Giannopoulos v Melbourne Health (Ruling)
[2024] VCC 551
•31 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-21-01851
| ANGELIKI GIANNOPOULOS & ORS | First Plaintiff |
| and | |
| SUE GIANNOPOULOS | Second Plaintiff |
| and | |
| OLIVIA GIANNOPOULOS | Third Plaintiff |
| and | |
| ANGELICA CAMLIK | Fourth Plaintiff |
| v | |
| MELBOURNE HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2023 | |
DATE OF RULING: | 31 May 2024 | |
CASE MAY BE CITED AS: | Giannopoulos & Ors v Melbourne Health (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 551 | |
RULING
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Subject:PRACTICE AND PROCEDURE – MEDICAL PRIVILEGE
Catchwords: Discovery – medical privilege
Legislation Cited: Mental Health Act 2014 (Vic); Evidence (Miscellaneous Provisions) Act 1958 (Vic), s28(2); Occupational Health and Safety Act 2004; Wrongs Act 1958
Cases Cited:VWA v Melbourne Health [2011] VCC 1170; Smith v Colac Area Health (Ruling) [2013] VCC 1892; Thug v TLC Aged Care Facility Pty Ltd & Anor(Ruling) [2020] VCC 1061; Ersoy v Spotless Services Australia Ltd & Anor (Ruling) [2023] VCC 620; Elliott v Tippett (2008) 20 VR 195; Hare v. Riley and Australian Mutual Provident Society [1974] VR 577; Fitzgerald (by her Litigation Guardian Jacobsen) v Munro & Ors [1998] VSC 30; Andasteel Constructions Pty. Ltd. v. Taylor [1964] VR 112
Ruling: The defendant to provide discovery of those records which are relevant and not subject to the s28(2) privilege and included in the folders of materials prepared by the Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms G Angelowitsch | Redlich’s Work Injury Lawyers |
| For the Defendant | Ms G J Cooper | Lander & Rogers |
HIS HONOUR:
The history and nature of the proceedings
1Mr Jim Giannopoulos died on 28 May 2018 as a consequence of stab wounds which he suffered in an attack which occurred on 10 May 2018 (“the attack”). At the time of the attack, Mr Giannopoulos was a resident of a Community Care Unit (“the Unit”). He was stabbed by a fellow resident (“AB”).
2The plaintiffs are Angeliki Giannopoulos, Sue Giannopoulos, Olivia Giannopoulos and Angelica Camlik. They are, respectively, Mr Giannopoulos’s mother, sisters and niece (“the family”).
3The defendant, Melbourne Health, operates the Unit.
4The family have instituted these proceedings seeking compensation for injury by way of nervous shock.
5Prior to the preparation of the Statement of Claim, the family have sought discovery of AB’s records held by Melbourne Health.
6The family and Melbourne Health are in dispute in respect to which of AB’s records are properly discoverable.
What documents have been discovered and what additional documents are sought by the family?
7The family’s request for discovery included:
(a) policies relating to admission screening of patients to the Unit and admission criteria for patients to the Unit;
(b) policies relating to ongoing monitoring of patients in the Unit;
(c) polices governing situations where a patient’s condition has escalated or their presenting symptoms have deteriorated during their residence at the Unit;
(d) polices regarding access by patients to weapons, including knives, in the Unit;
(e) assessments conducted of AB to determine his status under the Mental Health Act 2014 (Vic);
(f) observation notes and medication charts created in reference to AB by nursing staff, psychologists, allied health and other non-medical personnel;
(g) correspondence, file notes, emails and communications with AB’s family from 1 April 2018 to 11 May 2018;
(h) investigations and reviews conducted in relation to the circumstances of the attack on Mr Giannopoulos on 10 May 2018, including, but not limited to, investigations and reviews conducted by Melbourne Health and/or North Western Mental Health (“NWMH”).
8In respect to the family’s discovery request, Melbourne Health has provided:
(a) The policies sought in paragraphs 7(a) to (d).
(b) Copies of the assessments conducted under the Mental Health Act sought in paragraph 7(e). However, those assessments have been redacted to remove the assessment and observation notes.
