Ersoy v Spotless Services Australia Ltd and Anor (Ruling)
[2023] VCC 620
•3 May 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-21-00789
| GUMUS ERSOY | Plaintiff |
| v | |
| SPOTLESS SERVICES AUSTRALIA LTD | First Defendant |
| and | |
| ALFRED HEALTH | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February and 31 March 2023 | |
DATE OF RULING: | 3 May 2023 | |
CASE MAY BE CITED AS: | Ersoy v Spotless Services Australia Ltd and Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 620 | |
RULING
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Subject:PRACTICE AND PROCEDURE – MEDICAL PRIVILEGE
Catchwords: Discovery – medical privilege
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958 (Vic), s28(2)
Cases Cited:Victorian WorkCover Authority v Melbourne Health [2011] VCC 1170; Smith v Colac Area Health (Ruling) [2013] VCC 1892
Ruling: The second defendant to provide discovery of those clinical records which are relevant and not subject to the s28(2) privilege and included in the folder of materials prepared by the Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Haddad | Slater and Gordon Lawyers |
| For the First Defendant | Mr A Savedra (solicitor) | IDP Lawyers |
| For the Second Defendant | Mr D McWilliam (on 22 February 2023) Ms O Warwick (solicitor) (on 31 March 2023) | MinterEllison |
HIS HONOUR:
Background
1The plaintiff, Mr Gumus Ersoy, commenced employment as a security guard with the first defendant, Spotless Services Australia Ltd (“Spotless Services”), on 10 October 2012.
2Mr Ersoy was required, as part of his employment, to undertake work at The Alfred hospital, Commercial Road, Melbourne (“the hospital”). The hospital is operated by the second defendant, Alfred Health.
3When Mr Ersoy was undertaking work at the hospital, he received instructions from both Spotless Services and Alfred Health.
4On 20 November 2015, Mr Ersoy was required, in the course of his work, to escort a psychologically unwell patient (“XY”) to the high dependency unit at the hospital. Mr Ersoy says that while undertaking this work, he was assaulted by XY (“the incident”) and, as a result, has suffered injury, loss and damage.
5Mr Ersoy alleges that both Spotless Services and Alfred Health knew there was a risk that he would be assaulted by XY and that, in the circumstances, they had breached their duty of care to him.
6While both Spotless Services and Alfred Health admit the incident occurred, they both deny that they have been negligent. Further, they both say that if they had been negligent, so too had Mr Ersoy.
7Mr Ersoy says that XY’s tendency to be violent and the risk XY posed to staff was well known. He therefore seeks access to XY’s clinical records to establish this.
The application
8On 15 July 2022, Mr Ersoy made a summons application to the Court seeking that both defendants make further and better discovery.
9On 1 August 2022, her Honour Judge Tran made Orders which included:
“7.By 10 October 2022, the defendants must file and serve an affidavit of documents complying with the requirements of r29.08 of the County Court Civil Procedure Rules 2018 in relation to the following categories of documents:
a. Category 1
All reports, emails, notes, minutes and or (sic) correspondence relating to incidents of violence and/or aggression by the patient that assaulted/ allegedly assaulted the plaintiff on 20 November 2015 (‘the patient’) which occurred up to and including 20 November 2015.
… .”
10On 28 October 2022, Mr Ersoy made a further application to the Court seeking further and better discovery of the medical records pertaining to XY that were in the possession of Alfred Health.
11Alfred Health objected to the production of these materials on the basis that they were privileged pursuant to s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the Act”).
12On 8 November 2022, the objection application proceeded before his Honour Judge Misso.
13On that day, there were discussions about the production by Alfred Health of XY’s clinical records and whether Alfred Health could obtain XY’s consent to release these materials.
14The matter was subject to a further directions hearing before Judicial Registrar Gurry on 6 December 2022.
15At the time of this directions hearing, Alfred Health said that it had not been able to make contact with XY and had not obtained XY’s consent to release the clinical records.
16It was determined on 6 December 2022 that in the absence of XY’s consent, the appropriate way to proceed was for:
(a) Alfred Health to produce the clinical records to the Court;
(b) the Court to determine the extent that some, or all, of the clinical records were privileged from disclosure pursuant to s28(2) of the Act.
