Chief Executive, Department for Health & Ageing v The CORONER'S Court of South Australia
[2015] SASCFC 159
•11 November 2015
Supreme Court of South Australia
(Full Court: Application for Judicial Review)
CHIEF EXECUTIVE, DEPARTMENT FOR HEALTH & AGEING v THE CORONER'S COURT OF SOUTH AUSTRALIA
[2015] SASCFC 159
Judgment of The Full Court
(The Honourable Acting Chief Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kelly)
11 November 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
HEALTH LAW - ADMINISTRATION OF PUBLIC HEALTH SYSTEM - HEALTH RECORDS AND DISCLOSURE OF MEDICAL INFORMATION
Application for judicial review of a decision of the Deputy Coroner and a summons issued by the Coroner’s Court – where Coroner investigating death in hospital caused by an unusual condition and determining to investigate earlier death of another person at the same hospital due to same condition – where earlier death the subject of investigation by a committee established under Part 7 of the Health Care Act 2008 (SA) – where work of committee subject to far-reaching restrictions and protections found in Part 7 and particularly in s 66 – rationale for those protections – extent of them – construction of s 66 – whether Coroner erred in law in finding that persons to whom s 66 did not apply might come into possession of information and material regulated by s 66 and that such material might be in plaintiff’s possession or control by virtue of his position – whether summons directed to the plaintiff but also targeting a class of documents in possession of the committee sought to go behind s 66.
Held (Vanstone J, Kelly J agreeing): Coroner erred in finding that he was entitled to require production to him of documents protected by Part 7 and in issuing a summons which purported to require production of protected material – order quashed and summons set aside.
Held (Gray ACJ dissenting): The application should be dismissed. The Coroner was entitled to issue a summons in these terms. The summons and ruling should be read so as to require production only of material not protected by Part 7.
South Australian Health Commission Act 1976 (SA) s 64D; Health Care Act 2008 (SA) s 63, s 64, s 65, s 66; Coroners Act 2003 (SA) s 23; Public Sector Act 2009 (SA) Part 6, Division 3; Freedom of Information Act 1991 (SA), referred to.
Southern Adelaide Health Service v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556; X v Y [1988] 1 All ER 648; W v Egdell [1990] 1 All ER 835; Mason v MWREDC Ltd (2011) 199 FCR 151; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; Potter v Minahan (1908) 7 CLR 277; Australian Crime Commission v Stoddart (2011) 244 CLR 554; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, considered.
CHIEF EXECUTIVE, DEPARTMENT FOR HEALTH & AGEING v THE CORONER'S COURT OF SOUTH AUSTRALIA
[2015] SASCFC 159Full Court: Gray ACJ, Vanstone and Kelly JJ
GRAY ACJ.
This is an application for judicial review.
Background
The defendant, the Coroner’s Court of South Australia, is conducting an inquest into the death of MP. On 14 April 2012, MP, aged 25 years and 23 weeks pregnant, experienced an unconscious collapse and severe abdominal pain while at a supermarket. She was taken by ambulance to the Women’s and Children’s Hospital, where she was examined by a number of medical practitioners of varying levels of experience. MP had not been examined by a consultant physician. The examinations of MP did not result in a definitive diagnosis of her condition. On 15 April 2012, MP underwent emergency surgery to identify and correct her pathology. MP died during surgery and the cause of her death, a ruptured splenic artery aneurysm, was not identified until a post-mortem examination.
The inquest heard evidence that MH died on 11 August 2009 as a result of a ruptured splenic artery aneurysm. Her condition was not diagnosed until after her death. The Deputy Coroner seeks to consider the State’s response to MH’s death and review any recommendations made in light of her death. The Twenty-fourth Report of the Maternal, Perinatal and Infant Mortality Committee on maternal, perinatal and post-neonatal deaths in 2009 including the South Australian Protocol for Investigation of Stillbirths was tendered into evidence at the inquiry over the objection the Women’s and Children’s Hospital, notwithstanding that the report was publicly available on the SA Health website. The report refers to a maternal death in 2009 that was attributed to irreversible shock due to severe coagulopathy following haemorrhage from a ruptured splenic artery aneurysm complicating late pregnancy. The report does not identify the woman or hospital involved or whether any recommendations were made consequent upon any investigation into the death.
On 11 February 2015, the Deputy State Coroner issued a summons to the plaintiff, the Chief Executive of the Department for Health and Ageing, in the following terms:
WHEREAS I have reason to believe that you have in your possession or power any hard copy or electronic documentation and minutes, relating to any review undertaken by the Maternal, Perinatal and Infant Mortality Committee relating to the death of [MH], date of death 11 August 2009 at the Women’s and Children’s Hospital and any documentation received by, created by or otherwise in possession of the Maternal, Perinatal and Infant Mortality Committee, relating to the death of [MH]. This is including, but not limited to any report of said committee relating to the death of [MH] and any such document or report in relation to the maternal death described in the twenty fourth report of the said committee at page 17, required for the purpose of evidence at the Inquest concerning the death of [MP].
Now by virtue of the provisions of Section 23, Coroners Act, 2003, and all other enabling powers, I, require you to produce to me the said documents.
The Chief Executive objected to the production of any material described in the summons on the basis that part 7 of the Health Care Act 2008 (SA), in particular section 66, operated as a statutory bar to production.
On 2 March 2015, the Deputy Coroner made a ruling that the Chief Executive comply with the summons and produce the documentary material described therein. This decision is the subject of the present application for judicial review.
The Deputy Coroner
The Deputy Coroner had regard to the purpose of part 7 of the Health Care Act, as set out in section 63(2) of the Act:
The purpose of this Part is to allow the authorisation of activities associated with undertaking or making assessments, evaluations or recommendations with respect to the practices, procedures, systems, structures or processes of a health service—
(a) where the purpose of any such activity is wholly or predominantly to improve the quality and safety of health services; and
(b) where the public disclosure of, or public access to, information is restricted in order to achieve the best possible outcomes associated with the improvement of health services.
