Khoury v Kirwan (No 3)
[2021] VSC 304
•27 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2020 01434
| ELIE KHOURY | Plaintiff |
| v | |
| DAVID KIRWAN | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2021 |
DATE OF JUDGMENT: | 27 May 2021 |
CASE MAY BE CITED AS: | Khoury v Kirwan (No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 304 |
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PRACTICE AND PROCEDURE – Subpoena objections – Subpoenas issued to health care providers, doctor and the Medical Council of New South Wales – Whether subsections 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 (NSW) are applicable – Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 – Burrows v Council for the Law Society of New South Wales [2018] NSWSC 235 – Objections on the basis of subsections 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 (NSW) are disallowed – Whether subsections 28(2) and (3) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) are applicable – National Mutual Life Association of Australia Ltd v Godrich (1910) 10 CLR 1 – Tikiri Pty Ltd v Fung (2016) 50 VR 786 – Medical Board of Australia v Kemp (2018) 56 VR 51 – Objections on the basis of subsections 28(2) and (3) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) are disallowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G L Schoff QC with Ms H Jager | Litton Legal |
| For the Defendant | Mr E Batrouney | Kennedys |
| For a Non-Party | Mr I Chatterjee | Health Care Complaints Commission |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Material filed...................................................................................................................................... 2
Is s 99A of the Health Care Complaints Act 1993 (NSW) applicable?...................................... 2
Submissions of the Health Care Complaints Commission..................................................... 3
Submissions of Dr Khoury........................................................................................................... 5
Submissions of Dr Kirwan........................................................................................................... 6
Applicable principles.................................................................................................................... 6
Do sub-ss 99A(2) and 99A(2A) operate as bars on the validity of a subpoena?................ 10
Can the Commission rely upon sub-ss 99A(2) or 99A(2A) although the documents have been produced?........................................................................................................................... 11
Does sub-s 99A(2A) of the HCC Act apply to subpoenas issued prior to its operation and returnable afterwards?...................................................................................................... 12
Can the Commission rely upon sub-s 99A(2A) although the subpoena is addressed not to it but the Medical Council (with whom it shares information)?........................................... 13
Can the Commission rely upon sub-s 99A(2) in response to a subpoena directed to the Medical Council?.............................................................................................................................. 15
Do sub-ss 99A(2) or 99A(2A) apply in respect of a subpoena addressed to AHPRA?..... 15
Are sub-ss 28(2) and (3) of the Evidence (Miscellaneous Provision) Act 1958 (Vic) applicable? 16
Submissions of Dr Khoury......................................................................................................... 18
Submissions of Dr Kirwan......................................................................................................... 19
Applicable principles.................................................................................................................. 20
Does sub-s 28(2) of the EMP Act apply to patients treated interstate?............................... 21
Do the consents provided by one patient and the relatives of two deceased patients by email to Dr Kirwan’s solicitor constitute consent within the meaning of sub‑ss 28(2) and (3)?..... 23
Does sub-s 28(2) of the EMP Act apply to records produced by regulatory bodies such as the Commission and AHPRA?............................................................................................... 24
Conclusion......................................................................................................................................... 27
HER HONOUR:
One orthopaedic surgeon says he has been defamed by another orthopaedic surgeon. The defendant surgeon, Dr David Kirwan, has caused a flurry of subpoenas to be issued. The documents subpoenaed include patient records and other health information. The plaintiff surgeon, Dr Elie Khoury, has lodged an objection to five of the subpoenas. There is also an objection to a subpoena from the Health Care Complaints Commission. This ruling determines some of the subpoena objections. Following the ruling, the parties will be given the opportunity to make submissions on remaining objections.
Summary
The questions for determination and their answers follow. Are the objections to production and inspection of the subpoenaed documents allowed on the basis of:
(a) sub-ss 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 (NSW) (‘HCC Act’)? No.
(b) sub-s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘EMP Act’)? No.
Background
Dr Khoury objects to five subpoenas that Dr Kirwan caused to issue.[1] Four of the subpoenas were issued on 15 September 2020. Their addressees are:
[1]By letter to the Prothonotary dated 6 October 2020 and summons filed on 9 March 2021.
(a) Australian Health Practitioner Regulation Agency (‘AHPRA’);
(b) Albury Wodonga Health;
(c) Dr Omar Khorsid; and
(d) Ramsay Health Care Australia Pty Ltd (‘Ramsay Health Care’).
A fifth subpoena was issued on 23 September 2020 and is addressed to:
(e) the Medical Council of New South Wales (‘the Medical Council’).
It is to the latter subpoena that the Health Care Complaints Commission (‘the Commission’) objects.
Material filed
The Commission relies on affidavits of its solicitor, Ms Nicole Williams, affirmed on 20 and 28 April 2021. The Commission filed an outline of submissions on 16 April 2021.
Dr Khoury relies on an affidavit of his solicitor, Ms Rebecca Ann Litton, sworn on 19 April 2021. Dr Khoury filed outlines of submissions filed on 9 April and in reply on 19 April 2021.
Dr Kirwan relies on an affidavit of his solicitor, Mr Nathan Albert Buck, affirmed on 16 April 2021 (‘Buck affidavit’). Dr Kirwan filed an outline of submissions on 16 April 2021.
Turning now to the first question.
Is s 99A of the Health Care Complaints Act 1993 (NSW) applicable?
The subpoena addressed to the Medical Council sought production of the following classes of documents.
1.All documents pertaining to conditions placed or proposed to be placed on the registration of Dr Elie Khoury’s [registration details].
2.All documents recording correspondence with the Health Care Complaints Commission, Albury Wodonga Private Hospital, Ramsay Health Care Australia Pty Ltd and the Australian Health Practitioners Registration Authority pertaining to Dr Elie Khoury’s clinical performance.
