be furnished with a copy or to make a copy; they seem to be the two matters.

TOOHEY J: Well that must be the position having regard to the terms of the declaration.

MR EMMETT: Yes.

TOOHEY J: And the relief sought from this Court.

MR EMMETT: The confusion, though, relates to the question of copying where, for example, in the summons reference was made to copying information as distinct from copying records. It was not until the Court of Appeal that it was clearly formulated as a claim, but there was said to be a right to copy the records themselves and that may be an indication as to why there is no evidence as to the circumstances of the bringing into existence of the record, which may give rise to claims to copyright, for example.

The medical records were produced to the court in that they were exhibited to an affidavit by the defendant, and they were marked for identification, but that is as far as they went. No application was made for access to the material or that the judge look at the material in order to determine what was there. The plaintiff was content to have the proceeding continue on the basis that the doctor had given evidence as to the nature of documents which usually form part of his file and the judge then drew inferences as to what sort of documents might have been in the file.

DAWSON J: Why were they marked for identification. They were exhibited to an affidavit, were they?

MR EMMETT: They were exhibited to an affidavit; they were not annexures though.

DAWSON J: And the affidavit was read?

MR EMMETT: The affidavit was read.

DAWSON J: But they were never tendered.

MR EMMETT: They were never tendered.

DAWSON J: But had the other side wished them to be tendered, they would have been.

MR EMMETT: Yes, they were there, produced in court and they were marked by the court for identification, but no attempt was made to tender them. I mention those in the light of some comments that your Honour Justice Gummow ‑ ‑ ‑

DAWSON J: So in other words, in the course of litigation, she had what she was seeking.

MR EMMETT: Well, it was there. Although, I should say, the defendant was not producing them on the basis that the plaintiff had the right to get access to them, but if they were needed for some purpose they were there. The physical record was available if some relief was sought in relation to that record.

DAWSON J: What does one make out of that?

MR EMMETT: I beg your Honour’s pardon?

DAWSON J: Well, what does one make out of that, that she, in fact, is asking for the relief that she does not need?

MR EMMETT: In our submission, yes. The catalyst for these proceedings was the United States litigation but it was made fairly clear that this was intended to be some sort of a test case and that that was really no more than the catalyst, it being accepted that there were adequate procedures available whereby access could have been had to this material by letters rogatory. The Court has raised the question of a bill of discovery in chancery. There are means whereby access could have been obtained and I think it is fair to say that that was conceded, that there was a process available whereby physical access and inspection could be obtained in certain circumstances. But what is asserted, as we understand it, is a right to inspect for no good reason at all. In other words, simply because the patient wants access, that is sufficient, and second, the right to be furnished with a copy or, alternatively, to take a copy of the material.

GUMMOW J: It is said against you, I think, that the letter at 78 of the appeal book was the trigger to the litigation since that was the denial of the request, or the concession of the request with a condition.

MR EMMETT: Yes, which was tantamount to a denial on one view. If there was a right to access then the letter at page 78 was a denial of access.

GUMMOW J: But you say there has always been a concession as to the provision of information without the condition?

MR EMMETT: Yes, indeed.

GUMMOW J: Without the condition?

MR EMMETT: Without the condition. Page 59 contains the record when the offer was made. The trial judge in his judgment recorded the fact that an offer was made on the first return of the summons, but in the course of the trial itself an offer was made, as appears halfway down page 59.

TOOHEY J: I do not fully understand that, Mr Emmett. I mean, what was being offered? To provide a report as to the contents of the documents which are comprised in the document marked 1 for identification and relating to any of the following? Is that, in effect, an offer that the respondent would, in a report, include the contents of those documents or that the respondent would report as to the contents of those documents?

MR EMMETT: Would report as to the matters referred to in so far as they were the contents of the documents. In other words, a report would be given as to the history, physical examination, findings, investigation results, diagnosis, proposed management plan, treatment or advice furnished to the plaintiff in so far as that information was contained in ‑ ‑ ‑

TOOHEY J: Yes, but does that mean “furnished” verbatim or that the doctor would, as if he were preparing a report for litigation, set out the history and his diagnosis, the treatment given and his prognosis?

MR EMMETT: That is the offer that was made. I can indicate a possible construction of it.

TOOHEY J: You made it.

MR EMMETT: The offer was to do the latter. I can tell you that is what I subjectively intended by the offer but nobody sought to clarify it or sought to ask anything further.

TOOHEY J: So it was not an offer to furnish copies of the documents themselves. That much is clear.

MR EMMETT: No, it certainly was not that. That was the issue. We maintain the position that there was no entitlement in the circumstances of the case to physical access to the documents or to be furnished with a copy of the documents.

BRENNAN CJ: All relevant medical information would be provided but no copies of the documents nor access to the documents?

MR EMMETT: I think that is a fair summary, your Honour. Reference is also made to the published position of the Australian Medical Association at page 154. There is no challenge about this as the fact that the AMA had passed a resolution in those terms indicating what the AMA regarded as the ethical obligations of a medical practitioner in terms of furnishing information. One can see a fair degree of resemblance between that material and the oral offer that was made in open court.

BRENNAN CJ: What is the difference between “deductive opinion” and “diagnoses”, if you can tell us?

MR EMMETT: I can venture a guess, I suppose, your Honour. Diagnosis is something which, I suspect, a medical practitioner, by reason of his learning, would be able to reach as a consequence of the clinical observations which he makes, whereas a deductive opinion may be something which he brings his own experience and learning to bear on in order to reach a more remote conclusion from the material that he has seen.

