Staib v Sarra
[2000] QSC 155
•5 June 2000
SUPREME COURT OF QUEENSLAND
CITATION: Staib v Sarra & Ors [2000] QSC 155 PARTIES: IAN STAIB, HEALTH RIGHTS COMMISSIONER
(applicant)
v
MR SARRA SM
(first respondent)
THE DIRECTOR OF PUBLIC PROSECUTIONS
(second respondent)
MICHAEL McGRANE
(third respondent)FILE NO/S: No 4338 of 2000 DIVISION: Trial Division PROCEEDING: Application for an order in the nature of a prerogative order of certiorari ORIGINATING COURT: Magistrates’ Court at Brisbane
DELIVERED ON: 5 June 2000 DELIVERED AT: Brisbane HEARING DATE: 26 May 2000 JUDGE: Williams J ORDER: Order in the nature of a prerogative order of certiorari quashing the order of the first respondent of 15 May 2000.
All should bear their own costs associated with the application.CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW LEGISLATION - COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY - GROUNDS FOR REVIEW OF DECISION - ERROR OF LAW
HEALTH LAW - ADMINISTRATION OF PUBLIC HEALTH LAWS - LEGAL PROCEEDINGS BY AND AGAINST AUTHORITIES - QUEENSLAND - application by Health Rights Commissioner pursuant to s 43 Judicial Review Act 1991 for an order in the nature of certiorari quashing an order made by the first respondent - whether Health Rights Commission obliged to produce certain files
ordered by the first respondent
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION STATUTORY POWERS AND DUTIES - CONSTRUCTION - whether complaints made to Health Services Commission were “health service complaints” for the purposes of s 58 of the Health Rights Commission Act 1991 - where criminal charges were laid after complaints were referred to Police and The Medical Assessment Board - provisions of s 58 are extremely wide and could accommodate conduct constituting a criminal offence - whether confidentiality conferred by s 138 of the Act prevents a court from requiring production of documents coming within the s 58 definition - documents constituting a “health service complaint” within the meaning of s 58 are protected from production by s 138
Health Rights Commission Act 1991 (Qld), s 4, s 58, s 61, s 62, s 67, s 72A, s 94, s 138
Judicial Review Act 1991 (Qld), s 43
Medical Act 1939 (Qld)Akerele v The King (1943) AC 255
R V Bateman (1925) 41 TLR 557COUNSEL: P J Flanagan for the applicant
S R Grant for the first respondent
S M Smith (sol) for the second respondent
M J Griffin SC for the third respondentSOLICITORS: Crown Solicitor for the applicant
Crown Solicitor for the first respondent
Director of Public Prosecutions Queensland for the second respondent
A W Bale & Son for the third respondent
This is an application made by the Health Rights Commissioner (“the Commissioner”) pursuant to s 43 of the Judicial Review Act 1991 for an order in the nature of a prerogative order of certiorari quashing an order made by the first respondent, a stipendiary magistrate, on 15 May 2000.
The first respondent has been presiding for some months over committal proceedings with respect to a series of offences allegedly committed by the third respondent, a medical practitioner at all material times. Those charges include five counts of administering a stupefying drug with intent to commit an indictable offence and five counts of unlawfully and indecently assaulting a woman. In all there are seven female complainants involved in those counts and each was at the material time a patient of the third respondent who attended his surgery for the purpose of obtaining medical treatment. The earliest date mentioned in the complaints was 8 September 1993. Other offences were said to have been committed in October 1995 and April 1996, with the last date mentioned being June/July 1998.