3.All documents forming part of complaints or investigations (including reports and submissions) into Dr Elie Khoury’s treatment of the following patients:
a.[patient name and date of birth] - a patient of Dr Elie Khoury who died on [date of death] at Albury Base Hospital after being operated on 10 days earlier at Albury Wodonga Private Hospital;
b.[patient name and date of birth] - a patient of Dr Elie Khoury in or around March 2011 at Albury Wodonga Private Hospital;
c.[patient name and date of birth] a patient of Dr Elie Khoury in 2012 at Albury Wodonga Private Hospital;
d.[patient name and date of birth] a patient of Dr Elie Khoury in or around April 2019 at Albury Wodonga Private Hospital;
e.[patient name and date of birth] a patient of Dr Elie Khoury in or around May 2019 at Albury Wodonga Private Hospital;
f.[name and date of birth] a patient of Dr Elie Khoury on or around 17 July 2019 at Albury Wodonga Private Hospital who died on [date of death]; and
g.[name and date of birth] a patient of Dr Elie Khoury in around October 2019 at Albury Wodonga Private Hospital.
The Medical Council produced documents to the Court responsive to the subpoena. Prior to production, the Medical Council informed the Commission of the subpoena.[2] The Commission informed the Medical Council that it would object to production of the subpoenaed documents on the basis of sub-s 99A(2) of the HCC Act.[3] Following production, the Commission wrote a letter of objection to the Prothonotary.[4] It is common ground that the Commission is a non-party with sufficient interest to make the objection.[5]
[2]Affidavit of Nicole Williams affirmed on 20 April 2021, [2] (‘first Williams affidavit’).
[3]Exhibit ‘NW-1’ to the first Williams affidavit (n 2).
[4]Letter to the Prothonotary dated 15 October 2020.
[5]Rule 42A.07 of the Supreme Court (General Civil Procedure) Rules 2015 is applicable.
Submissions of the Health Care Complaints Commission
The Commission is an independent statutory agency established by the HCC Act. Section 80 of the HCC Act identifies the functions of the Commission. Broadly, its functions are to assess, resolve, investigate and prosecute serious complaints relating to health services and health service providers in New South Wales. In exercising its functions, it obtains evidence including health records, personal information, and other sensitive documents.
Complaints about registered health practitioners are dealt with in accordance with the provisions of the HCC Act and the Health Practitioner Regulation National Law 2009 (NSW) (‘National Law’). This provides for a co-regulatory scheme. The Commission works with health professional councils, supported by the Health Professional Councils Authority, to manage complaints about registered health practitioners.
The Commission has certain powers of compulsion and the power to enter, search and seize documents.[6] As the Commission has investigative and coercive powers, the sanctity of investigations needs to be protected. The misconduct that the Commission investigates can include criminal conduct.
[6]See, for instance, HCC Act ss 21A, 33.
As part of the co-regulatory scheme, information is exchanged between the regulators. For instance, s 10(2) of the HCC Act requires the Commission to notify the Medical Council of complaints made to it and a consultation must then occur between the Commission and relevant council.[7] As part of that consultation, the Commission is required to provide documents to the Council.[8]
[7]HCC Act ss 10(2), 12 of the HCC Act.
[8]Ibid s 15. The Commission refers to Yee v Medical Council of New South Wales [2017] NSWCATAD 370, [28]–[30] as containing a useful summary of the core regulatory framework between it and the Medical Council.
Subsection 99A(2) provides that a person cannot be compelled in any legal proceedings to produce documents containing any information obtained in exercising a function under the HCC Act. The Commission objects to the production of documents that contain information obtained in exercising a function under the HCC Act.
It would undermine the statutory scheme if the operation of sub-s 99A(2) could be abrogated by issuing a subpoena to a separate agency, here the Medical Council, with whom the Commission has a statutory obligation to share material.
Subsection 99A(2A) of the HCC Act provides that a professional council or a person exercising functions on its behalf, may not be compelled in any legal proceedings to produce documents containing information exchanged between a professional council and the Commission under the HCC Act or National Law. A professional council cannot be compelled to produce documents that are part of the information exchange with the Commission.
Subsection 99A(2A) was inserted into the HCC Act shortly after the documents subpoenaed here were returnable. However, it applies to documents created before it came into effect. It is a question as to the content of the document, not the timing of production.
The effect of sub-ss 99A(2) and 99A(2A) is that a subpoena cannot be validly issued that purports to capture documents that fall within the classes in those sections. Those sections bar the valid issue of such a subpoena. Consequently, the subpoena addressed to the Medical Council was not validly issued.
It matters not whether the Commission takes issue with the subpoena or the Medical Council does. Both subsections use the phrase ‘may not be compelled’ in respect to the production of documents. This is not to say that Dr Kirwan could not write to the Medical Council and request those documents. If requested, it might then produce them. However, sub-ss 99A(2) and 99A(2A) prevent a coercive process in respect of the documents.
The Commission does not object to all documents produced. The specific categories of documents to which it objects are identified in Annexure A to its submissions.
Alternative to its objection to production, the Commission objects to access.
Submissions of Dr Khoury
The Commission’s submissions are adopted. Similar documents to those sought from the Medical Council are sought to be produced by AHPRA.[9] Subsection 99A(2) should prevent production of the documents in classes 2 and 3 of the subpoena addressed to AHPRA.
[9]Section 25 of the National Law outlines AHPRA’s functions.
Subsection 99A(2A) came into effect after the subpoena was issued and before the documents were produced. Now that the provision has been enacted, it should be applicable to the documents produced.
Submissions of Dr Kirwan
It is incumbent on the Commission to satisfy the Court that the documents were produced in exercise of a function under the HCC Act.[10] There is no evidence that any of the documents responsive to the subpoenas contain information obtained by either the Medical Council or AHPRA in the exercise of a function under the Act. There is no evidence of a complaint to the Medical Council. There is no evidence of a complaint made to the Commission and notified to the Medical Council.
[10]Sinclair v Psychology Council of NSW [2017] NSWCATAD 8, [55]–[58]; Quach v RU (No 1) [2017] ACTSC 233, [55]–[62].
There is no objection by the Medical Council and the subpoena is addressed to them. Unlike sub-s 99A(2), only a professional council, here the Medical Council, can make an objection pursuant to sub-s 99A(2A). This arises from the plain words of sub‑s 99(2A): ‘A professional council, or a person exercising functions on behalf of a professional council, may not be compelled…’.
Subsection 99A(2A) came into force after the subpoena was issued. In reply to the Commission, sub-s 99A(2A) could not have prevented the subpoena being issued.