The Deputy Coroner considered that section 63(2)(b) did not create a total prohibition of public disclosure of information contemplated by the provision. The Deputy Coroner set out the following passage from the second reading speech which addressed the purpose and function of part 7:[1]
The quality improvement or research activities are protected in the same way as that currently provided for under section 64D of the South Australian Health Commission Act 1976. However the provisions in this Bill have taken into account recent Crown Law advice and court judgements to ensure persons or groups of persons conducting research into the causes of mortality or morbidity, or involved in the assessment and improvement of the quality of specified health services are properly protected from being legally required to make certain information public.
The provisions in the Bill support clinicians, managers and others to communicate openly and honestly in assessing the processes and outcomes of the provision of health services where there has been a significant adverse event and to make recommendations for system improvements. This is most likely to happen where those involved are secure in the knowledge that what they divulge cannot be made public or used in any proceedings. The Bill, in promoting full and frank discussion in a ‘protected’ environment for the purposes of facilitating quality improvement in health services, maintains the right to have access to or disclose information in the public interest. This is consistent with what is the current intent of section 64D of the South Australian Health Commission Act 1976. To further support participation in an analysis of an adverse event undertaken under Part 8 of the Bill, a provision is drafted enabling a person who believes they have been victimised as a result of this participation to take action that can be dealt with as a tort or under the Equal Opportunity Act 1984.
The Bill provides for a specific investigative procedure, a Root Cause Analysis, to be undertaken where there has been an adverse incident. Root Cause Analysis is a specific type of quality improvement activity which uses an investigative method to determine the underlying contributing factors leading to an adverse event. The purpose is to identify the system issues that result in adverse events occurring and to arrive at a series of recommendations to reduce the likelihood of the adverse event from occurring again. RCA has a systems focus. It does not review individual responsibility nor does it investigate performance, intentionally unsafe acts, criminal acts or acts relating to clinician impairment. These are left to the appropriate bodies such as registration boards or courts.
[Emphasis added.]
[1] South Australia, Parliamentary Debates, Legislative Council, 25 October 2007, 1174 (Hon GE Gago).
The Deputy Coroner noted that the Health Care Act addresses the disclosure of information. Section 66 provides:
Protection of information
(1) This section applies to—
(a) a person who is, or has been, an authorised person; or
(b) a person—
(i) who provides, or has provided, technical, administrative or secretarial assistance to an authorised person or in connection with an authorised activity; or
(ii) who receives or gathers information on behalf of an authorised person in connection with an authorised activity.
(2) A person to whom this section applies must not—
(a) make a record of information gained as a result of, or in connection with, an authorised activity; or
(b) make use of or disclose information gained as a result of, or in connection with, an authorised activity,
except—
(c) to the extent necessary for the proper performance of the authorised activity; or
(d) in pursuance of any reporting requirements of a prescribed kind to a governing body of an entity; or
(e) as part of making a disclosure to another authorised person; or
(f) to the extent allowed by the regulations.
Maximum penalty: $60 000.
(3) Without limiting subsection (2), a person to whom this section applies cannot be required—
(a) to produce to a court, agency or other body any document that has been brought into existence for the purposes of an authorised activity; or
(b) to disclose to a court, agency or other body any information that has become known for the purposes of an authorised activity.
(4) Subsections (2) and (3) do not apply to any information or document that does not identify, either expressly or by implication, a particular person or particular persons.
(5) This section does not prohibit a disclosure of information if the person, or each of the persons, who would be directly or indirectly identified by the disclosure consents to that disclosure of the information.
The Deputy Coroner considered that section 66 as a whole only applies to authorised persons and persons with a connection to an authorised person or activity. The Deputy Coroner considered that section 66 recognises a distinction between persons to whom the section applies and a governing body. The Deputy Coroner further considered that section 66 contemplates that persons other than persons to whom the section applies will come into possession of information gathered in connection with authorised activities, as well as reports, recommendations and other material. The Deputy Coroner considered that the prohibitions on disclosure contained in section 66 apply only to the persons to whom the section is said to apply and that the Chief Executive was not such a person. The Deputy Coroner concluded that section 66 did not prohibit the Chief Executive from complying with the summons.
The Deputy Coroner had regard to the terms of reference of the Maternal, Perinatal and Infant Mortality Committee and its relevant subcommittee. The Deputy Coroner further had regard to the duties of the Chief Executive and the Minister under the Health Care Act. The Deputy Coroner concluded that an entity within SA Health would be in a position to produce the required documentation:
I have already referred to the fact that according to the Twenty-fourth Report of the Committee, the Subcommittee’s terms of reference include an obligation to report to the Committee in respect of its activities. In turn, the Committee’s terms of reference are to advise the Chief Executive of certain matters. The matters identified in the terms of reference of both the Committee and the Subcommittee would fall within the compass of Part 7 of the Act. A duty on the part of the Committee to report to the Chief Executive, based upon a report to it from the Subcommittee in respect of any particular matter would be in keeping with the Chief Executive’s duties and responsibilities as set out in the Act. It is not necessary to set out here the duties and responsibilities of both the Chief Executive and the Minister, but it is clear that both the Chief Executive and the Minister have responsibility for the administration of the Health Care Act 2008 and that the Chief Executive has a duty to assist the Minister in the carrying out of the latter’s responsibilities. One only has to examine the list of duties and responsibilities in respect of both officers to come to the conclusion that any suggestion that the Chief Executive would not be in a position to produce the material sought in the summons is untenable. To my mind the summons is well aimed. Even if it was not, one would have thought that there would be an entity within SA Health, a model litigant, who would be in a position to produce the required documentation and who was not a person to whom section 66 of the Act applies.