(c) Incident reports completed regarding Mr Giannopoulos and AB between 10 May 2017 and 10 May 2018, redacted to remove detail regarding the incidents in question.
9Melbourne Health have resisted the production of the balance of the records and the redacted parts of the materials discovered thus far (which I will refer to as the “disputed records”) by reason of the operation of s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the Act”). Melbourne Health says that these materials are subject to privilege.
10For completeness, I note that the parties’ discovery obligations are guided by:
(a) s26 and s27of the Civil Procedure Act 2010;
(b) Order 29 of the County Court Civil Procedure Rules 2018.
The lack of consent by AB to release the disputed records
11AB now resides at a Victorian State Government institution. Melbourne Health has sought AB’s consent to discover the disputed records. AB has not responded to Melbourne Health’s request. That is not unexpected, given AB’s circumstances and the nature and extent of his psychiatric illness.
12Thus, in the absence of AB’s consent, it is necessary for the Court to review the disputed records produced by Melbourne 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.
What are the issues for the Court’s determination?
13From the family, I had:
(a) an affidavit of Lauren Freeman, solicitor, Redlich’s Work Injury Lawyers, affirmed on 1 September 2023;
(b) written submissions, dated 7 September 2023.
14In summary the family said:
(a) Melbourne Health was negligent in their management of AB and that negligence lead to Mr Giannopoulos’s death;
(b) all AB’s records which were not completed by medical practitioners are discoverable. This is because:
(i)there is legal authority to support this conclusion;
(ii)the majority of the records were prepared in the context of a residential facility and not for the purpose of medical management;
(iii)the Civil Procedure Act and, in particular, the need to focus on the “real issues”, supports the release of all of the disputed records;
(iv)if the disputed medical records are not discovered, the proceeding would be unreasonably delayed.
15From Melbourne Health, I had:
(a) an affidavit of Andrew Mariadason, legal counsel for Melbourne Health, sworn 7 September 2023;
(b) an affidavit of Anna Murray, solicitor, Lander & Rogers, affirmed 7 September 2023.
16In summary, Melbourne Health said:
(a) the Unit provided psychiatric care to patients. The disputed medical records were prepared for medical purposes;
(b) all staff who had made entries in the disputed records were medically qualified (by this Melbourne Health meant not only medical practitioners, but also nurses and allied health professionals, such as occupational therapists, physiotherapists, et cetera) and the disputed records were used to inform medical practitioners of AB’s ongoing mental health assessments;
(c) the disputed records, in reality, formed part of the medical practitioner assessment;
(d) the authorities supported Melbourne Health’s contentions that the disputed records are privileged.
17I shall:
(a) identify the relevant legislation creating the privilege asserted by Melbourne Health;
(b) identify the general principles established by the authorities which govern the task I must undertake;
(c) review the 4,504 pages, applying the general principles as I have identified them;
(d) provide an explanation of how I have dealt with those disputed medical records;
(e) prepare folders of those disputed medical records for which I have determined no privilege applies;
(f) provide an explanation of the process which I will adopt in order to facilitate the release of the unredacted and non-privileged disputed records.
What is the relevant legislative provision?
18The starting point of my analysis is s28(2) of the Act. It provides:
“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.”
19On breaking down the privilege, it relates to:
(a) information that is acquired by the “medical practitioner” in attending AB (the term I will use for what is referred to in the legislation as “physician” or “surgeon”); and
(b) which was necessary to enable the medical practitioner to prescribe or act for AB.
What are the legal principles which govern the task which I am to undertake and what assistance do they provide?
20My task of reviewing the disputed records to determine which materials attract privilege, and which do not, is not a new one. I have identified four similar cases where a judge of this court has been called upon to consider the relevant legal authorities, review the records, and rule upon which materials attract privilege and which do not. These cases are:
(a) VWA v Melbourne Health;[1]
(b) Smith v Colac Area Health (Ruling);[2]
(c) Thug v TLC Aged Care Facility Pty Ltd & Anor(Ruling);[3]
(d) Ersoy v Spotless Services Australia Ltd & Anor (Ruling).[4]
These matters have provided me with a level of guidance in respect to my task.