As to the subpoena addressed to AHPRA, s 99A cannot apply. AHPRA is not referred to in the HCC Act. AHPRA was not performing a function under the HCC Act. Accordingly, s 99A is not applicable to the AHPRA subpoena.
Applicable principles
Sections 11–3 of the HCC Act are relevant and follow.
11 Complaints made to professional councils
If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission.
12Consultation between the Commission, a professional council and the Registrar
(1)Before determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint, the Commission must consult with the appropriate professional council (if any), subject to this section.
(1A)If it is proposed, as a result of the assessment of a complaint, to refer the complaint for conciliation, the Commission must also consult with the Registrar.
(2)The regulations may prescribe circumstances, such as cases of urgency, where the Commission may consult with a prescribed person on behalf of the appropriate professional council instead of consulting with the professional council itself and where the prescribed person may exercise the other functions of the professional council under this Division.
(3)Consultation under this section is to include consultation about any associated complaint, to the extent the Commission and the appropriate professional council or the Registrar consider the associated complaint to be relevant.
13The outcomes of consultation
(1)If either the Commission or the appropriate professional council is of the opinion that a complaint (or any part of a complaint) should be investigated, it must be investigated.
(2)If-
(a)neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated, but
(b)either is of the opinion that it should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW) (such as performance assessment or impairment assessment),
it must be referred to the professional council under section 25B.
(2A)If either the Commission or the appropriate professional council is of the opinion that an associated complaint that has been discontinued or terminated and to which regard was given during consultation-
(a)should be reopened or investigated - the complaint must be reopened and investigated in accordance with Division 5, or
(b)should be referred to the appropriate professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW) - the complaint must be so referred,
as if it had not been discontinued or terminated.
(3) If-
(a)neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated or referred to the professional council, but
(b)either is of the opinion that it should be referred for conciliation and the Registrar considers that it is appropriate for conciliation,
the Commission is to refer the complaint for conciliation under Division 8.
Subsection 80(1) of the HCC Act follows.
80 Functions of Commission
(1) The Commission has the following functions-
(a)to receive and deal under this Act with the following complaints-
•complaints relating to the professional conduct of health practitioners
•complaints relating to a relevant health organisation, including an alleged breach by a relevant health organisation of a code of conduct prescribed by the regulations made under section 100(1)(c) of the Public Health Act 2010
•complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients
•complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW),
(b)to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2,
(c)to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals,
(d)to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part,
(e)to monitor, identify and advise the Minister on trends in complaints,
(f)to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with,
(g)to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints,
(h)to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process,
(i)to develop, after such consultation with clients, health service providers and persons who, in the Commission’s opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions.
...
Section 99A of the HCC Act follows.
99A Offence: improper disclosure of information
(1)If a person discloses information obtained in exercising a function under this Act and the disclosure is not made-
(a)with the consent of the person to whom the information relates, or
(b)in connection with the execution and administration of this Act, or
(c)for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d)with other lawful excuse,
the person is guilty of an offence.
Maximum penalty - 10 penalty units or imprisonment for 6 months, or both.
(2)A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.
(2A)A professional council, or a person exercising functions on behalf of a professional council, may not be compelled in any legal proceedings to give evidence about, or produce documents containing, information exchanged between a professional council and the Commission under this Act or the Health Practitioner Regulation National Law (NSW).
(3)Subsections (2) and (2A) do not apply to the following proceedings-
(a) proceedings under the Royal Commissions Act 1923,
(b)proceedings before the Independent Commission Against Corruption,
(c)proceedings under Part 3 of the Special Commissions of Inquiry Act 1983,
(d)an inquiry under the Ombudsman Act 1974,
(e)in relation to subsection (2A) - proceedings under the Health Practitioner Regulation National Law (NSW), but only if-
(i)the professional council is a party to the proceedings, and
(ii)the information is necessary for the just and equitable resolution of the proceedings.
Do sub-ss 99A(2) and 99A(2A) operate as bars on the validity of a subpoena?
In contrast to sub-ss 99A(2) and 99A(2A) of the HCC Act, the rules applicable to subpoenas are procedural in nature. Procedural rules apply to the issuing of subpoenas, objections to subpoenas, and inspection of subpoenaed documents: see ords 42 and 42A of the Supreme Court (General Civil Procedure Rules) 2015.
Subsections 99A(2) and 99(2A) each bestow an immunity against compellability upon the persons to whom they are directed. Those persons ‘may not be compelled in any legal proceedings to give evidence about, or produce documents’ containing the information described in those subsections. The characterisation of sub‑ss 99A(2) and 99A(2A) as immunities against compellability is consistent with analogous provisions in other statutes. In particular, it is analogous with s 468 of the Legal Profession Uniform Law 2014 (NSW) and its predecessor section. Those sections are discussed further below.
Consequently, it is incorrect to characterise sub-ss 99A(2) and 99A(2A) as bars on the validity of a subpoena. They are immunities which certain persons may invoke, or not. They do not impact on the Court’s process of issuing a subpoena.
Can the Commission rely upon sub-ss 99A(2) or 99A(2A) although the documents have been produced?
Here, the Medical Council has produced the documents. Accordingly, it has expressly waived the immunity against compellability.
In Council of the New South Wales Bar Association v Archer (‘Archer’),[11] the New South Wales Court of Appeal considered a provision which was in the Legal Profession Act 1987 (NSW), namely s 171R(1). Similar to here, s 171R(1) provided an immunity against compellability; although, in comparison to sub-ss 99A(2) and 99A(2A) it stated a person ‘is not compellable’ rather than ‘may not be’. Section 171R(1), as it was then, follows.
A person referred to in section 171Q is not compellable in any legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part.
[11](2008) 72 NSWLR 236.
In Archer, Hodgson JA held, with Campbell JA agreeing, that:
[it] is clear that a person within the protection of s 171R can waive that protection, in the sense that that person can voluntarily give evidence or produce documents affected by s 171R, so long as this is consistent with s 171P.[12]
[12]Ibid 248 [38].
As to whether s 171R could be waived, Campbell JA made the following additional observation: ‘[a] question of whether a person is compellable to give evidence or produce documents will arise only if the person resists giving the evidence or producing the documents’.[13]
[13]Ibid 254 [60] (emphasis added).
