R v C, Dr - [2006] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, DR & ORS
[2006] SASC 158
Reasons for Ruling of The Honourable Justice Sulan
21 April 2006
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - IRRELEVANCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWER OF CROWN TO CALL OR REFUSE TO CALL WITNESSES - NOTICE AND DISCLOSURE TO ACCUSED
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
Application by the Attorney-General for the State of South Australia and Flinders Medical Centre to set aside a subpoena seeking the production of documents - whether production should be denied on the ground that there is no forensic purpose disclosed - whether s 64D of the South Australian Health Commission Act 1976 prohibits the production of the documents - whether production and inspection of the documents should be denied on the ground of public interest immunity - claim of public interest immunity upheld.
South Australian Health Commission Act 1976 s 64D; Crown Proceedings Act 1992 s 9(2)(a), referred to.
Alister v The Queen (1984) 154 CLR 154; Carter v Hayes (1994) 61 SASR 451; Conway v Rimmer [1968] A.C. 910; Mallard v The Queen (2005) 157 A Crim R 121; National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372; R v Bingapore (1975) 11 SASR 469; R v Bristow [1960] SASR 210; R v Hallett [1969] SASR 141; R v K (1991) 161 LSJS 135; R v Maguire [1992] QB 936; Sankey v Whitlam (1978) 142 CLR 1, considered.

R v C, DR & ORS
[2006] SASC 158
Criminal

SULAN J: DRC, WACH, DIM, PJM and MJS are jointly charged with the murder of Adam Prestwood Paul Ballard on 25 July 2003 at Glenelg North.
The charge arose out of an alleged assault which occurred after an altercation between the occupants of two cars.
The prosecution case is that the deceased was assaulted by one or more of the accused, and that during the assault he was hit with a baseball bat on a number of occasions. The prosecution alleges that each of the accused was either a principal or party to a joint enterprise or, alternatively, aided and abetted the commission of murder.
The deceased was taken to the emergency section of the Flinders Medical Centre (“FMC”) at approximately midnight on 25 July 2003. He was treated by Dr Paul Muffet. The deceased was complaining of pain and difficulty in breathing. He remained at the hospital under observation for approximately three hours, and was then discharged.
He returned to his home at Sheidow Park and he died at approximately 7am on 26 July 2003.
The opinion of the pathologist, who conducted the post-mortem examination was that he died of blood loss due to blunt force to his lower chest and abdominal trauma. He had suffered a ruptured spleen and there was a large volume of blood in his abdominal cavity. On examination, he had multiple bruises and abrasions to his face, limbs and trunk. A number of the injuries were consistent with him having been struck by an object, such as a crowbar or tyre lever. The pathologist concluded that he had suffered shock from blood loss, which led to his death.
A subpoena was issued by the accused, DIM, seeking the production by FMC of the following documents:
(a) All documents, memoranda and communications arising from or relating to the death of Mr Adam Ballard on 27 July 2003 and subsequent inquiry;
(b) All notes, memoranda, documents and communications in respect of an inquiry held by the Flinders Medical Centre into the death of Mr Adam Ballard and into the handling of the admission by Flinders Medical Centre staff.
Other accused supported the application for production and inspection of the documents.
An issue which arose is whether s 64D of the South Australian Health Commission Act 1976 (“the Act”) prohibits FMC from divulging the information sought. The Solicitor-General appeared for FMC and the Attorney-General in answer to the subpoena. The Attorney-General intervened in the proceedings in support of FMC, pursuant to s 9(2)(a) of the Crown Proceedings Act1992. The matter is one in which the interpretation of a law of the State is in issue and the Attorney-General sought leave to intervene as the proceedings raised matters of public importance. Leave to intervene was granted.
The Solicitor-General, on behalf of FMC and the Attorney-General, submitted that there were three grounds upon which the subpoena should be set aside. Firstly, there is no legitimate forensic purpose in the production of documents, and the material sought is, therefore, irrelevant. Secondly, that s 64D of the Act prohibits the production of the documents the subject of the subpoena. Thirdly, that the documents should not be disclosed on the ground of public interest immunity.
I upheld the claim on the third ground and indicated that I would publish considered reasons. I now provide those reasons.
Relevance of evidence
Mr Caldicott for the accused, DIM, submitted that the documents sought were relevant to the issue of causation. He also argued that there may be information contained in the documents relevant to the credit of witnesses who were involved in the treatment of the deceased whilst he was at FMC.
The Solicitor-General submitted that there is no dispute that the cause of death was blood loss due to force to the lower chest and due to abdominal trauma. He submitted that there is no issue relating to what occurred at FMC in the three hours whilst the deceased was under the care of Dr Muffet and others, and that there can be no reasonable doubt that the death was caused other than by injuries inflicted during the assault. He submitted that any question of the negligence of the medical and nursing staff at FMC is irrelevant. Even if their conduct was negligent, that alone does not break the chain of causation.
The Solicitor-General submitted that there is no material to support a contention that there was any act by any person at FMC which caused or accelerated the death of the deceased. Further, he submitted that there is no suggestion by the accused that any conduct of any person at FMC caused or accelerated the death of the deceased. The Solicitor-General submitted that the documents do not have evidential value, and it is “not on the cards” that they will materially assist the defence.
The Solicitor-General relied upon decisions of this Court in Bingapore, [1] Bristow[2] and Hallett.[3] In Bingapore, the Court of Criminal Appeal affirmed the decision of Bristow and approved what had been said in Hallett’s case. The Court said:
It seems to the Court that, if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound.[4]
[1] R v Bingapore (1975) 11 SASR 469.
