Breen v Williams

[1995] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 1995

B e t w e e n -

JULIE BREEN

Applicant

and

DR CHOLMONDELEY W. WILLIAMS

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1995, AT 12.22 PM

Copyright in the High Court of Australia

MS V. CULKOFF:   May it please the Court, I appear for the applicant.  (of Cashman & Partners)

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

DEANE J:   Yes.  Ms Culkoff.

MS CULKOFF:   Your Honours, in Re T the right of the Jehovah Witness to refuse a blood transfusion was upheld.  The court held in that case that it was well established that in the ultimate the right of the individual is paramount.  In Re C, similarly the court upheld the right of a patient to refuse treatment for his gangrenous leg, knowing that it may kill him.  The court held there that the right of self-determination outweighed public interest in the sanctity of life.  The applicant submits, your Honours, that in contemporary Australian society, individuals expect freedom of information in matters relating to them which, naturally, includes information about their health and treatment by their doctors; accountability from professionals, including doctors; individual autonomy and a right to self-determination.  These, your Honours, it is submitted, have been the catchcries of today’s society.

DEANE J:   Ms Culkoff, if I might interrupt you for one second; in view of what happened in the last matter, you are acquainted with the lighting system.

MS CULKOFF:   Yes, I am, your Honour, and I do hope to be briefer than my learned friend.

DEANE J:   No.  Use up all your time, but it will not avail you if you say you thought you had 40 minutes instead of 20 minutes.

MS CULKOFF:   No.  Thank you, your Honour.  Implicit in this Court’s decision, your Honours, in Rogers v Whitaker, was the assault on the paternalism by holding that the medical profession is not determinative of the standard of caring posed on a doctor.  This Court in Rogers v Whitaker rejected the Bolam  approach and held that the appropriate standard of disclosure by a doctor to a patient is a question for the courts after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life.  The applicant submits, your Honours, that Rogers v Whitaker embraces a model of the doctor patient relationship, which is consistent with legitimate expectations of contemporary Australian society.

TOOHEY J:   Ms Culkoff, one can see that there is an important question of principle involved but, in the end, in this particular case, what is it that the applicant seeks to obtain from the records that the respondent has not been willing to provide?

MS CULKOFF:   The applicant seeks access, your Honour, to all the records.

TOOHEY J:   Yes, I understand that, but what is it that the respondent has declined to provide that the applicant seeks access to?

MS CULKOFF:   The respondent has declined to provide access to any of the medical records in the absence of a court order or a subpoena, or unless the applicant provides a release to the doctor, to the respondent.

DEANE J:   A release or an indemnity?

MS CULKOFF:   Your Honour, that was argued before the Court of Appeal and, certainly, I do hope ‑ ‑ ‑

DEANE J:   No.  I was just asking.  I thought I had seen “indemnity” had been said.

MS CULKOFF:   It was argued before the Court of Appeal that, in fact, that extended to an indemnity and it very much depends on how the letter, forwarded by the respondent to the applicant, is construed.

DEANE J:   Well, in that case, do not take time about it.

MS CULKOFF:   Obviously, as your Honour has pointed out, the issue is one where considerations of public policy weight very heavily in favour of the patient’s right of access.  I would particularly like to draw your Honours’ attention to the public policy considerations that have already been outlined in the applicant’s summary of argument, specifically at pages 10 to 11, and similarly to those referred to by Justice Kirby, at pages 148 through to 151.

The applicant submits, your Honours, that it is clear that freedom of information legislation permitting a right of access to medical records, held by public health authorities, is a reflection of such a trend.  The question remaining is ‑ ‑ ‑

McHUGH J:   On your argument, I have some difficulty in understanding why you limit it to records or information.  If the underlying principle upon which you must rely is correct, does it not follow that you would be entitled to get from the doctor any thoughts at all he has got in his head about your client?  Why do you limit it to what he has written down?

MS CULKOFF:   The claim was, both before the Court of Appeal and the court below, a claim for a right to the information.  That was in the records only.

McHUGH J:   I appreciate that but it seems to me that it must be a corollary, if its not the major premise that underlies your argument, that you are entitled to every piece of information the doctor knows about your client, including his musings in his head.

MS CULKOFF:   No, your Honour, the claim is restricted to those musings, and including those musings that he has actually written down.  So it is whatever information that has been recorded and/or provided by our client and recorded in his medical records.  We have not sought to extend to information that may otherwise be contained in the doctor’s own mind.

McHUGH J:   That is what I have difficulty in following, as to what is the magic of writing it down has got to do with it.  If it is the information that is critical and of which you are entitled to have the benefit of, what has writing it down got to do with it?  You either have or have not got the right to the information. 