Similarly, in Burrows v Council for the Law Society of New South Wales,[14] Schmidt J considered s 468(1) of the Legal Profession Uniform Law 2014 (NSW) (‘Uniform Law’). Section 468(1) is framed in similar terms to s 171R(1) of the Legal Profession Act 1987. Section 468(1) of the Uniform Law provides:
A relevant person referred to in section 467 is not compellable in any legal proceedings (including proceedings before the designated tribunal for the purposes of Chapter 5) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this law.
[14][2018] NSWSC 235.
Schmidt J concluded that ‘the Society’s production of the documents to the Court in answer to the subpoena had resulted in a waiver of its rights under s 468 of the Legal Profession Uniform Law 2014 (NSW)’.[15]
Does sub-s 99A(2A) of the HCC Act apply to subpoenas issued prior to its operation and returnable afterwards?
[15]Ibid [3].
Subsection 99A(2A) was inserted into the HCC Act by the Health Legislation (Miscellaneous Amendments) Act 2020 (NSW) (‘amendment Act’) and commenced operation on the date of assent, namely 27 October 2020. This post-dates the issue of the subpoenas. However, it pre-dates the deadline for production of the subpoenaed documents. Accordingly, Dr Kirwan says sub-s 99A(2A) is not applicable to the subpoenas here. On the other hand, the Commission says that it is applicable.
Neither the amendment Act nor the primary HCC Act contain transitional provisions dealing with the operation of sub-s 99A(2A).
There is a general rule against retrospective operation of amending Acts.[16] Importantly, sub-ss 30(1)(b)–(c) of the Interpretation Act 1987 (NSW) provides as follows.
(1) The amendment or repeal of an Act or statutory rule does not-
...
(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule…
[16]Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629, 637–8 (Dixon CJ).
Neither s 30(1) of the Interpretation Act 1987 nor the general rule, prevent an amending Act taking antecedent facts and circumstances into account in circumstances where existing rights or obligations are not impaired or otherwise affected:
It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does not more than that… The principle is concerned with the case where the enactment would apply to these antecedent facts and circumstances in such a way “as to impair an existing right or obligation” or “as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events”.[17]
[17]Robertson v City of Nunawading [1973] VR 819, 824.
Subsection 99A(2A) of the HCC Act does not impair or affect existing rights or obligations. The HCC Act does not create a ‘right’ of individuals to access the medical records of third parties or impose an obligation on the Commission to provide such documents.[18] Accordingly, sub-s 99A(2A) may apply to an antecedent fact or circumstance.
[18]See also HCC Act sub-s 99A(1). On the other hand, professional councils have a right to seek certain information from the Commission: s 15 of the HCC Act.
Subsection 99A(2A) provides an immunity. That immunity comes into operation on the date of assent. It would limit the operation of that immunity if it could not be invoked in respect of subpoenas issued prior to it coming into effect but requiring production afterwards. There is no such limitation in the words of sub‑s 99A(2A) or any transitional provisions. I find that sub-s 99A(2A) may apply to subpoenas issued prior to its operative date that require documents to be produced from the operative date. Accordingly, here, the immunity in sub‑s 99A(2A) may be invoked in response to the subpoena issued prior to sub‑s 99A(2A) coming into effect. The same analysis applies to documents created prior to sub-s 99A(2A) coming into effect. The immunity may be invoked in respect of such documents.
Can the Commission rely upon sub-s 99A(2A) although the subpoena is addressed not to it but the Medical Council (with whom it shares information)?
The Commission cannot rely on sub-s 99A(2A). It is an immunity directed to ‘[a] professional council, or a person exercising functions on behalf of a professional council’. It is not directed to the Commission. I am reinforced in this textual interpretation of sub-s 99A(2A) by its context.
Firstly, the subsection immediately prior to sub-s 99A(2A) is sub-s 99A(2). It is directed to a person exercising functions under the HCC Act. The Commission exercises functions under the Act and accordingly, can rely upon sub-s 99A(2).
Secondly, the subsection immediately after sub-s 99A(2A) is sub-s 99A(3). It contains a number of exceptions in respect of sub-ss 99A(2) and (2A). It also contains an exception that applies to sub-s 99A(2), being sub-s 99A(3)(e). That section refers to an exception for certain proceedings and then states ‘but only if…the professional council is a party to the proceedings…’.[19] This supports the reading of sub-s 99A(2A) as being directed to a professional council (or a person exercising functions under it), not the Commission.
[19]HCC Act sub-s 99A(3)(e) (emphasis added).
I am reinforced in the interpretation above by the Second Reading Speech for the amendment Act. In the Second Reading Speech for the Health Legislation (Miscellaneous Amendments) Bill 2020 which inserted sub-s 99A(2A) in s 99A, it was stated:
The bill also amends section 99A of the Health Care Complaints Act 1993 to extend the existing privilege that applies to information held by the HCCC to information that is held by the health professional councils, where that information has been shared between the HCCC and the councils. The HCCC and the councils routinely share information and complaints. However, there is a lack of clarity about whether section 99A extends to information held by the council that has been given to it by the HCCC…[20]
[20]New South Wales, Parliamentary Debates, Legislative Assembly, 23 September 2020 (Bard Hazzard) 3632 (emphasis added).
As a matter of completeness, I will address the Commission’s concern that persons could subvert the operation of s 99A by subpoenaing documents from a professional council. This concern cannot override the text of sub-s 99(2A). It provides a professional council, or a person exercising functions on their behalf, with an immunity against compellability. It is their immunity to invoke, or not.
Can the Commission rely upon sub-s 99A(2) in response to a subpoena directed to the Medical Council?
Subsection 99A(2) is an immunity against compellability. The subpoena was addressed to the Medical Council, not the Commission. Accordingly, the Commission could not invoke its own immunity to prevent the Medical Council being compelled to produce the subpoenaed documents. Of course, the Medical Council itself could have relied upon the immunity in sub-s 99A(2A). However, it chose not to do so. By producing the documents, the Medical Council waived its immunity against compellability.