The final matter concerns the question of the identification or possible identification either by express reference or by implication to a person or persons in the documentation sought. Not having seen any of the documentation, it is difficult for the Court to determine whether or not persons are identified within the documentation sought, either expressly or by implication. It would seem to the Court to be unlikely, although not impossible, for any recommendations within a document described in the summons to make express reference to a person or persons. It is to be acknowledged that if such a document was produced to the Court there might be a concomitant implicit revelation that the recommendations arose pursuant to an investigation into the death of [MH]. However, I am not persuaded that a set of recommendations would either expressly or by implication identify persons who had been involved in her clinical management or any person who had provided information to or had otherwise assisted in the authorised activity underlying the recommendations. It will be observed that section 66 does not prohibit disclosure of information if the person or each of the persons who would be directly or indirectly identified by the disclosure consents to that disclosure of the information. To my mind, the implication of this exception is that the reference within the provision to the identification of persons is confined to the identification of persons who are capable of providing or withholding the consent contemplated in section 66(5). However, as earlier observed, the exception appears to be confined to the prohibition of disclosure of information as distinct from the production of documentary material. To my mind, there could be nothing objectionable in the Court receiving into evidence, orally, evidence of recommendations that had been made in respect of the [MH] matter notwithstanding that this evidence would identify [MH’s] death as the matter that gave rise to the recommendations.
The Application
On the application for judicial review, the Chief Executive submitted that the purpose of section 66 of the Health Care Act is to permit the disclosure of confidential information to certain persons for the purposes of research or service evaluation and to provide a privilege against coerced disclosure of that information in a court or administrative tribunal.[2] It was pointed out that the compulsory powers of summons in the Coroners Act 2003 (SA) are expressed to be subject to part 7 of the Health Care Act. It was further pointed out that the Maternal, Perinatal and Infant Mortality Committee and the South Australian Maternal Mortality Subcommittee were authorised persons for the purpose of section 66. It was submitted that the effect of the restrictions on disclosure under section 66 is that authorised persons are not permitted to make, and cannot be required to make, an identifying disclosure to the Chief Executive – the Chief Executive would only come into possession of de-identified material which is provided in annual reports.
[2] See Southern Adelaide Health Service v C; Case Stated on Acquittal (No.1 of 2006) (2007) 97 SASR 556, which addressed section 64D of the South Australian Health Commission Act 1976 (SA).
The Deputy Coroner was not represented on the application for judicial review. The Australian Lawyers Alliance was granted permission to intervene in the application to act as contradictor. The Alliance submitted that section 66 does not prevent disclosure by a person other than an authorised person. It was pointed out that the Chief Executive is not an authorised person. It was accepted that the Chief Executive would not be taken to have in his control documents which he could not lawfully obtain and, insofar as section 66 prevented authorised persons from disclosing documents to the Chief Executive, those documents were not within his control.
The Legislative Scheme
Part 7 of the Health Care Act addresses “quality improvement” and “research”. Section 63(2) of the Health Care Act, as extracted above, identifies the purpose of part 7. The terms of section 63(2) make it plain that the subsection does not itself have any direct operative effect.
Section 64(1) confers a discretion on the Minister to declare a particular activity to be an “authorised quality improvement activity” or “authorised research activity”. The Minister may also declare a particular person or group of persons an “authorised entity” for the purpose of carrying out a declared activity. “Authorised person” is defined in section 63(1) to mean a person within the ambit of a declaration under section 64, namely an authorised entity or a member of an authorised entity.
Section 66(2)(a) prohibits a certain limited class of persons, namely persons to whom the section applies, from making a record of certain information gained as a result of or in connection with an authorised activity. Section 66(2)(b) prohibits those persons from making use of or disclosing the information. Pursuant to section 66(3), those persons cannot be required to produce or disclose to a court, agency or other body a document or information that has been brought into existence or become known for the purposes of an authorised activity.
Section 66(4) limits the prohibitions in section 66(2)(a) to information that identifies, either expressly or by implication, a particular person or particular persons. The prohibitions are subject to a number of exceptions. Section 65 provides that information may be disclosed for the purpose of an authorised activity. Section 66(2)(c) permits disclosure to the extent necessary for the proper performance of an authorised activity. Section 66(2)(d) permits disclosure in pursuance of any reporting requirements of a prescribed kind to a governing body of an entity. Section 66(2)(e) permits disclosure as part of making a disclosure to another authorised person. It may be understood that an authorised person to whom material is disclosed pursuant to section 66(2)(e) will also be bound by section 66 in relation to that information.
Each of sections 66(2)(c) and 66(2)(d) contemplate disclosure to persons to whom section 66 does not apply. Those persons, having received the information, are not subject to the restrictions imposed by sections 66(2) and (3) as those restrictions are expressly limited in their application. This is consistent with the policy of the section, as set out earlier in these reasons. The nature of the exceptions in is such that once disclosure has been made under those provisions it cannot be expected that the information should remain subject to a prohibition on further disclosure. The maintenance of a non-disclosure requirement in respect of that information would not serve the legislative purpose that justifies the exceptions. Rather, it would undermine that legislative purpose. There is little point in research concerning the quality of medical services and the avoidance of morbidity if the outcomes of that research, including reasonably detailed recommendations, cannot ultimately be communicated to those involved in medical practice. It may be accepted that the provision of relatively detailed information may be necessary for recommendations that are both accurate and helpful. The provision of this information to persons who were involved in responding to a particular event, or to others who know the identity of those involved, would not, to those persons, be “de-identified”, even if it does not expressly identify any individuals. In the present case, the persons who treated MH are very likely to recognise the facts of her case in any recommendation, and thus she will be identified. Further, persons who know the identities of the practitioners who treated MH and who have been told something of the circumstances of her death would be likely to identify both MH and her treating practitioners. Although, properly understood, the report identifies MH, the disclosure was authorised by section 66(2)(c) as it was only to the extent necessary for the proper performance of the authorised activity undertaken by the Committee.
Section 66(4) limits the class of information to which sections 66(2) and (3) apply. The restrictions on the disclosure of information do not apply to information or documents that do not identify, either expressly or by implication, a particular person or persons. The disclosure of a broad category of information is only prohibited in limited circumstances. Once the information is lawfully disclosed in accordance with section 66 to a person to whom section 66 does not apply, its further disclosure is not prohibited, irrespective of whether the information may identify a particular person.