[2] R v Bristow [1960] SASR 210.
[3] R v Hallett [1969] SASR 141.
[4] R v Bingapore (1975) 11 SASR 469, 480.
The Court went on to say:
… The act of the appellant causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some third party is negligent.[5]
[5] (1975) 11 SASR 469, 480.
Mr Caldicott submitted that the material sought includes statements of witnesses which were made to persons who conducted an investigation into the death of the deceased. I will deal in more detail with that investigation later in these reasons. He submitted that the statements are relevant, and may produce material of value for cross-examination at the trial, in particular in respect of the issue of causation and in respect of the events that occurred at FMC. Counsel for all accused supported the submission.
In Carter v Hayes,[6] King CJ, with whom Bollen and Mullighan JJ agreed, discussed whether a subpoena should be set aside on the grounds of relevancy or fishing. He said:
The material sought must possess “evidentiary value” in some sense. The same idea is, I think, expressed in the judgments of the Court of Criminal Appeal, New South Wales, in R v Saleam, by the use of the expression “legitimate forensic purpose”.
I have no doubt that each of the items sought in the subpoena possesses evidentiary value in the relevant sense. Item 6 has been produced and is not in contention. Items 4 and 7, if they exist, have by their nature as described in the subpoena, potential evidentiary value and may well be admissible evidence. The remaining items relate to statements made by necessary or likely witnesses and are therefore proper subjects of a subpoena duces tecum: Maddison v Goldrick, R v Saleam. A document may have evidential value, in my opinion, not only because it is admissible in evidence, but also, even if it is not so admissible of itself, because it provides material of value for cross-examination (Maddison v Goldrick) or discloses “information which may be established in some other admissible form”: R v Saleam.[7] (Footnotes omitted)
[6] (1994) 61 SASR 451.
[7] (1994) 61 SASR 451, 453.
King CJ observed that a party’s lack of knowledge of the existence or contents of material sought is not, of itself, a valid objection to a subpoena. He referred to the decisions in National Employers’ Mutual General Association Ltd v Waind,[8] and Alister v The Queen,[9] as instances of a valid subpoena for the production of documents, the existence of which was not known to the accused with any specificity.
[8] (1978) 1 NSWLR 372, 382.
[9] (1984) 154 CLR 404.
The documents sought to be produced by the subpoena must, by their very nature, have a bearing on the issues in the case and potentially have evidentiary value. Causation is a live issue in this case. It may well be, as the Solicitor-General submitted, that ultimately it may not be in dispute. However, at this stage that has not been conceded, and the material sought has clear relevance to that issue.
The investigators interviewed persons who are, or may be, witnesses. The inquiry was to determine the root cause and contributing factors for the adverse event which occurred on 26 July 2003. In my view, the documents sought are likely to contain material relevant to the question of causation. Many of the documents relate to statements made by witnesses who gave relevant information and who may be called as witnesses, or are potential witnesses.
I reject the submission that the subpoena should be set aside on the ground of relevance.
Section 64D of the Act
As a consequence of the death of Mr Ballard, FMC conducted an internal investigation. There existed within FMC a Clinical Review Committee (CRC). One of the functions of the CRC was to investigate adverse incidents within the hospital. At the relevant time, Professor David Ben-Tovim was a member of the CRC.
Section 64 of the Act deals with confidentiality of personal information in respect of patients. Section 64D relates specifically to confidentiality in respect of information gathered by authorised persons in the course of assessing and improving the quality of specified health services.
Section 64D of the Act provides:
64D.    (1)     This section applies to a person, or the members from time to time of a specified group or body, authorised by the Governor, by instrument in writing, to have access to confidential information for the purpose of –
(a)     conducting research into the causes of mortality or morbidity; or
(b)     assessing and improving the quality of specified health services,
and to any person providing technical, administrative or secretarial assistance in the performance of such functions.
(2)     Confidential information may be disclosed to a person to whom this section applies without breach of any law or any principle of professional ethics.
(3)     Subject to this section, a person must not in any circumstances (including proceedings before any court, tribunal or board) divulge confidential information obtained directly or indirectly as a result of a disclosure made pursuant to this section.
Penalty:     Division 5 fine.
(4)     Subsection (3) does not prevent a person to whom this section applies disclosing confidential information to another person to whom this section applies.
(5)     A person must not, when appearing as a witness in any proceedings before a court, tribunal or board, be asked, and, if asked, is not required to answer, any question directed at obtaining confidential information obtained by that person directly or indirectly as a result of a disclosure made pursuant to this section and any such information volunteered by such a person is not admissible in any proceedings.
(6)     In this section –
“confidential information” means information relating to a health service in which the identity of the patient or person providing the service is revealed.
Section 6 defines “health service” as:
“health service” means –
(a)     any service designed to promote health; or
(b)     any therapeutic or other service designed to cure, alleviate or afford protection against any mental or physical illness, abnormality or disability; or
(c)     any paramedical or ambulance service; or
(d)     any prescribed service;
By instrument dated 17 April 1997, the Governor authorised members, from time to time, of the FMC Trauma Committee, FMC Quality Improvement Committee and CRC to have access to confidential information in accordance with s 64D.
