Victorian WorkCover Authority v Melbourne Health
[2011] VCC 1170
•26 August 2011 – Revised 2 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
GENERAL DIVISION
Case No. CI-10-04537
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| MELBOURNE HEALTH (Established under the Health Services Governance Act 2000) | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2011 | |
DATE OF JUDGMENT: | 26 August 2011 – Revised 2 September 2011 | |
CASE MAY BE CITED AS: | VWA v Melbourne Health | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1170 | |
REASONS FOR JUDGMENT
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Catchwords: DISCOVERY – medical records – inspection of discovered documents – objection - documents containing patients medical information – whether information obtained by medical practitioner in attending the patient – whether information was necessary to enable medical practitioner to prescribe or act for the patient – patient not giving consent to release of documents but not participating in proceeding - examination of documents by the Court: Evidence (Miscellaneous Provisions) Act 1958 s 28(2); Health Services Act 1988 s 141(2)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Curtain Q.C. and Ms R Kaye | Russell Kennedy |
| For the Defendant | Mr J Noonan S.C. | Minter Ellison |
HIS HONOUR:
1 The Victorian Workcover Authority seeks an order that Melbourne Health, which is alleged to be responsible for the care, conduct and management of the Sunshine Hospital, provide it with a copy of the medical records of a person, to whom I will refer in this judgment as “the patient”.
2 VWA in this proceeding against Melbourne Health, seeks to recover pursuant to s.138 of the Accident Compensation Act 1985 payments of compensation made to, or in respect of, a worker.
3 VWA alleges that various injuries were caused to the worker by the negligence of the defendant. The particulars of the negligence include allegations that the defendant permitted the worker to be assaulted by the patient; failing to restrain adequately the patient, so that the worker could safely perform her duties; and failing to warn the worker of the possibility of the patient becoming aggressive and/or violent.
4 Melbourne Health has provided an unsworn affidavit of documents in which it claims that the medical records of the patient are privileged and/or confidential pursuant to s.28(2) of the Evidence (Miscellaneous Provisions) Act 1958 and s142(2) of the Health Services Act 1988. Primary reliance was placed on s 28(2) which states:
“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.”
5 Section 141(2) of the Health Services Act 1988 does not provide a party with a reason for refusing to release documents when required to by Court order.[1]
[1]See Royal Womens Hospital v Medical Practitioners Board of Victoria [2005] VSC 225 at [87]
6 VWA’s application was supported by an affidavit of Mr Seidl, solicitor, who states that the patient’s medical records will assist the Court in determining the degree of knowledge that Melbourne Health may have had as to the likelihood of the patient being violent to staff and whether or not it followed the relevant care plan/ procedures specific to the patient.
7 In opposition, there is an affidavit on behalf of Melbourne Health from Ms Warwick, solicitor, who swears that she has perused the patient’s medical records, that those records contain entries made by medical practitioners and nursing staff in the course of attending the patient and that it is evident from a perusal of those records, that the medical practitioners had utilised the information contained in both the nursing entries and entries made by medical practitioners for the purposes of treating the patient.
8 No consent of the patient to the release of the documents has been obtained, although a notification was given to her of the application.
9 There is some authority that suggests that s.28(2) can only be engaged when a patient seeks to rely on it. But in submissions, it was accepted that it was proper for Melbourne Health to obtain the Court’s ruling on whether s.28(2) prevented the inspection of the documents.
10 I was requested by the parties to examine three folders of documents and form a view about whether they come within s.28(2). I had some misgivings about undertaking that task, but no other alternative to resolve this issue was suggested, or was apparent. Judges, from time to time, have examined documents to determine claims for legal professional privilege and public interest immunity.
11 With some hesitation, I undertook the task requested. The documents were not presented in a way that made that task an easy one. There was little identifying description of many of them and it took some time to understand their contents.
12 It was emphasised by the VWA that access to documents on discovery is a most important part of the civil litigation process. Accordingly it was contended that the Court should read the provisions of sub.s28(2) narrowly.
13 I propose to read s28(2) in accordance with the ordinary meaning of its terms.[2] As Gillard J stated in Andasteel Constructions Pty Ltd v Taylor[3]:
“It also may be urged that by the exclusion of what might be the sole evidence of a person's medical condition the court might be kept in ignorance of the true facts. Whilst this may be conceded, there is nothing irrational in the result because that is the very purpose of the section-- to exclude certain relevant evidence, otherwise admissible. As Higgins, J, said in Godrich's Case, … ‘No doubt the section is sometimes a hindrance to the establishment of the truth; but so are all the rules which fetter the giving of evidence’".
[2]???
[3][1964] VR 112 at 115
14 There is no evidence before the Court from any medical practitioner or, indeed, any expert who might have informed the Court about the use to which the classes of documents in issue might have been put by a medical practitioner.
15 In order to find that s.28(2) applies to the documents, it needs to be established, either from their nature, or by appropriate inference, that it is probable that they contain information acquired by a medical practitioner in attending the patient, which was necessary to enable the practitioner to prescribe or act for the patient.
16 I take into account that an onus exists on those who assert that the provisions of s.28(2) apply. In this case, where the patient is not represented I must still be satisfied of the matters contained in s 28 (2), before it can be relied on.
17 In delivering my reasons, it will be necessary to give some detail of the documents, but I will attempt to do so in a manner that does not reveal any information that the patient has provided to a medical practitioner.