DAWSON J: Surely, diagnosis is the identification of the condition to be treated.

MR EMMETT: Yes.

McHUGH J: The second clause in that first sentence of that paragraph seems to be unbalanced, or a non sequitur, really. It states a proposition which is a separate proposition, is it not.

MR EMMETT: It makes an assumption about ‑ ‑ ‑

McHUGH J: Well, the first clause says that:

The patient has a right to be informed of all relevant factual information ‑

That is one proposition, and then the next is talking about what “remains the intellectual property of the doctor”. It is dealing with a different subject altogether.

MR EMMETT: It may be that what the author had in mind was the patient has a right to be told what the clinical observations recorded are, but does not have a right to be told what the deductive conclusions of the doctor are, unless he chooses to impart them. In other words, if the doctor draws his own conclusions from the factual material obtained by him from the patient and his own observations, then those conclusions are his own to do what he chooses with, whereas the information which is imparted, or which he has recorded himself, is information which the patient would be entitled to be furnished, as distinct from being given access to the physical record itself.

Your Honours, I refer to these matters, really, to put in context the litigation as to how the issue arises. The matter proceeded before Justice Bryson, and a number of arguments were advanced as to why a patient is entitled as of right to physical access to the record and they were put in much the same terms as those that are recorded in the judgments of the Court of Appeal.

It was conceded, in effect, by the defendant that there may well be an incident of the contract between patient and doctor in the Liverpool City Council v Irwin sense, or one of those senses that Lord Wilberforce refers to in Liverpool City Council. It is an incident of the doctor/patient contract that the patient be furnished with such information as may be necessary for the continuing treatment and medical welfare of the patient, and it is in recognition of such an incident that the offer was made and, no doubt, that the AMA passed the resolution which it did. It, in a sense, is probably an obligation implied by law arising out of the nature of the contract.

Certainly there is an obligation on the part of the medical practitioner to act in the best interests of the patient as regards the treatment and health of the patient, but that, of course, is all that the medical practitioner is retained to do. There is, in our submission, no common law, or certainly no English decision which concludes that there is a common law right to be given physical access to the records.

The Mid Glamorgan Case certainly does not, in our submission, establish that. For one thing, it was a case involving judicial review of an administrative decision to deny access. At first instance, Mr Justice Popplewell concluded positively that there was no common law right to physical access. The Court of Appeal dismissed the appeal. although it formulated the question differently. The inference that can be drawn is that the Court of Appeal was trying to shorten proceedings by saying even if there is a right under the common law, in this particular case the qualification which is sometimes referred to as “a therapeutic privilege”, is sufficient to deny access in any event. That becomes clear when one looks at the beginning of the judgments. Lord Justice Nourse at the bottom of page 112 says:

In the court below Popplewell J stated the question in this case to be whether a patient has an unconditional right of access at common law to his medical records. After hearing the arguments in this court, I would prefer to state it thus: is a doctor or a health authority, as the owner of a patient’s medical records, entitled to deny him access to them on the ground that their disclosure would be detrimental to him?

So the only question which Lord Justice Nourse was considering was, assuming a right without deciding it, would there be a denial in this case? Lord Justice Evans really does not go any further, in our submission, and Sir Roger Parker, in a sense, at the bottom of page 119, did not go even as far as Lord Justice Nourse in making the assumption.

Mr Justice Popplewell at first instance - and one must accept, of course, that his judgment was upheld or his conclusion was upheld - dealt with the matter. It is reported in 16 Butterworths Medico‑Legal Reports 81 and his Lordship deals with the matter at pages 92 to 95. One interesting observation perhaps in the light of the exchange between your Honour Justice McHugh and Dr Cashman is highlighted at page 94:

In my judgment there is a distinction to be made between the information conveyed by a patient for the benefit of the doctor’s consideration and the conclusion to which the doctor comes based on that information.

That, of course, may refer to the distinction made by the AMA:

The opinion of the doctor is wholly the property of the doctor. It does not seem to me that the fact that the patient provides the original information entitles him, subject to exceptions, to see the conclusions of the doctors based on that information, any more than a litigant who provides a proof of evidence has any right of access to the opinion written by his counsel, the copyright of which no doubt rests in counsel.

So Mr Justice Popplewell anticipated your Honour Justice McHugh’s question and I think also your Honour Justice Gummow adverted to that issue, but, as I said, one reason why that was not an issue below was because it was by no means clear from the relief sought in the summons that copying of the document itself as distinct from it being furnished with a copy of some information was being sought.

Your Honours, we have endeavoured to make some general observations about fiduciary relationships. One important distinction which, in our submission, ought to be made - not so much a distinction to be made as an observation to be made in relation to the fiduciary principle is that it proscribes conduct, it does not prescribe conduct. It does not say what one must do, it says what one must not do and, indeed, that may be reminiscent of a question your Honour the Chief Justice put about whether there is decided authority in which a fiduciary is said to have a positive obligation outside contract or trust. It may be that there is a positive obligation to account, but that is really a remedy rather than a positive obligation.

But outside contract trust, or perhaps tort, there is simply no basis for the fiduciary principle imposing an obligation upon someone, for example, to maintain records or to furnish a copy of records, which reminds me of another matter I meant to mention in standing up. As we understand it, there is no legislation anywhere in Australia which requires a medical practitioner either to make a record or to maintain a record, which I am not sure is quite the way that it was put to your Honours earlier.