In the course of the committal proceedings the Director of Public Prosecutions, the second respondent, by his counsel informed the court that each of the female complainants had made claims against the third respondent to the Health Rights Commission (“the Commission”) in identical terms to the allegations outlined in their statements forming the basis of their evidence at the committal proceedings. In the light of that, legal representatives of the third respondent caused a summons to issue directed to the Commission requiring it to produce to the court the documents specified in the summons; it is sufficient for present purposes to say that the documents the subject of the summons were all documents on Commission files relating to complaints made by the complainants in the committal proceedings. Relying on a confidentiality provision in the applicable statute the Commissioner appeared by counsel before the first respondent and submitted that the documents in question could not be made the subject of a subpoena to produce. That submission was opposed by the legal representatives for both the second and third respondents. The first respondent received submissions on 15 and 17 December 1999 and then reserved his decision. On 15 May 2000 the first respondent published reasons and ordered that the documents described in the summons be produced to the court within three days. On 18 May 2000 White J granted interim orders staying the order of the first respondent until the hearing of the application; I have extended those orders until my decision on the substantive hearing is delivered.
It is clear that some of the information on the files kept by the Commissioner has already been referred to and used in open court. On 9 May 1996 the then Commissioner referred complaints from three of the women in question to The Medical Board of Queensland (“the Board”) by way of a covering letter enclosing the texts of each complaint and a report of the Commissioner’s assessment of each of those complaints. That referral also included written submissions from the third respondent in respect of one of the complaints. Then on 27 August 1997 the present Commissioner referred a complaint by one of the women in question to the Board by way of a referral letter which included the text of the complaint and a report being an assessment by the Commissioner. Next on 16 December 1998 the present Commissioner referred a complaint to the Board by way of a referral letter, a copy of the complaint and a copy of the third respondent’s submission to the Commission in response to the complaint. Finally on 7 April 1999 the present Commissioner referred a complaint by one of the women in question to the Board by way of a referral letter, a copy of the complaint and a record of interview with the complainant.
Consequent upon the receipt of that material the Board caused proceedings to be taken against the third respondent in the Medical Assessment Tribunal, a Superior Court of Record constituted pursuant to the Medical Act 1939. It was common ground that after a hearing before that Tribunal, the third respondent was struck off the roll of medical practitioners. Importantly, in the course of pre-hearing procedures before that Tribunal, the third respondent’s then legal advisers were given access to the documents held by the Board which included the material specified above forwarded by the Commissioner to the Board. In other words the third respondent (or at least his then legal representatives) saw and were entitled to copy the complaints or the texts of the complaints of those women whose complaints were forwarded to the Board.
Further, at about that time the Queensland Police obtained access to the documents forwarded by the Commission to the Board by means of a search warrant.
However, it is clear that the Commission’s files contain documents relating to relevant complaints which were not forwarded to the Board.
The applicable statute is the Health Rights Commission Act 1991 (“the Act”). It was agreed that the relevant legislation was that found in Reprint No 3 (subsequent Reprints contain the same sections but numbered differently).
Section 58 effectively defines what is a “health service complaint” for the purposes of the Act. It provides that a complaint may be made to the Commissioner, inter alia:
“(b)that a provider has acted unreasonably in the way of providing a health service for a user; or
(c)that a provider has acted unreasonably in providing a health service for a user.”
For present purposes the third respondent was a “provider” and each of the female complainants a “user”. The term “health service” is defined in the Act to mean, so far as is relevant:
“(a)a service provided to an individual for, or purportedly for, the benefit of human health -
(i)including services specified in schedule 1, part 1; but
(ii) excluding services specified in schedule 1, part 2; or
(b)an administrative service directly related to a health service.”
It is not necessary to set out what is contained in Schedule 1. The first part thereof extends what would ordinarily be encompassed by the expression health services to include ancillary services such as laundry, cleaning, catering and the like. The second part excludes some specific services which might otherwise be considered to be covered by the expression. Significantly for present purposes it is not said that treatment, or the lack of it, is excluded from the definition where the treatment or lack of it would constitute, or might constitute, a criminal offence.
If the initial health service complaint is made orally then the Commissioner can require the complaint to be reduced to writing unless there is good reason to the contrary. (Sections 61 and 62 of the Act). In consequence there will usually, if not always, be a written complaint on the Commission’s file.
