Medical Practitioners Board of Victoria v Detective Senior
[2008] VMC 15
•11 December 2008
IN THE MAGISTRATES COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. Z00785406
| Medical Practitioners Board of Victoria | Applicant |
| v | |
| Detective Senior Constable Dwyer | Respondent |
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| MAGISTRATE: | S Garnett |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 November 2008 |
| DATE OF DECISION: | 11 December 2008 |
| CASE MAY BE CITED AS: | Medical Practitioners Board of Victoria v Detective Senior Constable Dwyer |
| REASONS FOR DECISION |
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Catchwords: search warrant - s 465 Crimes Act 1958 - s 75, s 76 and s 78 Magistrates’
Court Act 1989
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Forbes | |
| For the Respondent | Mr Dennis | |
| HIS HONOUR: |
1. The Respondent sought, obtained and executed a search warrant on the Applicant in accordance with s 465 of the Crimes Act 1958 and s 75, s 76 and s 78 of the Magistrates Court Act 1989.
2. The search warrant sought all documents in the Applicants possession relating to Dr X. In support of the application for the search warrant was an affidavit sworn by Detective Senior Sergeant Harrison, which detailed serious allegations, relating to sexual assaults allegedly committed by Dr X. Additionally, it contained information by an alleged victim that he had made a complaint to the Medical Practitioners Board regarding the alleged assaults and was aware of others who had also complained to the Board about sexual abuse by Dr X.
3. The application for a search warrant was issued by a Magistrate on 3 October 2008 and executed on the Applicant on 8 October 2008. The documents seized which contain 11 files have been produced to the Court to be dealt with according to law.[1]
[1] S 465 (1) Crimes Act. See Allitt v Sullivan {1988} V.R. 621 at 626-627.
4. The Board issued this application on 8 October 2008 objecting to the production and inspection of the documents seized on the grounds that:
(a) some of the documents attract public interest immunity; and
(b) some of the documents are subject to legal professional privilege.
5. In support of the application an affidavit was sworn by Gabrielle Wolf, solicitor employed by the Board, which detailed the legislative and regulatory functions of the Board as set out in the Health Professions Registration Act 2005. In particular, she referred to:
i. S 1 (a) of the Act that provides that one of the main purposes of the Act is to protect the public by providing for the registration of health practitioners and a system for investigations into the professional conduct, professional performance and ability to practice of registered health practitioners;
ii. S 118 of the Act as it relates to the registration of practitioners, regulation of standards of practice and the investigation of professional conduct, professional performance or ability to practise and impose sanctions if appropriate;
iii. S 45 of the Act as it relates to investigations of notifications; and,
iv. S 59 of the Act as it relates to the action the Board may take after an investigation has been undertaken.
6. In support of the application to oppose the production and inspection of the files by the Respondent she contends that the information contained in the files should remain confidential because;
1. of the private and sensitive nature of the documents contained in the files;
2. allowing production and inspection of the files would inhibit the ability of the Board to carry out its statutory functions in the public interest;
3. medical practitioners expect the information given to the Board will remain confidential;
4. allowing production and inspection of the files would inhibit notifiers, witnesses and medical practitioners from being open, transparent and forthcoming when dealing with the Board;
5. those providing information to the Board may become exposed to civil action for defamation if the material is released;
6. the release of the information may undermine the ability of the Board to protect the public from unprofessional conduct, unsatisfactory performance and impaired ability to practise of medical practitioners.
7. Ms Wolf also provided details in her affidavit of the particular documents in the Board’s possession. Of importance are documents which relate to prior complaints made against Dr X including the complaint made by the alleged victim which resulted in the search warrant being obtained and executed. She also deposed that a witness involved in one of the notifications suffers from serious psychiatric symptoms and release of those documents and/or identification of this witness may pose a significant risk to their mental health and wellbeing.