Properly understood, part 7 of the Health Care Act is intended to protect the confidentiality of patients and persons involved in reviewing highly personal and sensitive material in the course of making improvements to the health care system. There is a strong public interest in both protecting personal information and facilitating the improvement of the public health care system. It is relevant to recall the remarks of Rose J concerning the public in the preservation of confidentiality:[3]
In the long run, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients will not come forward if doctors are going to squeal on them. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care.
Consistent with the public interest in maintaining confidentiality, the drafting of both the Coroners Court Act and part 7 of the Health Care Act evinces a strong intention by Parliament to ensure that personal information is only disclosed in tightly controlled circumstances.
[3] X v Y [1988] 1 All ER 648, 653, cited with approval in W v Egdell [1990] 1 All ER 835.
The Summons
The Chief Executive is the head of the administrative unit of the public service known as the Department for Health and Ageing.[4] He is in a position to assert management responsibility, authority and control over documents and relevant materials which record and reflect the expression of the exercise of departmental functions, powers and responsibilities.[5] He is generally to be regarded as having the capacity to produce, documents that are in the possession of officers of his Department in the course of Departmental business.[6]
[4] Public Sector Act 2009 (SA) part 6, division 3.
[5] Mason v MWREDC Ltd (2011) 199 FCR 151, [116].
[6] See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 31 (Gibbs CJ), 66 (Brennan J).
As noted above, the Chief Executive is not an authorised person. As a consequence, section 66 of the Health Care Act does not apply to the Chief Executive.
The Department is not itself a legal entity. As a consequence, it is appropriate, when attempting to obtain documents within the Department, to address a summons to the Chief Executive. The summons in the present case was addressed to the Chief Executive, notwithstanding that it sought documents in the possession of the Committee. The Chief Executive is not a member of the Committee. It is to be understood that the Chief Executive may only be required to produce documents that are within his control. Not all documents in the possession of members of the Committee or the Department may be within the control of the Chief Executive. As a consequence, the summons is to be read as seeking documents, including copies of documents, in the control of the Chief Executive which were created by the Committee or which had come into the Committee’s possession, for example documents that had been provided to the Committee by one of its subcommittees. If a document could not lawfully be disclosed to the Chief Executive by a member of the Committee, that document is not within the control of the Chief Executive. The order for compliance with the summons is to be read consistent with this reading of the summons.
The summons includes documents which, in accordance with part 7 of the Health Care Act, members of the Committee would be obliged to provide on request from the Chief Executive. For example, having regard to the respective roles of the Chief Executive and the Committee, the Chief Executive might lawfully request to be provided with any recommendation the Committee made arising out of the incident described on page 17 of its report. It would be for the Committee, consistent with its reporting obligations and as part of performing its authorised activity, to provide its recommendations in an appropriate form, to the extent that were possible, having regard to the purpose of making recommendations.
Of particular concern to the Chief Executive on the present application was the Deputy Coroner’s expressed dissatisfaction with the submission put to him by counsel for the Chief Executive that the Chief Executive would only be in a position to disclose the Committee’s report. It was submitted that the following passage of the Deputy Coroner’s reasons suggested that the Deputy Coroner had made a finding of fact, unsupported by evidence, that the Chief Executive had possession of the documents sought in the summons:
... any suggestion that the Chief Executive would not be in a position to produce the material sought in the summons is untenable... there would be an entity within SA Health, a model litigant, who would be in a position to produce the required documentation and who was not a person to whom section 66 of the Act applies.
It is to be noted that the Deputy Coroner summarised the submission of counsel for the Chief Executive that the Chief Executive was “not in possession of documentation of the kind described in the summons, nor was in a position to be able to produce it and therefore comply with the summons.” The Deputy Coroner’s summary of the submission recognises a distinction between possession of documents and being in a position to produce documents, namely having control of the documents. To my mind, this finding is not a finding that the Chief Executive has documents in his possession. It is expressly a finding that the Chief Executive would be in a position to produce the documents sought or, failing that, another entity within SA Health would be in a position to produce the documents sought. In my view, this is a finding concerning the Chief Executive’s power to obtain documents, not a finding concerning his immediate possession of documents. In any event, the complained of passage of the Deputy Coroner’s ruling is not properly the subject of a no evidence submission.[7]
[7] See WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139, [17].
Insofar as the Deputy Coroner considered that the Chief Executive was in a position to produce further documents, the Deputy Coroner must have considered that there was at least a reasonable possibility that there existed a body of relevant documents. This view was formed based on the Deputy Coroner’s consideration of counsel’s submissions. In the Coroner’s Court, the Chief Executive, through his counsel, initially refused to answer questions of the Deputy Coroner as to the identity of the patient referred to in the report. This refusal was apparently predicated on an assumption that section 66 applied to the Chief Executive and his counsel. This position was taken in error. Anything the Chief Executive or his counsel knew was not subject to the prohibitions in section 66. It is readily apparent why the Deputy Coroner formed the view that material existed having regard to the following exchanges which took place during argument:
DEPUTY CORONER: Yes, I guess the other question is this, I mean I don't want to waste time in this exercise, but am I right in assuming that there must be some documentation or information or report of that committee that is in fact covered or allegedly covered by these prohibitions? I mean if there's no information or documentation and simply there was never any such review by that committee, then I'd need to know that because any argument about it might be then pointless.
COUNSEL: Yes, without trying to be difficult my present instructions are that I can't directly address your Honour on the question because if I tell you what information may or may not be available, that would tend to potentially reveal the identity of the person who would be subject of authorised activity under the Act and would be inconsistent with my instructions about the way in which this section works. I think that's probably as far as I can take it.
DEPUTY CORONER: Yes, all right, I think I can infer certain things from that.
...
COUNSEL: The other matter that concerns about this issue is the use that can be put to any investigations that were undertaken by this committee in relation to an earlier death.