Given the findings above, it is not strictly necessary to determine whether the documents produced in response to the Medical Council subpoena, and which were identified by the Commission as containing information obtained in exercising a function under the HCC Act, did in fact contain that information. Dr Kirwan’s submission that the Commission had not tendered satisfactory evidence regarding this was made prior to the Commission filing the affidavit of its solicitor, Ms Williams, affirmed on 28 April 2021. I accept the evidence in that affidavit. Had it been necessary to do so, I would have held that it was evident that the documents to which the Commission objected contained information obtained in exercising a function under the HCC Act.
Do sub-ss 99A(2) or 99A(2A) apply in respect of a subpoena addressed to AHPRA?
The immunities in sub-ss 99A(2) and 99(2A) cannot be invoked in respect of the subpoena addressed to AHPRA.
Subsection 99A(2) applies to information obtained in exercising a function under the HCC Act. AHPRA does not exercise functions under the HCC Act.
Subsection 99A(2A) applies to a ‘professional council’ or a person exercising a function on their behalf. Pursuant to the definition in s 4 of the HCC Act,
professional council means, in relation to a health practitioner in a health profession for which a Council is established under section 41B of the Health Practitioner Regulation National Law (NSW) [National Law], the Council for that health profession.
Section 41B of the National Law does not include AHPRA. Instead AHPRA is established under s 23 of the National Law.
In conclusion, the objection made by Dr Khoury and the Commission to production and inspection of the documents on the basis of the HCC Act is disallowed.
Turning now to the EMP Act.
Are sub-ss 28(2) and (3) of the Evidence (Miscellaneous Provision) Act 1958 (Vic) applicable?
Subsections 28(2) and (3) of the EMP Act oblige physicians and surgeons not to divulge certain information without the consent of patients or, in the event the patient is deceased, consent by their legal personal representative, spouse or child.
As described further below, the classes of documents sought for production include documents relating to eight specific patients of Dr Khoury, some of whom are deceased. There is a dispute between the parties as to whether sub-s 28(2) is applicable to the classes of documents subpoenaed. Moreover, in respect of three of the patients named in the subpoena, it is said by Dr Kirwan that he has obtained consent. Dr Khoury leaves it to the Court to determine whether the consent obtained is truly consent within the meaning of sub-s 28(3).
In addition to the references to specific patients in the subpoenas to the Medical Council and AHPRA, there are references to specific patients in the subpoenas addressed to Albury Wodonga Health and Ramsay Health Care. For instance, the class of documents in the subpoena addressed to Albury Wodonga Health is:
All medical records including but not limited to, all clinical notes, correspondence, specialist reports, medical certificates, medical reports, lists of prescriptions, all imaging including any radiological films, CT scans, MRI scans etc, and results of tests, investigations and x-rays, including any of the aforementioned which may have been forwarded from any other hospital or health care provider
FOR the following patients:
(a)[patient name and date of birth] – died on [date of death] at Albury Base Hospital;
(b)[patient name and date of birth];
(c)[patient name and date of birth] a patient at Albury Base Hospital in around October 2019;
(d)[patient name and date of birth] a patient at Albury Base Hospital in or around May 2019; and
(e)[patient name and date of birth].
By way of further example, classes 1 and 2 in the subpoena addressed to Ramsay Health Care are:
1.All medical records including but not limited to, all clinical notes, correspondence, specialist reports, medical certificates, medical reports, lists of prescriptions, all imaging including any radiological films, CT scans, MRI scans etc, and results of tests, investigations, x‑rays, Riskman entries and incident reports including any of the aforementioned which may have been forwarded from any other hospital or health care provider;
AND
2.All documents recording a root cause analysis, review, analysis, incident report, peer review, audit, investigation, meeting or inquiry (including minutes of meetings of Albury Wodonga Private Hospital’s Medical Advisory Committee, Mortality and Morbidity Committee or any other clinical review committee or craft group) into the mortality or morbidity of each of the patients listed below and all documents requesting any such investigation, analysis, review, audit or inquiry to take place or consideration of whether any such investigation, analysis, review, audit or inquiry should, would or would not occur (including correspondence to and from the CEO of Albury Wodonga Private Hospital from time to time, including but not limited to [names])
FOR EACH OF THE FOLLOWING PATIENTS
(a)[patient name and date of birth] - a patient of Dr Elie Khoury who died on [date of death] at Albury Base Hospital after being operated on 10 days earlier at Albury Wodonga Private Hospital;
(b)[patient name and date of birth] - a patient of Dr Elie Khoury in or around March 2011 at Albury Wodonga Private Hospital;
(c)[patient name and date of birth] a patient of Dr Elie Khoury in 2012 at Albury Wodonga Private Hospital;
(d)[patient name and date of birth] a patient of Dr Elie Khoury in or around April 2019 at Albury Wodonga Private Hospital;
(e)[patient name and date of birth] a patient of Dr Elie Khoury in or around May 2019 at Albury Wodonga Private Hospital;
(f)[patient name and date of birth] a patient of Dr Elie Khoury on or around 17 July 2019 at Albury Wodonga Private Hospital who died on [date of death];
(g)[patient name and date of birth] a patient of Dr Elie Khoury in around October 2019 at Albury Wodonga Private Hospital; and
(h)[patient name and date of birth] a patient of Dr Elie Khoury on around 6 November 2019 at Albury Wodonga Private Hospital.
Submissions of Dr Khoury
Subsection 28(2) of the EMP Act is applicable. The following principles outlined in Tikiri Pty Ltd v Fung (‘Tikiri v Fung’)[21] and other authorities are relevant here. Subsection 28(2):
[21](2016) 50 VR 786, 796–7 [39]–[47] (‘Tikiri v Fung’); see also Ginnity v Prefsure Life Ltd [2007] VSC 284 (‘Ginnity’) and the history of sub-s 28(2) of the EMP Act outlined in Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225 (‘Royal Women’s Hospital’).
(a) extends to persons other than the physician or surgeon who first acquired the information. It extends to other persons in possession or custody of information of the type, and recorded in the circumstances, contemplated by the provision. The protections and policy of sub-s 28(2) would be undermined if a third party was required to disclose such information;[22]
[22]Australian Cardiology Services Pty Ltd v Rudd (No 2) [2020] VSC 839, [52] (‘Rudd’); Fitzgerald (by her litigation guardian Jacobsen) v Munro [1998] VSC 30, [16]–[17], [20] (‘Fitzgerald v Munro’).