In August 2003 there were approximately twelve members of the CRC. The members were senior practitioners representing a range of disciplines. The CRC met regularly and on an ad hoc basis to address specific concerns. The frequency of meetings depended on the workload of members. The CRC have wide ranging responsibilities in relation to hospital safety and quality. These responsibilities include reviewing patient and staff complaints as they relate to patient management, reviewing the outcomes of audit activities throughout the hospital and undertaking and reviewing focused safety reviews and investigations.[10]
[10] Affirmation Professor Ben-Tovim, 19 February 2006.
Root Cause Analysis (“RCA”)
On 4 August 2003, Professor Ben-Tovim was requested by the Chief Executive of FMC to constitute a group to conduct a Root Cause Analysis (“RCA”) into the death of Mr Ballard. The request was contained in a memorandum, which stated:
This memo confirms that within your role as a member of the Clinical Review Committee (CRC) you have been delegated the responsibility of convening a Root Cause Analysis (RCA) Team to determine the root cause and contributing factors for the adverse event which occurred on 26^th July 2003. Brief details of the incident are as follows: Mr Adam BALLARD, (77 08 70.6) presented to the Emergency Department following a road-rage incident. The patient was discharged to home where he later died.
As the team is designated as working team of the CRC the RCA, as a quality assurance, focused review process, team’s products (e.g. interviews, preliminary and final reports etc) are considered confidential, privileged, and are protected under Section 64D of the SA Health Commission Act.
I look forward to receiving your report by Friday 19^th September 2003.
The memo also contains a note that if, in the course of conducting the RCA, it appears that the event under consideration was as a result of an intentional unsafe act or acts, the Chief Executive Officer will be contacted and an administrative review may then be put into place and the RCA team will discontinue their work of a focused review.
RCAs were conducted by the CRC from time to time. RCA involves an investigation into the basic and contributing factors of an identified adverse event or potential event. Its particular utility is in the investigation of complex multi-factored or multi-causal events. RCA seeks to identify causes of events, including systematic factors, rather than focusing purely on individual responsibility.
As at July 2003, the process had only recently been employed in the South Australian public health service and in Australian health services generally. It is particularly used in hospitals and is specifically helpful in the investigation of events relating to patient care. It has previously been used in other contexts such as investigations in relation to aviation disasters and disasters at oilrigs and nuclear power plants. The RCA process is endorsed and recommended in hospitals by the Australian Council for Safety and Quality in Health Care.[11]
[11] This body was the peak body commissioned by Health Ministers to advise and advance safety and quality in health care nationally. This body had representatives from each state. It has now been replaced, as of January 2006, by a Commission with a smaller number of members.
RCA is not used for the investigation of performance issues, intentionally unsafe acts, criminal acts, purposefully unsafe acts, acts related to alcohol or substance abuse or alleged or suspected patient abuse, as these investigations are entirely in the public domain. The purpose of RCA is to develop corrective strategies to prevent adverse events in the future, by understanding causative factors, and to systematically and progressively improve the complex systems and processes that affect the quality and safety of healthcare.
The process of an RCA requires an experienced investigation team comprising those who are familiar with the decision making process involving similar diagnostic risk and environmental factors including doctors, paramedical staff and nurses. The RCA team is obliged first to identify the event and characterise it. It is then required to analyse and determine the factors that contributed to how an adverse event or potentially adverse event occurred. The RCA team will then explore all potential causative factors and systems issues that may have “set the scene” for error to occur. The methodology of continual enquiry directs the determination of weaknesses or risks in the system with sustained efforts to “dig deep” to find underlying systematic weaknesses.
In order for an RCA to be effective, it is necessary that communications between those conducting an RCA and those providing information is confidential. Staff of the hospital and medical practitioners are encouraged to speak frankly about the incident, and in so doing, comment on the systems in place, the conduct of those who had charge of a patient and upon any other relevant factors which may assist in identifying any systematic failures. Professor Runciman and Professor Ben-Tovim expressed their opinions that, unless the identify of persons giving information remains confidential and the information source is maintained, an RCA could not be conducted effectively.
Professor William Ben Runciman, an expert in hospital procedures, explained the process at the conclusion of an RCA:
The team … will make recommendations as to changes in systems, training or environmental factors such as changes to facilities, rostering, supervision, backup and equipment. In this way system change is driven by the RCA process and reporting can not be ignored or ‘shelved’. The CEO is required to either implement recommendations or to document why they are not to be implemented (e.g. awaiting extra funding.)
Another aspect of the effectiveness of an RCA is that the results are produced in a format and according to a structure such that they can be aggregated with the results of other RCAs. The power of this process is that the contributing factors identified by the RCAs or “clusters” when considered in combination, though they might relate to the different adverse events, are known to reveal patterns of errors or show common causes for adverse events which ideally may then be designed out of systems.[12]
[12] Affidavit of William Ben Runciman, 10 February 2006, [18] [19].

Professor Ben-Tovim, who was, at that time, Director of Clinical Governance at FMC, stated that he was requested by the Chief Executive of FMC, in his capacity as member of the CRC, to conduct an RCA. To do so he was requested to convene an RCA team. That team was to determine the root cause and contributing factors for the event that had occurred on 25-26 July 2003.