[1][2011] VCC 1170 (“VWA v MH”)
[2][2013] VCC 1892 (“Smith”)
[3][2020] VCC 1061 (“Thug”)
[4][2023] VCC 620 (“Ersoy”)
21I will review each of these cases in two stages:
(a) firstly, I will identify the factual circumstances giving rise to the application to the Court and consider whether there is any common background;
(b) I will then analyse the legal principles which are to be applied.
Is there a common factual basis to such applications?
22My review of the factual circumstances in each of these applications provides context to the legal principles to be applied. The analysis has helped me identify the relevant issues which must be considered and the pathway which I need to follow.
23Moving firstly to VWA v MH.
24This was a “contribution proceeding” pursuant to s138 of the Accident Compensation Act 1985 (as amended). It was alleged in the principal proceeding that the injured worker had been assaulted by an inpatient of Melbourne Health. The allegations of breach made by the injured worker against Melbourne Health included:
(a) failing to restrain the patient (by inference when it was appropriate to do so);
(b) failing to warn of the possibility of the patient being aggressive and/or violent.
25Smith was also a work injury case.
26The plaintiff, an ambulance officer, was transferring a resident of a nursing home. The plaintiff said that the resident became agitated and tripped him, causing him to fall and injure his neck. The allegations of breach against the defendant nursing home, included:
(a) the failure to document that the resident was mentally disturbed and/or aggressive and/or dangerous;
(b) the failure to inform the plaintiff the resident was mentally disturbed and/or aggressive and/or dangerous.
27Moving now to Thug. This was another work injury case.
28The plaintiff, who worked at a nursing home, alleged they had suffered injury when a resident became aggressive and grabbed and twisted their arm. The allegations of breach against the defendant nursing home included:
(a) failing to respond to previous complaints of aggression;
(b) failing to take precautions to ensure the safety of the plaintiff in circumstances where the resident was known to be aggressive or difficult.
29The final case is Ersoy. This is a matter where I was called upon to undertake a similar task to this matter.
30Ersoy involved a work injury.
31The plaintiff, a security guard, alleged he was injured in the course of his employment with Spotless Services while working at The Alfred hospital. He said he had been assaulted by an inpatient. The plaintiff alleged that:
(a) the patient had a tendency to be violent, which was well known;
(b) the patient represented a risk to staff and others either working or attending at the hospital.
32The allegations of breach in each of these cases have a common thread. That is, the alleged failure by the defendant medical facility to recognise, document, warn, and/or act on the risk posed by the patient. I make particular reference to the concept of “risk”. As I progress this ruling, risk becomes an increasingly important issue.
33It is in this context that the Court, in these matters, was called upon to determine the application of the s28(2) privilege.
What assistance is provided by these cases to the task which I am to undertake?
34I turn now to my analysis of the applicable legal principles.
35As my starting point, I go to the analysis undertaken by his Honour Judge T Ginnane (as he was then) in VWA v MH.
36Judge T Ginnane undertook a detailed review of the history of s28(2) and the applicable authorities. I do not propose to replicate such analysis in this ruling. With respect, I accept and adopt his Honour’s analysis and conclusions.