(b) refers to information acquired in attending to the patient and which was ‘necessary’ to enable the physician or surgeon to prescribe or act for the patient. This includes any information which is or is likely to be relevant to determining the proper treatment of the patient;[23]
[23]Tikiri v Fung (n 21) 796 [41]; National Mutual Life Association of Australia Ltd v Godrich (1910) 10 CLR 1, 8 (Griffiths CJ), 19 (Barton J) (‘Godrich’).
(c) is directed towards protection of information divulged by the patient, and that information is protected regardless of whether the record of that information is owned by an individual doctor, an operator of a clinic, or a hospital;[24]
(d) applies to information stored on behalf of a physician or surgeon to whom it was disclosed;[25] and
(e) ‘privilege’ cannot be waived by the physician or surgeon but properly belongs with the patient.[26]
[24]Rudd (n 22) [52]; see also Medical Board of Australia v Kemp (2018) 56 VR 51, 73–5 (Niall JA) (‘Kemp’) on the purposes of the provision and the interest it protects.
[25]Rudd (n 22) [53].
[26]Ibid [54]; Elliot v Tippet (2008) 20 VR 195, 201 [22]–[23].
The information in the documents sought to be subpoenaed has been acquired in attending the patients and was necessary to enable Dr Khoury to prescribe or act for them.
In reply to Dr Kirwan’s jurisdictional argument, it is nonsensical to suggest that because sub-s 28(2) was first enacted before Federation it should now be confined to apply only in Victoria. The proper approach to an evidential protection such as this is to treat it as a matter of procedure. The procedural law of the forum applies.
Moreover, the hospitals here, which are operated by Albury Wodonga Health and Ramsay Health Care, are on the border of Victoria and New South Wales. We do not know where the patients resided when they were treated.
Submissions of Dr Kirwan
Subsection 28(2) only applies in Victoria. It does not apply to patients treated interstate by interstate practitioners. Here, the Buck affidavit evidences that patients were treated in Albury, New South Wales, rather than Wodonga, Victoria.
There is a presumption that sub-s 28(2) does not have extraterritorial effect unless indicated to the contrary. Section 48 of the Interpretation of Legislation Act 1984 (Vic) provides:
In an Act or subordinate instrument, unless the contrary intention appears-
(a)a reference to an officer or office shall be construed as a reference to such an officer or office in and for Victoria; and
(b)a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.
Subsection 28(2) is a particularly Victorian provision and its origins are Victoria. When passed by Parliament, Victoria was a colony. It was only intended to apply to doctors attending upon patients in Victoria.[27]
[27]Royal Women’s Hospital (n 21) [28], [31] (Gillard J).
A distinction should be drawn between patient records and information held by regulatory bodies exercising investigative or compulsive powers. Together the information takes the form of complaints or reviews into a doctor’s clinical practice. Different considerations apply where, as with here, the regulatory body or hospital is undertaking an investigation or exercising compulsive powers. Subsection 28(2) is not engaged because a surgeon or physician is not divulging information. It is information obtained while exercising compulsive powers.[28]
[28]See Piesse v Medical Board of Australia [2018] VCAT 742 cited in Rudd (n 22) [29], [53(a)].
Alternatively, consent to divulge has been obtained in respect of three patients, of whom one is living and two are deceased. There is no prescriptive form required for consent. It may be express or implied.[29] Here, the consent is evidenced in the Buck affidavit and emails exhibited to it from patients, or in the case of the deceased patients, their spouse or child.[30]
[29]Ginnity (n 21) [14].
[30]Affidavit of Nathan Albert Buck affirmed on 16 April 2021, [20]–[24] (‘Buck affidavit’). Exhibits ‘NAB-10’–‘NAB-12’ to the Buck affidavit.
Applicable principles
Subsections 28(2)–(4) of the EMP Act follow.
(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.
(3)Where a patient has died, no physician or surgeon shall without the consent of the legal personal representative or spouse of the deceased patient or a child of the deceased patient divulge in any civil suit action or proceeding any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable the physician or surgeon to prescribe or act for the patient.
(4)Subsection (3) shall cease to have any application to or in relation to any civil suit action or proceeding at and from the time at which there is no legal personal representative spouse or child of the deceased patient.
In Medical Board of Australia v Kemp (‘Kemp’),[31] Niall JA explained the purpose of sub‑s 28(2) of the EMP Act and characterised it as a rule of evidence.
In its broadest conception, the purpose of s 28(2) is to prescribe a rule of evidence or procedure that applies in a civil suit, action or proceeding. It does not create a general substantive right to medical confidence. That is evidenced in the circumstances of this case by the fact that the Board’s ability to obtain information as part of an investigation into a medical practitioner is not constrained by the notion of doctor-patient confidentiality.
At common law, the relationship between a doctor and his or her patient gives rise to an obligation of confidence.[32] However, that obligation of confidence, whether sourced in equity or contract, could not stand in the way of an obligation to give evidence as a witness or to produce documents pursuant to an order for discovery or a subpoena. It follows that, at common law, a doctor could not refuse to give evidence or produce documents in a legal proceeding on the ground of doctor-patient confidentiality. Section 28(2) alters that position by providing that a doctor cannot be compelled to disclose the relevant information in a civil suit, action or proceeding.[33]
[31]Kemp (n 24).
[32]See Hunter v Mann [1974] QB 767, 772 (Boreham J, with whom Lord Widgery CJ and May J agreed); Parry-Jones v Law Society [1969] 1 Ch 1, 7 (Lord Denning MR), 9 (Diplock LJ); Breen v Williams (1996) 186 CLR 71, 78−9 (Brennan J), 90−2 (Dawson and Toohey JJ), 102 (Gaudron and McHugh JJ), 123−4 (Gummow J); Kadian v Richards (2004) 61 NSWLR 222, 240−1 [44]−[48] (Campbell J).
[33]Kemp (n 24) [98]–[99] (citations omitted).
The principles in Tikiri v Fung are applicable. The circumstances here should be distinguished from those in Fitzgerald v Munro. In that case, different information was sought. The case of White v Arbuthnot Sawmills Pty Ltd[34] is applicable. There it was held that sub-s 28(2) did apply to records held by a patient.
