Tikiri Pty Ltd v Fung
[2016] VSC 460
•5 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2015 00801
| TIKIRI PTY LTD (trading as Bundoora Family Clinic) | Plaintiff |
| v | |
| DR SIAUW (Susan) FUNG | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 June 2016 |
DATE OF RULING: | 5 August 2016 |
CASE MAY BE CITED AS: | Tikiri Pty Ltd v Fung |
MEDIUM NEUTRAL CITATION: | [2016] VSC 460 (First Revision 15 August 2016) |
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PRACTICE AND PROCEDURE – Subpoena – Confidential exhibit – Inspection of document – Doctor and patient – Disclosure of patients’ names – Statutory interpretation – Plain and ordinary meaning – Right to privacy – Unlawful or arbitrary interference – Charter of Human Rights and Responsibilities Act2006 ss 6, 7, 13, 32 – Momcilovic v The Queen (2011) 245 CLR 1; Slaveski v Smith (2012) 34 VR 206.
HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 (Vic) – Applicability – Statutory interpretation – Plain and ordinary meaning – Health information – Information acquired in attending the patient – Information necessary to prescribe or act for patient – Health Records Act 2001 ss 3(1), 7, 21, Schedule 1 Health Privacy Principles 2.1 and 2.2 – Evidence (Miscellaneous Provisions) Act 1958 s 28(2) – National Mutual Life Association of Australasia Ltd v Godrich (1909) 10 CLR 1 – Elliot v Tippet (2008) 20 VR 195 – PQ v Australian Red Cross Society [1992] 1 VR 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Kirby | Nicholas O’Donohue & Co |
| For the Defendant | Ms S Gatford | McCracken & McCracken |
HER HONOUR:
Introduction
This ruling concerns whether or not the plaintiff should be able to inspect and copy a confidential list of patient names filed by the defendant medical practitioner. The Court will not allow inspection by the plaintiff. Patient names are protected from disclosure by s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958.
Background
The plaintiff is the operator of Bundoora Family Clinic, a general medical practice. The defendant is a general medical practitioner who worked at the practice from October 2007 until December 2014. Shortly afterwards, the defendant began work at another general medical practice, University Hill Medical Centre.[1] The plaintiff alleges, amongst other things, that the defendant has unlawfully used its confidential information at the University Hill Medical Centre.[2] This is denied by the defendant.[3]
[1]The exact date that Dr Fung commenced at University Hill Medical Centre is not agreed between the parties.
[2]Statement of claim filed 23 February 2015 (‘SOC’), [16].
[3]Defence filed 8 April 2015 (‘the defence’), [16].
On 26 February 2015, the Court made orders restraining the defendant from making any use or further use of patient records or files from the Bundoora Family Medical Clinic, and amongst other things, requiring her to file an affidavit detailing which patient records or files she had accessed, copied or removed; which patients she had contacted using the Bundoora Family Medical Clinic’s patient records or files; and which of those patients she had seen for a consultation at the University Hill Medical Centre (‘the interlocutory injunction’).
On 13 March 2015, the defendant filed an affidavit sworn on 12 March 2015. The defendant deposed that there were no patients she had seen at University Hill Medical Centre who she contacted using patient medical records or files from the Bundoora Family Clinic. She also deposed that while she was working at the Bundoora Family Clinic, she told her patients that she may be leaving. Some patients said they preferred to see her at her new location rather than transfer to another doctor, and asked her for a copy of their medical records. She gave such records directly to the patients. The defendant deposed that throughout her time at the Bundoora Family Clinic, if a patient said they wanted to go to a new clinic or wanted a copy of their medical records, she would simply print them out and hand them over. Similar conduct is referred to in the defence.[4]
[4]See [7(e)].
On 24 September 2015, the defendant filed a supplementary affidavit of documents.[5] Item 4 is described as ‘bundle of PracSoft daysheets of visits recorded for services by Practitioner Susan Fung at University Hill Medical Centre (patient details redacted)’ [emphasis added].
[5]Sworn 22 September 2015.
