Central Adelaide Local Health Network Inc v Whitehouse

The Supreme Court of South Australia, constituted by Livesey P, Bleby and David JJ, heard an appeal from a decision concerning the production of medical records. The appellant, Central Adelaide Local Health Network Inc (CALHN), sought to resist the production of certain documents pursuant to subpoenas issued in criminal proceedings against a respondent charged with aggravated assault and other offences. The complainant in these proceedings was an alleged victim of a sexual offence, though the charges against the respondent did not involve sexual misconduct. CALHN contended that the documents sought were protected communications and thus inadmissible.

The central legal issue before the Court was whether specific documents, identified as medical records relating to the complainant's treatment for mental illness, constituted "protected communications" under section 67F of the *Evidence Act 1929* (SA) and, if so, whether their admission in the criminal proceedings was permissible. This required the Court to consider the criteria for granting permission to adduce evidence of protected communications, particularly the balancing exercise between the public interest in preserving confidentiality and the public interest in preventing a miscarriage of justice. The Court also had to determine the competency of the appeal and whether further evidence should be admitted.

The Court reasoned that section 67F of the *Evidence Act 1929* (SA) establishes a statutory privilege for "protected communications," which are defined to include communications made to a counsellor or therapist. Subsection (5) mandates a balancing exercise, weighing the public interest in confidentiality against the public interest in preventing a miscarriage of justice. The Court found that certain identified documents, specifically pages 56-57 of Volume 1 (Royal Adelaide Hospital Documents), pages 37-42 and 53-55 of Volume 3 (Queen Elizabeth Hospital Patient Records), and pages 28 and 30 of Volume 6 (Glenside Medical Records Schedule 3), were indeed protected communications. The Court allowed the appeal to the extent of holding these documents to be protected communications, implying that their production or admission would be subject to the strictures of section 67F. The application for judicial review was dismissed.