Smith v Colac Area Health (Ruling)

[2013] VCC 1892

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DAMAGES AND COMPENSATION LIST
GENERAL DIVISION

Case No. CI-12-02271

GREGORY SMITH	Plaintiff
v
COLAC AREA HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2013
DATE OF RULING:	6 December 2013
CASE MAY BE CITED AS:	Smith v Colac Area Health (Ruling)
MEDIUM NEUTRAL CITATION:	[2013 VCC 1892

RULING
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Subject:  MEDICAL PRIVILEGE

Catchwords: Objection to answering interrogatory on the grounds it requires divulging information obtained by medical practitioners treating a patient not a party to proceeding – medical privilege – objection to inspection of documents contained in files kept by defendant relating to patient in an aged-care facility – whether answering interrogatory or providing discovery breaches s28(2) of the Evidence (Miscellaneous Provisions) Act 1958

Legislation Cited:     Evidence (Miscellaneous Provisions) Act 1958

Cases Cited:Hare v Riley & Australian Mutual Provident Society [1974] VR 577; Victorian WorkCover Authority v Melbourne Health [2011] VCC 1170; Elliott v Tippett & Anor (2008) 20 VR 195

Ruling:  Defendant to provide further answer to interrogatory.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Makowski	Arnold Thomas Becker
For the Defendant	Ms B Knoester	Minter Ellison

HIS HONOUR:

1       This proceeding concerns a claim for damages made by the plaintiff as a result of injury sustained in the course of his duties as an ambulance officer in March 2009.  He was transporting an elderly patient (“the patient”) of a nursing home owned by the defendant, in company with a nurse employed by the defendant, when that patient became agitated and tripped the plaintiff up, causing him to fall and strike his neck.

2       The plaintiff alleges negligence against the defendant, particularised to include:

“(a)transferring the patient without informing the plaintiff and his fellow ambulance officer that the patient was mentally disturbed and/or aggressive and/or dangerous;

(b)failing to include in the patient transfer documentation any warning or information that the patient was mentally disturbed and/or aggressive and/or dangerous;

(c)failing to inform the nurse that the patient was mentally disturbed and/or aggressive and/or dangerous;

(d)failing to keep adequate records concerning the patient …”

3       The defendant has filed a Defence denying negligence and alleging contributory negligence.

4       Pursuant to leave, the plaintiff delivered Interrogatories for the examination of the defendant.  Interrogatory 4 is in the following terms:

“As at the said date, did the defendant –

(a)know;

(b)believe;

(c)suspect –

that the patient was –

(i)suffering from any and if so what mental impairment;

(ii)suffering from any and if so what mental illness;

(iii)likely to behave in an unpredictable manner;

(iv)likely to behave in an aggressive manner;

(v)likely to behave in a dangerous manner?”

5       The defendant’s answer to that Interrogatory is as follows:

“4 (a) – (c), (i) – (v)         

I object to answering this interrogatory on the grounds that it relates to medical records which are privileged and confidential pursuant to s28(2) of the Evidence (Miscellaneous Provisions) Act 1958.”

6 Section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 says:

“28     Confessions to doctors

…

(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.

… .”

(“the section”)

7       Ms Knoester, for the defendant, submitted it had employed medical practitioners who, in the course of the treatment of the patient, would obtain information of a medical nature, including information that was necessary to enable that practitioner to prescribe or act for the patient.  As such, she submitted, any information, either oral or in writing, was subject to the privilege imposed by the section, and the objection taken to answering the Interrogatory was appropriate.

8       In the course of discussion with counsel, I was informed the defendant had various files and records of the patient (“the files”) containing clinical and other information concerning the patient’s inpatient and outpatient treatment at the defendant’s aged-care facility from which she was being transported at the time of the incident.  It became apparent the defendant’s capacity to answer the Interrogatory depended at least in part upon the information contained in the files.

9       It is convenient in the course of this ruling to determine not only as to the adequacy of the answer to Interrogatory 4, but also as to whether the files or any part of them ought be discovered.

10      By order made 2 October 2013, I directed that the defendant produce to the Court the files to enable me to determine whether and to what extent medical privilege, as contemplated by the section, applied.  I have now been provided with seven folders entitled, respectively:

·Home Nursing

·Adult Day Activity Program

·Medical Record

·Colac Area Health Nursing Home - Print Outs - Electronic Record

·Nursing Home Volume 1

·Nursing Home Volume 2

·Nursing Home Volume 3

I have perused all these records.