37Judge T Ginanne, in identifying the test to be applied, said that in order to find that s28(2) applies to the records, it needs to be established either in their nature or by appropriate inference:
(a) that it is probable they contain information acquired by a medical practitioner in attending the patient, and
(b) which was necessary to enable that medical practitioner to prescribe or act for the patient.[5]
[5]VWA v MH at paragraph [15]
38As to onus, Judge T Ginnane concluded that the onus exists on those who assert that s28(2) applies.[6] In VWA v MH, as in this case, the patient was not represented. In the circumstances, Judge T Ginnane determined that the Court must be satisfied of the matters contained in s28(2) before it can be applied.[7]
[6](Ibid) at paragraph [19]
[7]Ibid
39Judge T Ginnane went on to consider whether a document not created by a medical practitioner (the class of persons such as nurses, psychologists, occupational therapists, physiotherapists and the like, which I will refer to as “nurses and allied health professionals”) can still attract privilege pursuant to s28(2). His Honour noted that:
(a) Although the range of protected information is broad, it may not include everything known to a medical practitioner about a patient or everything contained in a patient’s file held by a hospital or medical practitioner, (his Honour adopted the observation of Judd J in Elliott v Tippett).[8]
(b) The words “in attending the patient” are not limited to information acquired by the medical practitioner in the physical presence of the patient. Information required by the medical practitioner from other persons may fall within the expression “information acquired while attending the patient” (his Honour adopting Norris J in Hare v. Riley and Australian Mutual Provident Society).[9]
(c) The privilege may apply to information acquired by the medical practitioner in applying themselves to the care of the patient from other “medical men” by letter or by oral communication, or otherwise, if information is necessary for a medical practitioner to prescribe or act for the patient. This includes those providing medical services, for example, physiotherapists.[10]
[8](2008) 20 VR 195 at 200; also see VWA v MH (Ibid) at paragraph [19]
[9][1974] VR 577 at 582 (“Hare”) referred to in VWA v MH at paragraph [20]
[10]VWA v MH at paragraph [20], again adopting the reasoning of Norris J in Hare
40Judge T Ginnane went on to say that, when deciding whether information acquired by nurses and allied health professionals was information acquired by a medical practitioner, one should apply a “common sense assessment”.[11]
[11](Ibid) at paragraph [22]
41Having undertaken an analysis of the records, Judge T Ginnane concluded that there were only a small number of documents which did not fall within the s28(2) privilege.
42Judge T Ginnane made specific reference to records which were required by statute, including the Mental Health Act 1986, which would not fall within the scope of the privilege.[12] However, his Honour considered that parts of these documents, such as observations of the patient recorded for the purposes outlined in s28(2) of the Act, would still come within the privilege.
[12](Ibid) at paragraphs [34]-[36]
43Importantly, Judge T Ginnane noted “[t]he reason for the existence of those documents is to comply with the statute”.[13] This is a concept which I will come back to later in this judgment.
[13](Ibid) at paragraph [34]
44Moving now to Judge O’Neill’s analysis in Smith.
45Judge O’Neill, like Judge T Ginnane, noted the difficulties created by the volume and complexity of the medical records provided.
46Judge 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 medical facility after the incident in question.[14]
[14]Smith at paragraph [12]
47Like Judge T Ginnane, Judge O’Neill undertook an analysis of those documents which were created by staff who were nurses and allied health professionals and considered the application of s28(2) to such materials.
48Judge O’Neill went on to describe the process to be followed in respect to such staff and their observations of the patient’s behaviour. Judge O’Neill, 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.”[15]
(Emphasis added.)
[15](Ibid) at paragraph [15]
49I consider Judge O’Neill’s conclusions to be very important in the context of the task I have to undertake. That is, that behavioural observations made by nurses and allied health professionals, not in a medical context, fall outside the privilege.
50Moving now to Thug.
51Judge K L Bourke was required to rule upon the application of s28(2). Her Honour, having reviewed the medical records in issue, noted that most were created and written by nursing staff and mainly covered the patient’s eating habits, hygiene and sleep issues. Judge K L Bourke noted that observations of the residents’ behaviour were often made in a non-medical context. Like Judge O’Neill in Smith, Judge K L Bourke said such observations do not come within the ambit of the s28(2) privilege.[16]
[16]Thug at paragraph [29]
52That now brings me to the matter of Ersoy.
53In Ersoy, I was called upon to review the medical records of “XY” and determine which of those records attracted the s28(2) privilege and which did not.
54I accepted, in general terms, and followed, the observations made by Judges T Ginnane, O’Neill and K L Bourke. In particular, I accepted that the behavioural observations by nurses and allied health professionals which were made in a non-medical context do not fall within the scope of the privilege. It was on this basis that I prepared the folder of material which was ultimately released to the parties.
What are the principles flowing from these cases?