8. During the hearing, the Respondent indicated that it did not take issue with the claim for legal professional privilege in relation to those documents to which the privilege attaches. In relation to the claim of public interest immunity, it contended that:
- public interest immunity did not apply to the documents in question; and, - if it did, the Court should allow inspection of the documents on the basis
that it is in the public interest that there be a full and proper criminal
investigation into the alleged sexual assault.
9. The issue to be determined by the Court is whether public interest immunity applies thereby precluding the Respondent from inspecting the relevant documents.
10.Whilst the Applicant urged me to view the documents in issue prior to reaching a decision[2], for reasons that will become obvious, I have not done so.
[2] see Alister and Others v The Queen (1984) 154 CLR 404, DPP v County Court (1997) 98 A Crim 270 and
The Law
11.The Court was referred to a number of cases involving a discussion of the law relating to “public interest immunity”. Briefly stated, the rule as explained by Gibbs ACJ, as he then was, in Sankey v Whitlam and Others[3]:
[3] (1978) 142 CLR 1 at page 38-39“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[4] as follows:
[4] {1968} A.C at page 940“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, “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”.
12.In ZZZ v JX[5], Beach J considered an application for discovery in civil proceedings of documents held by the Medical Board of Victoria relating to an investigation by it into the conduct of a medical practitioner. The application was resisted by the Board on the grounds of confidentiality and public interest immunity. In that case he held that there was no just cause for breaching the confidentiality which existed in relation to the Board’s inquiry into the medical practitioners conduct. He said:[6]
[5] Unreported 25 November 1993[6] Page 14 of transcriptIt is in the public interest that there be the fullest possible disclosure to the Board, of information and material relating to the behaviour and actions of medical practitioners, to enable a Board to reach just and true decisions in relation to complaints made to it. If witnesses and medical practitioners whose behaviour and actions are under investigation knew that their statements could be given to others and used for a different purpose, that objective might well be frustrated. Medical practitioners might well be deterred from making statements which would found civil actions against them and complainants and witnesses might be less willing to offer free and truthful co-operation in investigations under the Act if their statements were liable to be disclosed in subsequent civil proceedings”.
13.In Clifford v Adams[7], Smith J considered an application whereby the defendant refused to issue a warrant pursuant to s 465 of the Crimes Act authorising the police to search medical records of a patient at the Mont Park Psychiatric Hospital. Although principally dealing with the issue as to the appropriate time when the issue of privilege needed to be considered (held to be on or after the return of the warrant) he said;[8]
[7] [1998] VSC 98[8] Para 33“The question of the application of public interest immunity is one which requires information as to the nature of the contents of the documents in question and a balancing of competing public interests…”
14.The matter was further determined in Clifford v Victorian Institute of Forensic Mental Health[9] , after Chief Magistrate Adams, as a result of the decision by Smith J reconsidered the matter and then made a decision upholding the claim on behalf of the Institute that public interest immunity applied and refused the fruition of the warrant. Chief Magistrate Adams ordered the return of the material seized to the Institute. Cummins J considered an application for judicial review of this decision pursuant to Order 56. The affidavit supporting the application for the warrant indicated a belief by the police officer concerned that the accused had made an admission of guilt in relation to a murder, which was recorded on the file of the Institute.
[9] ibid15.After considering the provisions of the Mental Health Act 1986, Corrections Act 1986 and the relevant judicial authorities which included Sankey’s case and Alister’s case, he concluded that public interest immunity applied. He said:[10]
[10] Para 25-26“The therapeutic and protective regime established by the Mental Health Act 1986 and related legislation exists for the benefit of both prisoner and community. Its effective operation should be preserved. It is significantly in the public interest that that be so.
I am satisfied on the balancing exercise (Alister & Ors v The Queen at 412) that whilst it was proper and in the public interest for investigating police to pursue the record of an apparent admission by the accused when no admission had been made to them by him, public interest immunity requires refusal of that pursuit. First, the accused was a prisoner in custody. Second, he had been charged with murder. Third, he had already been interviewed (twice) by the police. Fourth, he was not (normally) entitled to bail. Fifth, he was subject to coercive medical procedures. Sixth, he was not warned that he did not have to give a history or answers to the doctor (probably the contrary). Seventh, he was mentally ill and certified as such. The existence and confluence of those factors affirmatively requires the upholding of public interest immunity in this case, as the learned Chief Magistrate did”.