Professor Ben-Tovim, upon receiving the request from the Chief Executive, convened a RCA team comprising of himself, Ms Ferris, Dr Gilchrist, Dr Bowden and Ms Liwu. At the time of conducting the analysis Ms Ferris, Dr Bowden and Ms Liwu were not members of the CRC. Professor Ben-Tovim stated:
It is important that RCA Teams balance expertise in various disciplines. Ms Ferris was selected to give technical assistance to the RCA Team as the Deputy-Director of Clinical Governance. She was also the executive officer of the CRC. Ms Liwu was selected to provide technical expertise in her capacity as a senior member of the nursing staff. Dr Bowden was a respiratory physician with RCA training. Dr Bowden has undertaken safety analyses of various kinds within the Department of Medicine. [13] (emphasis added)
[13] Affirmation Professor Ben-Tovim, 19 April 2006, [5].
Statutory limitations on the general right of disclosure - s 64D
Section 64D of the Act limits the right of disclosure to which the defence is normally entitled. The Act provides that the Governor may authorise a person or class of persons to undertake research into the cause of mortality and morbidity and to assess and improve the quality of specified health services in the State. Information obtained for this purpose is confidential. Disclosure of confidential information, whether obtained directly or indirectly, in any circumstances, to persons other than those authorised is unlawful.
The prohibition against disclosure includes proceedings before any court, tribunal or board. It was submitted by counsel for the accused, DIM, that “court” does not include a court sitting in its criminal jurisdiction. It was put that the term “court” should be construed as a court sitting only in its civil jurisdiction. There is nothing in the section which limits the term “court” in the way in which counsel for DIM submits. The section refers to proceedings before “any court, tribunal or board”. The section prevents the divulging of confidential information in “any circumstances”. The use of the word suggests that the words are to be given a wide interpretation. Courts exercise jurisdiction generally in criminal and civil proceedings. The jurisdiction of the District Court and Magistrates Court is defined by statute. For example, the District Court does not have jurisdiction in admiralty or probate. Nevertheless, the court means the court in all of its jurisdictions, unless specifically limited. The words of s 64D do not limit the court to mean in its non-criminal jurisdiction.
Section 64D allows for quality assurance committees to collect information that is ultimately protected from disclosure. All persons who work in health care are encouraged to volunteer information that could significantly assist in improving health care services, without fear of potential negligence or defamation actions. In the second reading speech in the House of Assembly the purpose of introducing a confidentiality provision such as s 64D was explained by the Minister as follows:
Turning to the important matter of quality assurance, for several years, the South Australian Health Commission has encouraged hospitals to run quality assurance programs aimed at increasing the quality of patient care. Such programs require openness by all participating health care practitioners, confidence that the process will not be biased, a preparedness to admit problems in patient care and a willingness to correct problems highlighted. Adequate documentation is essential in this process for analysis and assessment.
… [a] concern is that material gathered in quality assurance programs may be relevant in an action in negligence. Material created through the use of this system may contain some evidence of negligence. In some states of the US and in some Canadian provinces legislation protects quality assurance material. The US courts have adopted the view that the public benefits of quality assurance outweigh the patient’s right of access to documents.
In order to clarify the situation and place these important programs on a sound footing, certain amendments are proposed in the new section 64d. The amendments will permit specified persons and groups to be authorised by the Governor to have access to information for the purpose of assessing and improving the quality of specified health services. This will allow for quality assurance committees to be so authorised.
… This will provide a statutory protection to persons giving information to authorised persons and committees. It will encourage them to be more frank about the information that they might have been had the protection not been there.[14]
[14] South Australia, Parliamentary Debates, House of Assembly, 9 August 1989, 134 (D.J. Hopgood, Deputy Premier, Minister for Health).
The purpose of the section is to enable authorised persons to conduct investigations into events or into an event in order to assess and improve the quality of specified health services. The section protects the identity of persons who give information to authorised persons. The purpose of s 64D is to enable information to flow freely, with the knowledge that those who provide information or offer opinions to a person or persons authorised to receive the information can do so without the fear of the information being used in other court proceedings. Recommendations can be made to improve health services to cure systemic faults and other faults thereby reducing mortality and morbidity rates within hospitals and other organisations providing health services.
The requirement to disclose relevant information in criminal proceedings
There is a tension between the requirement that, in order to ensure a fair trial in criminal proceedings, all relevant information be disclosed to the accused, and the policy of s 64D to facilitate the open exchange of information so as to identify causes and risks in hospital procedures in order to minimise similar occurrences in the future.
The exchange of information has particular importance in criminal proceedings. The accused, in most cases, do not have the resources available to the investigating authorities. During the course of an investigation, the investigators may interview persons or obtain evidence which may assist the defence. There is a duty to disclose all relevant information to the defence to ensure a fair trial.
It is fundamental to a fair trial in the adversarial system, where the police and prosecutors control the investigatory process, that there is full disclosure of relevant information to the defence. Any disadvantage that the accused may potentially suffer as a result of a lack of investigative ability and power, is overcome or lessened by the obligation of the prosecution to make all relevant material available, including that which may be helpful to the defence.[15]
[15] McIlkenny v The Queen (1991) 93 Cr App R 287, 312.
In Mallard v The Queen[16] Kirby J observed:
The obligation imposed by the law is to ensure a fair trial for the accused, remembering the special requirements that descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the avoidance of miscarriages of justice.[17]
[16] (2005)157 A Crim R 121.
[17] 157 A Crim R 121, 147.
The prosecution’s duty of disclosure was also considered in R v K.[18] King CJ, with whom Cox and Debelle JJ agreed, said:
There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R. v. Paraskava (1983) Volume 76 Criminal Appeal Reports 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses.[19]
[18] (1991) 161 LSJS 135.