MS CULKOFF:   It would be very difficult to access information, your Honour, that would be in the doctor’s head, as it were. 

McHUGH J:   Well, if he has got some obligation to provide it, does it matter that he has written it down, or that it is on a computer disk or ‑ ‑ ‑

MS CULKOFF:   Certainly the claim would extend to any information that would be contained on computer disk, but it would be difficult to, for example, subpoena or claim a right of access that is not, in some form or other, recorded somewhere.

TOOHEY J:   Could I just take you back for a moment, Ms Culkoff, to my question about what the respondent had offered to provide.  Just looking at page 21 of the application book, at line 20, there is a statement of an open offer that the defendant would provide and then follows a description of the material that would be provided.  At the top of page 22:

This offer was not accepted, but has not been withdrawn.

And it says:

it is not conditioned on any release to be given by the plaintiff to the defendant ‑

In the light of that, could I just ask my question again:  what is it that this application seeks to obtain that does not fall within the terms of , as it is described in the judgment, the “open offer”?

MS CULKOFF:   The report, your Honour, would be a selective provision of information through, if you like, the filter of the doctor.  It would not provide the applicant with full access to all the medical records or all the information that is contained in the medical records in the possession of the doctor.

TOOHEY J:   Well, it says:

The offer related to the contents of the file as to history, physical examination findings, investigation results, diagnosis, proposed management plan, treatment or advice furnished by the plaintiff.

Perhaps that should be “furnished to the plaintiff”, is it?

MS CULKOFF:   That is true, your Honour.  It came through in the evidence in the court below that whilst the request for information included the identification of the manufacture of the breast implants or the type and nature of the breast implants, it became evident that with the provision of the report, certainly the respondent was of the view that that type of information was not, in fact, included or not present or not recorded in the medical records.  It also became evident on cross-examination that there was, in fact, a letter from another doctor, I believe a Dr McDougall, in the respondent’s medical records that would have provided information relating to the type of implants that had been implanted into the applicant.  That type of selective ability for doctors generally to provide information that they deem is relevant or important relating to the treatment of the patient, is the very thing that is at issue here.  The applicant claims that she has a right to all information that has been recorded in her medical records pertaining to her health and well‑being.

McHUGH J:   A right, in what circumstances; to go into the doctor’s office or surgery and look at it or the right to get the actual documents forever, or ‑ what are the circumstances?

MS CULKOFF:   Your Honour, the claim is for access to the information.  Obviously it would be on a practical basis, for the payment of a fee and an expectation that the documents would be copied very much the same as would happen under normal subpoena process.  And, in fact, if I can refer your Honours to page 181 of Justice Mahoney’s decision.  There, Justice Mahoney makes a distinction between the provision of the information and the right of access to physical records.  The applicant submits that if that right is acknowledged, then there is no basis for the distinction and it, in fact, gives a majority decision with the judgment of Justice Kirby that a patient does have a right of access to the information, but under Justice Mahoney’s ‑ ‑ ‑

McHUGH J:   But that is the problem I have with this.  I do not think that the argument that is put on your side really faces up to it.  The bit of paper is the doctor’s property.  You have no right to that on any basis.  If you have a right, it is to information and you may be able to get that information from the doctor, whether it is in his head or whether it is on a piece of paper or whether it is on her computer or whatever the case may be, but I do not see how, myself at the moment, you have got some right to look at his piece of paper.

MS CULKOFF:   I can only say, your Honours, again, the decision appears to produce a majority agreement with Justice Kirby finding that a right to information exists, but finding that right as an incident of the fiduciary relationship.  Justice Mahoney, as I have indicated, whilst holding that the doctor is contractually bound to make such information available, does see, as your Honour does, a clear distinction between the provision of  the information and a right to the physical records.  The applicant submits that that distinction should not be made.  Justice Meagher, on the other hand, acknowledged also the patient’s right to know what the records contain but viewed debate as one of whether the applicant could rummage about in her doctor’s records, and I refer to your Honours page 187 of the application book.

The applicant submits, your Honours, that it is inappropriate in the light of persuasive authority in Canada, in the decision of McInerney v MacDonald, the line of decisions favourable to such a right in the United States, including Cannel and Emmett, and the recent Court of Appeal decision in the UK in Regina v Mid Glamorgan Ex parte Martin decision.  She contends that there is more than adequate legal bases on which to found such a right.  The one issue that the applicant contends is of significant concern to Australian society is the categorisation of the doctor/patient relationship.  It is respectfully submitted, your Honours, that this case gives this Court an opportunity to rule on the nature and extent of the doctor/patient relationship and on how such a relationship is to be characterised. 

