Gleeson v State of Tasmania
[2001] TASSC 68
•26 June 2001
[2001] TASSC 68
CITATION: Gleeson v State of Tasmania [2001] TASSC 68
PARTIES: GLEESON, Lorraine Mary
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1125/1998
DELIVERED ON: 26 June 2001
DELIVERED AT: Hobart
HEARING DATE: 18 June 2001
JUDGMENT OF: Master Holt
CATCHWORDS:
Evidence - Facts excluded from proof - Medical profession - Doctor/patient communications - Statutory privilege.
Evidence Act 1910 (Tas), s96.
D v National Society for the Prevention of Cruelty to Children [1978] AC 171; Papson v Woolworths (Victoria) Pty Limited [2000] TASSC 124; National Crime Authority v S (1991) 100 ALR 151, referred to.
Aust Dig Evidence [77]
Evidence - Facts excluded from proof - Public interest immunity - Public hospital records.
Sankey v Whitlam & Ors (1978) 53 ALJR 11; Rogers v Home Secretary and Ors [1973] AC 388; D v National Society for the Prevention of Cruelty to Children [1978] AC 171; Campbell v Tameside Metropolitan Borough Council [1982] 2 All ER 791; Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 71 ALR 109, referred to.
Aust Dig Evidence [70]
REPRESENTATION:
Counsel:
Plaintiff/Applicant: B R McTaggart
Defendant/Respondent: S Perring
Solicitors:
Plaintiff/Applicant: Jennings Elliott
Defendant/Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 68
Number of paragraphs: 9
Serial No 68/2001
File No 1125/1998
LORRAINE MARY GLEESON v STATE OF TASMANIA
REASONS FOR JUDGMENT MASTER S J HOLT
26 June 2001
By her amended statement of claim, the plaintiff alleges that during the course of her employment as a support worker providing casual aid for "Disability Services" with the defendant on 15 September 1996, she injured her back. She says that while she was placing a child on a floor mattress, the child suffered a spasm causing the plaintiff to lose her grip and then "having to grab her to stop her from falling". It is alleged that the injury resulted from the defendant's negligence, particulars of which included matters such as failing to train the plaintiff in lifting methods; failing to provide staff to assist in lifting; failing to provide a lifting device; and failing to provide a raised secure bed for the child.
It seems to be common ground that the weight of the child at the time of the incident is a relevant and material consideration. The defendant having been issued with interrogatories concerning the child's weight, did not complain that such disclosure was irrelevant. Firstly, in answer to an interrogatory given on 10 December 1999, the defendant, through its authorised officer, said in respect of the child on the date of the injury:
"She was six years of age, approximately one metre in height and ten kilograms or less in weight."
In answer to another interrogatory given on 25 July 2000, the defendant, by its same authorised officer, said:
"… the infant was weighed at the Royal Hobart Hospital on the 12th August, 1996 and found to weigh 14.8 kilograms."
It is possible that the child's weight reduced by more than 30 per cent between 12 August 1996 and 15 September 1996, but it is also possible that the answers to the interrogatories were incorrect.
By her amended application, the plaintiff seeks inter alia the following orders:
"1The plaintiff, by her solicitors, be provided with a copy of such part of the document described in Part II of the First Schedule of the Defendant's supplemental List of Documents dated 14 May 2001 which discloses the weight of the infant as at 12 August 1996 or such date closer to 15 September 1996 as may exist.
2The court inspect the documents referred to in paragraph 1 hereof to decide whether the defendant's claim for privilege is valid."
The defendant's supplemental list of documents includes the following:
"2 The State of Tasmania objects to producing the documents set out in Part II of the First Schedule on the ground that the same are privileged because:
(a)they are medical records held by the State of Tasmania at the Royal Hobart Hospital, concerning the infant …;
(b)such records are confidential and are not accessible to any persons other than;
(i)medical staff who need to view them to treat the infant; and
(ii)those who are duly authorised by the lawful guardian of the infant (…) to view the records, and I am informed and believe that whilst such authority has been sought from … to permit the solicitors acting for the plaintiff to view the records, no authority has been given;
(c)the State is the owner of many sets of medical records, held at hospitals such as the Royal Hobart Hospital and other facilities;
(d)the policy of the State is that such records are not accessible to persons to view unless there is an appropriate authority given by the patient or lawful representative of the patient, or unless the person seeking access needs the records so as to properly assist or treat the patient.
THE FIRST SCHEDULE
PART I
1 No further documents.
PART II
1The Defendant's medical records concerning the infant, … , held at the Royal Hobart Hospital."
At common law, there is no doctor/patient privilege. D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 244 - 245. In Tasmania, however, a statutory privilege exists pursuant to the Evidence Act 1910, s96, which includes the following:
"96 …
(2) No physician or surgeon shall, without the consent of his patient, divulge in any civil proceeding any communication made to him in his professional character by such patient, and necessary to enable him to prescribe or act for such patient unless the sanity of the patient be the matter in dispute.
(2A) No person who has possession, custody, or control of any communication referred to in subsection (2) or of any record of such a communication made to a physician or surgeon by a patient shall, without the consent of the patient, divulge that communication or record in any civil proceeding unless the sanity of the patient is the matter in dispute."
The privilege does not apply generally to medical records, but as explained by Underwood J in Papson v Woolworths (Victoria) Pty Limited [2000] TASSC 124 at par 36:
"… attaches only to communications made by the patient to a physician or surgeon in his or her professional character, and then only to such of those communications as are objectively necessary to enable the physician or surgeon to prescribe or act for the patient".
