MEDISERVE Pty Ltd v Minister for Health (WA)

[2005] WADC 149

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MEDISERVE PTY LTD -v- MINISTER FOR HEALTH (WA) [2005] WADC 149

CORAM:   MACKNAY DCJ

HEARD:   26 JULY 2005

DELIVERED          :   Delivered Extemporaneously on 26 JULY 2005 typed from tape and edited by Trial Judge

FILE NO/S:   CIVO 16 of 2005

BETWEEN:   MEDISERVE PTY LTD (ACN 086 109 515)

Plaintiff

AND

MINISTER FOR HEALTH (WA)
Defendant

Catchwords:

Practice and procedure - Western Australia - Pre-action discovery - Claim for public interest immunity - Balancing interests

Legislation:

Rules of the Supreme Court, O 26A

Result:

Discovery ordered

Representation:

Counsel:

Plaintiff:     Mr M L Greenland

Defendant:     Ms B McGivern

Solicitors:

Plaintiff:     Greenland Brooksby

Defendant:     Downings Legal

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. MACKNAY DCJ:  In my view the plaintiff is entitled to an order for pre‑action discovery.  The criteria for pre‑action discovery exist here in my view.  Plainly there is a potential claim in that an employee of the plaintiff whilst employed at Royal Perth Hospital deposes to having been injured as a result of an assault by a patient in the hospital in circumstances where that patient had physically assaulted another nurse, according to records of the hospital seen by the plaintiff's employee, 24 to 48 hours earlier. 

2. I should say the employee of the plaintiff has, it would appear on the papers before me, been paid workers' compensation and in those circumstances if the disability arose as a result of the negligence of the defendant through the hospital, the plaintiff has a right to an indemnity in an action that can be brought in this Court pursuant to s 93 of the relevant workers' compensation legislation, the title of which has very recently been changed, I note. 

3. This is an appropriate case, as I have said, in circumstances where the issues which would arise in any action would include questions of the degree of notice that the hospital may or may not have had as to the likelihood of the patient being violent to staff or others in the hospital and in particular the question of what precautions, if any, were put in place by the hospital to prevent a repetition of any earlier assault. 

4. To require the plaintiff to commence an action without having knowledge of those things when those things are likely to be the subject of written material in notes concerning the patient, given the nature of the institution and the size of it, is in my view unreasonable.  Rather the better course is to permit the plaintiff to have regard to the issue raised by the defendant which is, of course, that the defendant ought not be required to disclose the material on the basis that to do so would be to infringe public interest immunity. 

5. If that is the case then of course further considerations apply.  It is not necessary for me to make a determination as to whether or not disclosure would breach public interest immunity and I am able to proceed, I think, on the basis that I assume for the purposes of my decision that there is public interest immunity. 

6. If that be the case then, as is pointed out by the learned author of Cross on Evidence, 7^th Australian edition, par 27,160, there are three steps required:  the first, having determined whether there is in truth a risk that disclosure would be injurious to the state interest; requires secondly, a process of identifying whether the public interest in the judicial process requires the disclosure of the product; finally, there is the balancing exercise, a decision as to which of those interests ought to prevail. 

7. In the present case I note that it is alleged in an affidavit that it was the patient himself who caused injury to the employee of the plaintiff.  That is relevant in relation to the question of the patient's right to confidentiality, in my view.  Secondly, it is asserted and not denied that the patient is in fact deceased. 

8. Although the next of kin and relatives of the deceased, and indeed the estate of the deceased, have some rights to confidentiality, it seems to me that confidentiality in relation to medical records is, in essence, a personal right and that when a person had died, necessarily the force of that right or the extent of that right is substantially diminished although, as I have said, it still does exist to an extent and is something that can be held by a number of people in addition to the state of the deceased. 

9. Plainly, if a claim is brought then ordinarily that claim ought be determined on all of the available evidence.  To deprive a claimant of relevant evidence is prima facie to do an injustice to a claimant.  The claim for public interest immunity here is raised by the defendant in circumstances where the defendant necessarily has an interest in raising that claim as to do so might be to defeat an action which for all I know might be one which would otherwise succeed against it. 

10. In saying that, I do not suggest that the issue of patient confidence and the non‑disclosure of medical records is raised by the hospital here for some ulterior purpose.  As I have already said, I think it is an appropriate stance for a hospital to take and really a necessary stance and as I would understand the defendant's attitude, it is, to some extent, that necessarily it is ultimately a matter for a Court to determine the balancing of the various issues involved in the disclosure of the confidential records of a third party, the third party of course being a patient. 

11. When one comes to balance the various matters, I think it is clear in this particular case that the balance ought fall in favour of disclosure for the reasons that I have given.  I consider that the interest in seeing that a claim be properly investigated and then in the event that it is brought that it be determined on all relevant evidence, is stronger than the non‑disclosure of the medical records and other materials of this particular deceased patient. 

12. For those reasons there ought be an order in favour of discovery.  The defendant raises the issue of preservation of the patient's right to confidence, at least to the extent that the records as discovered and then produced, be edited so as to delete reference to the name of the patient and also that the Court documents, which would appear to comprise the originating summons and the affidavit initially sworn in support of it, be thwarted so as to delete reference to the name of the patient. 

13. I do not understand Mr Greenland to have any real objection to that course and I think that could be an appropriate course in the circumstances.