16.Cummins J also distinguished R v Young[11], a New South Wales Court of Criminal Appeal decision that held that the sexual assault counselling records of a patient at a public hospital were not protected by public interest immunity. He held that the distinguishing features were that in the case he was dealing with, a government function was involved, there was evidence of the adverse effects of disclosure and the accused was in custody.
[11] (1999) 46 NSWLR 68117.In O’Brien v MLC Ltd[12], Kaye J had to determine an objection taken to a subpoena served by the defendant in the civil proceeding on the Medical Practitioners Board. The Board claimed that the documents sought belonged to a class of documents which were subject to privilege on the grounds of public interest immunity. He referred to Sankey’s case, Alister’s case and the decision of Beach J in ZZZ v JX and said:
[12] Unreported 12 November 2004“The question whether a document is privileged from production on the basis of public interest immunity involves the court balancing two competing aspects of the public interest. On the one hand the court must consider the extent, if any, to which harm would be done by the production of the documents. On the other hand, and in competition with that interest, the court must weigh the extent, if any, to which the administration of justice would be frustrated or impaired if the documents were withheld from a party in litigation. By performing that balancing exercise the court must determine, for the purpose of the particular case, which of the two competing aspects of the public interest is to predominate”.
18.Mr Justice Kaye then went on to consider the extent to which the public interest might be harmed if the documents were released which included the factors of;
- the Board properly and fully performing its statutory functions and in
particular in the area of investigation and supervision of medical
practitioners;- the extent to which the candour of medical practitioners in the future may
be compromised;- the nature of the proceedings to which the documents relate in the case
before him (the plaintiff was making a claim under a personal income
protection policy).
19.In considering the alternative issue as to the frustration or impairment caused to the administration of justice by upholding the claim to public interest immunity he considered factors which included;
- whether the documents sought to be produced were relevant to the party
seeking their production;- the importance of relevant documents being available in litigation which
involves disputes between citizens of the state; and,- the maintenance of public confidence in the administration of justice.
20.Ultimately, after applying the balancing exercise required he decided that disclosure of the documents would not significantly impair the capacity of the Board and that as the documents sought were relevant to the central and important issue in the case, the public interest in disclosure outweighed the harm, if any, to the public interest asserted by the Board.
21.More recently, Gillard J considered the application of public interest immunity in Royal Womens Hospital v Medical Practitioners Board of Victoria[13] that proceeded on appeal to the Court of Appeal on 20 April 2006.[14] The case involved documents seized pursuant to a search warrant obtained (in accordance with the Medical Practice Act 1994) by the Board in relation to documents held by the Royal Womens Hospital and in order for the Board to complete its investigations in relation to a complaint made to it. The Magistrate who initially determined the objection to the production and inspection of the documents found against the Hospital and ordered that they be released to the Board with the exception of those which attracted legal professional privilege. Ultimately, when applying the balancing test, Gillard J said:[15]
[13] [2005] VSC 225[14] [2006] VSCA 85 Warren CJ, Maxwell P and Charles JA.[15] Para 134In my opinion, the demand that truth will out is a matter of weighty public interest when the Board carries out its statutory obligation to investigate and if necessary deal with a complaint concerning a registered medical practitioner. It is performing a statutory duty which is there for the protection of the public. The public interest is manifest in ensuring that the investigation and the subsequent dealing with the complainant if necessary is carried out with all relevant information before the investigating body and the complaint hearing body. In my opinion, a strong case has been established for the production of the documents to the Board to enable the investigation to be properly and carefully performed. In my view, after weighing up the various factors relevant to the public interest of both the Hospital and like bodies and the Board, disclosure of the documents in the circumstances would not be detrimental to the public interest in maintaining a confidential relationship between patient and the provider of medical services or interfere with the Hospital performing its statutory functions and duties properly, carefully and in the interests of the public. In my opinion the documents should be produced”.