Counsel for the defendant advised me at the hearing that it was conceded that the Evidence Act, s96, did not apply to the information sought by the plaintiff. However, as the records concerned a person not a party to the litigation, I directed that the child's mother be served with copies of the plaintiff's application, the defendant's supplemental list of documents previously referred to and some other information. Following service, the child's mother appeared at the hearing and, quite understandably, advised me that the supply of the information sought would not be by consent. The child's mother told me, however, that she did not wish to obtain legal representation, nor to present evidence or argument in relation to the matter and withdrew. To exclude the information sought on the grounds of the statutory privilege, the facts necessary to give rise to the privilege should be demonstrated. National Crime Authority v S (1991) 100 ALR 151 and 159 - 160. On the application of the plaintiff and without objection, I inspected the medical records and discovered two, both dated 12 August 1996, containing a record of the child's weight. I did not find any other record of the child's weight more closely dated to the date of the plaintiff's injury, namely 15 September 1996. There was nothing on the two relevant medical records demonstrating the existence of the ingredients necessary for the statutory privilege to apply. Accordingly, production of the information requested will not be refused on the basis of the statute.
The submission made on behalf of the defendant was that the records sought were protected from production by public interest immunity. The immunity was considered by the High Court in Sankey v Whitlam & Ors (1978) 53 ALJR 11. Gibbs ACJ said at 21:
"Evidence Excluded as Prejudicial to the Public Interest ('Crown Privilege').
…
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, at p 940, as follows: 'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.' It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer, at p 940, 'the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it'. In such cases once the court has decided that 'to order production of the document in evidence would put the interest of the state in jeopardy', it must decline to order production.
An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document."
The defendant's claim was not that any record of the child's weight is subject to the immunity because of its content, but rather because such a record, being part of a patient's medical records, belong to a class of documents which, in the public interest, ought not to be produced. In considering cases where the claim is not made on the basis of the contents of the particular document but rather on its membership of a class, the person claiming the immunity carries a heavy onus. In Rogers v Home Secretary and Ors [1973] AC 388, Lord Reid said at 400 - 401:
"Claims for 'class privilege' were fully considered by this House in Conway v Rimmer [1968] AC 910. It was made clear that there is a heavy burden of proof on any authority which makes such a claim. But the possibility of establishing such a claim was not ruled out. I venture to quote what I said in that case, at p 952:
'There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon in Duncan v Cammell Laird & Co Ltd [1942] AC 624, 642, whether the withholding of a document because it belongs to a particular class is really "necessary for the proper functioning of the public service".'"
As Lord Edmund Davies pointed out in D v National Society for the Prevention of Cruelty to Children (supra) at 242:
"It is a serious step to exclude evidence relevant to an issue, for it is in the public interest that the search for truth should, in general, be unfettered. Accordingly, any hindrance to its seeker needs to be justified by a convincing demonstration that an even higher public interest requires that only part of the truth should be told."
Although medical reports are confidential, that is not sufficient on its own to prevent disclosure where relevant in proceedings before a court. As Lord Denning said in Campbell v Tameside Metropolitan Borough Council [1982] 2 All ER 791 at 796:
"The reports of nurses and doctors are, of course, confidential; but they must always be disclosed, subject to the safeguard that they are only for use in connection with the instant case and not for any other purpose … "
In Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 71 ALR 109, Wilcox J said at 114:
"The proper approach, as it seems to me, is to go behind the mere promises of confidentiality and to examine the interest which they were designed to safeguard …"
The confidentiality of medical records promotes proper health care by encouraging patients to make full and frank disclosure to doctors of their symptoms and medical histories and to submit to examinations, tests and procedures. In considering whether or not this interest ought prevail over the public interest that the administration of justice is not to be frustrated by the withholding of documents, I take into account the following matters:
(1)that the public interest in preserving the confidentiality of the doctor/patient relationship is already protected to a considerable degree by the statutory privilege;
(2)the protection, in this case, is not claimed because of the contents of the particular documents sought to be discovered, but solely on the basis that they belong to a particular class;
(3)the information sought is solely as to the weight of the patient and not as to any matter which might result in embarrassment to the patient or any member of her family, or which might (but for the fact that the information forms part of the medical records) be regarded as confidential;
(4)disclosure of the patient's weight is unlikely to jeopardise the effective functioning of health services; and
(5)access to the relevant part of the records can be conditioned by an order that the copies of the records produced are to remain confidential to the plaintiff and her legal advisers and are to be used for no purpose other than for the purposes of this litigation.
In my opinion, the factors favouring disclosure should predominate. The following orders will be made:
1Within 14 days, the defendant is to make discovery of the proforma typed document headed "Emergency Medicine Triage and Nursing Care Record" and the proforma typed document headed "Royal Hobart Hospital Paediatric Nursing Admission", both dated 12 August 1996, by providing copies containing the date of the document; the name of the patient; the date of birth of the patient; and the weight of the patient, with all other hand-written information on the forms blanked out.
2The copy documents provided are to remain confidential to the plaintiff and her legal advisers and are to be used for no purpose other than for the purposes of this action.
3Upon the conclusion of the action, the copy documents provided and any further copies which have been made and are in the possession, custody or control of the plaintiff or her legal advisers are to be returned to the defendant.
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