High Court of Australia|1996-09-06|Before: Brennan CJ, Gummow JJ

Breen v Williams ("Medical Records Access case") [1996] HCA 57; (1996) 186 CLR 71 (6 September 1996)

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ

Medicine - Doctor/patient relationship - Medical records - Patient's right to access - Contractual right - Doctor's duty to act in patient's 'best interests' with utmost good faith and loyalty - Patient's proprietary right or interest in information contained in records - Whether doctor under fiduciary duty to grant access - 'Right to know'.

revision prior to publication in the Commonwealth Law Reports.

BRENNAN CJ. The circumstances which give rise to the issues in this appeal are set out in other judgments. The appellant, who has been a patient of the respondent medical practitioner, claims a legal right to reasonable access to the records kept by the respondent with respect to the appellant and a right to inspect and/or copy those records. Subject to certain admitted exceptions, the appellant submits that that right is enforceable by declaration and injunction. The right is submitted to be based variously on contract, property and fiduciary duty. In my view, none of these bases gives any support to the appellant's claim. I state my reasons.

2. In the present case, there was no formal contract between the appellant and the respondent. No more appears than that the appellant consulted the respondent as a medical practitioner and he provided medical services accordingly.

3. In the absence of special contract between a doctor and a patient, the doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care. The consideration for the undertaking may be either a payment, or promise of payment, of reward or submission by the patient, or an undertaking by the patient to submit, to the treatment proposed. A duty, similar to the duty binding on the doctor by contract, is imposed on the doctor by the law of torts. The advice and treatment required to fulfil either duty depends on the history and condition of the patient, the facilities available and all the other circumstances of the case.

4. The provision of advice and treatment with reasonable skill and care may not exhaust the duty of the doctor. Unless the contract between doctor and patient is especially restricted, the doctor's obligation is to maintain or improve the health of the patient generally and to use reasonable skill and care in doing so, even though the advice or treatment required on a particular occasion is in a specialist field or is to be provided only on that occasion or for a limited time. The patient may be thought of as made of many parts some one of which may need treatment at a given time, but the patient is nonetheless an entirety whose life spans, or hopefully spans, the ills or disease of each moment. Once it is perceived that the duty of the doctor is owed to the patient as an entirety, it is not appropriate to assume that the duty is discharged merely by the giving of advice or treatment on the particular occasion.

5. In some situations, there may be a duty to provide to the patient or to the patient's nominee information which the doctor has acquired in the course or for the purpose of advising or treating the patient. That is information received or otherwise acquired by the doctor pursuant to an authority given - expressly or impliedly - by the patient for the purpose of enabling the doctor to perform the doctor's contractual duty to maintain or improve the health of the patient generally. Absent the patient's permission, the doctor must not use that information for any other purpose. When the future medical treatment or physical or mental wellbeing of a patient might be prejudiced by an absence of information about the history or condition or treatment of the patient on an earlier occasion, the doctor who has acquired that information for the benefit of the patient's health must make it available to avoid or diminish that prejudice. Such an obligation is implied by the doctor's acceptance of the patient's authority under the contract to obtain that information. The authority is given in order to benefit the patient's health generally; the authority must be accepted and acted upon for the same purpose. As the obligation is implied, it can be excluded by express provision.

6. The obligation is not unqualified. As it arises from and is conditioned by the doctor's duty to benefit the patient's health generally, the obligation falls to be discharged only when the patient's health would or might be prejudiced by refusing to make the information available. And, as the service of making the information available is not ordinarily covered by the fee paid for advice or treatment, the doctor is entitled to a reasonable reward for the service (1).

7. For these reasons, I would hold that information with respect to a patient's history, condition or treatment obtained by a doctor in the course or for the purpose of giving advice or treatment to the patient must be disclosed by the doctor to the patient or the patient's nominee on request when (1) refusal to make the disclosure requested might prejudice the general health of the patient, (2) the request for disclosure is reasonable having regard to all the circumstances and (3) reasonable reward for the service of disclosure is tendered or assured. A similar duty may be imposed on the doctor by the law of torts but, in particular situations, for example, some emergency treatments, the relationship between doctor and patient may not give rise to a duty that extends so far. It is not necessary now to consider that problem.