In essence, the fiduciary principle is concerned with two matters by way of proscribing, that is, the fiduciary should not put himself in a position where his duty conflicts with some other duty or his own interests and, secondly, he should not be allowed to benefit or profit from the relationship. They really are the consequences of a finding that a fiduciary relationship exists. We have endeavoured at paragraph 13 to formulate, notwithstanding the suggestion by this Court in Hospital Products that it is an undesirable course, the circumstances in which a fiduciary relationship will be said to arise. What we have suggested is that where one party, in some representative capacity, is bound by an obligation to act, in relation to some specified subject matter, in the interests of another to the exclusion of his own interests, then there will be a fiduciary relationship and the consequences of that will be that you must not allow yourself to be in a position where your duty to the other party is in conflict with your interests or some other duty; and secondly, if you do benefit from the transaction, or from the relationship, you will be required to account to the other party.

An important issue which arises in relation to that formulation is the requirement that there must be identified the subject matter to which the fiduciary relationship appertains.

BRENNAN CJ: But that is a definition by the res definienda, is it not: where there is a fiduciary obligation there is a fiduciary relationship?

MR EMMETT: No, no. We say that where the obligation - depending on what your Honour is putting to me - by reason of an undertaking, or an obligation imposed by law, one must act in the interests of another to the exclusion of one’s own interests, then that is something which is characterised as a fiduciary relationship. In a sense, what your Honour says is right because that is what fiduciary relationships are. In a sense, it is a pointless exercise to define what is a fiduciary relationship. The fiduciary principle says that in certain circumstances normally where one party is in a representative capacity the law will say, “You must not act in this way,” or, alternatively, where you undertake a particular obligation such as agency, mandate, or a trust, or in some professional relationships, perhaps, but it is important, nevertheless, to identify what is the subject matter of the relationship.

There is a very brief passage of Sir Owen Dixon in Birtchnell v Equity Trustees 42 CLR 384. I think copies have been made available to your Honours because it was not in the list of what we were going to read. At pages 408 and 409 there are two passages. The significant one is in the middle of page 409:

In considering the operation of these rules in this case, it is necessary to begin by ascertaining the subject matter over which the fiduciary obligations extend.

And that, in our submission, is a vital step in dealing with fiduciary relationships. The mere fact that two people might be in a fiduciary relationship is the starting point you must determine in respect of what it is that the fiduciary relationship is binding. And a useful example of that is in the English decision of Re Coomber, the circumstances of that - and I will not read from it - but the decision of Lord Justice Fletcher Moulton concerned a situation where there was a finding of a fiduciary relationship between mother and son in relation to certain property dealings, but, nevertheless, found that a gift made was not in any way inconsistent with the fiduciary obligation, the fiduciary principle.

In other words, it is essential to identify the extent of the dealings between the parties which attract a fiduciary obligation. Applying that in the context of a medical practitioner/patient it may be that there could be a fiduciary relationship between doctor and patient. That might arise because of dealings in property between the parties, although query whether it is helpful to refer to that as an application of the fiduciary principle. If there is dealing between patient and doctor in relation to property, it may well be that equity will afford a remedy because the relationship might be such as to give rise to either a presumption or there would be evidence of undue influence.

Similarly, where information is imparted by a patient to a doctor or the doctor, as a result of an examination and consultation, draws conclusions, there will almost certainly be a duty of confidence imposed by the law so that the doctor would not be permitted without breaching a right to disclose information in relation to a celebrity patient, as your Honour Justice Gummow suggested, to the press.

DAWSON J: Would that be a fiduciary duty or would it be an implied contractual duty?

MR EMMETT: It is almost certainly an implied contractual duty.

DAWSON J: You would not need the other.

MR EMMETT: You would not need it, no. It may well be that there is an equitable duty involved in the breach of confidence. It would go without saying that there is a duty of confidence owed by a medical practitioner to his patient. Whether that is an implied term of the contract - it may well be an incident of the contract in the Liverpool City Council v Irwin sense. You do not need to characterise it as fiduciary.

McHUGH J: Then Lord Moran, Winston Churchill’s physician was in breach of contractual and equitable obligations when in his memoirs he revealed aspects of Churchill’s physical condition at different times.

MR EMMETT: You would have thought probably, yes. By the same token, lawyers may be in the same position. One sees in the newspapers these days about those who participated in a well‑known trial in western United States involving an ex‑footballer, the prosecutor and defence counsel are likely to make a fortune from disclosing, probably, confidential material. Perhaps I am assuming too much in that regard but if that were the case, that is, if the prosecutor or defence counsel in publishing memoirs or what have you, disclosed information which was imparted in confidence, then that would be a breach of the duty imposed by the law not to do so. It is probably a contractual duty. That is all one needs.

McHUGH J: I was not thinking so much of information imparted to the doctor, but the doctor’s own observations.

MR EMMETT: Indeed, but the principle would be the same, that by reason of the contractual relationship, the doctor has been put in a position where he can make those observations, and we would suggest that there is an incident of the contract between doctor and patient that he will not then publish what he has observed or his conclusions. He may well have, by a process of reasoning, make a conclusion as to a condition which he was not necessarily treating. The same duty of confidence would be an incident of the contract between those parties.

TOOHEY J: But as the appellant puts her case, and the very broad way in which it is put, there is no difficulty, is there, in identifying the subject matter in this appeal. I appreciate there are a whole range of other objections to the appellant’s case, but it is hard to see that there is any mystery surrounding the subject matter, it is the records.