55It is clear records created by a medical practitioner which are required and necessary to enable that medical practitioner to prescribe or act for the patient are privileged. That is plainly apparent, based not only on the analysis of Judge T Ginnane in VWA v MH, but also a long line of authorities, including Beach J in Fitzgerald (by her Litigation Guardian Jacobsen) v Munro & Ors.[17]
[17][1998] VSC 30
56The class of documents sought by the family does not include the records created by AB’s medical practitioners, save and except for those materials which were created for the purposes of statute. I accept that such parts of these documents which reference matters acquired and necessary to enable the medical practitioner to prescribe or act on their behalf are privileged.
57That said, what is in dispute in this matter is the records of the nurses and allied health professionals.
58Further, I must also consider those records which have been created to comply with statute and which were created by medical practitioners.
59That materials which have been created for the purposes of the Mental Health Act are exempt and have already been noted and subject to analysis. While not specifically raised by the parties, there are also included in the 4,504 pages, a significant volume of materials which have been created for the purposes of:
(a) the recognition and management of risk;
(b) compliance to the Occupational Health and Safety Act 2004 (“OH&S Act”).
Melbourne Health’s management of risk, governance and the OH&S Act
60As I have already noted, in considering material which is excluded from the s28(2) privilege, Judge T Ginnane made specific reference to documents required by statute.
61While Judge T Ginnane only made specific reference to the Mental Health Act, as I reviewed the 4,504 pages of materials, it became apparent:
(a) many entries in the clinical records were made in the context of risk to staff, residents/patients and general members of the public;
(b) there were documents created specifically for the purposes of the management of risk. Many of these documents included reference to:
(i)the safety of staff, residents/patients and visitors;
(ii)Melbourne Health’s duty of care to others at risk.
62As a specific example, what follows is the front sheet for a clinical risk assessment and management assessment (“CRAAM”). Similar documents appeared in various forms within the materials.[18]
[18]Such assessments variously titled “Initial Assessments”, “Revised Assessments” and “Acute Care Assessments”.
63The stated purpose for the CRAAM being:
“Risk assessments are completed to allow a decision to be made about the level of risk management that the consumer requires. There are three levels of risk with corresponding risk management strategies:
· Low
· Medium
· High”
64I make further specific reference to the instructions set out in this document relating to “aggression” and the need to:
(a) develop safety plans;
(b) check the environment;
(c) assess safety of staff, consumers and visitors;
(d) review the engagement level required;
(e) consider the duty of care to others at risk.
65I further note the need for all risk assessments to be accompanied by a clinical note addressing the rationale for the risk level set.
66Moving to the OH&S Act.
67There are specific statutory provisions which impact upon Melbourne Health and to which Melbourne Health have an obligation to comply:
(a) Section 21(1):
“21 Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.”;
(b) Section 21(2)(c):
“(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;”;
(c) Section 23(1):
“23 Duties of employers to other persons
(1) An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty:1800 penalty units for a natural person;
9000 penalty units for a body corporate.”.
(Emphasis added.)
68Having had the benefit of both the affidavit evidence and the submissions of the parties, it is fair to say the issues in dispute in this matter will include:
(a) whether AB was a risk to Mr Giannopoulos, co-residents generally, the staff of Melbourne Health and/or the public in general;
(b) if so, whether Melbourne Health’s assessment and management of the risk presented by AB was reasonable;
(c) whether it was reasonably foreseeable that the events of 10 May 2018 may occur.
To adopt Judge O’Neill’s observations, the patient’s behaviour and whether they are mentally disturbed, aggressive, or dangerous, goes to the heart of the family’s claim.[19]
[19]See paragraph [48] of this judgment.
69That being so, “risk” in the context of the disputed records and this application is relevant and probative. It falls to me to determine whether the parts of the disputed records which focus on such “risk” are privileged.
70Within the disputed records, there are many assessments of risk undertaken by:
(a) nurses and allied health professionals;
(b) medical practitioners.
71The issue becomes whether such assessments and observations of risk:
(a) are behavioural observations in a non-medical context;
(b) were created to comply with statute;
(c) were created for, and form part of, the ongoing medical assessment necessary for the medical practitioners within Melbourne Health to act and prescribe on behalf of AB.