[19] 161 LSJS 135, 140.
All information that has some bearing on the offence or offences charged and the surrounding circumstances of the case must be disclosed[20] subject to any statutory requirements that may limit the disclosure of that information. The strict principle of disclosure and the precisely defined exceptions to the principle were discussed by Kirby J in Mallard. He said:
… when such authority is examined the considerations given weight by the courts suggest an increasingly insistent demand for the provision of material evidence known to the prosecution which is important for the fair trial of the accused’s and the proper presentation of the accused’s defence. Exceptions exist. However, they and comparatively few and closely defined. Such an approach has been judged essential to the conduct of a fair trial of criminal accusations in many countries.[21]
[20] R v Maguire [1992] QB 936.
[21] Mallard v The Queen (2005) 157 A Crim R 121, 143.
Parliament can limit the requirement to disclose relevant information. However, before a court will limit the right of an accused to have access to relevant information, the court must be satisfied that there has been compliance with the legislation and the information is confidential information within the meaning of the statute.[22]
[22] Mallard v The Queen (2005) 157 A Crim R 121, 147.
Whether the subpoenaed information falls within s 64D
If the material, the subject of the subpoena, is to fall within s 64D it must be confidential information relating to a health service. ‘Health service’ is widely defined in the Act
FMC is a hospital which provides services designed to promote health. It is a health service within the meaning of the Act. In order for information to come within s 64D, it must be information relating to a health service in which the identity of the patient or person providing the service is revealed.
Mr Caldicott submitted that only information which discloses the identity of the patient or the treating doctors or other staff is protected. He submitted that all other information obtained in the course of an investigation should be disclosed. He further submitted that, in this case, where the identity of the deceased and of the treating doctors and nurses have been disclosed in the statements of witnesses and in the hospital notes, the information is not confidential information.
The Solicitor-General submitted that the construction of s 64D(6) as urged by Mr Caldicott would result in the provision being unworkable. He submitted that, in every case of an adverse event occurring within a hospital, the hospital notes will reveal the identity of the treating doctors and nurses and the patient. It follows that if an inquiry were conducted which is instituted under s 64D, no information provided by persons already identified would be confidential information. This interpretation of the section would defeat the purpose of the legislation. Further, he submitted that if s 64D(6) were interpreted to restrict the publication of only the identity of the patient or the person providing the service, the purpose of the legislation would be defeated.
I agree with the submission of the Solicitor-General. Section 64D(6) refers to information relating to a health service in circumstances where the identity of the patient or those providing the service has been disclosed. The narrow interpretation of the section urged by Mr Caldicott would fail to give efficacy to the provision.
The interpretation of the section urged upon us by the Solicitor-General gives effect to the purpose of the provision, that being to protect the confidentiality of information given by persons as part of an investigation into an adverse event for the purpose of avoiding systemic failures in the future.
Medical notes prepared during Mr Ballard’s attendance at the hospital disclose the names of those who attended him. I accept the submission of the Solicitor-General that in the circumstances of this case, given the description of the documents, the information in them will reveal the identity of the patient and the providers of the health service to which the information relates. The information contained in the documents subject to the subpoena is therefore ‘confidential information’ for the purposes of s 64D.
Was the information obtained by persons authorised to receive it?
When determining whether information falls within s 64D not only must it be ‘confidential’ and ‘relate to a health service’ but it must also be gathered by a person, group or body authorised by the Governor to have access to confidential information. The Act makes provision for information to be confidential when obtained by a person acting in their capacity as a member of a body authorised by the Governor by instrument in writing, to have access to the information for the purposes specified in the Act. Members of the FMC CRC are authorised by the Governor to have access to confidential information in accordance with s 64D.[23]
[23] By instrument dated 17 April 1997.
Before s 64D has application, the court must be satisfied that the information is gathered in accordance with the Act, by persons, bodies or groups who are so authorised. The second reading speech addressed this requirement:
In order to prevent any abuse of such privilege it is proposed that any person or committee seeking protection must first be authorised by the Governor. It is intended that such authorisations would be gazetted and would extend to Government funded hospitals, private hospitals and any other properly constituted body carrying out quality assurance of clinical practice or competence. In granting an authorisation the Governor would need to be assured that a committee was properly established for the purpose of quality assurance and reported to the Board of Directors of the hospital or other appropriate body. In addition, the Governor would need to be satisfied that privilege was necessary in order for quality assurance work to be properly carried out and that such privilege was in the public interest.[24]
[24] South Australia, Parliamentary Debates, House of Assembly, 9 August 1989, 134 (D.J. Hopgood, Deputy Premier, Minister for Health).
I do not accept Mr Caldicott’s submission that any power purported to be exercised by the RCA team is delegated authority and is therefore outside the scope of s 64D. In order for the CRC to conduct research into the causes of morbidity in the provision of health services and the improvement of those services, data relating to the health service needs to be collected. RCA is the investigative method adopted by the CRC to collect data. However, in order to obtain the protection of s 64D, the CRC must authorise and conduct the investigation.