On 25 November 2015, the plaintiff caused a subpoena to be issued to Panch-Vati Pty Ltd trading as University Hill Medical Centre (‘the subpoena’). It sought, amongst other things:
(c)documents evidencing the patients of Dr Fung, including in particular those patients who were previously patients at Bundoora Family Clinic and transferred to University Hill Medical Centre;
(d)all documents evidencing or authorising the transfer of patient files for patients of Dr Fung who were previously patients at Bundoora Family Clinic and transferred to University Hill Medical Centre;
(e)letters, emails or other communications between University Hill Medical Centre and patients of Dr Fung who were previously patients at Bundoora Family Clinic and transferred to University Hill Medical Centre.
University Hill Medical Centre objected to the subpoena. Dr Ravindra Pachauri, the director and owner of the University Hill Medical Centre, deposed that there were no documents within the scope of categories (a), (b) and (d) of the subpoena.[6] Further, Dr Pachauri deposed that the University Hill Medical Centre records did not identify which patients were formerly patients of Bundoora Family Clinic. In respect of category (c), which is for the records of all Dr Fung’s patients at University Hill Medical Centre, Dr Pachauri deposed that this would involve disclosure of confidential health information and patient contact details. He deposed that Dr Fung had treated 2,703 patients in the period 1 January 2015 – 18 November 2015.[7]
[6]Affidavit of Ravindra Pachauri sworn 1 April 2016.
[7]Ibid.
This objection was allowed in orders made on 11 April 2016 (‘the confidential exhibit orders’), orders 1 and 2 of which are as follows:
1. The addressee’s objection to the subpoena under rule 42A.07 is allowed.
2.Despite order 1, further to the orders of the Court made on 26 February 2015, the defendant shall by 26 April 2016 file and serve an affidavit which exhibits as a confidential exhibit a list in alphabetical order of the names of the patients who consulted her as a medical practitioner at the University Hill Medical Clinic between 1 January 2015 and 18 November 2015’.
The reasons included with these orders included the following:
When the Court granted an interlocutory injunction on 26 February 2015 against the defendant, it ordered her to provide sworn information about her conduct: see paragraph 3 and 4 of that order. I think the way to advance this case and make some use of the present dispute over the subpoena is to augment those orders by requiring the defendant (that is, not the subpoenaed party) to provide a list of her patients. That is the reason for order 2 here.
To preserve the confidentiality of the information until argument on the construction of s 28(2) [of the Evidence (Miscellaneous Provisions) Act 1958], the defendant is required to file the confidential exhibit referred to in order 2 with the Court in a sealed envelope but is not required to serve that exhibit on the plaintiff’s or the addressee’s solicitors until further order.
In response to the confidential exhibit orders, the defendant swore and filed an affidavit on 26 April 2016. Exhibit ‘SSF-1’ to the affidavit is what is described as a:
…list in alphabetical order of the names of the patients who consulted me as a medical practitioner at the University Hill Medical Clinic between 1 January 2015 and 18 November 2015 (‘the confidential exhibit’).
After the filing of the confidential exhibit, the plaintiff sought inspection of it by way of summons filed 17 May 2016 (‘the plaintiff’s summons’).
Submissions
The plaintiff and defendant both made oral and written submissions. It is unnecessary to reiterate all the parties’ submissions. The parties’ main submissions are summarised below.
The plaintiff sought an order that its solicitor and counsel be permitted to inspect and take a copy of the confidential exhibit, with an appropriate confidentiality regime in place.[8] It submitted the order was reasonable, measured and necessary for the resolution and determination of the plaintiff’s case.
[8]The plaintiff relies on Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 37, 40.
The defendant argued that patients need to be aware of, and consent to any such disclosure. The defendant opposed inspection in reliance on certain provisions of three acts: the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’), the Health Records Act 2001 (Vic) (‘the HRA’), and the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘the Evidence Act’). Each of these three grounds is now addressed in turn.
The Charter
The defendant submits that s 13 of the Charter establishes that a person has the right not to have their privacy, family or correspondence unlawfully or arbitrarily interfered with, and the right not to have their reputation unlawfully attacked. She submits that a person’s name or identity is encompassed within the right to privacy under s 13 of the Charter, as is the fact that an individual has consulted a medical practitioner. Accordingly, the Charter operates to protect the disclosure of the patients’ names, as this would amount to an unlawful or arbitrary interference with privacy.