Justice Mahoney criticised the Canadian Supreme Court in McInerney for concluding that the doctor/patient relationship is a fiduciary one, at pages 179 and 180 of the application book.  Mr Justice Meagher, on the other hand, whilst recognising that a doctor may owe a fiduciary duty to a patient not to profit at his patient’s expense and not to put himself in a position where his interests would conflict with his patient, failed nevertheless to find that by requesting a release the doctor did seek to both profit and place his interest ahead of his patient.

TOOHEY J:   Ms Culkoff, could I just ask you this.  If you look at the draft notice of appeal, and the orders sought and, in particular, at page 210, the first order sought is by way of declaratory relief and it declares “that the Appellant has a right” and then it proceeds to identify that right.  Is that the principle for which you are contending?  I mean, does that sufficiently identify the principle that is sought to be established by this application or by an appeal if special leave were granted?

MS CULKOFF:   Yes, it is, your Honour.

TOOHEY J:   And I notice it concludes:

subject to the exclusion of such records or information as to the Respondent ‑

perhaps just, “as the respondent” ‑

has lawful excuse for not providing access to.

So, it recognises some limitation.  I will not ask you to go into any detail but can you perhaps indicate the sort of area or areas of exclusion that are contemplated by that declaration?

MS CULKOFF:   Yes, your Honour.  The exceptions there are privilege exceptions, including the therapeutic privilege; obviously the legal professional privilege.  There was some evidence that there was correspondence between the respondent and the MDU.  Clearly the applicant conceded that she would not be entitled to that.  Similarly, the declaration is framed in relation to information concerning the appellant:

for the benefit of the Appellant in providing treatment, information or advice ‑

That necessarily excludes any of the respondent’s administrative records, fees and that type of documentation.

McHUGH J:   But it includes anything that has been told to the doctor by other doctors, if the doctor sought views of other doctors about the problem?

MS CULKOFF:   Yes, it does your Honour, and that is in line with the decisions, both of the United Kingdom court and the Canadian.

DEANE J:   Indeed, that really puts the finger on the case in the most favourable light from your point of view, does it not.

MS CULKOFF:   Yes, it does, your Honour.

DEANE J:   If one assumes that what is involved is a letter from another doctor, your case is at its strongest if one says, “I argue that the patient is entitled to see that letter”, as distinct from seeing what the doctor sees fit to summarise, in terms of the other doctors’ advice.

MS CULKOFF:   That is correct, your Honour.  I would just like to briefly draw your Honours’ attention to the fact that the Court of Appeal decision does appear to provide more unsettled authority in this area, particularly on how the doctor/patient relationship is to be characterised, and that is primarily because you have a majority decision on two judges stating that there, one, is a right to information but then finding that in the first instance there may be a clear distinction, according to Justice Mahoney, and, secondly, that in any event, that that right to physical access to the records does not extend ‑ ‑ ‑

DEANE J:   In one sense though - and this is not said critically - that is almost the inevitable result of the form of these proceedings, is it not?  I mean, if your client had subpoenaed the relevant records and brought them along to the court, and somebody could have looked at them and dealt with it as a concrete case, it would have been much easier to address it as a real question rather than a theoretical question?

MS CULKOFF:   That may be the case, your Honour.  What was attempted by the applicant was not to enter into a Wentworth v de Montford-type analysis.  Because the case was argued as a test case and one of principle, and accepted as such ‑ ‑ ‑

DEANE J:   I understand.  As I say, I was not being critical.

MS CULKOFF:   As I was saying, your Honours, the decision does provide majority agreement on the fact that the doctor/patient relationship is a fiduciary one, but there appears to be either a divergence on the issue that such a fiduciary relationship extends to allowing a patient access to the medical records.  It also, as I said, appears to produce majority agreement that the patient has a right to information but, again, that right to information does not, by the majority, extend to a right to access.

Leaving aside the issue of therapeutic privilege, which we have touched on and which the parties have agreed has no application in this case, the applicant asks, “Is the doctor to be the sole determinative body on what information is and is not to be released to the patient?”  And I think this, in some ways, is the nub of the issue here.  If so, is this not, in essence, regressing back to the Bolam principle which was expressly overturned by this Court in Rogers v Whitaker.