17The Orders made by Judicial Registrar Gurry on 6 December 2022 included:
“1. …
2.By 4.00pm on 13 December 2022, the second defendant is to produce the patient’s file to the Court for inspection by the Court and the Court is to determine whether the privilege created by s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 attaches to any and, if so, what documents in the file and that the Court list the matter for ruling on a date to be fixed.
3. By 4.00pm on 13 December 2022, the second defendant is to make, file and serve an affidavit deposing to the efforts it has made in attempting to contact the patient to obtain their consent to produce their file.
… .”
18Pursuant to Order 3 of Judicial Registrar Gurry’s Orders, an affidavit of Michelle Rich, solicitor of MinterEllison, dated 8 December 2022 was filed by Alfred Health. Ms Rich said that her office had tried to telephone XY on a number of occasions, but the phone number which they had was not connected.
19On 16 December 2022, Judicial Registrar Gurry made an in chambers Order that this matter be referred to me for determination and ruling on the issue of privilege outlined in Order 2 of the Orders made on 6 December 2022.
20Thus, in the absence of XY’s consent, it is necessary for the Court to review the clinical records produced by Alfred Health and determine the extent to which those records are privileged and to identify whether there exists any, and if so what, relevant materials which fall outside the s28(2) privilege.
21I pause here to review the relevant legislation and authorities governing my task.
The relevant legislation and authorities
22The starting point of my analysis is s28(2) of the Act. It provides:
“28 Confessions to doctors
…
(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
… .”
23His Honour Judge T Ginnane (as he then was) was required to undertake a similar task to mine in the matter of Victorian WorkCover Authority v Melbourne Health.[1]
[1][2011] VCC 1170
24His Honour Judge T Ginnane, having reviewed the clinical records, undertook a very helpful analysis of the process to be followed and the documents to which s28(2) applies.[2]
[2]See his Honour Judge T Ginnane’s discussions from paragraph [10] through to paragraph [36]
25Of particular concern to his Honour Judge T Ginnane was the non-doctor professionals involved in the patient management. In this regard, his Honour said:
“I have attempted to adopt a common sense assessment of whether the information recorded in the documents by professionals, such as nurses or psychologists, was information, which a medical practitioner had acquired in attending the patient and was necessary to enable the medical practitioner to prescribe or act for the patient.”[3]
[3]Victorian WorkCover Authority v Melbourne Health (supra), paragraph [22]
26In applying this approach, his Honour Judge T Ginnane also considered a number of documents that had been created in order to comply with the requirements of statute, including documents created pursuant to the Mental Health Act 1986 (Vic).
27His Honour noted that these materials, which were created for the purpose of complying with statute, and not for the purpose described by s28(2) of the Act, did not fall within the scope of the privilege.[4] However, his Honour considered that parts of these documents, such as observations of the patient recorded for the purpose outlined in s28(2) of the Act, would come within the scope of the privilege.
[4] Ibid, paragraph [34]-[36]
28More recently, his Honour Judge O’Neill had reason to undertake a similar analysis of s28(2) in Smith v Colac Area Health (Ruling).[5] His Honour Judge O’Neill, like Judge T Ginnane, noted the difficulties created by the volume and complexity of the medical records provided.
[5][2013] VCC 1892
29His Honour Judge O’Neill noted that the documents which are to be excluded include:
(a) clinical records by doctors and nurses attending or prescribing for the patient;
(b) records not relevant to the issues in the proceedings;
(c) records relating to attendances at the hospital after the incident.[6]
[6]See his Honour’s discussions in paragraph [12]
30Like his Honour Judge T Ginnane, his Honour Judge O’Neill undertook an analysis of those documents which were created by staff who were not medical practitioners and the application of s28(2) to such materials.
31His Honour Judge O’Neill went on to describe the process to be followed in respect to such staff and their observation of the patient’s behaviour. His Honour Judge O’Neill, at paragraph 15 of his ruling, said:
“Having perused the files, much of the information is of a medical nature, relied upon by medical practitioners to treat or prescribe for the patient. However, the documents which I have extracted are generally observations and recommendations of staff of the defendant relating to the patient’s behaviour. The patient’s behaviour, in particular whether that could be categorised as mentally disturbed, aggressive or dangerous is at the heart of the plaintiff’s claim in this proceeding. In my view, such behavioural observations made by staff of the defendant are not made in a medical context, but are simply of observation within the realm of non-medical persons employed at the defendant’s facility. They do not come within the ambit of the section.”