72There is, I accept, potential overlap between behavioural observations which go to risk and compliance to statute and clinical assessments, which form part of AB’s medical management. Where such an overlap exists, the disputed records will be privileged and redacted.
73To illustrate, I refer to:
(a) mental state assessments and assessments of risk made by nurses and recorded in the clinical notes;
(b) medical practitioner assessments of risk.
These two examples combined constitute a significant component, but not all, of the disputed records which I had to review.
74Referring firstly to entries made by nurses.
75Routinely within AB’s progress notes, nursing staff undertook mental state assessments of AB. The nurses then recorded their observations of AB under various headings, such as “appearance”, “behaviour”, “speech”, “affect”, “thought form”, “perception”, “cognition” “and “insight”.
76I accept that such mental state assessments of AB form part of the ongoing clinical assessment of AB and of themselves will form part of the subsequent clinical assessments and reviews undertaken by medical practitioners. Such information would assist the medical practitioner in coming to decisions, such as the prescription of medication or the need for hospitalisation. That component of the clinical records is privileged.
77However, that is not the end of it.
78Following such behavioural observations, nurses and allied health staff regularly recorded an assessment of risk.
79These risk assessments are at times within the materials referred to as a CRAAM. In other materials, though not given this specific title, the assessment of risk appears in the clinical records in the same context.
80Secondly, as I have already noted, medical practitioners also undertook and prepared CRAAMs and other assessments of risk.
81Such risk assessments involved, for example:
(a) the analysis of various aspects of AB’s behaviour, including suicidality, self-harm, aggression, risks to others, levels of non-compliance, threats of violence and agitation, to name a few;
(b) an assessment of the nature and extent of the risk which AB presented within Melbourne Health;
(c) the preparation of an action plan for the management of the risk presented by AB;
(d) in the majority of cases, there followed a notation which variously recorded either low risk, medium risk or high risk (though there were some other variants).
82This takes me back to the dilemma which I have grappled with in respect to such records. The issue becomes:
(a) are such behavioural observations by nurses and allied health professionals and assessments by medical practitioners which go to risk made for the purposes of the medical management of AB; or
(b) are they for the management of risk by Melbourne Health, and in particular Melbourne Health’s statutory obligations (including the Mental Health Act, OH&S Act and Wrongs Act 1958[20]), the management of such risk in the context of the wellbeing of:
(i)AB;
(ii)the staff of Melbourne Health;
(iii)fellow patients (and by this I include fellow residents who are at times also referred to as “consumers”);
(iv)third parties (for example, ambulance officers, security guards or members of the public generally).
[20]See the Wrongs Act 1958 (as amended) generally and in particular ss16, 23, 48-49, 50-52, and 57-60.
83There are within the disputed documents other materials which provided me with further context and insight into these issues.
84Melbourne Health is a large and sophisticated organisation. There are, within its managerial structures, sections, teams and/or committees (whatever the exact title(s) might be), whose functions are dedicated to, and responsible for, the management of risk. Referring to the materials annexed to the affidavit of Ms Freeman, and the 4,504 pages of records themselves, I note, for example, the existence of material from the:
(a) NWMH Clinical Risk Management Committee;
(b) Management of Clinical Aggression Steering Group;
(c) NWMH Acute Services Committee;
(d) NWMH Continuous Improvement Committee.
This will not be an exhaustive list.
85It also became clear that, within Melbourne Health, there are many policies and procedures which touch upon risk. Many such policies and procedures:
(a) have either been discovered by Melbourne Health;
(b) are apparent from a review of the disputed medical records;
(c) are referred to in the letter from Lander & Rogers, dated 9 June 2023 to the family’s solicitors and the materials annexed to that correspondence.
86Among the myriad of policies and procedures directed at risk, are, for example, the:
(a) NWMH CRAAM Guidelines 2013;
(b) NWMH Community Risk Management Guidelines;
(c) Management of Clinical Aggression Procedures;
(d) Occupational Health and Safety Policy;
(e) Management of Aggressive and/or Uncooperative Behaviour – Inpatient Residential Services Guidelines;
(f) NWMH Management of Acuity Guidelines.