The applicant also contends that there is adequate authority in the decision of Ex parte Martin, which assumed the existence of the common law right, which Justice Kirby labelled as an innominate right.  Whilst the applicant concedes that the UK Court of Appeal may not have provided clear reasoning for upholding the right of access, it nevertheless did unanimously assume the existence of the right.  The applicant submits that this assumption should not be dismissed lightly.  Moreover, the applicant submits that the necessary reasoning to ground such a common law right of access may be properly found in the applicant’s right to know, that is, her right to the information in the medical records, upheld by the majority in the Court of Appeal.  This right, she contends, stems from the respondent’s duty of disclosure to her, which is inherent in the overall duty of care owed by a doctor to his or her patient.  Such a duty of care, it is submitted, is in line with the view of this Court in Rogers v Whitaker and can and should extend to the patient’s right of access to her medical records.

Your Honours, I only wish to touch on one other issue which, no doubt, will concern your Honours, and this is whether or not legislation is the only appropriate tool for resolving two competing social interests, as was advocated by Justice Mahoney.  The applicant contends not.  Despite the extensive public interest the issue has generated, Parliament has not, to use the vernacular, “taken up the baton.”  The Australian Law Reform Commission is presently conducting a review and, although in favour of such a right of access, its review is very much in its infancy.  I, in fact, wish to hand up, your Honours, a letter received from the Australian Law Reform Commission which indicates that it will be some considerable time before

any legislation is, in fact, considered or contemplated.  I would particularly draw your Honours’ attention to the third page of that letter ‑ ‑ ‑

DEANE J:   Well, the red light has been there for a long time, Ms Culkoff.

MS CULKOFF:   I will move on, your Honour. 

DEANE J:   That was not what I was suggesting.

McHUGH J:   Move down.

MS CULKOFF:   The federal Government has also indicated no agenda for any legislation to be put in place in the near future, or at all.  I would also like to hand up a letter from Dr Carmen Lawrence that clearly indicates the Federal Government ‑ ‑ ‑

DEANE J:   Well, Ms Culkoff, I am sorry, you have to wind up.

MS CULKOFF:   Thank you, your Honour.

DEANE J:   We have our rules which simply must be observed.

MS CULKOFF:   In conclusion, your Honour, the applicant submits that this is an important issue.  It is an issue that has generated much debate.  It potentially affects every Australian.  There is ample authority in Canada, the United States and the United Kingdom which have ruled on the issue.  Australians expect that this Court will allow the appeal.

DEANE J:   That would be a bit premature, surely.

MS CULKOFF:   Well, would expect that the highest court in this country would rule on this issue as well and this case presents an opportunity to do just that.  Thank you, your Honours.

DEANE J:   Yes, Mr Emmett.

MR EMMETT:   If it please, your Honour.

DEANE J:   Mr Emmett, it is probably a little unfair, but I should say, in view of what has happened in the last two applications, the Court does insist, in fairness to all parties and to enable it to discharge its function, that the rules it makes as to time be observed.

MR EMMETT:   I am aware of the rules.

DEANE J:   That was not directed to you but I thought it might seem unfair to others if we insisted that you be confined to the time allowed, but we propose to do so.

MR EMMETT:   May it please, your Honours.  As long as your Honour’s little homily is not taken out of my time.  I do not think I will need it at any event, your Honours.

DEANE J:   No, your time can commence now, as it were.

MR EMMETT:   Your Honours, there does appear to us to be some confusion as to what precisely is the issue and what fell from your Honour Justice McHugh relates to that.  There never has been any issue about the entitlement of a patient to information, and the open offer that was made at the trial before Mr Justice Bryson recognised that.  Your Honours may also have noticed in the application book a statement of principle by the AMA as to the question of access to records.  That appears at page 29 of the application book.  That was tendered as an indication of the stance which the respondent would take in relation to furnishing information in addition to the open offer to which reference has already been made at page 21 of the application book.

DEANE J:   In one sense that raises the problem in the form most adverse to your position and that is, take the case where a medical report by another doctor in the possession of the primary doctor does contain the deducted opinion of the other doctor and, simply to push it a bit further, assume the other doctor has died; now, is it suggested by that that the patient is not entitled to access to the consulting doctor’s report?

MR EMMETT:   No, it is not ‑ sorry, access to the document itself?

DEANE J:   Yes.

MR EMMETT:   Yes, that position is maintained.

DEANE J:   And that the patient is not entitled to be told of the deductive opinions of the other doctor?

MR EMMETT:   No, no.  We do not say that there are no circumstances in which the patient would be entitled to be told that.  It is a matter for judgment of the medical practitioner as to what is to be furnished.  If it is, in his judgment, relevant that the deductive reasoning be included in the information that is furnished, then we would not quarrel with the notion that there is a duty to provide that information, as distinct from making the physical records available for inspection or access.