Further, the defendant submits that the Charter must be used in the interpretation of the Evidence Act and the HRA.[9] The defendant submits that existing jurisprudence on the Evidence Act and the HRA must be considered through the lens of the Charter which, amongst other things, requires identification of a ‘demonstrable public interest’ before the rights granted to individuals are interfered with and, in this case, disclosure ordered.
[9]Charter, ss 7, 13 and 32.
The defendant concedes that there is no case law directly on point, however, relies on Victoria v Nine Network,[10] in which Osborne J noted:
the provisions of the Health Records Act 2001, the Information Privacy Act 2000, s 28 of the Evidence Act 1958 and s 13 of the Charter of Human Rights and Responsibilities Act 2006 also tend to support the view that the privacy of medical records should be respected unless there is a demonstrable public interest requiring their disclosure.[11]
[10](2007) 19 VR 476.
[11]Ibid 493 [98].
The plaintiff contends that the defendant is attempting to use the Charter and the HRA as a shield to stultify the proceeding. It says that there has been no relevant unlawful or arbitrary interference with privacy. The plaintiff argues that ‘what needs to be protected from disclosure in the vast majority of cases is the information that has been obtained in respect of the patient, not merely the information that the person was a patient.’[12]
[12]PQ v Australian Red Cross Society [1992] 1 VR 19, 29 (McGarvie J) (‘PQ’) (emphasis added).
The plaintiff submits that even if the disclosure of patient names is considered to be an interference with privacy, it cannot be unlawful if effected under a court order, as was the confidential exhibit. Accordingly, it is also not arbitrary as it arises specifically under the proceeding.
The defendant submits that s 32 of the Charter is not engaged and relies on Director of Public Prosecutions (Vic) v Kaba.[13]
[13](2014) 44 VR 526, 595 [239]–[244] (Bell J) (‘Kaba’).
For completeness, it is noted that both the Attorney-General (Vic) and Victorian Equal Opportunity and Human Rights Commission were given notices by the defendant pursuant to s 35 of the Charter. Neither intervened.
The HRA
The defendant submits that she is subject to the HRA,[14] and a patient’s name is within the definition of ‘health information’ as it is ‘other personal information collected to provide, or in providing, a health service’.[15] She says the objectives and purposes of the HRA are to promote and mandate the fair and responsible handling of health information by protecting the privacy of an individual’s health information held in the public and private sectors.[16]
[14]HRA s 11.
[15]Ibid s 3.
[16]Ibid ss 1 and 6.
The defendant also refers to s 18 of the HRA and says it is an interference with the privacy of an individual to breach the Health Privacy Principles contained in Schedule 1 of the HRA. She relies on Health Privacy Principle 2.2, which states that an organisation must not use or disclose health information about an individual for a purpose other than the primary purpose for which the information was collected unless, relevantly, the individual has consented to the disclosure. She acknowledges there is an exception if the use or disclosure is required, authorised or permitted by or under law.
The defendant concedes that s 7(1) of the HRA renders that Act subordinate to any inconsistent provision in any other Act. Accordingly, s 28(2) of the Evidence Act applies alongside, and if necessary, to override the HRA.
The plaintiff relies on s 7(1) of the HRA. Further, it submits that it is doubtful that the mere identity of a patient satisfies the definition of ‘health information’ in s 3. The plaintiff also relies on the exception to Health Privacy Principle 2.2(c) referred to in paragraph [23] above, and contends that this exception clearly applies in the present circumstances where a confidential exhibit has been prepared and filed pursuant to Court orders.