MR EMMETT: Yes.

TOOHEY J: I thought your argument was proceeding along the lines that it was first necessary to identify, in order to discern whether there is a fiduciary relationship, what the subject matter is.

MR EMMETT: I am sorry, I was not making myself clear. In the doctor/patient relationship there may be a fiduciary obligation. One thing it does not extent to is the records which the doctor keeps. It may, in relation to property dealings between the parties, be necessary to impose a fiduciary obligation, or, for example, if a doctor, by reason of publishing material at vast profit to himself, made use of material which was confidential, there may be an obligation to account, although, again, query whether you need to characterise that as fiduciary, but there would be an obligation to account. But even if you do characterise that as fiduciary, the subject matter of the fiduciary obligation is the information, not the physical documents. There is no reason in law why the physical documents should be the subject of a fiduciary obligation or fiduciary right.

GUMMOW J: Can they be destroyed?

MR EMMETT: In some circumstances probably yes, subject, of course, to the common law tortious duty which the doctor has. If the patient is still his patient and he has a duty to attend to the patient and look after her then it may well be that it would be inconsistent with his duty to take care that he destroys the record from which he would decide what treatment to give.

DAWSON J: Or from which someone else might - - -

MR EMMETT: Indeed, yes, that may be, but in terms of destruction of the property there can be no reason why the doctor should not be allowed to, although ‑ ‑ ‑

McHUGH J: If the doctor retired from practice and that was the end of his practice one would think it would be strange if he was required then to keep the records for ever and ever.

MR EMMETT: Indeed, or that his estate is bound indefinitely by an obligation ‑ ‑ ‑

DAWSON J: But there may be a duty that the records are preserved for the purposes of the doctor who succeeds him.

MR EMMETT: Quite possibly but, again, there is no difficulty in characterising such an obligation as an incident of the contract. There may be circumstances where a doctor - I do not suggest that there are, but it is not inconsistent with our proposition that there may be circumstances where the implied contractual obligation of the medical practitioner is to make records available. For example, if a doctor dies suddenly in the middle of treatment, it may well be that there is an implied obligation binding his estate to make the records available to the successor, the medical practitioner who succeeds him, but that is a different matter from saying that the patient has a right to access. It may well be an incident of the doctor/patient relationship that the doctor is required to make the documents available to his successor if that is necessary for the proper ongoing treatment of his patient.

BRENNAN CJ: Now you have moved to what the doctor must do or not do.

MR EMMETT: I beg your Honour’s pardon.

BRENNAN CJ: You have moved to what the doctor must do or not do and previously you were referring to the objects themselves as the subject of a fiduciary duty. It seems to me to be a misconception to speak of a fiduciary duty as applicable to the things as distinct from what the doctor does with respect to the things.

MR EMMETT: But that is our proposition.

BRENNAN CJ: I can understand that.

MR EMMETT: Yes, I am sorry. We say you cannot say that there is a fiduciary duty in relation to the physical record. It is nonsensical that the fiduciary obligation proscribes certain conduct; it does not prescribe conduct.

DAWSON J: And you characterise that conduct as conduct where there is a conflict of interest?

MR EMMETT: Yes. There is a conflict between doctor and patient in the sense that the doctor charges a fee, but that is an ordinary contractual relationship. The doctor is certainly entitled to compete with his patient in bidding for a house down the street, or what have you. There is no circumstance where the doctor owes a duty to put his interests behind those of his patient except in so far as he has a tortious or contractual duty to treat his patient competently and to take care in the furnishing of ‑ ‑ ‑

TOOHEY J: And to maintain confidentiality.

MR EMMETT: And to maintain confidentiality which may well be, as I have said, a contractual incident and does not necessarily attract the equitable doctrine although, even if it does, that does not carry with it a right said to arise out of a fiduciary relationship for the patient to have access.

GUMMOW J: There may be some need for an equitable duty in circumstances where public authorities are involved and there is no contract.

MR EMMETT: That may be and that, of course, was the case in the Mid Glamorgan circumstance where, of course, you have a statutory authority whose powers are circumscribed by the statute creating it.

GUMMOW J: That may be another footing as well.

MR EMMETT: Yes. It may well be that there is, therefore, a need to impose an equitable duty in those circumstances.

GUMMOW J: Or it may come out of the statute.

MR EMMETT: Indeed, yes. There, of course, are other instances where duties of confidence arise. Banker and customer is another good example where there is a clear duty of confidence imposed upon the banker arising out of the contractual relationship between them, but that does not give the customer necessarily the right to go and inspect all of the bank’s records. He may well have a contractual right to be given an account, and in so far as the banker is the agent of the customer, there may be circumstances where fiduciary obligations arise, but that is simply not to the point.

It is certainly not inconsistent with common law notions of the fiduciary that there is an automatic right to physical access, and the trust relationship. The classic example of the fiduciary relationship is clearly one where documents may come into existence solely for the purposes of the administration of the trust, but they are the trustee’s own documents brought into existence for his purposes in discharging his duties as trustee. The deliberations of a trustee in deciding to how to exercise a discretion are not available to the beneficiaries as of right.

If there were some challenge on the basis that there is evidence to support a challenge, if there is some challenge to the bona fides of the exercise of a discretion by a trustee, then, of course, his deliberations might be discoverable, but absence such a challenge, it is quite clear that the private deliberations of the trustee, who is clearly a fiduciary, are not available to the cestui que trust.