The Solicitor-General submitted that the CRC had delegated the authority to conduct the RCA to Professor Ben-Tovim. In my view, the evidence does not support that submission. There was no resolution of the CRC authorising the conduct of an investigation, or the establishment of an RCA. The Solicitor-General argued that the absence of any resolution expressly authorising Professor Ben-Tovim to conduct the RCA is not conclusive evidence that the RCA was not authorised by and conducted on behalf of the CRC. It was submitted that there was a “standing delegation” to perform a RCA for and on behalf of the CRC. It was argued that the RCA was convened and conducted in a manner that was consistent with established practice. Professor Ben-Tovim, in his affirmation of 19 April 2006, explained:
At the time that this particular RCA was undertaken it was established practice of the CRC that certain individual members of the CRC would initiate an RCA investigation without convening a full meeting of the CRC. In practice this would generally be myself or the Chair of the CRC, Professor Ross Kalucy. The CRC accepted that as the Director of the Clinical Governance with the oversight of safety and quality issues throughout the hospital I had particular expertise in this area. It was expedient to adopt this practice. The issues under consideration would often arise urgently and it was important that the investigation would commence as soon as possible.
I have been present at meetings of the CRC where reports of RCA’s undertaken by myself or other members of the CRC in between meetings where discussed. These reports were generally verbal reports. At no time was any objection raised about the fact that an RCA was undertaken by myself without first referring the matter to a full meeting of the CRC. Indeed, as I have said, it was an established practice.
It should be noted that RCA’s were undertaken by me in response to concerns raised by medical practitioners, nurses or similar sources without first referring the matter to a full meeting of the CRC. No objection to this practice was ever raised with me. The CRC proceeded to consider reports of those investigations on the basis that they were initiated in accordance with established practice.[25]
[25] Affirmation of David Isaac Ben-Tovim, 19 April 2006, [6]-[8].
It was submitted that this standing authority to conduct a RCA on behalf of the CRC is evidenced by a minute of the CRC dated 31 May 2004. The minute records discussions concerning a subpoena issued for the production of RCA notes in a matter then before the Magistrates Court. The minute does not, however, purport to authorise Professor Ben-Tovim, or any other member of the CRC, to institute and conduct RCAs generally. It does not create a delegation to any member of the CRC to conduct RCAs on behalf of the CRC.
The Solicitor-General submitted that the fact that the request to conduct a RCA was received from the Chief Executive of FMC, does not of itself, indicate that the CRC did not exercise its own independent judgment to conduct the RCA. It was argued that events like the death of Mr Ballard were always investigated in accordance with the CRC’s standing policy. There is nothing in the minutes of the CRC tendered before me to evidence a standing policy of the CRC authorising any member to conduct an RCA.
The fact that Professor Ben-Tovim believed that there was a general understanding that he could conduct an RCA in his capacity as a member of the CRC is not a sufficient basis upon which to conclude that he was so authorised. There does not appear to have been any decision by the Committee to authorise any member to conduct an RCA, nor was there a decision by the committee as to the circumstances in which it was appropriate for a member to conduct an RCA. Although Professor Ben-Tovim attests to an established practice, it is unclear what that practice was. Could any member decide at any time to conduct an RCA? Could that member be the only person to decide? Was he or she required to consult with the chairperson? Was he or she required to consult with other members of the CRC? Was there a requirement for a minute or document to give the member authority to conduct the RCA?
There is no evidence that the CRC had ever considered the question of authorising members of its Committee to conduct an RCA inquiry into the circumstances of the death of Mr Ballard. The Solicitor-General conceded that there is no reference in the minutes of the CRC resolving to conduct an RCA into the death of Mr Ballard. Other than the memo of 4 August 2003 from the Chief Executive of FMC there is no other document that evidences a delegation of authority to Professor Ben-Tovim to conduct the RCA. The Chief Executive of FMC does not have the power to delegate and authorise a member of the CRC to conduct an RCA, pursuant to s 64D. The Governor has authorised the CRC to have access to confidential information for the purposes set out in the section. Only the CRC can delegate or authorise one of its members to conduct an RCA.

I do not consider that on every occasion when an RCA is conducted that there need be a specific authorisation from the CRC. However, if the CRC determines to authorise a member or members to institute and conduct RCAs, the terms of the authorisation must be clearly stated. The court must be satisfied that the RCA is being conducted pursuant to the authorisation of the CRC.
If the CRC did authorise Professor Ben-Tovim to conduct the RCA, it would be expected that there would be some evidence of the committee’s involvement in deciding whether to conduct the RCA and the terms under which it was to operate. In this case, it seems as though the CRC had little or no role in deciding whether to conduct this RCA, nor how it should be conducted, the scope of the investigation, those that should be involved and any report on the findings.
Professor Ben-Tovim explained his involvement in the RCA inquiry:
I convened the root cause analysis committee and I chaired a number of discussions which the committee was involved in and I conducted some of the interviews involved.[26]
[26] Transcript of Proceedings, R v C, DR & Ors (Supreme Court of South Australia, Justice Sulan, 20 April 2006) 96.
Professor Ben-Tovim’s evidence was that he may or may not have spoken to the chairperson of the CRC about conducting an RCA. It does not appear that there was any control exercised by the CRC over the conduct of the RCA. It appears that Professor Ben-Tovim established the RCA team and carried out the RCA with little or no consultation with the CRC.
If Professor Ben-Tovim had been authorised by the CRC to conduct the RCA it might be expected that he would report to the CRC about the results of the investigation. Any recommendations arising from the RCA should be made by the CRC. The very reason for conducting an RCA is to collect data for the CRC to conduct research into the causes of morbidity in the provision of health services and the improvement of those services.