11      The records are substantial and relate to information about the patient gathered over a considerable period, from as early as 1998 when she came under the care of the defendant.  From that period through until 2010, the patient was admitted to various aged-care facilities, the subject of homecare, nursing, and treatment for various medical conditions.  The patient has an extensive medical treatment history.

12      The files are voluminous and somewhat complex, and it is no easy matter to sift through the documentation and determine documents which are, firstly, relevant, and secondly, do not breach the privilege imposed by the section.  Some of the documents contained in the files relate to treatment at a hospital after the incident and are not relevant.  Some of the documents are medical clinical recordings of both doctors and nurses involved in the treatment of the patient, and are clearly within the compass of the section.  Only very few documents are both relevant to the issues in the proceeding, and not the subject of privilege contemplated by the section.  For the sake of convenience, I have extracted those documents from the files and will provide them to the parties.  In the case of some of those documents, it is difficult to determine the date they were produced.  Some documents are undated.

13      In determining what documents ought be discovered, I bear in mind the authorities to which I was taken, including Hare v Riley & Australian Mutual Provident Society,[1] where Norris J said:

“I therefore conclude that information acquired by the physician or surgeon in applying himself to the care of the patient from other medical men by letter or by oral communication or otherwise, if the information was necessary to enable him to prescribe or act for the patient is within s28(2). For the same reasons like information acquired from those who perform what I believe are called para-medical services such as physiotherapists or indeed from any other source is covered by the enactment.”

[1][1974] VR 577

14      Further, in Victorian WorkCover Authority v Melbourne Health,[2] Judge Ginnane (as he then was) considered an application against the defendant for discovery of clinical records in circumstances not dissimilar to the present case. On the question of whether documents not created by a medical practitioner can come within the ambit of s28(2), his Honour referred to Elliott v Tippett & Anor[3] and the passage to which I have referred in Hare v Riley.[4]  I have borne these principles in mind in determining the documents which ought to be discovered from the files.  His Honour said:

“I have attempted to adopt a common sense assessment of whether the information recorded in the documents by professionals, such as nurses or psychologists, was information, which a medical practitioner had acquired in attending the patient and was necessary to enable the medical practitioner to prescribe or act for the patient.”[5]

[2][2011] VCC 1170

[3](2008) 20 VR 195 at 200

[4]Hare v Riley & Australian Mutual Provident Society (supra) at page 582

[5]Victorian WorkCover Authority v Melbourne Health (supra) at paragraph 22

15      Having perused the files, much of the information is of a medical nature, relied upon by medical practitioners to treat or prescribe for the patient.  However, the documents which I have extracted are generally observations and recommendations of staff of the defendant relating to the patient’s behaviour.  The patient’s behaviour, in particular whether that could be categorised as mentally disturbed, aggressive or dangerous is at the heart of the plaintiff’s claim in this proceeding.  In my view, such behavioural observations made by staff of the defendant are not made in a medical context, but are simply of observation within the realm of non-medical persons employed at the defendant’s facility.  They do not come within the ambit of the section.

16      Further, the obligation to properly answer interrogatories requires the defendant to make reasonable enquiries of its employees as to the observations they made of the patient’s behavioural in a non-medical context.  Provided those enquiries do not relate to medical information obtained by medical practitioners to enable those practitioners to treat or prescribe for the patient, then they are not caught by the section.

Conclusions

17      There are few documents contained in the files which are, firstly, relevant to the proceeding, and secondly, outside the cover of the privilege contemplated by the section.  Only the documents which I have extracted should be discovered, and may be relied upon in answering Interrogatory 4.

18      In my view, Interrogatory 4 in part requires further answer.  Interrogatory 4 (a)-(c)(i) and (ii) of their very nature require an assessment of the patient’s medical condition.  This lies within the province of medical practitioners.  Even if such an assessment was to be made by non-medical staff of the defendant, it would require information from medical partitioners.

19      It is within the province of employees of the defendant however, to respond to Interrogatory 4(a)-(c)(iii)-(v) as they relate to their observations of the patient’s behaviour.  That part of the Interrogatory should be further answered, relying on the documents, and enquiries of the servants or agents of the defendant.

20      Orders will be made to that effect.

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