8. An undertaking to provide information is one thing; a duty to give the patient access to and to permit the patient to copy the doctor's records is another. The doctor's duty to provide information not only can be discharged, but in some circumstances ought to be discharged, without allowing the patient to see the doctor's records. Where that duty can be performed without giving the patient access to the doctor's records, there is no foundation for implying any obligation to give that access. There is no evidence in this case to suggest that access to the respondent's records might have been necessary to avoid or diminish the possibility of prejudice to the appellant's health.

9. The appellant argued for an implied term in the contract between the appellant and respondent that the respondent would act in the appellant's "best interests", even to the extent of testifying for her in litigation. The propounded "best interests" obligation was said to encompass an obligation to give a patient access to the doctor's records. The term implied in the ordinary contract does not go so far. It is limited by the subject matter to which the contract relates, namely, benefiting the health of the patient.

10. Leaving aside cases where a term is implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties (2), a term is not implied in a contract if the contract is effective without it (3). In the present case, it is not suggested that access to the respondent's records is needed for any therapeutic reason. Nor could such a suggestion be made. The respondent made an open offer to provide a report in writing relating to the history, physical examination findings, investigation results, diagnosis, proposed management plan, treatment or advice furnished to the appellant. That offer, if accepted and if fulfilled, would have discharged any obligation that might have arisen by implication from the contract between the parties. The offer was not accepted, the appellant contending not for a right to be informed but for a right of access to the doctor's records. As the contract between the appellant and respondent was wholly effective without any term entitling the appellant to access to the respondent's records and requiring the respondent to give that access, there is no foundation for implying such a term. Accordingly, the first basis of the appellant's claim fails.

11. The appellant concedes that the property in the records as chattels is in the respondent. The concession is rightly made. Documents prepared by a professional person to assist the professional to perform his or her professional duties are not the property of the lay client; they remain the property of the professional (4). In the light of that principle, it is not easy to see what relevance the law of property has to the supposed right of the appellant to access to the respondent's records. If (as it was put during argument) the respondent is said to have no proprietary right that would entitle him to refuse access, the question whether the appellant has a right to be given access still remains. On that approach, the supposed right (if any) must find some basis other than property. But even on that approach, the argument is flawed. Absent some right to require, or the exercise of some power to compel, production of a document for inspection, its owner is entitled by virtue of the rights of ownership to refuse to produce it. As for copying, where the professional person is the owner of the copyright, he or she has the sole right to copy or to permit the copying of the document (5).

12. If the approach is that a right to access and to copy arises because the information contained in the records is proprietary in nature, the approach mistakes the sense in which information is described as property. The sense in which information is so described is stated by Lord Upjohn in Phipps v Boardman (6) in these terms:

"In general, information is not property at all. It is

normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, "know-how," confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship."

As information is not property except in the sense stated by Lord Upjohn, the remedies which equity grants to protect against the disclosure of certain kinds of information do not have their source in notions of property. Deane J pointed this out in Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (7):

"Like most heads of exclusive equitable jurisdiction, its

rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained."

13. Equity might restrain the respondent from disclosing without authority any information about the appellant and her medical condition that is contained in the respondent's records and, in that sense, it might be arguable that that information is the property of the appellant. Even if such a description were correct - and it is not necessary to consider that question - the description would provide no foundation for the existence of a right to access and to copy enforceable in equity. The mere possession by the respondent of his records relating to the appellant breaches no obligation of conscience and thus it attracts no equitable remedy that might clothe the information with some relevant proprietary character. There is no obligation in conscience requiring the respondent to open his records to inspection and copying by the appellant. Whichever approach is taken to the relevance of the law of property, it fails to provide any basis for the appellant's claim.