DEPUTY CORONER: Yes.
COUNSEL: Your Honour sees in that report recommendations made by that subcommittee and in its de-identified form there is nothing there that relates to splenic artery aneurysm or that would take this matter much further. Now, your Honour is aware that these reports are prepared for the purposes of guiding systems changes and to be publicly available information upon the committee's review. So, it's against this background that your Honour can assess what, if anything, should have happened before [MP]'s death in 2012. So, with all respect, if your Honour wants to pursue this course, we can have the argument but it's just in light of the time that it will take, I wonder how far and how helpful this information would be.
...
DEPUTY CORONER: Do I infer from that then that there were no recommendations made specifically relating to the death described on p.17?
COUNSEL: I can't answer that question, if you draw that inference, that's a matter for you but on the basis of instructions that I have, I can't disclose any information that has been derived from the conduct of the authorised activity and that is because of the breadth of the provision.
[Emphasis added.]
Counsel’s submissions indicated an awareness on either her part or the part of the Chief Executive of the existence of relevant documents or information and a refusal to disclose that information pursuant to section 66 of the Health Care Act. As noted above, section 66 of the Health Care Act did not prohibit counsel or the Chief Executive from disclosing what they knew – they were not authorised persons, they were not obtaining information on behalf of an authorised person and they were not providing technical, administrative or secretarial assistance to an authorised person. These submissions, in my view, provided a basis for the Deputy Coroner to conclude that relevant material may exist. Counsel for the Chief Executive later submitted:
COUNSEL: I can indicate to your Honour and I am hopeful that this might solve some of the issue; it may not. The only document that the chief executive would have that it could disclose, would be this public report, so that's the Maternal and Perinatal and Infant Mortality in South Australia 2009, so this is the nature of the information that he has in his possession, and this would be the only thing that would be disclosable, so it's all published information. I don't know if that assists the court any further in resolving the issue.
DEPUTY CORONER: The chief executive though, would he not, would be able to secure the material that has been generated or collected by that Maternal Review Committee would he not?
COUNSEL: It's not passed to him. I suppose in terms of the efficacy of the summons and the appropriate - the difficulty here is, we are not dealing with legal entities as such, and that makes this a little bit artificial.
[Emphasis added.]
Counsel’s submission addresses the nature of the documents in the Chief Executive’s possession and the nature of documents which are “passed to him”. It does not address the possibility that the Chief Executive could at least attempt to obtain material from the Committee which the Committee would not disclose pursuant to an authorised reporting activity but which could in any event be disclosed as it did not identify expressly or by implication a particular person. In my view it was open to the Deputy Coroner to expect that the Chief Executive could make further enquiries of the Committee in relation to the provision of further material which it could lawfully disclose but would not otherwise consider necessary to disclose in the course of its reporting activities.
It may be observed that the best procedural course would have been to hear evidence concerning what material was or could become available before ruling on the objection to the summons. That is, however, a matter that may be addressed on the return of the summons. It is to be noted that, on the application before this Court, the Chief Executive sought to tender an affidavit of Wendy Katharine Scheil affirmed on 31 March 2015. This affidavit relevantly asserts that the only document provided to the Chief Executive by the Committee was the Committee’s report. The affidavit further asserts that the Committee is the only entity with the documents described in the summons. The Deputy Coroner did not have the benefit of this affidavit. An assessment of the nature of the documents in existence and whether that material lends itself to disclosure will ultimately depend on an assessment of relevant evidence. As far as the present application is concerned, it was open to the Deputy Coroner to expect that the Chief Executive could access material beyond the publicly available report. That may not, however, ultimately prove to be the case.
A Further Matter
In the Coroner’s Court, counsel for the Chief Executive submitted that the Chief Executive was not prepared to allow the Deputy Coroner to view any material that might fall within the description in the summons to enable the Court to assess whether it was material to which section 66 applied. Counsel for the Chief Executive made a further – and prima facie extraordinary – submission before the Deputy Coroner that a superior court could not view material for the purpose of determining whether section 66 applies. These submissions do not call for determination on the present application and were not argued in detail. However, it should be noted that only the most explicit and specific statutory language could possibly revoke the Supreme Court’s power and responsibility to inspect documents for the purpose of determining whether a privilege or immunity applies, and instead place it with others to whom section 66 of the Health Care Act applies, with the consequence that the very persons seeking to claim the immunity would also determine the correctness of their claim.[8] Explicit and specific language to prohibit the Supreme Court from inspecting documents to determine whether section 66 applies is not present in section 66. It may also be understood that the object or purpose of section 66 does not require that the section be given an expansive construction to revoke the Supreme Court’s power to determine whether 66 applies to documents. As a consequence, one would expect that the Supreme Court, at the very least, may request production of documents over which the immunity is claimed in order to determine whether the immunity applies, reflecting the approach taken with respect to documents over which legal professional privilege or public interest immunity[9] are claimed.
[8] Potter v Minahan (1908) 7 CLR 277, 304; Australian Crime Commission v Stoddart (2011) 244 CLR 554, [182].
[9] See Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532.
Conclusion
The Deputy Coroner, in my view, was entitled to issue a summons in the terms extracted above. The Chief Executive is not, however, required to produce documents that he cannot lawfully obtain. Neither the summons nor the Deputy Coroner’s ruling should be read to require the Chief Executive to unlawfully obtain documents. If the Deputy Coroner is unsatisfied with the Chief Executive’s response to the summons and considers that the Chief Executive could obtain more documents from the Committee, then that is a matter for the Deputy Coroner to pursue with the Chief Executive. If the Deputy Coroner considers that the Committee is improperly withholding documents from the Chief Executive, then that is a matter for the Deputy Coroner to pursue with the Committee.
I would dismiss the application.