McHUGH J:Mr Emmett, I take it you do not confine the identified subject matter to property? You would include information, would you?

MR EMMETT: Well, there may be, although for reasons that I think I have discussed with Justice Dawson, a fiduciary obligation in relation to information that is furnished or conclusions drawn by a medical practitioner from his observations in his capacity as medical practitioner.

McHUGH J:Could you have a fiduciary duty in relation to, say, the care of a person? Would that be an identified subject matter?

MR EMMETT: In our submission, no. I must say I was rather frightened by the notion that a parent might owe a fiduciary duty to his children, if that means that I cannot put myself in a position where my interests conflict with those of my children; they seem to do it every day. But on the other hand, it may well be that if I am aware that my child has property and I persuade him to entrust it to me, then there will be a fiduciary relationship, by reason of those circumstances, but it ‑ ‑ ‑

McHUGH J:You would say, there is no principle of equity which prevents you spending all your money.

MR EMMETT: Exactly, your Honour. There may be some problem under the Family Provision Act or something like that, in due course, if I give it all away, but that is a different matter altogether.

BRENNAN CJ: But you could imagine that even in relation to treatment, could you not, if the doctor has a patient who needs hospitalisation, the doctor has an interest in one hospital, another hospital is the better hospital for the patient’s treatment. If the doctor were to recommend his own hospital, that would be surely be in breach of his fiduciary duty.

MR EMMETT: Well, there may be a duty in those circumstances, and I think one of the Canadian cases talks about fee splitting. I am not quite sure what that means, but it may be - I think the sort of example is, if you recommend particular drugs because you get a commission from the drug company, but the same thing as your Honour puts to me in relation to a hospital; I do not think we would quarrel with that notion, that the doctor in ‑ ‑ ‑

BRENNAN CJ: Where it arises out of a fiduciary relationship might be another matter.

MR EMMETT: It is a different matter. We would suggest that you do not need the fiduciary principle in those circumstances, where the doctor has an obligation to provide advice or treatment in the best interests of the patient, and if he fails to do ‑ ‑ ‑

McHUGH J:It may go to the remedies. For example, if it is a fiduciary relationship you would be able to get the fee, for example.

MR EMMETT: Get an account or what have you. Primarily, the patient says, “If you took me to the second-best hospital just because it is yours, I am entitled to recover the damages I have suffered, not because it was your hospital, but because you did not give me the best treatment that I was entitled to, from you”. All of those considerations, in our submission, lead to a conclusion that there is simply no right of the nature contended for by the appellant.

There are two matters that I can develop. One is to go in more detail to some of the policy considerations. One proposition we advance is that this is a difficult area. There is no doubt that there are competing interests. Other jurisdictions have dealt with these competing interests by legislation because there are problems which have to be resolved not just as between the doctor, but much more complicated concerns, some of which have been noticed in a recent discussion paper of the Australian Law Reform Commission, to which we have given your Honours a reference. I do not propose to read from it, but a recent information paper dealing with freedom of information has noticed the problem of access to medical records. In the United Kingdom there has been legislation dealing specifically with the matter.

In the United States there is a myriad of legislative enactments in various States dealing with the matter, some of which are summarised in one of the texts to which we have also given your Honours the reference. All that serves to indicate is that this is a matter which may require legislative attention, but there is simply no basis in common law doctrine for concluding that there is a right, either under the common law or arising from some equitable principle.

There is no doubt that, to the extent that it is necessary to have physical access for some particular purpose, the remedy is there. If the doctor is refusing to furnish information, he is in breach of his contractual duty and there is a remedy. If for some reason, such as the catalyst for these proceedings, that is, the need to produce evidence, if that was the case, in the United States, then there is civil process available that enables that to be done, either by letters rogatory or letters of request, from the foreign court. This Court in the Hardie Rubber Case 129 CLR deals with that question. This Court will issue letters of request to a foreign court and there is no doubt that the Supreme Court of New South Wales will entertain letters rogatory from other jurisdictions.

The copyright complication that your Honour Justice McHugh raised is of concern in relation to the right to copy. What is it that gives the patient the right to engage in conduct which would otherwise be an infringement of the copyright which the common law statute gives to the medical practitioner?

In our submission, there is simply nothing. It is one thing to be entitled to be given information. The doctor may have an obligation to furnish a report in which he expresses his opinion, but that is because of the contractual relationship that exists. The consequences of extending the principle are far-reaching in the sense that if this principle applies to the medical practitioner/patient relationship, it may well equally apply to any other professional relationship and we have given your Honours a reference to Wentworth v de Montford to which reference was made in the course of the appellant’s address where a distinction is drawn between different categories of document.

In some cases the professional contractual relationship will be such that the client will be entitled to documents. Where a solicitor, for example, is retained to prepare a document, a contract, then the client will be entitled to that document. On the other hand, where the solicitor makes notes for his own benefit in relation to the preparation of the contract, they are not documents which belong to the patient. A passage is cited in Wentworth v de Montford, I think from Lord Justice MacKinnon, as to the notes which counsel makes for his address, which is perhaps akin to the reference made by Mr Justice Popplewell that the notes which I prepare for the purposes of addressing are mine. What actually comes out may well be, for what it is worth, in the public domain, but my own notes are my own.