14. Fiduciary duties arise from either of two sources, which may be distinguished one from the other but which frequently overlap (8). One source is agency (9); the other is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other (10). Whichever be the source of the duty, it is necessary to identify "the subject matter over which the fiduciary obligations extend" (11). It is erroneous to regard the duty owed by a fiduciary to his beneficiary as attaching to every aspect of the fiduciary's conduct, however irrelevant that conduct may be to the agency or relationship that is the source of fiduciary duty. As Fletcher Moulton LJ pointed out in In re Coomber; Coomber v Coomber (12), fiduciary relations are of many different types (13) and where there is a fiduciary relation the court may interfere and set aside acts which, between persons in a wholly independent position, would have been perfectly valid. His Lordship then added:

"Thereupon in some minds there arises the idea that if there

is any fiduciary relation whatever any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. There is no class of case in which one ought more carefully to bear in mind the facts of the case, when one reads the judgment of the Court on those facts, than cases which relate to fiduciary and confidential relations and the action of the Court with regard to them."

As Mason J said in Hospital Products Ltd v United States Surgical Corporation (14):

"it is now acknowledged generally that the scope of the

fiduciary duty must be moulded according to the nature of the relationship and the facts of the case."

"Fiduciary relations are of different types, carrying

different obligations ... and a test which might seem appropriate to determine whether a fiduciary relationship existed for one purpose might be quite inappropriate for another purpose."

15. What is the nature of the doctor-patient relationship? Generally there is no relationship of agency. But the relationship of doctor and patient is one where the doctor acquires an ascendancy over the patient and the patient is in a position of reposing trust in the doctor. Such a relationship casts upon the doctor the onus of proving that any gift received from the patient was given free from the influence which the relationship produces (16). But in this case the doctor has received no gift; he has taken no step to procure an advantage for himself. Nor has he taken any advantage of his ascendancy over his patient or of her trust in him. His refusal to give access to his records does not deny his patient a benefit to which the patient was entitled either by reason of his position as the appellant's medical adviser and provider of medical treatment or by reason of the trust she reposed in him to provide medical treatment. In Canada, the Supreme Court has held that the relationship between doctor and patient casts on the doctor a fiduciary duty to provide the patient with access to his or her medical records: McInerney v MacDonald (17). But in this respect the notion of fiduciary duty in Canada does not accord with the notion in the United Kingdom (18). Nor, in my opinion, does the Canadian notion accord with the law of fiduciary duty as understood in this country. There is simply no fiduciary relationship which gives rise to a duty to give access to or to permit the copying of the respondent's records. There is no relevant subject matter over which the respondent's fiduciary duty extended.

16. Accordingly, the third basis advanced to support the appellant's claim fails. I would add my agreement with what Dawson and Toohey JJ have written as to a patient's "right to know". As their Honours point out, the appellant did not rely in this Court on any such right as a basis of her claim to a right of access to, and to copy, the respondent's records.

DAWSON AND TOOHEY JJ. In 1977 the appellant had a bilateral augmentation mammoplasty which involved the insertion of a silicone implant in each of her breasts. Thereafter she developed bilateral breast capsules. In 1978 she consulted the respondent, who is a plastic surgeon, but not the plastic surgeon who performed the implant. The respondent advised the appellant that the capsules should be compressed and he performed that operation. The appellant experienced severe pain and, after two further consultations with her, the respondent operated and performed a bilateral capsulotomy. The appellant has not consulted the respondent since that operation, although she corresponded with him in 1983 over matters unrelated to this appeal.

2. In 1984 another doctor, Dr McDougall, diagnosed a lump in the appellant's left breast as silicone gel which had leaked from the breast implant. As a result, he performed a partial mastectomy upon the appellant. Since then she has had further corrective surgery on her left breast and has had the right silicone breast implant replaced. These operations were not performed by the respondent.

3. The appellant became interested in litigation in the United States by way of a class action against the manufacturer of the breast implants claiming that they were defective. In that litigation she was given the opportunity to "opt in" to a settlement which had been given conditional approval by a United States court. It appears that it was a condition of opting in that the appellant do so before 1 December 1994 and that she file with the United States court copies of medical records in support of any claim which she wished to make. The appellant sought to have access to the medical records kept by the respondent in her case and maintains that she did so both to secure advice whether she should opt in to the United States settlement and to comply with the condition imposed should she decide to do so. She also maintains that she has a right of access to the medical records to ensure that she has all information relating to her health at her disposal which will, in turn, ensure that she is able to make decisions regarding her future treatment.