The Evidence Act
The defendant submits that s 28(2) of the Evidence Act grants a patient a privilege from their doctor having to divulge, in any civil action, any information which their doctor has acquired in attending to the patient and which was necessary to enable him or her to prescribe or act for the patient. This includes the patient’s name. The defendant refers to PBS prescriptions which require a patient’s name before they are fulfilled. The defendant submits that there is authority that s 28(2) of the Evidence Act should be construed widely to uphold patients’ rights.[17] The defendant refers to authority for the view that s 28(2) was founded on the same policy as s 141 of the Health Services Act 1988,[18] and argues that the purpose of s 141 is to exclude certain relevant evidence that would otherwise be admissible. Further, the defendant argues, there is no incongruity in the legislature preventing the calling of particular evidence if it is so clearly ordained.[19] The defendant also relied on authority discussing the high public importance of maintaining the confidentiality of the doctor–patient relationship and noting the balance that, for instance, the HRA requires in that regard.[20] The defendant says that the plaintiff does not identify the competing public interest in this case and it is necessary to do so.
[17]National Mutual Life Association of Australasia Ltd v Godrich (1909) 10 CLR 1 (‘Godrich’).
[18]PQ (1992) 1 VR 19 (McGarvie J).
[19]Ibid.
[20]Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 36–6 [56]–[59], 57–8 [132]–[134] (Charles JA).
The defendant submits the relevant authorities were decided before the Charter came into force. The enactment of the Charter has increased the focus on individual rights, and relevantly, attention must be paid to the identification of a competing public interest if disclosure is to be compelled. The defendant contends that Kaba illustrates the need to consider the Charter in all cases where Victorian legislation is interpreted.[21]
[21](2014) 44 VR 526, 596 [243] (Bell J).
The plaintiff argues that s 28(2) of the Evidence Act should not be read widely,[22] and contends that a mere patient’s name does not fall within its ambit of the Evidence Act.[23]
[22]Godrich (1909) 10 CLR 1, 23 (Barton J).
[23]Elliott v Tippett (2008) 20 VR 195, 200–1.
Applicable principles
The Charter
Section 6 of the Charter provides:
Application
(2) This Charter applies to—
…
(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;
Section 7 of the Charter provides:
Human rights—what they are and when they may be limited
(1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)the nature of the right; and
(b)the importance of the purpose of the limitation; and
(c)the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
Section 13 of the Charter states:
A person has the right—
(a)not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b) not to have his or her reputation unlawfully attacked.
Section 32 of the Charter states:
Interpretation
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3)This section does not affect the validity of—
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
The Court of Appeal in Slaveski v Smith,[24] applying Momcilovic v The Queen;[25] observed:
if the words of a statue are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.[26]
[24](2012) 34 VR 206.
[25](2011) 245 CLR 1.
[26]Slaveski v Smith (2012) 34 VR 206, 215 [24] (Warren CJ, Nettle and Redlich JJA).
The HRA
Section 3(1) of the HRA defines ’health information’:
“health information” means—
(a) information or an opinion about—
(i)the physical, mental or psychological health (at any time) of an individual; or
(ii) a disability (at any time) of an individual; or
(iii)an individual’s expressed wishes about the future provision of health services to him or her; or
(iv)a health service provided, or to be provided, to an individual—
that is also personal information; or
(b)other personal information collected to provide, or in providing, a health service; or
(c)other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or
(d)other personal information that is genetic information about an individual in a form which is or could be predictive of the health (at any time) of the individual or of any of his or her descendants—
but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act;
…
“personal information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information about an individual who has been dead for more than 30 years;
Section 7 of the HRA provides:
Relationship of this Act to other laws
(1)If a provision made by or under this Act is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.
(2)Without limiting subsection (1), nothing in this Act affects the operation of the Freedom of Information Act 1982 (except as otherwise provided by that Act) or any right, privilege, obligation or liability conferred or imposed under that Act or any exemption arising under that Act.
Section 21 of the HRA relevantly provides:
(1) Subject to this section and section 20, an organisation must not do an act, or engage in a practice, that is an interference with the privacy of an individual.
(2) Subsection (1) does not apply if the organisation proves that, in the circumstances, compliance with this Act or the Health Privacy Principle would have contravened another Act, regulations made under another Act or an order of a tribunal or of a court of competent jurisdiction.
