Royal Women's Hospital v Medical Practitioners Board of Victoria (No 2)

[2007] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 8917 of 2004 

ROYAL WOMEN'S HOSPITAL

v

MEDICAL PRACTITIONERS BOARD OF VICTORIA (NO 2)

---

JUDGES:	MAXWELL P, CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2007
DATE OF JUDGMENT:	6 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 284

---

PRACTICE AND PROCEDURE – Suppression order – Order prohibited identification of applicant medical practitioner as treating doctor of unidentified patient – Order expressed to be ‘until further order’ – Application by medical practitioner for variation of order to lift prohibition – Justification for prohibition no longer in existence – Order varied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M W Richardson	John W Ball & Sons
For the Second Respondent	Mr S P Donaghue	Minter Ellison

MAXWELL P:

1. This is an application by a medical practitioner for the variation of a series of suppression orders, two of which were made by this Court.  Each of those orders prohibits publication of the practitioner's name in connection with proceedings to which I will refer.  The circumstances in which those orders came to be made are as follows.

1. The applicant was one of the treating doctors of a pregnant woman.  She has been referred to in all court proceedings as ‘Ms X’ and I will continue to refer to her by that abbreviation.  Her pregnancy was terminated in January 2000 at the Royal Women's Hospital.  In May 2001, a member of the Federal Parliament, Senator McGauran, made a complaint to the Medical Practitioners Board of Victoria about that termination.  In April 2002, the Board commenced a preliminary investigation into that medical procedure and into the conduct of the medical practitioners involved, including the applicant.

1. The Board sought documentation from the hospital for the purposes of that investigation.   Through her solicitors Ms X informed the hospital that she did not consent to the release of her medical records (held by the hospital) for that purpose.  As a result the hospital refused to provide the Board with those records.  That prompted the Board to seek and obtain a search warrant from the Magistrates’ Court of Victoria pursuant to which the documents were seized.

1. The hospital subsequently applied to the Magistrates’ Court to have the seized documents returned but on 8 October 2004 that court made orders in favour of the Board, holding among other things that the medical records were not protected from disclosure by public interest immunity.  An appeal from that decision to the Supreme Court was dismissed on 29 June 2005 and a further appeal to this Court was dismissed on 20 April 2006. 

1. At each successive stage of these proceedings, suppression orders were made.  They were made by the magistrate in March 2004, a master of this Court in December 2004, by myself and Harper J on the hearing of the application for leave to appeal to this Court in August 2005, and by this Court on the delivery of judgment in the appeal in April 2006.

1. The orders made in this Court, in August 2005 and April 2006 respectively, were in identical terms as follows:

5.Pursuant to the provisions of section 18 of the Supreme Court Act 1986, the Court prohibits the publication of the names of the patient and the treating medical practitioner or medical practitioners involved in the complaint to the Medical Practitioners’ Board of Victoria which are referred to in the affidavits of Meghan Burton sworn herein on 11 November 2004 and Ian Francis Xavier Stoney sworn herein on 2 December 2004 or any other material including the reasons for judgment identifying the patient or the treating medical practitioner or medical practitioners derived from these proceedings in any media outlet, or in any newspaper or television transmission or radio broadcast or on the internet or any other publication until further order.

1. The phrase ‘until further order’ at the end of the order leaves no room for doubt that it is open to this Court to make an order of the kind sought, that is, an order varying the suppression orders so that the publication of the applicant's name, as one of the practitioners who treated Ms X, is no longer prohibited.  In his affidavit sworn 13 November 2007, the applicant acknowledges the reason for the making of the suppression order on each occasion and does not seek to challenge the basis of the orders.  He nevertheless points out that on each occasion the order was made without notice to him.

1. It is important to affirm the privacy interest which underpinned the suppression orders.  As I said in my judgment in the appeal, the preservation of medical privacy is of concern to the whole community.  The maintenance of the confidentiality of the patient/doctor relationship is likewise a matter of high public importance.  It was of course that concern which prompted the action of the hospital to seek to preserve the confidentiality of those records.  The Board did, however, make clear from the outset of the proceedings that it would do whatever was necessary to ensure that the information relating to Ms X was kept confidential. 