There was no requirement for Professor Ben-Tovim to report back to the CRC. When asked whether at any stage a written report was made from the RCA enquiry to the CRC, Professor Ben-Tovim explained:
I did not produce a written report but I can only attest to my actions. That does not mean that a written report was not prepared at a later point. I did not personally make a written report to the Clinical Review Committee. It would not necessarily be a requirement of the committee to report in writing to them in detail on specific root cause analysis.[27]
[27] Transcript of Proceedings, R v C, DR & Ors (Supreme Court of South Australia, Justice Sulan, 20 April 2006) 97.
There was no evidence that a report, either oral or verbal, was ever made to the CRC in respect of the RCA into the death of Mr Ballard. The only reporting requirement is contained in the memo from the Chief Executive of the FMC requiring a report by Friday, 19 September 2003. A report was never formally given to the Chief Executive. Disclosure of identified information to the Chief Executive would breach the confidentiality of information if the RCA investigation was conducted within s 64D of the Act.
In addition to there being no report to the CRC, there was no procedure whereby the CRC resolved to act. No reports or recommendations were ever produced by the CRC and no formal report was produced, even in a de-identified manner to the Health Commission. There may have been a conversation between Professor Ben-Tovim and the Chief Executive of FMC, but there is no evidence that she was informed that the RCA inquiry was complete. Professor Ben-Tovim explained:
It is my recollection that I had a discussion with the chief executive officer of our early observations relating to this particular event. I have a recollection of that. I have no other recollection of any other reporting process at the moment. Reports of all root cause analyses undertaken by the hospital were reported in a number of different ways to different entities.[28]
[28] Transcript of Proceedings, R v C, DR & Ors (Supreme Court of South Australia, Justice Sulan, 20 April 2006) 82.
There was no notation or record kept of this conversation.
The Act provides for information obtained by a person who is appointed to provide technical or administrative assistance to remain confidential. The CRC or a member of the committee cannot delegate the function of the committee to persons who are providing technical or administrative assistance.
In this case there was no discussion or decision as to the technical and/or administrative support that members of the RCA team were to provide. Professor Ben-Tovim’s evidence was very general in nature concerning the appointment of non-CRC members to the RCA team. In his affirmation of 6 February 2006 Professor Ben-Tovim outlines the expertise and ‘technical assistance’ that specific non-CRC members of the RCA team brought to the inquiry. There does not appear to have been any limitation placed on the technical and/or administrative assistance to be provided. There is no indication of the role of each member of the RCA team. There is no clear record of what part each member of the team played in the conduct of the inquiry.
In the case of Ms Ferris, it appears that she may have been acting jointly with Professor Ben-Tovim as the person conducting the review. Professor Ben-Tovim stated in his affirmation of 6 February 2006:
Upon receipt of the Chief Executive’s minute of 4 August 2004, Ms Ferris and I convened a RCA team comprising me, Ms Ferris, Drs Peter Gilchrist and Jeff Bowden, and Ms Anni Liwu, for the purposes of conducting a RCA review in respect of the death of Mr Ballard.[29]
[29] Affirmation of David Isaac Ben-Tovim, 9 February 2006, [8].
In her affidavit of 13 February 2006, Ms Ferris explains the extent of her involvement in the RCA:
… I also confirm that I conducted the majority of interviews for the purpose of the Ballard RCA review and that I communicated the effect of s 64D as outlined in paragraph 4 above to those persons I interviewed at the commencement of each interview.[30]
[30] Affidavit of Annette Jean Ferris, 13 February 2006, [5].
There is a distinction between the role of a member of the CRC and those providing technical or administrative assistance. It appears in this case that there may have been a blurring of those roles. Ms Ferris appears to have been the person conducting the RCA jointly with Professor Ben-Tovim. Her role appears to have gone beyond providing technical or administrative assistance.
For the reasons I have indicated, I am not satisfied that the RCA was conducted by the CRC. The persons conducting the RCA into the death of Mr Ballard were not authorised pursuant to s 64D of the Act, and it follows that the information obtained in the course of this RCA is not confidential information pursuant to s 64D.
Public interest immunity
Public interest immunity prevents the disclosure of documents and information in the course of legal proceedings if such a disclosure would injure an identified public interest. Gibbs ACJ in Sankey v Whitlam[31] stated:
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.
[31] (1978) 142 CLR 1, 38-9.
Lord Reid in Conway v Rimmer,[32] with whom Gibbs ACJ agreed in Sankey v Whitlam, referred to the two aspects of public interest immunity as follows:
There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.[33]
[32] [1968] A.C. 910.
[33] [1968] A.C. 910, 940
It is the duty of the Court to decide whether a document should be produced or withheld. In performing this duty, the Court must weigh up and decide 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.[34]
[34] Sankey v Whitlam (1978) 142 CLR 1, 38-9 per Gibbs ACJ.
The Solicitor-General submitted that the public interest that requires non‑production of the document is the public benefit provided by the process of RCA in the provision of health services. By identifying causative factors, RCAs will develop corrective strategies that prevent adverse events in healthcare and improve the multi-layered systems and processes that affect the quality and safety of healthcare.
The essential component for an RCA is the information provided that allows for an assessment of the healthcare system. The guarantee of confidentiality of information provided for the purposes of conducting an RCA is pivotal. The knowledge that the information provided is prevented from being disclosed provides an incentive to openly discuss issues of health care that may never ordinarily be discussed and brought into the open.