Similarly, an architect who prepares plans as part of his contractual obligation brings into existence a document which may belong to his client but his own notes for his own benefit are his own and the sorts of documents which the trial judge inferred existed in this case fall within the category of those which belong to the doctor. The affidavit in which Dr Williams sets out the nature of the documents - the paragraph in the affidavit is to be found at pages 24 and following of the appeal book in which he categorises the different sorts of documents which he produces from time to time in the course of treating a patient such as the appellant without, in fact, saying that there were such documents in this case, although, as I said, Justice Bryson inferred that probably most of them did exist.

We have referred in the written outline to the obligations arising from tort or tortious duties which bind a doctor and which form, when added to the contractual obligations, a sufficient complex of legal principles to give a patient the sort of protection which the law needs to give to a patient who entrusts him or herself to a medical practitioner. There is no reason, in our submission, to take one step further and to conclude that there is a fiduciary duty which extends to an obligation to grant physical access or to make copies of the doctor’s own material for the benefit of that patient.

We have referred your Honours to Rogers v Whitaker, in particular, which was referred to in this context in the Court of Appeal. One would have expected that if there was to be found a fiduciary duty to give access, what is the extent of the tortious duty to inform a patient. Should a doctor simply say, “You have got access to my records. You look at it and work it out for yourself”. The two, in a sense, just do not hang together.

McHUGH J: Not necessarily, because Whitaker holds the doctor has an obligation to inform even in respect of matters that are not recorded or would not be recorded or might not be recorded.

MR EMMETT: And of course there is an aspect of skill involved in deciding how much to furnish and how much not to furnish, subject to satisfying the obligation that the consent that ultimately is elicited from the patient is an informed consent. As the Court said in Rogers v Whitaker, part of the skill of the medical practitioner which he is required to bring to bear is deciding what to tell and what not to tell a particular patient. Those sorts of considerations seem to cut across an absolute duty to make medical records available. Part of the skill of the doctor is in deciding how much should be made available to a particular ‑ ‑ ‑

McHUGH J: Do you put any qualifications on the information that the patient is entitled to? Is the patient entitled to information that is contrary to the patient’s interest in the doctor’s view?

MR EMMETT: We would have said no. We do not suggest that the doctor has an obligation to furnish all information available to him.

McHUGH J: But why not?

MR EMMETT: Because he must bring his own judgment to bear in deciding what is going to be beneficial for the particular patient. It may well be that he concludes that there is a good reason why not to furnish it.

McHUGH J: That is a very paternalistic attitude. I have a great deal of sympathy for the appellant’s case and I would have thought that the patient is entitled to as much information as the patient wants, but I have some very considerable difficulty in the claim that the appellant is entitled to the documents.

MR EMMETT: The extent of information to which the appellant is entitled is simply not in issue at the moment.

McHUGH J: I appreciate that.

MR EMMETT: We made an offer which could have been taken up, or a counter offer could have been made, if that information was not sufficient. I do not want to be drawn, with respect, into making a concession about what information should or should not be made available.

McHUGH J: Yes.

MR EMMETT: We do accept that it must be an incident of the contract that some information be made available The extent of that obligation must be for another day, in our submission. May it please your Honours.

BRENNAN CJ: Before you sit down, could I just ask you what you have to say about the passage in Lord Justice Nourse’s judgment in the Glamorgan Case page 117? His Lordship agreed with the judgment of the judge at first instance at letter D on a particular basis, that there was inadequate disclosure in a particular case. Then at letter F he commences to deal with the question of the availability:

to the patient’s legal advisers if they are reasonably required for the purposes of legal proceedings.

He deals with the submission that that could be dealt with voluntarily and not under a legal duty and then says:

If it ever became necessary for the legal position to be tested, it is inconceivable that this extreme position would be vindicated.

Now, that is probably all obiter. It does not say that there is a legal right, but he seems to be labouring under an apprehension that there is. Do you wish to say anything about that?

MR EMMETT: As I think I said earlier, it may be that it is an incident of the relationship that in some circumstances there will be a requirement to make documents available not necessarily to the patient, but to another medical practitioner, for example, or perhaps in aid of litigation. That proposition is not inconsistent, as I read it, with what Lord Justice Nourse says in that passage. Or am I not getting your Honour’s point?

BRENNAN CJ: No, I do not quite see why you accept that there may be a legal obligation to disclose for the purposes of litigation - to give access for the purposes of litigation.

MR EMMETT: Perhaps I am misunderstanding what your Honour is putting to me.

BRENNAN CJ: “The disclosure of medical records” which I take to mean providing the medical records for the purposes of copying. Now, if I read what his Lordship is saying there, he seems to be suggesting that there may well be a legal duty to provide access to medical records for the purpose of litigation.

MR EMMETT: I see what your Honour is saying. I do not think we would concede that there is an obligation to make the records available if that is the only purpose for which they are required. I am sorry.

BRENNAN CJ: You do not accept that if that interpretation is given to what Lord Justice Nourse said?

MR EMMETT: We would not accept that, no, your Honour, I am terribly sorry.

BRENNAN CJ: Yes, I understand.

TOOHEY J: Unless it is brought somehow under that umbrella that is adverted to at the foot of page 116 and the top of 117, the obligation to act in the patient’s best interests. Now, that is probably formulated in a medical context, but it may be broader than that. In other words, it may be in the plaintiff’s best interest for the information to be made available to the third party.

MR EMMETT: If it were in the patient’s medical best interests, that might be one matter, but the mere fact that it is in the patient’s financial interest to do so we think is a different matter.