Health Privacy Principle 2.1 of the HRA provides:
2.1An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies—
[various exceptions omitted]
Health Privacy Principle 2.2 of the HRA relevantly provides:
2.2An organisation must not use or disclose health information about an individual for a purpose (the secondary purpose) other than the primary purpose for which the information was collected unless at least one of the following paragraphs applies —
…
(c)the use or disclosure is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law); or
The Evidence Act
Section 28(2) of the Evidence Act states:
Confessions to doctors
(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
Section 141 of the Health Services Act 1988 states relevantly:
Confidentiality
(2) A relevant person must not, except to the extent necessary—
(a) to carry out functions under this or any other Act; or
(b)to exercise powers under this or any other Act in relation to a relevant health service; or
(c)to give any information he or she is expressly authorised, permitted or required to give under this or any other Act—
give to any other person, whether directly or indirectly, any information acquired by reason of being a relevant person if a person who is or has been a patient in, or has received health services from, a relevant health service could be identified from that information.
Penalty: 50 penalty units.
The word ‘necessary’ has been interpreted in a wide sense, to include any information which is, or is likely to be relevant in determining the proper treatment of the patient.[27]
[27]Godrich (1909) 10 CLR 1, 8 (Griffiths CJ), 19 (Barton J).
In Elliott v Tippett, the Court observed that s 28(2) is:
…limited to divulging, in a civil proceeding or prescribed investigation, information of a particular kind namely, that which has been acquired in attending the patient and then only so much of that information as was necessary to enable the practitioner to prescribe or act for the patient.[28]
[28](2008) 20 VR 195, 200 [18] (Judd J).
There is authority that reflects the important public policy to protect the identity of patients. In PQ, a medical practitioner was asked to identify a patient from a file which was produced on subpoena.[29] The subpoena required the production of medical records relating to four people. It was submitted that the evidence in the case identified by name a particular patient or patients of a hospital. While the case concerned the application of s 141, the Court observed that although the operation of that section is not identical to that of s 28(2) of the Evidence Act, the underlying policy is similar.[30] The Court held that the effect of s 141 is to preclude a witness from giving information, acquired by reason of the witness being an employee doctor of a hospital, if the patient could be identified in any way from the information. Further, the expression ‘could be identified from the information’ in s 141(2) is not confined to the person being identified from the piece of information or evidence alone:
There is a breach of the provision if the person who is or has been a patient … could be identified from that piece of evidence considered together with other evidence or available information.[31]
[29](1992) 1 VR 19 (McGarvie J).
[30]Ibid 25.
[31]Ibid 28.
The Court also observed that the obligation under s 141(2) is not ‘limited to identification by name’[32] but:
the practical effect of s 141(2) is that a person must not give any information acquired in respect of a patient as an employee of a relevant health service unless the information can be given without its being recognised who is the subject of that information. Put another way, a person is not entitled to give any item of acquired information if from the whole of the acquired information which is given the patient could be identified.[33]
[32]Ibid 26.
[33]Ibid 29.
The Court held that it was not open to a medical practitioner to give evidence in respect of a patient, from which the person could be identified, and this extended to being ‘recognised by counsel or solicitor for a defendant, or by a representative of a defendant present in court.’[34]
[34]Ibid 27.
The Court also considered s 141(2) reflected an important public policy to protect the confidentiality of a person who has been a patient or who has received health services from an institution such as a public hospital. Further, this protection of confidentiality is similar to that given to a person treated by a medical practitioner in a private practice.[35]
[35]Ibid 25.
Section 28(2) of the Evidence Act has sometimes been referred to as a ‘medical privilege’. It should not, however, be equated with legal professional privilege. In Elliott v Tippett, the Court noted the public policy considerations underpinning the protection of confidential communications between legal practitioner and client were quite different to those which might justify the maintenance of confidentiality between a medical practitioner and patient.[36]
[36](2008) 20 VR 195, 201 [22] (Judd J).
Consideration
The Charter
Section 13 of the Charter is not of itself engaged. This is because there has been no unlawful or arbitrary interference with privacy. The confidential exhibit has been filed as a consequence of the confidential exhibit orders. If inspection is granted, it will be granted by Court order. The Charter applies to courts and tribunals to the extent they have functions under Part 2 and Part 3 of Division 3.[37] This does not extend expressly to the making of court orders.