4. The appellant could have secured access to the medical records by compulsory court process. It would appear that an order for discovery of the records was within the equitable jurisdiction of the Supreme Court of New South Wales. Another procedure was by way of letters rogatory. These were obtained from the United States court by several litigants in her position and orders were made by the Supreme Court of New South Wales compelling the production of medical records to the Court in aid of the United States proceedings. The appellant did not avail herself of this procedure because, she said, the time available was too short. Instead, she commenced this action in the Supreme Court of New South Wales claiming a declaration that she is entitled to access to the medical records kept by the respondent in relation to herself. It is convenient to refer to those as the appellant's medical records, although to some extent this begs the question to be decided in this appeal. The appellant also sought an order that the respondent allow her access to her medical records to examine them and obtain copies of the information contained in them.

5. Those records were not in evidence but the trial judge, Bryson J, found by inference that they comprised the following:

" (a) The defendant has handwritten notes of his own.

(b) There may be letters reporting to referral doctors

(c) There may be hospital advice slips but the evidence does

(d) There is correspondence with the patient, and the

defendant does not resist inspection of these and annexed copies to his affidavit.

(e) There is no evidence whether there are reports to the

defendant from other doctors. Dr McDougall wrote him a letter (probably in 1991) about the plaintiff.

(f) There probably are communications with the NSW Medical

The trial judge specifically found that there was no document in the appellant's medical records confirming the nature of the implants such as the manufacturer's lot number, a sticker from an implant box or other document of that type. The records, so the trial judge found, did not contain any results of blood or other tests, pathology reports, x-rays or mammograms. These documents were referred to in the appellant's claim for relief. For practical purposes, the relief sought by the appellant related in the end to the respondent's handwritten notes and it was upon these that argument centred.

"The handwritten notes ... are prepared and maintained by

me, along with the other documents described above in the belief that such records belong to me and are private to me. ... (S)ome of these records will contain information supplied to me in confidence by family and friends of the patient in circumstances where I have been told by such persons that they do no(t) wish the patient to be aware of their communications with me. Often the information I receive from such sources is what I would regard as sensitive and confidential, and I would not wish to divulge my knowledge of it or source unless I judged it necessary to do so in the interest of the patient. In some cases because of the state of mind or health of the patient these records will contain information the disclosure of which in my judgment might be detrimental to the patient's well being if disclosed at all or if disclosed without full explanation. Because these notes are prepared by me in the belief that they will remain private to me, they often contain conclusions, commentary and musing which might well be different in form and substance if the notes were prepared by me in the knowledge that the patient was entitled to a copy of my records. I would be concerned that these notes and some of the other records maintained by me might, at least in some cases, cause confusion and unnecessary worry and stress to patients if they were made available to them without adequate explanation. Finally, in part, these notes contain information which relates solely to the business and administration of my practice and not to aspects of the treatment and management of my patients."

7. On 4 August 1993 the appellant's solicitors wrote to the respondent requesting copies of the appellant's medical records, not a medical report. By a letter dated 10 August 1993 the respondent replied to the appellant herself, saying:

"As (your solicitors) well know, it is a longstanding legal

tradition in this Country that such records are the doctor's property, an aide memoire to his treatment of the patient, and may only be released on production of a court subpoena.

Accordingly the advice which I have received from my Medical

Defence legal advis(e)rs is that this situation still holds, but that they would be very happy for me to release your records, were you to supply me with a document which would release me from any claim that might arise in relation to my treatment of you."

Despite the reference in that letter to a claim against the respondent, the appellant has not sought, nor does she seek, to make any claim against the respondent based upon his default. Had she commenced proceedings upon that basis she would have been entitled to discovery of her medical records in the ordinary course. Nevertheless, the appellant was not prepared to give the undertaking sought by the respondent's insurers and sought access to her medical records as of right.