Of some significance for present purposes is s 67 which empowers the Commissioner to refer a complaint to a registered provider’s registration board without the necessity of his having to make an assessment of the complaint before such referral. If the Commissioner forms the view that it is in the public interest for the complaint to be so referred he must do so and not take any further action himself in relation to the complaint. For present purposes that means that if the Commissioner receives a complaint which raises a serious issue as to whether a medical practitioner is guilty of “misconduct in a professional respect” (see Medical Act 1939) he may refer the matter immediately under s 67 to the Board. (Section 72A of the Act also provides for reference to the Board where there is an imminent threat to the welfare of users of the provider’s services).
Section 94 is also of significance for present purposes. If the Commissioner considers that matters raised in the complaint should be investigated “by an entity that has a function or power under an Act of the State ... to investigate ... the matter”, the Commissioner may refer the matter to that entity. The most obvious example of an exercise of the power conferred by that section would be a reference of the complaint to the Police because the complaint raised the possibility of a criminal offence having been committed.
The critical section for present purposes is s 138 which deals with confidentiality; relevantly it provides:
“(1)A person is not to record, disclose or use confidential information gained by the person through involvement in the administration of this Act unless the person does so -
(a) for the purpose of this Act; or
(b) when expressly authorised under another act; or
(c) when authorised under a regulation.
(2) A person is not required -
(a)to disclose confidential information to a court or tribunal; or
(b)to produce a record containing confidential information to a court or tribunal;
unless it is necessary to do so for the purpose of this Act.
...
(4)The following persons are taken to be involved in the administration of this Act -
(a) the Commissioner ...
(b)an officer or employee of the Commission or a person engaged to perform a service for the Commission;
...
(5) In this section -
“confidential information” includes -
(a)information about the identity, occupation or whereabouts of the complainant ...; and
(b)information disclosed by a health service complaint ...”
As already noted that is the statutory provision on which the Commissioner relies in support of his contention that he is not, and may not be, obliged by subpoena to produce the files in question as ordered by the first respondent.
The first respondent concluded that s 138 did not apply and stated his reason for so concluding in the following terms:
“It would be totally inappropriate for a Health Rights Commission to exercise its jurisdiction over complaints from women who are alleging sexual assault at the hands of health service providers. This category of conduct falls way outside the service provider’s provision of health services and when these allegations arise these matters should immediately be referred to Police for further investigation. As a consequence of my finding that the information gathered in relation to these complaints do not come within the definition of a health service complaint as defined in section 58 and the conduct complained of is not in relation to the provision of a health service I order that any records, documents and writings gathered by the Commission cannot be said to have been gathered for the purposes of the Health Rights Commission Act 1991 ...”
When the matter came on for hearing before me legal representatives for both the first and second respondents indicated that those parties would abide the order of the court. The second respondent no longer actively contended that the Commissioner was obliged to produce the documents in question. Mr Griffin SC who appeared for the third respondent generally adopted the line of reasoning of the first respondent in endeavouring to uphold the decision under challenge. Ultimately he conceded that the real issue was whether or not the complaints made by the women in question were “health service complaints” for purposes of the Act. If they were legally so classified then he conceded (subject to an argument based on the fact that some documents had already been used in open court) that the confidentiality conferred by s 138 would protect the documents from disclosure.
The argument for the third respondent essentially came down to the proposition that a complaint by a woman that she was sexually assaulted by a medical practitioner could not be a “health service complaint” for the purposes of the Act. The statute is entitled as one “to provide for independent review and conciliation with respect to services provided by health service providers to health service users and for improvements to those services”. Section 4 sets out the principal objectives of the Act; as it is central to the argument on behalf of the third respondent I set it out in full:
“The principal objectives of this Act are -
(a)to provide for oversight, review and improvement of health services by establishing an accessible, independent facility that will -
(i) preserve and promote health rights; and
(ii) receive and resolve health service complaints; and
(iii)enable users and providers to contribute to the review and improvement of health services; and
(iv)provide education and advice in relation to health rights and responsibilities and the resolution of complaints about health services, whether or not made under this Act; and
(v)assist users and providers to resolve health service complaints; and
(b)to provide for the development of a Code of Health Rights and Responsibilities; and
(c)to provide for the appointment, functions and powers of a Health Rights Commissioner; and
(d)to provide for the establishment, functions and operation of a Health Rights Advisory Council.”