TOOHEY J:   One thing that puzzles me about that statement of the AMA, Mr Emmett, is the statement that:

The patient should be allowed to access to any other contents of the medical record (such as reports by specialists) beyond the materials above specified only at the discretion of the doctor or doctors ‑

I take it that is not putting the reports by specialists in a separate category, is it?

MR EMMETT:   I think what it is saying is that there is an additional restriction in relation to that.  Even if the medical practitioner asks for it, he is prepared to make the documents available, he should respect the right of privacy, so to speak, of the other medical practitioner who created the document in the first place.

TOOHEY J:   Although as between the patient and the specialist, there would be a doctor/patient relationship, so it really only shifts the problem one step down.

MR EMMETT:   Yes, well, that is a different matter.

TOOHEY J:   Yes.

MR EMMETT:   The patient may well have the same right as against that medical practitioner, to get access to the material, and it may be ‑ and this really is not an issue at this stage ‑ that in the case of the death of a medical practitioner the situation might be different.  If there is no other way to get access to the information other than by looking at the documents, that may be different but it is simply not an issue that is raised in these proceedings. 

Can I just take up one matter that your Honour Justice Deane, I think, raised concerning the theoretical nature of the proceedings.  There was, in fact, evidence before the trial judge of the nature of the files and, in fact, the file was produced and marked for identification, although it was not actually tendered.  So that there was evidence, which is reflected at pages 24 point 5 and following of the application book, of the nature of the file in this case, but bearing in mind that the issue itself ‑ the file itself was not tendered.

The categories are hand written notes of the doctor, and then there is a description of the nature of those over the next two pages, then, at the top of page 26:

Copies of letters reporting to referral doctors......

Category (c) Hospital advice slips.....

Category (d) Correspondence with the patient.

Category (e) Reports to him from other doctors.....

Category (f) Communications with the NSW Medical Defence Union.....

Category (g) Photographs.

As his Honour said, the evidence was not totally clear as to whether there were documents in all categories in this particular file but that was the extent of the documents which would exist if they were in the file.  So, it is not totally theoretical, in that sense, in that there was evidence that there was a file and of the nature of the documents.  What was clear, however, that there was no reason advanced by the plaintiff for wanting to have access.  The question was raised simply on the basis that, “Whether I have any reason to, or any particular need to, or not, I am entitled to physical access to the documents” and merely being told whatever the medical practitioner thinks is relevant or appropriate is simply not sufficient to satisfy that entitlement.  So that is the context in which the litigation was conducted. 

DEANE J:   The real force of the application against you ‑ and I am simply putting this so you can deal with it ‑ seems to me to be that notwithstanding all the problems about this case, you do have a situation in which there is a division in the Court of Appeal and the view that has prevailed is contrary to the approach taken by the Supreme Court of Canada and which seems to be the approach taken in the United Kingdom.

MR EMMETT:   There would be some dispute about that, when one analyses that, but certainly ‑ ‑ ‑

DEANE J:   That is why I said, “seems to be”.

MR EMMETT:   Yes, I take your Honour’s point.

DEANE J:   Well now, that does raise a few problems in terms of how you work out the balancing considerations at the leave stage.

MR EMMETT:   Your Honour, we accept that those issues are there and that is a reason why your Honours would have to, at least, consider the question of leave but our approach in this, perhaps, takes me to the second basis for opposing the leave.  Having said what we have said, we accept that there is a principle there that needs to be resolved and the respondent participated on that basis, although I think it is clear ‑ we made our position clear to this extent ‑ that it should only relate to the particular facts of this case if that establishes a principle, and for the reasons your Honour has just said, it may well.

DEANE J:   And it is also clear that the particular respondent was taking the approach of, “Why me?”.

MR EMMETT:   Yes.  So that, in a sense, there is no great moment as between these parties other than a nice legal principle.  But that brings one to the second basis for opposing the leave and that is that, in our submission, the majority, and Mr Justice Bryson, were patently correct in the conclusion they came to, notwithstanding a contrary view of the Supreme Court of Canada.  It was only, as your Honour says, the President who was disposed to accept the plaintiff’s position but, in our submission, the reasoning of the President is patently flawed, such that if the only basis upon which the right to access can be justified is some fiduciary relationship, then the appeal is bound to fail.

The President’s reasoning begins at page 140, and there are a number of propositions which he makes, each of which may be right in themselves, but the real problem is there is a quantum leap at the end which there is simply no justification for making.  The first proposition is:

1. The fiduciary principle is in a state of development whose impetus has not been spent to the present day.....

2. As society becomes more complex, it is both necessary and appropriate for courts of equity to recognise new fiduciary obligations and to protect incidents of new or changing relationships ‑

that may be right.