32I shall adopt this approach and:
(a) review the clinical records;
(b) identify those clinical records for which s28(2) does not apply and which are relevant to the issues in the proceedings;
(c) have those documents copied, placed into a folder and released for inspection.
The further orders
33Having reviewed the box of clinical records which was provided by Alfred Health in December 2022, it was apparent that those clinical records were:
(a) incomplete; and
(b) not in any chronological sequence or organised in any meaningful way.
34Further, having reviewed the affidavit material previously relied upon by Alfred Health in respect to their attempts to contact XY, I was concerned that not all reasonable endeavours had been exhausted to:
(a) locate XY;
(b) notify XY of this application;
(c) determine whether XY was willing to waive privilege for the purposes of this proceeding.
35On the Court’s own motion, the matter was listed for further directions on 22 February 2023. On that day, I made the following Orders:
“1.On 31 March 2023, this matter is listed for a further directions hearing before His Honour Judge Clark.
2.The second defendant is to make further and better inquiry (sic) into XY’s whereabouts with a view to:
a.Advising XY of the current application;
b.Determining whether XY consents/opposes the release of medical records for the limited purpose of this proceeding.
3.The second defendant is to have [t]he Alfred [h]ospital provide to the Court:
a.XY’s medical records for the period 1 January 2009 to 20 November 2015;
b.Associated patient materials including any behaviour management materials;
c.Any other medical records or materials relevant to XY which have not already been provided to the Court.
4. Costs of this directions hearing reserved.”
36On 7 March 2023, Alfred Health delivered a further set of XY’s clinical records. It is this set of records which I have reviewed. This further set of clinical records:
(a) included a significant volume of additional clinical records which had not previously been discovered;
(b) were in a much better structure (though far from ideal).
37An affidavit of Ms Olivia Warwick, solicitor of MinterEllison, sworn 29 March 2023, was filed with the Court outlining the further steps which Alfred Health had taken to contact XY. These further steps included the retention of a private investigator. Despite these further endeavours, XY has not been located.
38At the further directions hearing on 31 March 2023, I was satisfied that reasonable steps had been made by Alfred Health to locate XY. Thus, it was appropriate for me to now undertake the task of examining the clinical records of XY and identifying those materials (if any) to be discovered. At this directions hearing, I made the following Orders dated 5 April 2023:
“1. The trial date of 8 August 2023 is maintained.
2. This matter is listed for a further directions hearing on 12 May 2023.
3. Costs reserved.”
Review and release of clinical records
39I have now reviewed XY’s clinical records.
40The clinical records provided to the Court by Alfred Health date from 20 October 2004 to December 2015.
41I have now identified and copied the documents which I propose to order Alfred Health make available for inspection. These clinical records consist of only relevant and non-privileged material. Materials post-dating 20 November 2015 have been excluded. On those pages where there is limited material which is to be released, the balance of the clinical records are redacted.
42For completeness, I have made the following amendments to XY’s clinical files to ensure that XY’s identity remains confidential and that the documents are referable and identifiable:
(a) Where XY’s name appears in a block of text, it has been redacted and replaced with XY.
(b) Where a document is undated, I have endeavoured to find the date from the balance of the clinical records, and I have written the date on the header of the document.
(c) Red page numbers have been added to the bottom left-hand corner of each page of the clinical records.
43I now make this folder available to Alfred Health so that it can consider its position.
44Subject to any further application or discussion on 12 May 2023, I propose to order that those documents, in their redacted form, be made available for inspection and copying by Mr Ersoy and Spotless Services on 19 May 2023.
45The Court will keep a copy of the folder of documents which I have ordered to be released for inspection. It will be kept separately from the Court file in case there needs to be any identification of the documents that will be subject to the order for inspection.
46I will deal with the question of costs and the terms of the orders sought by the parties on 12 May 2023.
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