Such provisions make it clear that the legislation has wide ranging effect, and the jurisdiction of the Commissioner is quite extensive. However, s 4 cannot be used to read down or limit the range of matters which can be the subject of a complaint within s 58; to the contrary s 4(a)(ii) makes it an object of the Act that “health service complaints” be fully and appropriately handled by the Commission.
The phrases “acted unreasonably in the way of providing a health service” and “acted unreasonably in providing a health service” are extremely wide and clearly conduct falling within either expression could ultimately be held to constitute a criminal offence. The wording of s 58 does not in any way suggest that conduct which may ultimately be found to constitute a criminal offence may not be the subject of a complaint, nor does it suggest any reason or justification for such an exclusion.
Indeed a consideration of a number of possible scenarios suggests that conduct ultimately held to constitute a criminal offence well may be proper subject matter for a complaint within s 58.
I will base the first two scenarios on the facts of two of the leading cases dealing with charges of manslaughter against a medical practitioner: R v Bateman (1925) 41 TLR 557 and Akerele v The King (1943) AC 255. In the former the medical practitioner attended a woman who was experiencing major difficulty in delivering a child at home. The doctor applied considerable force in order to facilitate the birth and that caused damage to her uterus and other internal organs. He treated her with medication but allowed her to remain at home. He visited her twice daily over the next five days by which time he concluded that she ought to be admitted to hospital. The woman died two days after admission to hospital from significant internal injuries. The medical issues raised related to the reasonableness of his treatment, the degree of skill he exhibited by the doctor in applying force to facilitate the birth, and whether or not there was delay in sending the patient to the hospital. If those facts had occurred in Queensland in 1997 the conduct of the doctor could clearly have been the subject of a health service complaint to the Commission. The delay issue is of particular significance here, because in dealing with the scope of operation of the Act one of Mr Griffin’s examples was based on such a factual situation. If such a scenario was presented to the Commission in 1997, after assessment it may well have been referred to the police pursuant to s 94 and a criminal prosecution could have followed. In my view it would be absurd to say that because a prosecution followed there was never a “health service complaint” within the provisions of the Act.
The medical practitioner in Akerele prepared from basic ingredients a preparation that he then used to inoculate a large number of adults and children against a particular disease. Five of the children so inoculated died. The issues raised were whether the mixture as prepared was too strong, whether too large an amount had been injected, and whether any or all of the deceased children had a particularly susceptibility to the drugs involved. Again, if those facts had arisen in Queensland in 1997, it is clear, in my view, that a complaint could have been made to the Commission within s 58 alleging that the doctor had acted unreasonably in providing a health service. After assessment the Commissioner may have referred such complaint to the police because there was in his view some evidence that criminal negligence was involved. The factual scenario clearly gives rise to a proper “health service complaint” and I cannot see why a subsequent decision by the authorities to prosecute the doctor for a criminal offence would deprive the initial complaint of that categorisation.
Similar scenarios can be drawn with respect to factual situations closer to what must be behind the complaints in question here. A woman who attends a doctor for treatment for say muscular spasm requiring manipulation under sedation may awake to find her clothing in disarray and some suggestion of genital interference. In those circumstances she may well initially accept that a complaint of indecent assault could not be justified; but she would be concerned at the probable unreasonableness of the treatment she has received at the hands of the doctor. Clearly in those circumstances a “health service complaint” under s 58 would be an appropriate procedure for her to follow. Given such a complaint the Commissioner would undoubtedly endeavour to assess what happened and at least conciliate the issue. It may be that only if other complaints came in indicating similar conduct with other patients that the Commissioner could conclude that the conduct may constitute a criminal offence such as would warrant referral to the police.