8. During the trial of the appellant's action, the respondent made an open offer to provide a report in writing to the appellant about the contents of her medical records, excluding his correspondence with the New South Wales Medical Defence Union and with the appellant's solicitors. The offer encompassed the history taken by the respondent, his physical examination findings, investigation results, diagnosis and proposed management plan, treatment or advice. The offer was not accepted but was not withdrawn. The trial judge found that the appellant did not wish to have a report such as that offered by the respondent and thus regarded himself as not called upon to consider whether the respondent's readiness to provide a report was reasonable or extended sufficiently far to satisfy any contractual duty which the respondent might have to provide a report.

9. Notwithstanding the purposes which the appellant asserted for wanting access to her medical records, her claim was that, in general, any patient is entitled to require from a treating doctor copies of all records relating to that patient for whatever purpose the patient has in mind. The trial judge concluded that:

"It was the wish of the plaintiff and those representing her

to treat the litigation as an opportunity to test whether a patient has a right of access to all information in medical records maintained by the patient's treating doctor, and to test the contrary proposition that it is within the power of the treating doctor to grant or withhold access to those records as the doctor decides."

However, the appellant conceded that the right which she asserted must be subject to qualification. She accepted that "a doctor may withhold information where disclosure would be adverse to the patient's interests" and referred to this as the "therapeutic privilege" (19).

10. The trial judge refused the appellant the relief which she sought. She appealed to the New South Wales Court of Appeal which, by a majority (Mahoney and Meagher JJA; Kirby P dissenting), dismissed the appeal (20). It is from the order of the Court of Appeal that the appellant now appeals to this Court.

11. In at least one respect the appellant's case was presented in an unsatisfactory form. Although her claim related to specific medical records, she made no attempt to obtain access to those records in the course of the proceedings which she commenced or in any other proceedings. She did not seek discovery of them nor did she seek to subpoena them. The result was that the trial judge was asked to make a declaration (or an order) in respect of documents which he had not seen and the nature of which he could only determine by inference. Not only that, but it could not be said whether the documents fell within any exception to any right on the part of the appellant to have access to them, at least one exception, the so-called therapeutic privilege, having been acknowledged as part of the appellant's case (21). No doubt the power to grant declaratory relief is wide (22), but even in a test case a claimant must establish a cause of action upon the particular facts of the case. Thus it has been said that a person seeking declaratory relief must have a real interest and relief will not be granted if the question is purely hypothetical, if relief is claimed in relation to circumstances that have not occurred and might never occur or if the court's declaration will produce no foreseeable consequences for the parties (23). It is relevant in that context to observe that there was no exploration in argument whether, had the appellant obtained access to the medical records in the course of litigation, that would have had any effect upon her entitlement to the relief which she claims.

12. That observation having been made, it is convenient to turn to the way in which the appellant put her case. She contended that a right of access to her medical records arose from three sources, namely, a patient's proprietary right or interest in the information contained in the records, an implied term of the contract between patient and doctor and a fiduciary relationship between patient and doctor. In addition, it is fair to say that the appellant's submissions were pervaded by a more general assertion of what was said to be a patient's "right to know". That right was not said to arise from any particular source, but was said to reflect the law's acceptance of personal inviolability and patient autonomy and its rejection of a paternalistic approach involving the application of standards determined exclusively by the medical profession. In this latter respect, the appellant relied upon the recent decision of this Court in Rogers v Whitaker (24). We now turn to deal with each of these contentions.