VANSTONE J: The plaintiff is the Chief Executive of the Department for Health and Ageing. He is the recipient of a summons dated 11 February 2015 issued by the Coroner’s Court. The Chief Executive took objection to the production of the documentary material specified in the summons. That led to a ruling to the effect that the “Chief Executive was required to comply with the summons and produce the documentary material described therein”.
The Chief Executive now seeks an order in the nature of certiorari, quashing that decision and setting aside the summons. The matter was referred to the Full Court of the Supreme Court by the Chief Justice on 30 June 2015.
For the reasons which follow I consider that the ruling should be quashed and the summons should be set aside on the basis that it purports to compel production of documentary material, the production of which is prohibited by statute.
Background
The Coroner’s Court, constituted by the Deputy State Coroner, is holding an inquest into the 2012 death of a person to whom I shall refer as “Ms P”. Consistently with the Court’s purpose of making recommendations that may prevent or reduce the likelihood of recurrence of similar events, the Deputy Coroner has indicated an intention to investigate the death in 2009 of another person, whom I shall call “Ms H”, from the same or a similar cause and at the same hospital. In particular the Deputy Coroner has expressed interest in examining what, if any, recommendations were made arising out of the earlier death which might have informed the treatment of Ms P.
The relevant terms of the summons are as follows:
FORM 6
CORONERS ACT, 2003
SUMMONS TO PRODUCE DOCUMENTS
SOUTH AUSTRALIA
WHEREAS I have reason to believe that you have in your possession or power any hard copy or electronic documentation and minutes, relating to any review undertaken by the Maternal, Perinatal and Infant Mortality Committee relating to the death of [Ms H], date of death 11 August 2009 at the Women’s and Children’s Hospital and any documentation received by, created by or otherwise in possession of the Maternal, Perinatal and Infant Mortality Committee, relating to the death of [Ms H]. This is including, but not limited to, any report of said committee relating to the death of [Ms H] and any such document or report in relation to the maternal death described in the twenty fourth report of the said committee at page 17, required for the purpose of evidence at the Inquest concerning the death of [Ms P].
Now by virtue of the provisions of Section 23, Coroners Act, 2003, and all other enabling powers, I, require you to produce to me the said documents.
Dated this Wednesday, 11 February 2015
(signed)
Deputy State Coroner
Inquest No: 1/2015
TO:
Office ofthe Chief Executive OfficerSouth Australian Department for Health and Ageing
Citi Centre Building, 11 Hindmarsh SquareADELAIDE SA 5000
The reference in the summons to documentation received by, created by, or otherwise in the possession of the Maternal, Perinatal and Infant Mortality Committee requires explanation.
The Committee is one established under Part 7 of the Health Care Act 2008 (SA) (the Act). Part 7 of the Act is entitled “Quality improvement and research”. The purpose of Part 7 is given in s 63(2) of the Act. It provides:
63—Preliminary
…
(2) The purpose of this Part is to allow the authorisation of activities associated with undertaking or making assessments, evaluations or recommendations with respect to the practices, procedures, systems, structures or processes of a health service—
(a)where the purpose of any such activity is wholly or predominantly to improve the quality and safety of health services; and
(b)where the public disclosure of, or public access to, information is restricted in order to achieve the best possible outcomes associated with the improvement of health services.
Pursuant to s 64 of the Act the Minister may declare an activity an authorised activity and may declare a group of persons formed as a committee to be an authorise entity to carry out such an activity. Once so declared, such a committee is subject to the far reaching restrictions and the protections found in Part 7 of the Act. Those restrictions operate to protect not only the identity and confidentiality of patients, but also of hospital personnel who have provided information to such a committee.
The role of the Committee, as set out in its Terms of Reference, is to perform:
A statewide function and … to advise the Chief Executive of SA Health on:
1. the pattern and causation of maternal, perinatal and infant deaths in the state;
2. the avoidability of any factors associated with such deaths and any measures which could be taken to assist with prevention of such deaths, including improvements in health services in the state;
3. education and training for members of the medical, midwifery and nursing professions and for the community generally in order to assist in the reduction of maternal, perinatal and infant morbidity and mortality in the state.
There is quite a long history of comparable protections being given to persons or bodies undertaking such research and their informants and the information gained. Prior to the enactment of the Act in 2008, s 64D of the South Australian Health Commission Act 1976 (SA) made provision for persons to be authorised by the Governor to have access to confidential information for the purposes of conducting research into the causes of mortality or morbidity, or assessing and improving the quality of specified health services. That section contained comparable prohibitions on such persons divulging such confidential information, including in proceedings before any court, tribunal or board.
In Southern Adelaide Health Service v C (2007) 97 SASR 556 at 571, Debelle J (Anderson J agreeing) held that the purpose of s 64D was threefold. His Honour said:
First, it permits the disclosure of confidential information to persons or members of bodies or groups authorised to receive it for the purposes identified in s 64D(1): see s 64D(2). Secondly, it prohibits a person to whom confidential information has been disclosed pursuant to subsection (2) from divulging it in any circumstances including proceedings before a court: s 64D(3). Thirdly, it prohibits a person to whom confidential information has been disclosed from being asked or required to answer, when a witness in any proceedings, any question directed at obtaining confidential information disclosed to the witness pursuant to subsection (2): s 64D(5).
Debelle J further noted that confidential information extended to information relating to a health service in which the identity of the persons providing the service was revealed.
The public interest in encouraging full and frank disclosure to promote improvement of hospital systems and processes was emphasised in the Second Reading Speech (South Australia, Parliamentary Debates, House of Assembly, 27 September 2007, page 976 (JD Hill, Minister for Health)) on the introduction of the Bill for what became the 2008 Act:
The provisions in the Bill support clinicians, managers and others to communicate openly and honestly in assessing the processes and outcomes of the provision of health services where there has been a significant adverse event and to make recommendations for system improvements. This is most likely to happen where those involved are secure in the knowledge that what they divulge cannot be made public or used in any proceedings. The Bill, in promoting full and frank discussion in a ‘protected’ environment for the purposes of facilitating quality improvement in health services, maintains the right to have access to or disclose information in the public interest. This is consistent with what is the current intent of section 64D of the South Australian Health Commission Act 1976.