18 There is a question whether documents that are not created by a medical practitioner can come within s.28(2).
19 In Elliott v Tippett[4] Judd J stated of s.28(2) that:
“Although the range of protected information is broad, it may not include everything known to a medical practitioner about a patient or everything contained in a patient’s file held by a hospital or medical practitioner.”
[4](2008) 20 VR 195 at 200 see as to the history of s28(2): Royal Womens Hospital v Medical Practitioners Board [2005] VSC 225; on appeal (2006) 15 VR 22 at 57 [132].
20 In the earlier decision of Hare v Riley and Australian Mutual Provident Society[5], Norris J stated:
“I therefore conclude that the words ‘in attending the patient’ do not limit the application of the sub-section to information acquired by the doctor in the physical presence of the patient. There are dicta in the authorities to the effect that information acquired by the doctor from other persons may fall within the expression "information acquired while attending the patient".
and
“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.”
[5][1974] VR 577 at 582
21 I apply that approach to the interpretation of s28(2).
22 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.
23 The majority of documents do attract s 28(2). This is apparent from, first, their contents; second the place that they take in the chronology of the patient’s treatment or, thirdly from the fact that they were created while the patient was hospitalised – or a combination of those three matters.
24 Some of the documents are medical reports by medical practitioners which by their terms clearly fit within s.28(2).
25 In addition, there are various documents that record medical procedures, tests, and the provision of medication, which in all probability, had a direct connection with the medical treatment that the patient was receiving under the supervision of medical practitioners.
26 Many of the documents concern the treatment of the patient while she was in hospital in May and June 2004. The incident, with which the litigation is concerned is alleged to have occurred on 5 June 2004.
27 A significant part of the patient’s hospitalisation was in a psychiatric unit and under the ultimate supervision of medical practitioners.
28 There are then many documents, some seventy or eighty pages, which are called consultation sheets and contain information recorded while the patient was in the Sunshine Hospital between 28 May and 21 June 2004. Most, but not all, of those sheets appear to have been recorded by nursing staff. However, these documents also contain comments by doctors, reviewing the treatment provided.
29 Taking into account that the patient was in a psychiatric unit for most of the time when these reports were prepared and under the ultimate supervision of medical practitioners, it is very likely that the information in them was acquired by the medical practitioners, whose names appear in them, in attending the patient and was necessary to enable the medical practitioner to prescribe or act for the patient.
30 Some of the consultation nursing reports contain information of a general character about the patient and what she was doing on particular days. But the information appears to have been recorded by nurses for the purposes of enabling appropriate assessments of the patient’s medical condition and her treatment. It seems clear enough that the consultation sheets and the nursing notes are very likely to have acquired, whilst the patient was in hospital, by medical practitioners for the purposes set out in s.28(2). In those circumstances, those nurses’ observations and recordings, fit within s.28(2).
31 Some of the documents created outside the hospital, were compiled by health professionals as part of a multidisciplinary team, which included medical practitioners working at medical clinics, who, in turn, have been responsible for matters such as medication and the assessment of medical tests.
32 It is probable that the information compiled by such multidisciplinary teams or community health teams, was acquired by the medical practitioner, in attending the patient. Medical practitioner have been involved in, or been consulted by those teams and have provided important components of the patient’s treatment.
33 There are then a miscellaneous documents: admission sheets, administration sheets, discharge sheets and the like, that again contain information which was initially acquired as part of the medical treatment of the patient. On the balance of probabilities it can be inferred that that information was acquired in attending the patient and was necessary to enable medical practitioners to prescribe or act for her.
34 There are a small number of documents that, in my opinion, do not fall within s.28(2). They include, in particular, documents required by statue including by the Mental Health Act 1986. The reason for the existence of those documents is to comply with the statute.
35 Parts of those documents, however, do come within s.28(2); being the parts that record observations of the patient. They have been recorded for the purposes described in s 28(2). Those parts of the documents fit within s 28(2).
36 There are then a small group of pro-forma documents describing the nature of treatments and facilities and services that might be available to the patient and which have been apparently provided to her. They do not record any medical information specific to her. They do not attract s.28(2).
37 In conclusion I make a few suggestions concerning the manner in which documents should be provided to the Court for inspection in applications like the present one. The documents need to be better organised and described. Some attempt needs to be made to identify who has prepared the particular documents and what part they have played in the treatment of the patient.
38 I have had copies made of the documents that I propose to order that Melbourne Health make available for inspection. I will return the original three folders to it; and a folder with the documents I propose to release, so it can consider its position. I will order that those documents be made available for inspection within seven days from today.
39 The Court will keep a copy of that folder of the documents I have ordered to be released for inspection. It will be kept separately from the file in case there needs to be any identification of the documents that are the subject of the order for inspection.
COSTS
40 I have now heard argument on costs. It is true that the effect of my order is that the plaintiff has succeeded in obtaining some documents; but not the great majority. Melbourne Health acted appropriately in bringing the issue of the application of s 28(2) to the documents to the Court. That perhaps is not critical to the determination of inter partes costs, because the position of both parties has to be considered.
41 However as I have determined that a comparatively small number of the disputed documents, should be released, it is appropriate that the costs of last Friday and today and of the summons generally be costs in the proceeding.
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