13. The appellant did not claim ownership of the actual documents comprising her medical records. It is understandable that she did not do so, because they do not include any documents obtained on her behalf and paid for by her, such as x-ray photographs or pathology reports, the ownership of which she may well be able to claim. As we have said, for all practical purposes they comprise the written notes of the respondent and with respect to these there can be no doubt that they are the property of the respondent. The duty of the respondent, both in contract and tort, was to exercise reasonable care and skill in giving treatment and advice (25) and it was in carrying out this duty that the respondent compiled the records. In doing so the respondent did not act as agent for the appellant and the documents were his property alone. The general principle is that documents brought into existence by an agent while in the employ of a principal belong to the principal and not to the agent (26). Of course, sometimes in a relationship between a professional and a client, the professional may act as an agent in the course of providing services in which case documents brought into existence may be the property of the client. For example, a contract or deed produced by a solicitor for a client and paid for by the client is the property of the client. On the other hand, as was observed in Chantrey Martin v Martin (27):

"Even in the case of a solicitor there must, we should have

thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remain his property, although brought into existence in connexion with work done for clients."

In this case, the appellant's medical records were clearly compiled by the respondent for his own information in treating and advising the appellant and not in any sense as agent for the appellant. The appellant was correct, in our view, in not seeking to contest the ownership by the respondent of the records.

14. On the other hand, the appellant encounters no less difficulty in seeking to maintain that she has, in the information recorded by the records, a proprietary right or interest which entitles her to access to them. No analogy can be drawn between her situation and that of a beneficiary under a trust. Of that relationship Lord Wrenbury said in O'Rourke v Darbishire (28):

"If the plaintiff is right in saying that he is a

beneficiary, and if the documents are documents belonging to the executors as executors, he has a right to access to the documents which he desires to inspect upon what has been called in the judgments in this case a proprietary right. The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own. Action or no action, he is entitled to access to them."

Those remarks were accepted or referred to without demur in In re Londonderry's Settlement (29) and have been accepted in this country (30). But the right of access of a beneficiary to trust documents arises because of the beneficial interest of the beneficiary in the trust property and it is in that sense that the right may be described as proprietary. The relationship between doctor and patient is not that of trustee and beneficiary, although for certain purposes, as will be seen, duties of a fiduciary nature may be imposed upon the doctor. Essentially the relationship between doctor and patient is a contractual one whereby the doctor undertakes to treat and advise the patient and to use reasonable skill and care in so doing. That affords no basis for a proprietary interest in records kept by the doctor for the purpose of carrying out that function.

15. The appellant's contention is, however, that the information contained in the records can be separated from the records themselves and it is in the information that the appellant has a proprietary right or interest entitling her to access to the records. But there can be no proprietorship in information as information, because once imparted by one person to another, it belongs equally to them both (31). It is true, as Gummow J recognised in Smith Kline and French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (32), that equity acts to protect confidential information and the degree of protection afforded makes it appropriate to describe it as having a proprietary character, but that is not because property is the basis upon which protection is given. It is because of the effect of that protection. In this case, whilst the information provided by the appellant to the respondent was no doubt confidential, there is no question of any abuse by the respondent of that confidence and there is no property in that information in any sense upon which the appellant might base the right which she asserts.

16. During argument, the question of the doctor's copyright in her medical records was raised with the appellant upon the basis that the right of access claimed by her extended to the making of copies of those records. The appellant made no submissions upon this question and it is unnecessary to reach any conclusion, but obviously it would raise problems if the appellant were otherwise to succeed in her contentions.

17. The implication of a term in a contract is based upon the presumed or imputed intention of the parties. In the case of a formal contract which is complete on its face, it may be said in general that no implication arises (save where it is a legal incident of a particular class of contract) unless it is necessary or obvious - necessary in the sense of being required to give business efficacy to the contract or obvious in the sense that it goes without saying (33). Where, however, as in this case, there is no formal agreement, the actual terms of the contract must be inferred before any question of implication can arise. The test which is then to be applied was formulated by Deane J in Hawkins v Clayton in these terms (34):

"The most that can be said consistently with the need for

some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties."

That is to say, no question of there being an obvious implication arises in such a case because that which is obvious will be a term of the contract as a matter of inference. Moreover, the line between inference and implication will not always be easy to draw.