This will not be an exhaustive list.
87Given the existence of such committees and policies and procedures, it is clear the management of risk within Melbourne Health exists independently of the medical management of any particular individual patient or resident.
88It follows there are materials within the disputed records whose purpose are for Melbourne Health’s governance and risk management and not to enable medical practitioners within Melbourne Health to act and prescribe for AB.
What conclusions do I reach in respect to the application of the s28(2) privilege?
89I accept:
(a) Behavioural observations made by nurses and allied health professionals, not in a medical context, fall outside the s28(2) privilege and are discoverable by Melbourne Health.
(b) There will be documents which are created in order to comply with statute which will be discoverable.
(c) There are documents which were created for the purposes of governance and the recognition and management of risk by Melbourne Health, and which were not necessary to enable medical practitioners within Melbourne Health to prescribe or act for AB. Such documents are discoverable.
How do I apply the general principles which I have identified to the disputed records in this application?
90I have spent significant time working my way through the 4,504 pages which constitute the disputed records. It was a slow and laborious task.
91As a part of my application of the identified principles, I will deal with five specific topics which arose either by reason of submissions made by the parties, or in the course of my review of the authorities and the disputed records. These topics being:
(a) the residential unit submission;[21]
(b) the application of the Civil Procedure Act;[22]
(c) the relevance of delay;[23]
(d) the Incident Reports/Riskman forms and correspondence relevant to Mr Giannopoulos created by Melbourne Health;
(e) materials created to comply with statute and/or as a part of Melbourne Health’s governance and management of risk.
[21]Paragraph [13(b)(ii)] of this judgment
[22]Paragraph [13(b)(iii)] of this judgment
[23]Paragraph [13(c)] of this judgment
Residential Unit v Medical Facility
92Firstly, I will address the family’s submission that:
(a) the Unit is a residential facility; thus
(b) the disputed records were created for the purposes of the management of AB’s residential circumstances; and
(c) the disputed records are therefore discoverable.
93I do not agree.
94Firstly, at the relevant time, the NWMH was a designated mental health service pursuant to the Mental Health Act. The Unit, being under the purview of the NWMH, was a designated mental health service.
95Secondly, having reviewed the disputed records, I accept, in general terms, the evidence of Mr Andrew Mariadason, legal counsel for Melbourne Health. That is, the great majority of the disputed records do form part of AB’s medical management.
96Further, I accept the majority of the disputed records are of a type which would routinely be reviewed, considered and acted upon by medical practitioners involved in the medical management of AB, thus, attracting the s28(2) privilege.
97I do not accept this aspect of the family’s submission.
The application of the Civil Procedure Act provisions
98The family said that the Civil Procedure Act obligations to deal with the “real issues” overrides the privilege created by s28(2).
99I do not agree.
100As Gillard J noted in Andasteel Constructions Pty. Ltd v. Taylor:[24]
“‘… the section is sometimes a hindrance to the establishment of the truth; but so are all the rules which fetter the giving of evidence’.”[25]
[24][1964] VR 112 at 115
[25]Ibid
101I do not accept this aspect of the family’s submissions.
The delay
102The family said I should take heed of delay. The thrust of this submission was that the potential delay in some way obviates the need to adhere to s28(2).
103I do not agree.
104The potential for delay in the proceedings no way impacts upon, nor should be seen to diminish, s28(2) privilege.
105I do not accept this aspect of the family’s submissions.
The Incident Reports/Riskman forms and reporting correspondence
106Moving now to the Incident Reports/Riskman forms and items of reporting correspondence generated by Melbourne Health.
107I will deal with these sections of the disputed records in the following order:
(a) the Incident Reports/Riskman forms;
(b) the letter dated 19 June 2018 from Melbourne Health to the Office of Chief Psychiatrist of Victoria;
(c) the letter dated 3 August 2018 from Melbourne Health to the Department of Health and Human Services.