3. What began with the trustee‑beneficiary relationship.....has extended.....to other relationships involving trust ‑

well, that is certainly so.

4. Certainly, the courts of equity began their development.....in the context of many commercial relationships.....But, clearly, these are mere species of the genus.  They cannot possibly define and limit the fiduciary relationship. 

Again, that may be right.

5. A fiduciary relationship may co‑exist with a contractual or other relationship.

Correct.

6. A person may be in a fiduciary position in some parts of his or her activities and not other parts.  Once a fiduciary relationship has been established, it is still necessary to have regard to the particular transaction or group of transactions impugned.

Now, each of those propositions may well be correct.  There is then a reference to United States jurisprudence and then his Honour jumps into the Canadian decision in the middle of page 144 where reference is made to the decision of Justice La Forest, who:

held that the fiduciary duty of the medical practitioner to provide access to medical records was ultimately grounded in “the nature of the patient’s interests in his or her records”.

Now, with respect, that is totally circular and begs the question.  Then there is an extract from the judgment of Justice La Forest, which the President, at the top of page 145, found wholly convincing.

DEANE J:   If that is a convenient time, Mr Emmett, we will adjourn until 2 pm.

AT 1.01 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.09 PM:

DEANE J:   Yes, Mr Emmett.

MR EMMETT:   Your Honours, I was endeavouring to make good the proposition that leave should be refused on the basis that the judgment of the majority was clearly right and I was doing that by taking your Honours to the reasoning of the President, having referred to the six propositions which he sets out on pages 140 and following.

McHUGH J:   But even if it is arguably right, does this case not raise a very widespread question?  The applicant confines it to doctors, but maybe there is a, or the Court should declare that there is a principle that wherever there is a relationship of trust and confidence between two persons, the person giving a confidence and trust is entitled to access to documents recording information.  It does not matter whether it is lawyers, or journalists, or architects or anybody else.

MR EMMETT:   With respect, your Honour, if that is the proposition, then this is not the appropriate case to do it.  There is simply no evidence below about the relationship between these parties.  It was simply put on the basis that the relationship of physician and patient is, of itself, sufficient to justify this rule.

McHUGH J:   Yes, except that the court has tended to deal with the argument, and certainly the Supreme Court of Canada has dealt with it, on the basis that there is a relationship of trust and confidence between doctor and patient.  Now, if you carry that across into other fields:  lawyer and client, any professional person ‑ ‑ ‑

MR EMMETT:   That may be but that really does require, in our submission, a finding of fact, if one has some regard to what this Court said in Hospital Products.  There are some slabs Hospital Products set out in the judgment of the trial judge, at pages 78 and following which, in our submission, correctly state these matters.  Starting at 78, line 17:

I doubt that it is fruitful to attempt to make a general statement of the circumstances in which a fiduciary relationship will be found to exist.  Fiduciary relations are of different types, carrying different obligations.....and a test which might seem appropriate to determine whether a fiduciary relationship existed for one purpose might be quite inappropriate for another purpose.  For example, the relationship of physician and patient.....may be described as fiduciary when the question is whether there is a presumption of undue influence, but may be less likely to be relevant when an alleged conflict between duty and interest is in question.

Going over the page, at line 5:

any test can only be stated in the most general terms and that all the facts and circumstances must be carefully examined to see whether a fiduciary relationship exists -

That is the sort of ‑ ‑ ‑

McHUGH J:    I appreciate that, but assuming you have a fiduciary relationship, irrespective of what category it arises out of, is it a principle of the common law that a person, who has the benefit of that relationship, is entitled to access to documents that record information concerning that relationship.

MR EMMETT:   Your Honour has begged the very question; your Honour has assumed that there is a fiduciary relationship arising simply out of the relationship of doctor and patient, and that is really the question in issue.  It may be that in certain circumstances, in relation to some dealings between the parties, there is a fiduciary relationship, but it does not follow as of course; it is a matter which, in our submission, will vary from case to case in the light of the right that is being sought to be enforced.

McHUGH J:   Yes.

MR EMMETT:   That is really the proposition.  With respect to the President, his Honour simply did not address that question.  He assumed that there was some element of trust involved in the doctor/patient relationship and, as to that, in most circumstances one could not quarrel.  But there is a quantum leap then involved in saying that leads, of necessity, to the fact that you are entitled to access to the pieces of paper which, it is common ground, are owned by the doctor.  There is unanimity in all of the four judges as to all grounds relied upon by the plaintiff other than this fiduciary ground.  Our short proposition is that, when one looks at the reasoning, there is simply no basis for making that jump, from the fact that there may be, in certain circumstances, a fiduciary relationship to the conclusion that that, of necessity, leads to an entitlement to physical access to the documents.  It may be that in a particular case, or in particular circumstances, the relationship would lead to a requirement that there be access, such as the death of a medical practitioner or what have you, but that is simply not the case here.