Professor Runciman, in his affidavit of 10 February 2006, outlined the importance of information being voluntarily provided. He stated:
[F]or RCA to be effective, indeed for it to even occur, requires the voluntary participation of individuals, those related to the event, those on the RCA investigation team and those interviewed, to freely supply information and their opinions.[35]
[35] Transcript of Proceedings, R v C, DR & Ors (Supreme Court of South Australia, Justice Sulan, 24 April 2006) 173.
Paul Michael Dolan, the Chairperson of the State Committee of the Royal Australasian College of Surgeons, gave evidence that the College is currently conducting an investigation into the incidence of peri-operative mortality. The committee is authorised by the Governor, pursuant to s 64D of the Act, to conduct the investigation. In conducting the study, information is sought from surgeons. The project is dependent upon surgeons volunteering information. Mr Dolan said that his members were concerned about the potential legal ramifications of providing information. He stated:
In order to get around this problem, we have, through the Department of Health, applied for coverage under s.64D of the Health Act and we have, on numerous occasions, virtually in every correspondence to surgeons, indicated that this project had protection under 64D and I’m quite sure that if that was not the case we would not have achieved the results that we have so far.[36]
[36] Transcript of Proceedings, R v C, DR & Ors (Supreme Court of South Australia, Justice Sulan, 24 April 2006) 173.
Christopher James Baggaley is the Executive Director of Public Health and Clinical Coordination in the South Australian Department of Health. He is an expert in emergency medicine. He gave evidence that currently there are 208 authorisations, pursuant to s 64D of the Act, which involve 78 different hospitals or organisations. He gave evidence that if the organisations conducting RCAs could not assure those from whom they sought information that such information would remain confidential, then those investigations would cease. He explained that faith in the RCA process would be severely shaken. He was asked:
Q.What importance does the Department of Health attach to the information obtained as a result of investigations that attract the 64D privilege.
A.We think it is an essential step in developing the safety and quality program in this state. We believe that where there is an opportunity to find, be it preventable death or injury or harm to patients that a process like this – which can be broad ranging and involve a range of people if you like in many ways dealing with more than providing expert opinion, but providing, speculating – gives us a chance to get onto what the whole thing is called, a root cause. There is a way forward in improving the safety of the system. I would be most concerned if that which we had been seeking to develop would be now put in jeopardy.
Q.Are similar protected investigations undertaken in other places throughout Australia.
A.Yes. My understanding is that all states have similar protected processes.
Q.Throughout the rest of the world, how common are protected investigations.
A.My understanding, it is common. I can’t tell you by country, but certainly it is something that – the root cause analysis part of this has emanated from the United States and been very successful in advancing a safe practice of clinical care.[37]
[37] Transcript of Proceedings, R v C, DR & Ors (Supreme Court of South Australia, Justice Sulan, 24 April 2006) 195-6.
The Solicitor-General submitted that there is a public interest in reassuring those who provide what is life-saving information, that the information they provide is absolutely privileged. Despite the failure of those gathering the information to comply with s 64D, there is a public interest that the information will remain protected from disclosure. Counsel invited me to examine the material sought by the subpoena in weighing up the competing interests.
In Alister v The Queen,[38] the High Court considered the circumstances in which a court might inspect documents to determine whether to uphold a claim of public interest immunity. In that case, the Crown contended that the disclosure of the existence of documents sought from the Australian Security Intelligence Organisation was detrimental to the maintenance of effective security for Australian citizens. The trial Judge had refused to inspect the documents and had upheld a claim of public interest immunity.
[38] (1984) 154 CLR 404.
In Alister, Gibbs CJ, Murphy and Brennan JJ held that it had not been established that the public interest was such as justified the claim that information as to whether the documents sought existed should be withheld. Gibbs CJ explained that in Sankey v Whitlam it was established that where there are two conflicting aspects of the public interest, namely, whether harm would be done by production of the document, and whether the administration of justice would be frustrated or impaired if the documents were withheld. In order to undertake the balancing exercise a court can, if it is satisfied that the documents may have evidential value, inspect the documents. Whether that course is followed will depend on the facts and circumstances of the case.
Murphy J considered that the trial Judge should have inspected the documents to ascertain whether they contained material to support or assist the defence case. He said that the process of criminal justice required full disclosure, and must not be distorted to prevent an accused from defending himself properly.
Brennan J said:
… This is a criminal case. The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court’s power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law. The procedural safeguards are neither easy to devise nor simple to apply. On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest. It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man’s liberty, and the balance must be tilt that way: cf. Sankey v. Whitlam.
The power of a criminal court to compel the production of government documents on the application of an accused person is a safeguard of individual liberty, but the power must be carefully used. The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents. …[39] (Footnotes omitted).
[39] (1984) 154 CLR 404, 456.
The subpoena in this case went beyond a “mere fishing expedition”. The documents sought may have relevance to the defence case and may have revealed lines of inquiry relevant to the case of one or more of the accused.
I determined to inspect the documents. Having considered the documents, I concluded that there was no material contained in the documents which provided information beyond information which had been disclosed to the defence in the material provided to them as part of the prosecution evidence. In the circumstances, I considered that the accused would receive a fair trial if the claim of public interest immunity was upheld.
Upon my intimating that the material contained nothing which was not known to defence counsel, the claim for production of the documents was withdrawn by the accused. In any event, I consider that, on balancing the competing interests, the claim of public interest immunity had been made out, as the documents contained no material of evidential value or of value to the defence, in that it would open up new lines of inquiry.
In the circumstances, I upheld the claim of public interest immunity, and no order was made requiring production of the documents for inspection.