108Going firstly to the Incident Reports/Riskman forms.
109The family said that the Incident Reports/Riskman forms, being materials involving AB and Mr Giannopoulos, should be discovered in an unredacted form.[26]
[26]Paragraphs [11(c)] and [12] of plaintiff’s submissions
110While in general terms I agree that such materials are discoverable, there are some notations within these materials which detail AB’s medical treatment. These have been redacted.
111Having said that, I do not accept that these materials were primarily created by Melbourne Health for the purposes of the medical treatment of AB. These documents were created for a separate purpose. They go to matters of Melbourne Health’s governance. That is, the recording of adverse incidents and the management of risk. A distinct and separate purpose to prescribing and/or acting for AB.
112Moving now to the letter dated 19 June 2018 from Melbourne Health to the Office of the Chief Psychiatrist of Victoria.
113This correspondence was solely concerned with matters involving Mr Giannopoulos. It is not relevant to, nor could it be said, to detail information which Melbourne Health acquired in attending to AB and which was necessary for the medical practitioners within Melbourne Health to prescribe or act on behalf of AB. It will be discovered in an unredacted form.
114Referring now to the letter of Melbourne Health to the Department of Health and Human Services dated 23 August 2018.
115This correspondence was authored by Dr Astrid Waterdrinker, director clinical services. The correspondence details an internal review undertaken by Melbourne Health in respect to the circumstances leading to the death of Mr Giannopoulos. It sets out conclusions, learnings, incidental findings and resulting recommendations arising out of Mr Giannopoulos’s death.
116I do not accept that this correspondence in any way relates to information which was necessary for the medical practitioners within Melbourne Health to prescribe or act on behalf of AB. It will be discovered in an unredacted form.
Materials created for the purpose of Melbourne Health’s governance/risk management and materials created to comply with statute
117Within the disputed records there are behavioural observations noted by nurses and allied health professionals which specifically touch upon the assessment and management of the risk presented by AB. I have not excluded the assessment of risk. However, I have excluded the mental state assessments and other notes which I considered were acquired, and necessary, to enable medical practitioners within Melbourne Health to prescribe and act for AB.
118Likewise, where medical practitioners have made assessments for the purposes of risk, and specifically in CRAAMs, such final assessments of risk have been discovered. As with the nurses and allied health professionals, I have excluded as privileged those notations which I consider to be acquired, and necessary, to enable medical practitioners within Melbourne Health to prescribe and act for AB.
119There are, within the disputed records, materials created to comply with the Mental Health Act or for the purpose of VCAT proceedings. I have redacted those parts of these disputed records which record AB’s medical assessment and treatment. Otherwise, these disputed records are discoverable.
Having completed the task of identifying which disputed records attract privilege, and which do not, what is the next step in the process?
120Having identified those disputed records which I propose to order Melbourne Health to discover, I have had three folders prepared in which the materials have been placed. I have divided the materials into separate categories and prepared an index to provide structure, uniformity and clarity. The index follows:
121Within the three folders of disputed records:
(a) I will have only those pages of the disputed records which include non-privileged material;
(b) on those pages where there is limited material to be discovered, the balance of the records have been redacted;
(c) where AB’s name appears in a block of text, it has been redacted and replaced with AB;
(d) page numbers have been added to the bottom of each of the pages included in the folder.
122I will:
(a) at first instance, provide this ruling to each of the parties;
(b) release, to Melbourne Health, the three folders of materials so they can consider their position.
123Subject to any further application, objection or appeal, I propose to order that a set of the three folders of materials be provided to the family.
124In the event that the parties are content with this ruling, and Melbourne Health agree to the release of the three folders to the family in the format provided, I would be glad to receive Minutes of Consent to avoid the need for a further directions hearing.
125I would also be happy to make orders timetabling the interlocutory steps and allocating a hearing date.
126Should the parties require a directions hearing to be listed, they should liaise with my chambers and a mutually-convenient date/time will be allocated.
127It is proposed that the Court will keep its own set of the three folders of discoverable materials. These three folders will be kept separately from the Court file.
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