TOOHEY J:   There are findings of fact, are there not, by the trial judge.

MR EMMETT:   Findings of fact?  Yes.

TOOHEY J:   I am not suggesting they go as far as to cover the point that you have just made.  One of the troubling things about this matter is, in one sense, the theoretical way in which it has surfaced.  At the same time there is reference to the records and the nature of the records.  I am just not clear how far the findings of fact really go to establish the relationship between the parties?

MR EMMETT:   It never was an issue.  That is why they do not really go far enough, and that is why I have made the submission that if that is the principle this just is not the appropriate case to establish it.  The case has been conducted on the basis that the mere relationship of doctor and patient is sufficient to give rise to a relevant fiduciary obligation and we say, as a matter of principle, that cannot stand by itself.  There may be some other circumstances where the relationship will give rise to a duty to make available documents, without conceding what those circumstances were, but that is just not the case here.

TOOHEY J:   No, but so far as the nature of the relationship is concerned, to determine whether it is fiduciary or otherwise, how much would you need by way of fact finding?

MR EMMETT:   There may be a particular relationship between the doctor and the patient:  the particular circumstances; the nature of the treatment; the reason why this doctor was consulted, rather than somebody else.  All of that may give rise to ^‑ and the circumstances in which the patient wants access may all have a bearing on whether or not, in the particular case, a duty arise.

McHUGH J:   Yes, I appreciate what you say about it, but courts have already categorised relationships: employee/employer; solicitor and client.  Now, it may be that there is, underlying all these categories, this underlying principle that a person who has got the benefit of the relationship, whether it is the employee or anybody else who is entitled to access to information that affects that person’s health, reputation, means ‑ ‑ ‑

MR EMMETT:   There is no quarrel about that.  Entitlement to information, there is no quarrel about.  It is physical access to the documents about which the quarrel arises.

McHUGH J:   Yes.

MR EMMETT:   Now, that really is the reason why, in our submission, one needs to look at the particular circumstances to see whether this is an appropriate case for going beyond the conceded right of entitlement to be given information to physical access to the materials.

For those reasons, in our submission, your Honours, it is not an appropriate case for the grant of leave.

DEANE J:   Thank you, Mr Emmett.  Yes, Ms Culkoff.

MS CULKOFF:   Two points, your Honours. Your Honour Justice Deane inquired about the purpose of the litigation.  It is one that is aimed as a question of principle, but also the case has utility in the sense that the evidence established that the applicant had commenced proceedings in the US and required the documentation for the purpose of those proceedings.

McHUGH J:   But the second point cannot be very relevant, because you could get these documents on subpoena, can you not?

MS CULKOFF:   Yes, your Honour, that is correct and this is why the case was run as test case.  The applicant’s submissions are that while that can happen, because these proceedings are commenced in the US it becomes a much more cumbersome and expensive exercise to issue letters rogatory in the US and then apply to the courts of this State and then, finally, issue subpoenas.  And given that there are more than 7,000 women that are involved in the breast implant litigation, it would unnecessarily clog the courts’ registries and create - - -

McHUGH J:   Yes.  Well, I understand that.

MS CULKOFF:   The second issue was the concern of his Honour Justice Toohey in relation to the issue of a release and indemnity.  If the case cannot be viewed or considered in terms of, as Justice Bryson put it, I think, “abstract simplicity as one of principle”, then certainly, the fact that there is a majority finding in the Court of Appeal that the relationship is one of fiduciary, and that finding was both by Justice Kirby and by Justice Meagher, although Justice Meagher restricted his finding of a fiduciary relationship between the parties on the basis that it was only with respect to a fiduciary in the commercial context, in other words, the doctor was not able to put his position in conflict with that of the patient and not to profit from the patient’s interest.  But his Honour Justice Meagher fell short of finding that by doing so he was, in fact, in breach ‑ by demanding a release he was, in fact, in breach of that fiduciary duty.