1. The rationale for the suppression of the names of the medical practitioners was, it would appear, twofold.  First, it was evidently thought that the naming of the applicant as a practitioner who treated Ms X, or as a practitioner the subject of the Board's preliminary investigation, might create a risk that Ms X’s identity would be revealed.  With the benefit of hindsight, that may have been an overcautious view to take.  Since a medical practitioner has multiple patients, the simple disclosure that a particular doctor treated an unnamed patient could hardly tend to identify the patient. 

1. However that may be, counsel for the Board has confirmed that the second rationale was to protect the identity of the medical practitioners while they were the subject of the Board’s preliminary investigation.  It is the practice of the Board, for perfectly understandable reasons, that during an investigation the name of any practitioner being investigated is kept confidential.  Counsel for the Board has confirmed that, upon completion of the preliminary investigation, the Board decided to proceed no further in investigating the complaint by Senator McGauran. 

1. It follows that there is no longer any justification for prohibiting the identification of the applicant as one of the treating doctors of Ms X or as having been the subject of the Board’s investigation.  It is axiomatic of course that neither the scope nor the duration of a suppression order should be any greater than is demonstrably necessary.  What occurs in court should be open and should be the subject of unfettered publication and a constraint on publication will only be imposed where clear need has been demonstrated.

1. The applicant has stated in his affidavit why it is that he wishes now to be free, in public debate, to identify himself as one of the practitioners who treated Ms X.  It is unnecessary for the purposes of this application to say anything about those reasons.  The applicant bears no onus of persuading the Court that there is some particular purpose to be served by his being free to identify himself.  The only issue is the one I have already referred to, which is whether the prohibition can be justified any longer, and I am fully satisfied that it cannot.

1. By letter dated 4 December 2007, counsel for the Hospital stated to the applicant's solicitors, and through those solicitors to the Court, that the Hospital had written to the lawyers representing Ms X and to the lawyers for each of the other medical practitioners referred to in the suppression orders.  Following those communications, and taking the responses into account, the Hospital neither consents to nor opposes the application.  The letter said that the Hospital remained of the view that the privacy of the patient at the centre of these proceedings was the paramount consideration.  As I commented earlier, that was plainly enough the motivation behind the strenuous efforts made by the Hospital in this long litigation to do what it regarded as necessary to protect that privacy.

1. At the same time, the Hospital’s counsel urged that the applicant be reminded that he should act in such a way as to ensure that the patient’s privacy was protected.  In my view the Hospital’s concern in that regard is unfounded.  This is so, first, because the applicant, like everyone else, remains bound by the suppression order –  as it will continue in force following the variation we will make – not to identify Ms X.  Secondly, and in any event, the fact that a particular patient has consulted a particular doctor is, as I understand medical confidentiality, a confidential matter and it is not open to any practitioner, without the patient’s consent, to disclose the fact that that person has consulted him or her.  Accordingly there can, I think, be no doubt but that the privacy of the patient will continue to be respected.

1. For completeness I record that the Board, which has appeared by counsel on the application, neither consents to nor opposes the application.

1. I turn finally to the issue of the suppression orders other than those made in this Court.  So far as the Master’s order is concerned, that was an order of the Supreme Court.  It was also expressed to be ‘until further order’.  As  a judge of the

Supreme Court, in addition to being a Judge of Appeal, I have jurisdiction to entertain an application for variation of that order.  I will treat the applicant as having made an oral application to me in that capacity for that variation and I will vary that order in the same way.

1. There is of course no jurisdiction in the Supreme Court, less still in the Court of Appeal, to vary an order of the Magistrates’ Court otherwise than on an appeal from that court.  We do not, therefore, purport to take any such step.  It is appropriate, however, that I make the following comment.  The considerations to which I have referred apply with equal force to the order made by the Magistrates’ Court, which remains on foot.  The necessity for prohibition on the identification of the applicant no longer exists.  There is no opposition in this Court to the variation sought and it would, in my respectful opinion, be to the discredit of our legal system if it were necessary for the applicant to incur the cost of a separate application to the Magistrates' Court when in these circumstances it is inevitable that the same variation will be made.

1. Accordingly I propose to forward a copy of these reasons, and of the order which we will make, to the Chief Magistrate requesting that his Honour give consideration to arranging for that court, of its own motion, to make the same variation to the suppression order made by that court.

1. CURTAIN AJA:  I agree with the reasons advanced by the learned President and the orders that he proposes.

- - -