GUMMOW J: The passage at the bottom of page 116 and the top of 177 speaks of “information” and not documents. I am not sure there might not be some confusion that strays into the ‑ ‑ ‑

MR EMMETT: I am indebted to your Honour, yes, and of course, the confusion one finds throughout the American and Canadian cases between access to the documents on the one hand and the furnishing of the information on the other. If all one is concerned with is furnishing

information, then it would be consistent with the concession I have already made, that there may well be an entitlement to be furnished with information, albeit just for the purposes of litigation, although, again, I do not want to be drawn into how far the concession would go because it simply has not been an issue in these proceedings. May it please your Honours.

BRENNAN CJ: Dr Cashman.

MR EMMETT: I am sorry, might I just have one moment. If it please, your Honours.

MR CASHMAN: Your Honours, I will be extremely brief. Your Honours, my learned friend Mr Emmett took issue with the proposition which I believe I put in so far as the doctor’s position may prevent his documents or records being made available to a subsequent medical practitioner. Can I refer your Honours to the appeal books at page 30 and paragraph 12 of the affidavit. What Dr Williams says in that paragraph is that:

It has always been my practice to provide such reports in cases where the patient wishes to transfer to another medical practitioner, and it has not been my practice to send to a patient’s new treating doctor copies of the records made and maintained by me.

Now, your Honours, Dr Williams was cross-examined about this at page 69, and could I take your Honours to page 69 of the appeal book. About line 22 the question was put as follows:

And you have also indicated that insofar as the records themselves are concerned, you would not only not release them to her, you would not release them to any other medical practitioners to whom she went after her consultation with you?

He then says:

I released the information, I would not release my records.

Later on he is asked at about point 30:

What factors do you take into account in the exercise of your discretion concerning the release of information on a patient?

That was objected to. The answer:

I would imagine anything that was not in the patient’s direct interest. Anything I could do to help the patient I would do to help the patient Mr Cashman.

Q. If the patient was of the view that the release of the records to her would help the patient, but you took the view that it wouldn’t, you would prefer your judgment to that of the patient?

Question allowed.

I think every patient would take that view, particularly in view of the current climate.
HIS HONOUR: Just deal with what your own decision would be, can you deal with that?

And interposed from Mr Emmett. Later on, the answer:

In general not without a subpoena, your Honour.

That was the finding by Justice Bryson at page 156, that the records would not be made available to another doctor who was involved in the subsequent medical treatment, in the absence of a court subpoena.

Your Honours, my friend, I believe, put to your Honours that what is being sought is a right to physical access plus a copy and I thought I had dealt with that earlier today in answer to one or more of your Honours’ questions. The request was for the doctor to provide a copy, page 77. The relief claimed has always been in the alternative that in the event that a copy was not to be provided - or at least it was intended to be in the alternative - then a right of access for the purpose of making a copy was contended. If I have misled my friend and your Honours, I wish to make it quite clear that the patient would, if all other alternatives are not open, be content with a copy being provided to her.

The difficulty now is the one that was not foreshadowed before, as I understand his Honour Mr Justice McHugh is concerned, the copyright issue and, your Honours, quite frankly I did not come here with that in mind, I cannot deal with it and I do not know what the legal answer is in respect of the copyright position.

TOOHEY J: But the relief that you seek, Dr Cashman, as appears at the top of page 319, is access for the purposes of examination “and/or” it is expressed “copy records”.

MR CASHMAN: Only on the premise that the doctor refused to provide a copy. If a copy can be provided, then access is not needed. There is no suggestion one is seeking to, as it were, check the authenticity or completeness of any copy. I would not want that to be thought for a moment. If the appellant was provided with a copy, that was all that was asked for in the letter that precipitated the proceedings.

Your Honour, my friend suggested to your Honours that the right to inspect, which I would translate to also encompass the right to a copy, was, on my learned friend’s submission, for no good reason. With the greatest of respect, the appellant believes, and her solicitors contend, that she has a good reason. It may not be one acceptable to the doctor. It may not be one which my learned friend, Mr Emmett, accepts but she contends that she has good reason for it, and the doctor’s evidence makes it clear, in so far as there is a choice to be made between his assessment of what is in her interests and her, he prefers to exercise his own discretion and judgment.

McHUGH J: I will just ask you a question that has been troubling me for some time: what is the records are incomprehensible to anybody except the doctor? Do you have a right to explanation?

MR CASHMAN: I do not believe we do, your Honour. If there was an ongoing relationship between the doctor and patient, then that right may exist. As an ordinary incident of the duty of care that would continue to subsist. Where the relationship has come to an end, where the documents are, in a sense, historical, as far as the doctor is concerned, he does not need them for any purpose whatsoever in relation to this patient, she is no longer his patient, in that context, how could he be compelled to, as it were, elaborate - explain? In any event, he has offered to provide his explanations or a report, presumably, on one of the grounds which he states in his evidence, because the records may be incomprehensible.

They may or may not be comprehensible. The policy argument against disclosure on that ground was addressed by his Honour Justice Kirby and by the Supreme Court of Canada, and the suggestion that that was an adequate basis for refusal was rejected by his Honour and by the Canadian Supreme Court. We would equally contend that that is not a sufficient reason and, in fact, it is not suggested specifically on the facts of this case that the specific records in question would be incomprehensible. It is raised as a general element that may be taken into account in relation to medical records at large and we would not cavil with the proposition that records can be cryptic, indecipherable, susceptible to differing interpretations.

As your Honours would be aware, in litigation, that is precisely what is normally required to be produced as the best evidence, ie the contemporaneous records.