As seen, this purpose is stated explicitly in s 63(2) of the Act. The premium placed on the protection of the confidentiality of information gained as a result of or in connection with an authorised activity is emphasised by s 63(3) which provides that Part 7 of the Act has effect despite the Freedom of Information Act 1991, and by s 63(4), which provides that Part 7 of the Act prevails in the case of inconsistency with any other Act or law. By way of complement the powers given to the Coroner’s Court for the purposes of an inquest – including to summons, require the production of records and documents and to inspect them – are expressed not to derogate from Parts 7 and 8 of the Health Care Act: s 23 Coroners Act 2003 (SA).
On 16 June 2011, the Minister for Health made a declaration pursuant to subsections 64(1)(a)(i) and (b)(i) of the Act that the Department of Health South Australian Maternal, Perinatal and Infant Mortality Committee (the Maternal Committee) is an entity authorised to undertake the authorised activity of “review and analysis of causes of Maternal, Perinatal and Infant Mortality”. By the same instrument, the Minister also declared the Department of Health South Australian Maternal Mortality Subcommittee (the Maternal Subcommittee) to be an entity authorised to undertake the authorised activity of “review and analysis of causes of Maternal Mortality and serious Morbidity”.
Pursuant to its Terms of Reference, the Maternal Subcommittee reviews the causes of death or serious morbidity associated with pregnancy and childbirth, determines whether they may have been preventable and establishes what were the avoidable factors, if any, presented in the case history. It then reports to the Maternal Committee. The Maternal Committee in turn reports to the Chief Executive. Its reporting obligation is set out in its Terms of Reference as follows:
The South Australian Maternal, Perinatal and Infant Mortality Committee reports to the Chief Executive of the Department of Health and provides an annual report [on] Maternal, Perinatal and Infant Mortality in South Australia. This report provides recommendations and incorporates summaries of the case reviews and activities undertaken by the four Subcommittees. The recommendations from this report are implemented at a statewide level, with all public hospitals required to evaluate their performance annually against these recommendations. In this manner, systemic improvements in the safety and quality of health care in the South Australian health system are made and maintained.
Reports, communications and advice provided by the committee will not contain identifying information when given to persons/groups/bodies not authorised under the Act.
In the course of the inquest the Coroner’s Court admitted into evidence the 24th Report of the Maternal Committee, a report publicly available on the website of SA Health. It is the material standing behind this report which is, on the face of it, one of the objects of the summons.
I turn back to the relevant statutory provisions.
Section 65 of the Act allows for information, including confidential information, to be disclosed for the purposes of an authorised activity without any breach of any law or principle of professional ethics. Section 66, entitled “Protection of information”, contains the provisions which are directly raised by this application. It appears as follows:
66—Protection of information
(1) This section applies to—
(a) a person who is, or has been, an authorised person; or
(b) a person—
(i)who provides, or has provided, technical, administrative or secretarial assistance to an authorised person or in connection with an authorised activity; or
(ii)who receives or gathers information on behalf of an authorised person in connection with an authorised activity.
(2) A person to whom this section applies must not—
(a)make a record of information gained as a result of, or in connection with, an authorised activity; or
(b)make use of or disclose information gained as a result of, or in connection with, an authorised activity,
except—
(c)to the extent necessary for the proper performance of the authorised activity; or
(d)in pursuance of any reporting requirements of a prescribed kind to a governing body of an entity; or
(e)as part of making a disclosure to another authorised person; or
(f)to the extent allowed by the regulations.
Maximum penalty: $60 000.
(3) Without limiting subsection (2), a person to whom this section applies cannot be required—
(a)to produce to a court, agency or other body any document that has been brought into existence for the purposes of an authorised activity; or
(b)to disclose to a court, agency or other body any information that has become known for the purposes of an authorised activity.
(4) Subsections (2) and (3) do not apply to any information or document that does not identify, either expressly or by implication, a particular person or particular persons.
(5) This section does not prohibit a disclosure of information if the person, or each of the persons, who would be directly or indirectly identified by the disclosure consents to that disclosure of the information.
It will have been noted that s 66(4) and (5) contain qualifications which could, in particular circumstances, affect the extent of the protections provided by the balance of the section. Section 66(4) excepts the application of s 66(2) and (3) to information which does not identify any person, even by implication. That exception could operate only upon the most general information. Section 66(5) allows for disclosure in circumstances where every person who might be directly or indirectly identified by that disclosure consents to it. That subsection has no operation here.
The Coroner’s Ruling
The Deputy Coroner found that the Chief Executive is not an “authorised person” in terms of s 64. Therefore, he found that the s 66 prohibitions do not apply to the Chief Executive: [1.22].
However, the Deputy Coroner also found that non-authorised persons, such as the Chief Executive, would receive information and documents generated by authorised activities. He said at [1.22]:
Section 66 clearly contemplates that persons other than persons to whom the section applies, such as the Chief Executive whom the Committee has a duty to advise in accordance with its terms of reference, will come into possession of information gathered in connection with the authorised activities, as well as reports, recommendations and other material either documentary or otherwise. Section 66 does not apply to those persons.
That material, in the Chief Executive’s hands, would not, he said, be protected by s 66. The Deputy Coroner said that, had the legislature intended a “blanket prohibition or restriction” upon disclosure of information gained in connection with an authorised activity, it would not have restricted the operation of s 66 to the persons specified in s 66(1), and would not have included the words “to whom this section applies” in s 66(2) and (3).
The Deputy Coroner found nothing inconsistent with the purposes of Part 7 in requiring persons who were not authorised persons to disclose to a court information or documents to which Part 7 relates: [1.24].