[37]Charter, s 6.
For reasons discussed below, s 32 of the Charter is not engaged in interpreting s 28(2) of the Evidence Act or Health Privacy Principle 2.2(c).
The HRA
It is not disputed that the HRA applies to the defendant. The question is whether or not the HRA prevents disclosure of a person’s name, or identification of that person as a patient of a medical practitioner.
‘Health information’ is defined widely in the HRA and includes ‘personal information collected to provide, or in providing, a health service’.[38] The name of a person falls within the definition of ‘personal information’ as it is information ‘about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. Health Privacy Principle 2.1 places restrictions on the use and disclosure of health information. However, Health Privacy Principle 2.2(c) is an applicable exception. It permits the use or disclosure of information about a person for a secondary purpose where it is required, authorised or permitted, expressly or impliedly, by or under law (other than a prescribed law). The HRA does not prevent the Court ordering inspection of the confidential exhibit. Further, s 21(2) of the HRA provides that compliance with another Act, regulations made under another Act, or an order of a tribunal or a court does not contravene the HRA.
[38]Section 3.
Additionally, the effect of s 7(1) of the HRA is that it gives way to other legislation if it is inconsistent with that other legislation. The Civil Procedure Act 2010 gives the Court power to make orders.[39] Various rules made under regulations to the Supreme Court Act 1986 (Vic) also give powers to make orders, including the Supreme Court (General Civil Procedure) Rules 2015.[40] Accordingly, the HRA does not prevent the Court from making orders for inspection of the confidential exhibit.
[39]See, eg, Civil Procedure Act 2010 ss 48(2)(a), 49(3), 55A.
[40]See, eg, Supreme Court (General Civil Procedure) Rules 2015 r 42.02.
Given the plain and natural meaning of the HRA is clear, it is unnecessary to apply the Charter.
The Evidence Act
Section 28(2) of the Evidence Act protects the disclosure of information that is (a) acquired in attending a patient, and (b) necessary to enable a medical practitioner to prescribe or to act for the patient. There is no authority identified by the parties or the Court that directly addresses the issue of whether the name of a person as a patient of a medical practitioner falls within the scope of s 28(2).
For the following reasons, the natural and ordinary meaning of the words in s 28(2) have the effect of protecting a patient’s name from disclosure. The word ‘necessary’ is to be interpreted in a wide sense. The name of the patient is necessary for a medical practitioner to prescribe or act for the patient. This was not in dispute between the parties.
This interpretation of s 28(2) is consistent with the important public policy in protecting the identity of patients. The disclosure of a patient’s name and the fact that they have attended a medical practitioner has the potential to undermine patient confidentiality with, perhaps, the resulting consequence that individuals may be reluctant to seek treatment for fear of disclosure. Think, for instance, of a patient attending a HIV clinic, a family planning clinic, or an infectious diseases clinic. A young adult seeking contraceptive advice, or a family member seeking treatment for violence, may attend a general medical practitioner for advice that is not their family’s regular medical practitioner. Patients in these circumstances should, subject to the usual lawful exceptions, have the protection of s 28(2).
Given that the plain and natural meaning of s 28(2) is clear, it is again unnecessary to apply the Charter.
Patient consent
Given the findings above, it is unnecessary for the Court to consider the defendant’s suggestion that the patients be approached with a view to determining whether they consent to disclosure. At any rate, such a course would be impractical because the patients would not be compelled to respond (nor should they). Further, the sending of letters by post may inadvertently breach patient privacy if opened by another household member.
Conclusion
Section 28(2) of the Evidence Act extends to the protection of patient names. The Court will consequently make orders dismissing the plaintiff’s summons for inspection.
The parties are requested to confer as to the appropriate form of orders.
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CERTIFICATE
I certify that this and the 15 preceding pages are a true copy of the reasons for Ruling of Ierodiaconou AsJ of the Supreme Court of Victoria delivered on 5 August 2016.
DATED this fifteenth day of August 2016.
Associate
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