[34][2017] VSC 443.
Does sub-s 28(2) of the EMP Act apply to patients treated interstate?
I accept the evidence in the Buck affidavit that some of the patients whose records were subpoenaed were treated interstate.[35] However, for the following reasons, I reject Dr Kirwan’s submission that, by reason of patients being treated interstate, sub‑s 28(2) of the EMP Act cannot apply to their medical records subpoenaed here.
[35]Buck affidavit (n 30), [21]–[23].
Subsection 28(2) of the EMP Act is a Victorian evidentiary rule. I accept Dr Khoury submission that the law of the forum applies.
In National Mutual Life Association of Australia Ltd v Godrich,[36] the High Court of Australia held that s 55 of the Evidence Act 1890 (Vic) applied in Victorian courts to events which occurred outside Victoria. That case concerned evidence of a doctor in relation to an attendance and subsequent surgery on a patient in Sydney, New South Wales. Section 55 of the Evidence Act 1890 was the predecessor to s 28 of the EMP Act; it provided:
No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding (unless the sanity of the patient be the matter in dispute) any information which he may have acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
[36]Godrich (n 23).
On the provision’s application to events or facts occurring outside Victoria, Griffith CJ held, with Barton J agreeing:
‘[t]he law governing admissibility of evidence is part of the lex fori, and is applicable in every case where the evidence is offered within the country in which the law is in force, wherever the events or facts sought to be proved may have occurred’.[37]
[37]Ibid 14.
Relevantly, O’Connor J observed:
It is, in my opinion, immaterial whether the doctor whose evidence it is sought to exclude attended the patient in or out of Victoria. The section deals only with procedure in Victorian Courts. It is within the competency of the Victorian legislature to bind in matters of procedure all persons who come before Victorian Courts even though the result may be, as in this case, to shut out evidence of a transaction which took place outside their territorial jurisdiction. Privilege from disclosure in Court is certainly a matter of procedure only. That being so, there is no reason why the general words used by the legislature, which on the face of them include attendance on a patient in any part of the world, should be restricted in their operation to attendance in Victoria.[38]
[38]Ibid 26.
While Isaacs J relevantly stated:
As to the third point, I think the section applies wherever the confidence arose, whether in Victoria or elsewhere. A New South Wales solicitor, having obtained a confidential communication in that State, would not be free from his obligation of secrecy in Victoria, a clergyman to whom a confession was made in another State would not be permitted to divulge it in a Victorian Court, and so with regard to the physician. Equally with the case of a Victorian practitioner would the Court in the event of divulgation be made the instrument of a breach of faith, and this is what is forbidden.[39]
Do the consents provided by one patient and the relatives of two deceased patients by email to Dr Kirwan’s solicitor constitute consent within the meaning of sub‑ss 28(2) and (3)?
[39]Ibid 38–9. See also Re Sophie; Director-General, Department of Community Services [2008] NSWSC 126.
I find the consents provided do constitute consent within the meaning of sub‑ss 28(2) and (3) of the EMP Act.
The EMP Act does not stipulate the form of consent required. It may be express or implied.[40] A consent for the purpose of sub-ss 28(2) or (3) must contain consent to the giving of evidence in Court.[41]
[40]Ginnity (n 21) [26]–[28] citing Carusi v Housing Commission [1973] VR 215, 218 (Lush J) (‘Carusi’).
[41]Carusi (n 40).
The emails containing consents are exhibited as ‘NAB-10’ to ‘NAB-12’ of the Buck affidavit. The Buck affidavit, read with the exhibits, sufficiently identifies the persons who provide the email consents.
Here, Dr Kirwan’s solicitor emailed the relevant patient and children of patients. The emails explained the reason why the medical records were sought, from whom they were sought and set out the terms of sub-s 28(2)–(3) before stating:
We believe that some or all of these subpoenaed parties hold medical records in relation to Dr Khoury’s treatment of your father.
Although your father was treated in NSW, Dr Khoury chose to commence proceedings in Victoria. As a result, section 28(2) and 28(3) of the Evidence (Miscellaneous Provisions) Act 1958 (Victoria) may apply, and Dr Khoury has raised these provisions to object to your father’s medical records being produced by the above subpoena recipients.
...
Accordingly, we may require your consent, as [name of deceased]’s daughter, for the subpoena recipients to comply with the subpoenas.
We hereby seek your consent [sic] for [patient’s name’s] medical records to be produced to the Court by the above parties and be inspected by us.
You should seek independent legal advice if you have any doubts at all about our request.
If you consent, I will exhibit this email and your reply to an Affidavit.
Please reply to this email to let us know if you consent to our request.[42]
[42]Exhibit ‘NAB-10’ to the Buck affidavit (n 30) (emphasis in original).
I am satisfied there is consent within the meaning of sub-s 28(2) in respect of the patient who has provided that directly. Further, I am satisfied that the consents provided by the son and a daughter respectively of the two deceased patients constitute consent within the meaning of sub-s 28(2) in respect of the deceased patients’ medical records.
Does sub-s 28(2) of the EMP Act apply to records produced by regulatory bodies such as the Commission and AHPRA?
Subsection 28(2) of the EMP Act does not apply to records produced by regulatory bodies such as the Commission and AHPRA.
In Kemp, the Court of Appeal considered whether or not sub-s 28(2) applied to a proceeding in the Victorian Civil and Administration Tribunal. The proceeding in the Tribunal was occasioned by the Medical Board of Australia’s referral of three matters of possible professional misconduct by the respondent medical practitioner to the Tribunal. (The Tribunal was the responsible tribunal pursuant to the National Law.) The Board applied to the Tribunal for the issue of summons for the production of the medical records of the relevant patients. Two patients declined to give their consent for disclosure of the records. The respondent doctor objected to production of the medical records, relying on sub-s 28(2).
Niall JA, with whom Maxwell P and Tate JA agreed, held that sub-s 28(2) of the EMP Act did not apply to the Tribunal proceeding. Niall JA concluded that the Tribunal proceeding was not a ‘civil suit action or proceeding’ within the meaning of sub‑s 28(2).