TOOHEY J:   I think the question of release only arose, so far as I was concerned, in the context of an open offer by the respondent to make information available without insisting upon a release as a condition of that offer.  But could I just ask you this, Ms Culkoff, and it is really coming back to something I raised with you at the outset:  again, if you could go to page 210 of the application book which contains the orders sought, if the matter where to go by way of appeal, seeks declaratory relief in 4.1.  In that subparagraph there is no basis, as it were, offered for the existence of such a right, but then if you go to 4.2, it is the:

information is required to be provided:

(a) as an incident of the fiduciary obligation ‑

I am just very conscious of the presiding Judge’s warning - I am not sure whether it was directed at me or not ‑

(b) because it is the property of the Appellant; and/or

(c) as an implied term of the contract ‑

but does that simply assume that there is a fiduciary obligation or, as Mr Emmett says, is that something which really has to be determined as a first step?

MS CULKOFF:   Well, your Honour, certainly there is adequate authority in the Court of Appeal decision for a majority view that the relationship is a fiduciary one, albeit ‑ ‑ ‑

McHUGH J:   I do not think there is.  You cannot use dissenting judges as part of the majority.  That is the legal theory at least.

MS CULKOFF:   Only for the proposition, your Honour, that at least the relationship between a doctor and a patient is fiduciary in nature, although, as I said, Justice Meagher confined his finding in that regard to those two aspects but then fell short of finding that there was, in fact, a breach by requesting the release.  Justice Kirby, of course, found the relationship was one of fiduciary and, as an incident of that fiduciary relationship, found that the patient had a right of access.

TOOHEY J:   But would your case necessarily turn upon the broad proposition that between every doctor and every patient there is a fiduciary obligation giving rise to the right referred to in paragraph 4.1 of the orders sought; that is, in the absence of any direct finding in the courts below that a fiduciary relationship existed in this particular case by reason of particular circumstances?

MS CULKOFF:   Yes it is, your Honour, and the case has basically and predominantly been run and accepted as a test case or as one of principle, in relation to that aspect.  So, one of the key issues that will need to be dealt with by this Court if leave is granted is whether or not there is, in fact, a fiduciary relationship that exists between a doctor and a patient and if the answer to that is in the affirmative, then the next question is the nature and extent of that relationship and whether or not, as an incident of that fiduciary relationship, a patient ought to be able to access his or her medical records.

TOOHEY J:   Yes, thank you.

DEANE J:   What if the answer to that proposition was, “There may be or there may not be”, depending on the circumstances of the particular case?

MS CULKOFF:   Then in that case, your Honour, I think there are enough factual findings in this case for a court to hold that, in these particular circumstances, such a relationship does exist.

DEANE J:   Yes, but you would not, or would you, maintain that there is a fiduciary relationship between every doctor and every patient, regardless of the circumstances?

MS CULKOFF:   That would be our position, your Honour, yes.

DEANE J:   What if the doctor said to the patient, “I am prepared to treat you, but only on the basis there is no fiduciary relationship, or any other relationship, between us”?

MS CULKOFF:   Clearly, in that instance, your Honour, the evidence in relation to that particular case would be that perhaps the fiduciary nature of the relationship ought not to be implied under those circumstances.  That is the matter of whether or not, in fact, a doctor can oust, as it were, the nature of the relationship in that way.

McHUGH J:   I know your time is up.  Can I ask you this question about the extent of the -  so, is it part of your case that you would be entitled to access to the records even though they may reveal statements to the doctor by family members, by spouses, as well as matters of a medical nature, as long as those statements are part of the history?

MS CULKOFF:   Yes, it is, your Honour, with the two exceptions, as I alluded to previously ‑ ‑ ‑

McHUGH J:   Therapeutic.

MS CULKOFF:   ‑ ‑ ‑one being therapeutic; the other being the confidentiality exception, and certainly neither of those had any application in this particular case.   So that if the doctor submits - and needless to say, following the UK and US authorities and the Canadian authority, in particular, the onus would then be on the doctor if a right were to be found to demonstrate that, in fact, these documents should not be provided on the basis they fall within those exceptions; either they were imparted to him by a third party, in confidence, and therefore should not be given to the applicant or, alternatively, under the therapeutic privilege which, as I have said, neither had any application in this case.

DEANE J:   Thank you, Ms Culkoff.  The Court will take a short adjournment to consider the course it will take.

AT 2.25 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.29 PM:

DEANE J:   Ms Culkoff, the Court would point out to you that in view of the manner in which these proceedings have been framed and the absence of any appropriate concrete question, an appeal may well reach the stage where it is apparent that this is an inappropriate vehicle to address the questions which you want resolved.  That means that the applicant will be running a real risk that, if that stage is reached, the grant of special leave will be revoked.  Whether the applicant is prepared to run that risk is, of course, a matter for her, acting, no doubt, on advice.  But, having said that, there will be a grant of special leave to appeal in this case.

AT 2.30 PM THE MATTER WAS CONCLUDED