My learned friend put to you that in so far as the fiduciary question is concerned in Australia, in his submission, it is, I understand him to be saying, proscriptive rather than prescriptive.

I do not want to take the time now, but I would commend to your Honours pages 24 to 25 of Dr Finn’s article on this where he analyses the distinction between proscriptive and prescriptive obligations tendered upon the fiduciary obligation. What Dr Finn says, and I quote at page 26:
Both approaches are evident in varying degrees in all of the common law countries of present concern.

GUMMOW J: Page 25 of what?

McHUGH J: The Fiduciary Principle.

MR CASHMAN: The article entitled “The Fiduciary Principle”, published in, I think, in the collection edited by Youdan. What Dr Finn says at page 25 is:

On one view it is a prescriptive notion; its concern is with whether the beneficiary’s interests are in fact being served by the fiduciary; and it uses possible effects on those interests as the determinant in settling the fiduciary’s responsibilities.

He then goes on about middle of the page to say:

The alternative view sees the fiduciary principle as a proscriptive one; it is concerned with the maintenance of fidelity to the beneficiary; and it is activated when the fiduciary seeks improperly to advance his own or a third party’s interest in or as a result of the relationship.

Then he goes on in further detail. On the next page 26 at about point 2:

Both approaches are evident in varying degrees in all of the common law countries of present concern.

Then in the middle of the page he says:

our present uncertainty is thought to be exacerbated by the lack of a workable and unexceptionable definition of a fiduciary. We have no shortage of rival approaches -

He then goes on to observe:

one can find, often enough, contrary approaches in the determinations of even the same court.

If your Honours look at the footnote, he is referring to this Court in the Hospital Products Case.

So if Dr Finn be correct, it cannot be properly contended, in my respectful submission, that one approach or the other is necessarily the law in this country. According to Dr Finn there are varying approaches evident in the judgments of this Court in the Hospital Products - now Mr Justice Finn, I am grateful to my friend. In our respectful submission, it is an open question as to which of the alternative approaches is the one that ought to be adopted and obviously we contend for the one which secures the best interests of the patient.

My friend was also concerned about the suggestion that a fiduciary obligation could be incumbent upon a parent and I accept the property context in which my learned friend addressed your Honours. The concern that gave rise to the acceptance of the duty was the situation where there was possible abuse or molestation of an infant by a parent and it was in that context the court was prepared to accept and acknowledge that the fiduciary obligation prohibited and gave rise to an enforceable legal right in a circumstance such as that but in any event, as my friend concedes, in relation to the various matters of policy to be taken into account, as I understand him, he concedes that there are competing interests and at the end of the day your Honours will have to make a judgment as to which of those competing interests is paramount in the circumstances of this particular case.

My learned friend also referred your Honours to the problem of the doctor’s notes and suggested to your Honours that Wentworth is authority for the proposition that the notes are the property of the doctor. In my respectful submission, that does not arise on any construction of the decision in Wentworth v de Montford, including his reference to documents prepared for counsel.

As that decision makes clear, in determining that issue, it is incumbent upon the Court to have regard to the question of whose benefit the particular documents were created for. His Honour referred to the various tests at pages 358 and 359 in relation to documents involving counsel, as he observes at page 360F at paragraph 7:

Generally speaking, documents involving counsel would be documents created or received for the benefit of the client, even though they may also be for the benefit of the solicitor, and the client would be entitled to the originals or a copy of them. Thus counsel’s brief must belong to the client.

At an earlier point he refers to notes made of attendances on various parties and says the question of who has access to them or a right to a copy will ultimately depend on whose benefit they were created for and it cannot be asserted that notes as a generic category of document are inevitably and inextricably created only for the benefit of the professional, as his Honour expressly acknowledged. Where it is the case that they are created for the benefit of the client they belong to the client, and I remind your Honours the only documents we have sought access to are those created for the benefit of the appellant. By defining the ambit of the claim we have expressly limited to those that fall fairly and squarely within the ambit of Wentworth v de Montford.

Your Honours, in conclusion I believe my friend put to you that the doctor must be given an opportunity to bring his own judgment to bear in determining what is relevant, and I accept what my friend says in the sense that that seems to be the hub of the issue in this case. Is it ultimately a question for the doctor to determine what information should be communicated to the patient in the exercise of the doctor’s judgment or should the patient’s stated interests be regarded as paramount?

BRENNAN CJ: It is not the information. That is one thing we are not concerned with.

MR CASHMAN: In so far as the doctor refuses to acknowledge the acceptance of any of the principles for which we contend, in our respectful submission, it cannot be said that ultimately the doctor should be regarded as the only determinant of what is in the patient’s interests if what is in the patient’s interests is a relevant consideration, either in relation to the so‑called implied term, or in relation to the so‑called fiduciary context.

In our respectful submission, the patient should be given ‑ or at least should be heard to say, “I am in a position where I can make a judgment about what is in my interests” and, in my respectful submission, that contention ought not be lightly disregarded in determining the outcome of this matter. Those are the only matters that I wish to put to your Honours.

BRENNAN CJ: Thank you, Mr Cashman. The Court will consider its decision in this matter.

AT 4.07 PM THE MATTER WAS ADJOURNED

[1995] HCATrans 328

Key Legal Topics

Areas of Law

Administrative Law

Constitutional Law

Equity & Trusts

Legal Concepts

Judicial Review

Standing

Fiduciary Duty

Remedies

Procedural Fairness