22. On appeal, Warren CJ, after reviewing the authorities said:[16]
“I agree with the analysis of Spigelman CJ (in R v Young). In the context of the common law doctrine of public interest immunity, it is not appropriate for courts to arbitrarily speculate about what the benefit (or for that matter the disbenefit) to the public may or may not be, outside of the established categories as they apply to the proper functioning of government”.
At paragraph 35; “the appellant must pass an initial hurdle first, that is, to establish that the class of documents in question (and consequently the medical records of Ms X) are governmental in character. This is where the appellant’s argument fails . By its own admission, the appellant invites the court to recognise a “fresh category” of public interest immunity. However, I cannot find any proper basis upon which to do so.”
23.Maxwell P also held that the Hospital’s claim for public interest immunity failed as the class of documents was not capable, as a matter of law, of attracting public interest immunity. As a result he held that the “balancing exercise” did not arise. Furthermore, at paragraph 49 he said:
“In my view, an analysis of the authorities reveals that what determines whether a document (or class of documents) attracts PII is the character of the information contained in the document(s), not the character of the agency which creates, or holds, the document(s)”.
24.He further held that the principal category of public interest immunity, that is, government documents, applies to protect information concerning decision making by instruments of government at the highest level and it is only in those circumstances that there is justification for conferring immunity.
25. On the application of public interest immunity in the case before him he said:[17]
“On no reasonable view could information of this kind have satisfied the stringent criteria for such immunity. The information was wholly unrelated to decision- making “at the highest levels of government”. Indeed, disclosure of the information would reveal nothing about the hospital’s decision-making or its internal deliberations, even assuming (contrary to my view) that such information could attract PII.”
26. Charles JA, after discussing and analysing numerous authorities said:[18]
“in my view public interest immunity is restricted to what must be kept secret for the protection of government at the highest levels and in sensitive areas of executive responsibility, government function in this context being defined to include the courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity. It follows that, with respect, I do not accept the judge’s view, that a government interest is not required.”
27.Charles JA then examined the nature of the services provided by the hospital and its governance and held that the hospital was part of the public service and therefore within the reach of public interest immunity, if and in so far as that concept is limited to a government function. He qualified its application by noting that the provision of medical services does not necessarily mean it is involved in a relevant governmental function. At paragraph 123 he said:
“It is, I think, an issue of considerable difficulty whether the hospital can be said, as was contended, to have demonstrated the requisite public interest requiring protection in so far as it provides advice and treatment to women patients…in doing so, the hospital does, of course, provide such services in the very same manner as do a number of private hospitals – although that would not alone prevent the provision of such services by the hospital being regarded as governmental in nature”.
28. At paragraph 124, he said:
“In substance the hospital claims that the whole public health system could be adversely affected if personal medical information could be seen as insecure and open to scrutiny. In the circumstances it is, I think, preferable to put to one side my substantial reservations as to whether the hospital is entitled to claim immunity in the manner suggested, and turn to the balancing exercise.”
29.Charles JA then considered the various issues involved in the balancing exercise including legislative provisions which override medical confidentiality and ultimately took the view that the hospital had failed to establish any basis for the refusal to produce the documents under warrant.
ORDERS:
30.Although the case before Gillard J and the Court of Appeal involved a claim for public interest immunity on a “class of documents” basis as opposed to a claim based on the contents of a particular document(s), in my opinion the applicable principles are the same.
31.The documents sought to be inspected by the Respondent are clearly not “governmental” in nature. Therefore, public interest immunity does not apply. The nature and function of the Board is irrelevant to the issue.
32.Even if I was required to apply a balancing test, I am of the opinion that the documents should be produced and inspected by the Respondent, as it is in the public interest that a complete investigation into the allegations be undertaken because to hold otherwise would frustrate and impede the proper administration of justice. This public interest outweighs the harm, if any, to the public interest issues asserted by the Board should their application be refused.
Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359
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