That would also be the case where a woman attended the doctor because of some gynaecological condition necessarily requiring a vaginal examination. Particularly if a sedative was used to facilitate the examination the woman may be uncertain as to whether the conduct of the doctor went beyond what was necessary and appropriate in such circumstances. In that instance an appropriate course for her to adopt would be to lodge a “health service complaint” and have the matter further investigated by the Commissioner. Again it may only be after similar complaints are received from other women that a possible criminal offence would be identified.
Because in all those situations the Commissioner has a significant role to play under the Act, it cannot be said that as a matter of law a complaint which necessarily or potentially involves criminal conduct on the part of the medical practitioner is not a “health service complaint” for purposes of the Act. Indeed sections 67 and 94 strongly suggest a contrary conclusion; if there is no health service complaint because possible criminal conduct is involved how can there be an investigation by the Commissioner leading to a referral under s 94?
One can readily agree with the sentiment underlying the reasoning of the first respondent, namely that once a criminal offence is identified by the Commissioner the matter should be referred on to the appropriate authorities. But neither the Act nor the general law requires the Commissioner to hand over to, for example, the police, all that is on his file. Section 138 is a clear indication to the contrary. All the Commissioner is obliged to do is refer the terms of the complaint giving rise to the probability that a criminal offence was committed to the police for them to use as the starting point in their investigations.
For all of those reasons I am of the view that the first respondent was wrong in concluding that the complaints in question could not be health service complaints within paragraphs (b) and/or (c) of s 58(1) of the Act.
Once that position is reached the only question is whether or not s 138 applies to prevent a court from requiring production of the documents in question. No substantive submission was made to the contrary; Mr Griffin virtually conceded that if the complaints in question were “health service complaints” then they were protected from production by s 138. The wording of s 138(2) is very specific. A court would normally “require” production by issuing a summons or subpoena, and the section expressly says that a court is not required to produce such material to a court. That can only mean that information of the type in question here is not amenable to such court process. Whether or not the information is relevant or material to the proceedings before the court, Parliament has decreed that the Commissioner cannot be required to produce such information to the court.
Mr Griffin’s alternative submission was that, relying on s 48 of the Judicial Review Act, the court should decline to grant the applicant relief because “there has in fact been disclosure of this material in another form” - providing material to the Board and its use at the Tribunal hearing. His submission was that in those circumstances it would be "a futile exercise to attempt to allow to remain confidential, material which has been exposed in open court.” There is some force in that argument, but the use of some material from the Commission’s files before the Tribunal cannot have the consequence that the balance of material on those files is no longer subject to the confidentiality umbrella provided by s 138. In my view, even in those circumstances, the confidentiality provision must operate to prevent production to the court of any other material on the files in question.
The material before me indicates that in some instances it was the “text of the complaint” and not the complaint itself which was forwarded to the Board. The Act should be construed so that the provision of the text of a complaint to the Board pursuant to s 67 does not remove the confidentiality which would attach to the material on file by operation of s 138.
It is the fact that certain information is within the public domain and that information can be obtained from those now in possession of it without infringing s 138. The legal representatives of both the second and third respondents would, for example, be entitled to obtain the material forwarded by the Commissioner to the Board from the Board by subpoena. If that material is relevant to the committal proceedings then it should be obtained in that way.
At the end of the day I am satisfied that the complaints of the women in question were “health service complaints” within s 58, and that s 138 applies so that the court may not require the Commissioner to produce the documents.
It follows that there should be an order in the nature of a prerogative order of certiorari quashing the order of the first respondent of 15 May 2000. The applicant did not seek an order for costs therefore all parties should bear their own costs associated with the application.
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