The circumstances in Kemp may be distinguished from those here because the proceeding is not in the Tribunal but rather in this forum and a dispute between two private parties. However, the characterisation of sub-s 28(2) is applicable here and has already been cited above. Further, Niall JA explained the intersection of interests in sub-s 28(2) of the EMP Act.
Section 28(2) operates at the intersection of various interests but in a specific context. First, there is the interest of the patient in protecting medical confidence. Second, there are the interests of the parties to the suit, action or proceeding who will be denied access to the material that, it must be assumed, would otherwise be obtainable and probative of some issue in dispute. Third, there is the public interest that the administration of justice shall not be frustrated by the withholding of documents or evidence which must be produced if justice is to be done.
It is clear that one of the purposes of s 28(2) is to protect the interests of the patient by protecting doctor-patient confidentiality. It is the patient, through the giving or withholding of consent, who controls the ability of the doctor to disclose information obtained from consultation or examination. The ability of the patient to control access to information extends to preventing the release of information, even in the context of a subpoena issued to the medical practitioner.
The interests that are protected where s 28(2) applies are, in one sense, private interests, although that description does not fully capture what is at stake. As the judgment of Barton J in Godrich reveals, the interests in medical confidence are important and serve the broader interest of the community in fostering access to medical care and treatment.[43] In Royal Women’s Hospital v Medical Practitioners Board of Victoria, Maxwell P described the maintenance of medical confidentiality as ‘a matter of high public importance’, in a context where the evidence in that case established that if medical records were revealed it might discourage patients from seeking critical medical assistance relating to the termination of pregnancy.
[43]Godrich (n 23) 19−20.
...
The second interest is that of the party who seeks to elicit testimony or the production of documents. The ability of a party to obtain access to the information of the opposing party by discovery or subpoena, or from third parties by subpoena, is one that is given in aid of the conduct of the proceeding. The party obtaining such information, at least until it is admitted into evidence, must not use it for any purpose other than that for which it was given, on pain of contempt.[44] In that sense, a party does not seek medical information as an end in itself but rather to assist it in achieving an outcome in the suit, action or proceeding which is favourable to it.
[44]Hearne v Street (2008) 235 CLR 125, 154−5 [96] (Hayne, Heydon and Crennan JJ).
The third interest is the important, but broader, public interest in the administration of justice. This interest is readily engaged where the application of s 28(2) arises in court proceedings, but less so in the context of tribunals outside the court system.
There is a degree of overlap between the second and third interests, although they reflect different perspectives. Importantly, those interests are not absolute. Rules of procedure regularly limit the ability of a party to compulsory access to documents through discovery and subpoena.
Further, rules of evidence exclude the admission into evidence of documents and testimony that would otherwise be relevant and probative. Rules of evidence confine the evidentiary record but do not impair the curial function of finding facts, applying the law, or exercising any discretion.[45]
[45]Nicholas v The Queen (1998) 193 CLR 173, 189 [23] (Brennan CJ).
Having identified the various interests in play, it is apparent from its terms that s 28(2) does not operate to favour only a single interest.
First, on any view, s 28(2) would not stand in the way of compelling the production of documents or eliciting medical evidence from a doctor in a prosecution for a criminal offence.
Second, there are the exceptions in s 28(5) setting out various circumstances in which s 28(2) does not apply. Section 28(5)(a) and (b) relevantly provide that s 28(2) does not apply in proceedings for damages under the Wrongs Act 1958 or compensation for the death of the patient under workers’ compensation legislation. Section 28(5)(c) has the same effect but in relation to any civil suit, action or proceeding in which the sanity or testamentary capacity of the patient is in issue.
Third, and importantly, s 28(2) does not preclude obtaining evidence from the patient. Section 28(2), in its terms, does not permit a witness to refuse to produce documents or answer questions that reveal information provided to or acquired from a treating doctor.
Fourth, s 28(2) does not preclude the drawing of inferences from a party’s failure to allow for the production or eliciting of the relevant information…
...
It follows that the purpose of s 28(2) is to overcome the common law and to provide for the protection of medical confidence in a ‘large class of forensic controversies.’[46] It is also relevant that the balance that is sought to be struck is one that mediates between private interests.
The protection of private interests
...I do accept that the purpose of the provision is to provide some protection for medical confidence in the context of the determination of private rights.
...
On the view that I favour, s 28(1) and (2) were rules of evidence that were never intended to capture regulatory or administrative processes that did not determine private rights in an inter partes context.[47]
[46]Godrich (n 23) 21.
[47]Kemp (n 24) 73–4 [108]–[110], 74–5 [112]–[120], 76 [122]–[123], 80 [147].
As will be recalled, sub-s 28(2) of the EMP Act applies to information acquired by physician or surgeon by a patient in attending a patient and which is necessary for them to act or prescribe for the patient. Subsection 28(2) provides that the physician or surgeon must not divulge such information. Here, the subpoenas are not directed to a physician or surgeon, or those holding the information on their behalf. Rather, the records produced here are by AHPRA and the Medical Council. I accept that they may contain information that falls within sub-s 28(2). However, as they are professional and regulatory bodies rather than a physician or surgeon, or those holding information on their behalf, sub-s 28(2) is not applicable. I am reinforced in this by the provisions in the National Law which provide that both AHPRA and the Medical Council have their own powers to obtain information.[48] Neither depend upon the patients’ consent to collect information.
[48]See, for example, National Law sub-s 164A(3).
Moreover, there are statutory provisions protecting the confidentiality of information obtained by AHPRA and the Medical Council in the course of exercising their statutory functions.[49] As has been discussed, for instance, the Medical Council could have invoked sub-s 99(2A) of the HCC Act in response to the subpoena.
[49]See, for example, National Law s 216.
Finally, there were a number of authorities cited by the parties that pre-date Kemp and do not need to be addressed here. Other authorities did not directly address the question here in respect of regulatory authorities.
Conclusion
The objection to production and inspection of the subpoenaed documents on the basis of sub-s 99A(2) of the HCC Act and sub-s 28(2) of the EMP Act is disallowed. Accordingly, I will hear submissions in respect of the other grounds of objection advanced by Dr Khoury. I will give the Commission the opportunity to make submissions on costs.
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