Reference was made to the instructions of the plaintiff’s counsel, conveyed to the Coroner’s Court, that the Chief Executive was not in possession of any relevant material, other than the 24th Report of the Committee: [1.30]. Rejecting that submission, the Deputy Coroner found that, since it was the duty of the Committee to report to the Chief Executive, the Chief Executive must have possession of material the subject of Part 7 of the Act. He said at [1.31]:
A duty on the part of the Committee to report to the Chief Executive, based upon a report to it from the Subcommittee in respect of any particular matter would be in keeping with the Chief Executive’s duties and responsibilities as set out in the Act. It is not necessary to set out here the duties and responsibilities of both the Chief Executive and the Minister, but it is clear that both the Chief Executive and the Minister have responsibility for the administration of the Health Care Act 2008 and that the Chief Executive has a duty to assist the Minister in the carrying out of the latter’s responsibilities. One only has to examine the list of duties and responsibilities in respect of both officers to come to the conclusion that any suggestion that the Chief Executive would not be in a position to produce the material sought in the summons is untenable. To my mind the summons is well aimed. Even if it was not, one would have thought that there would be an entity within SA Health, a model litigant, who would be in a position to produce the required documentation and who was not a person to whom section 66 of the Act applies.
The main ground for the application for judicial review is that the summons was issued in excess of the jurisdiction of the Coroner’s Court, because the Court lacks power to compel production of material the subject of a statutory prohibition on disclosure. It is said that the ruling justifying the terms of the summons is premised on the finding that the Chief Executive has protected material in his possession or power. That finding is said to involve jurisdictional error as the defendant “misapprehend[ed] or disregard[ed] the nature or limits of its functions or powers in a case where it correctly recognise[d] that jurisdiction does exist”: Craig v South Australia (1995) 184 CLR 163 at 177, quoted in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 574 (emphasis from Kirk).
I digress to mention that several documents were tendered in support of the application. Objection was taken by counsel for the intervener to paragraphs 12 and 16 to 18 of the affidavit of Wendy Katherine Schiel. I would uphold that objection. Those paragraphs contain a combination of assertions of fact as to what material the Chief Executive had at the relevant time and argument as to the operation of s 66. The balance of the affidavit was received.
Consideration
There are difficulties with the Deputy Coroner’s analysis. It fails, with respect, to address the fact that the prohibitions in s 66(2) against making records of relevant information and disclosing or making use of that information are, apart from the exceptions provided in s 66(2)(c)–(f) (which have no relevance here) absolute. The prohibitions extend to disclosure, not only to a court, but also to an agency or other body. Plainly the Chief Executive is included in the prohibition. Therefore, if, as the Deputy Coroner suggested, the Chief Executive were to come into possession of information gathered in connection with an authorised activity, that information could not identify, either directly or by implication, any person, patient or informant. As noted, consistently with that restriction, the Terms of Reference of the Maternal Committee provide that “reports, communications and advice provided by the Committee will not contain identifying information when given to persons/groups/bodies not authorised under the Act”. Thus, the Maternal Committee’s duty to advise the Chief Executive is satisfied by the provision of an annual report which is not to contain identifying material. As mentioned, the 24th Report is an exhibit in the inquest. In obedience to the prohibitions in s 66 – and recognising the operation of s 66(4) – it contains no identifying information. There is no basis for assuming, as the Deputy Coroner seems to have done, that the Chief Executive will “come into possession of” a range of information, reports and other material by virtue of the Maternal Committee’s duty to advise him.
The composition of the Maternal Committee is stipulated in its Terms of Reference. The Chair is a person appointed by the Minister of Health. There is no reason to assume that either the Chair or the other members will be personnel of the Department of Health. While it might be expected that the records of the Department of Health are available to the Chief Executive, there is no reason to assume that it is within the Chief Executive’s power to obtain documents in the possession of the Maternal Committee, even non-identifying documents. The Deputy Coroner’s reasons for ruling seem to indicate such an assumption and it is reflected in the drawing of the summons, which, although addressed to the Chief Executive, targets documents in the hands of the Committee. It has been suggested that the summons could be “read down” so as to require production only of those documents that contain no identifying material and which had already been lawfully disclosed to officers of the Department of Health. I do not accept that submission. The wording of the summons is explicit.
There is another difficulty. Any answer to the summons on its terms, beyond provision of the 24th Report, would be, of necessity, such as to identify Ms H as a person whose death was the subject of review and analysis by the Maternal Committee. That identification would breach s 66.
To summarise, there being no specifically applicable exception in s 66(2), an authorised person must not make an (identifying) disclosure to the Chief Executive and the Chief Executive cannot require an authorised person to produce or disclose to him identifying documents or information. That being the case, the statutory aim of protecting identifying information from disclosure to any unauthorised person is achieved. The section is drafted to ensure that identifying information remains within the Maternal Committee and its subcommittee.
The grounds for review included a third contention, referred to as the “no evidence” ground. It was argued that the Deputy Coroner erred in finding that “any suggestion that the Chief Executive would not be in a position to produce the material sought in the summons was untenable” and that there was no evidence to support that finding or another finding (or assumption) that elsewhere in SA Health would be an entity in a position to produce what was sought.
This ground turns on the meaning of several statements in the ruling, which, it was acknowledged on all sides, were ambiguous. Since I would grant the orders sought on the principal grounds advanced, I do not find it necessary to discuss this issue.
The inability of the Coroner’s Court to obtain documents that are protected under s 66 does not mean that it is precluded from effectively investigating the death of Ms P. There are likely to be many relevant hospital records and other evidence which bear on her death which are, in the usual course, available to be produced.
Conclusion
In my opinion the Deputy Coroner erred in:
(a)finding that by virtue of the Chief Executive’s position he was in possession or in constructive possession of documents which were in the possession of the Maternal Committee and protected by Part 7;
(b)finding that the court was entitled to require production to it of documents protected by Part 7; and
(c)issuing a summons which purported to require production of protected material.
In these respects the Court misapprehended the limits of the powers it had. The order requiring the Chief Executive to comply with the summons was beyond power.
I would quash the order and set aside the summons.
KELLY J: I agree with the orders proposed by Vanstone J and with her reasons.
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