18. However, it is common ground that the obligation of the respondent under the contract between him and the appellant was to use reasonable skill and care in treating and advising the appellant. It is unnecessary to pause to examine whether that standard of care was imposed upon the respondent by inference, by implication or as a legal incident of that kind of contract. Nor is it necessary to consider the effect of the overlap of the duty imposed in contract and in tort in this area (35). What can be said is that it was not necessary for the reasonable or effective performance of that obligation that the respondent should be obliged to give the appellant access to her medical records. The careful and skilful treatment of the appellant may have required the respondent to provide her or others with such information as was necessary to ensure proper ongoing care for her health, but the respondent was prepared to provide that information, albeit in the form of a report and not by direct access to the records. Indeed, as the respondent pointed out, for him to have given the appellant free access to all the matters contained in her medical records may not have been in her interests and may have fallen short of the standard of skill and care required of him. This led the appellant to concede an exception to the obligation for which she contended in the form of the so-called therapeutic privilege, but the need for the concession, rather than supporting the existence of such an obligation, tends to show that the obligation was neither a necessary nor reasonable incident of the contract between the parties in the first place. There can be no suggestion that it was an established professional practice for a medical practitioner to afford a patient access to the patient's medical records - the evidence was entirely to the contrary - and in our view there is no foundation for the implied term upon which the appellant relies.

19. Whilst duties of a fiduciary nature may be imposed upon a doctor, they are confined and do not cover the entire doctor-patient relationship. Thus a doctor is under a duty to protect the confidentiality of information given by a patient (36). And the doctor-patient relationship is such that any substantial benefit received by the doctor from a patient (other than proper remuneration) is presumed to be the result of undue influence with the doctor bearing the onus of rebutting the presumption (37). Whether these aspects of the doctor-patient relationship are properly to be described as fiduciary may be a matter of debate. For example, in Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (38) Deane J saw the protection afforded by equity to confidential information as something separate from a wider fiduciary duty arising from the general nature of a relationship. Similarly, academic writers have classified the doctrine of undue influence as standing apart from a more general fiduciary doctrine (39). But the debate is not worth pursuing in the present context because it is plain that the appellant relies upon a wider fiduciary relationship between her and the respondent as giving rise to a duty on the part of the respondent to afford her access to her medical records.

20. The difficulty in dealing with the appellant's contention is that the law has not, as yet, been able to formulate any precise or comprehensive definition of the circumstances in which a person is constituted a fiduciary in his or her relations with another. There are accepted fiduciary relationships, such as trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners, which may be characterised as relations of trust and confidence. In Hospital Products Ltd v United States Surgical Corporation Mason J said (40):

"The critical feature of these relationships is that the

fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions 'for', 'on behalf of', and 'in the interests of' signify that the fiduciary acts in a 'representative' character in the exercise of his responsibility".

Mason J did not intend to suggest that this description of a fiduciary relationship isolated those features from other relationships of trust and confidence which do not impose fiduciary obligations. It is not the case that whenever there is "a job to be performed" (41), and entrusting the job to someone involves reposing substantial trust and confidence in that person, a fiduciary relationship arises. But it is of significance that a fiduciary acts in a representative character in the exercise of his responsibility.

21. A doctor is bound to exercise reasonable skill and care in treating and advising a patient, but in doing so is acting, not as a representative of the patient, but simply in the exercise of his or her professional responsibilities. No doubt the patient places trust and confidence in the doctor, but it is not because the doctor acts on behalf of the patient; it is because the patient is entitled to expect the observance of professional standards by the doctor in matters of treatment and advice and is afforded remedies in contract and tort if those standards are not observed and the patient suffers damage.

22. Equity requires that a person under a fiduciary obligation should not put himself or herself in a position where interest and duty conflict or, if conflict is unavoidable, should resolve it in favour of duty and, except by special arrangement, should not make a profit out of the position (42). The application of that requirement is quite inappropriate in the treatment of a patient by a doctor or in the giving of associated advice. There the duty of the doctor is established both in contract and in tort and it is appropriately described in terms of the observance of a standard of care and skill rather than, inappropriately, in terms of the avoidance of a conflict of interest. It has been observed that what the law exacts in a fiduciary relationship is loyalty, often of an uncompromising kind, but no more than that (43). The concern of the law in a fiduciary relationship is not negligence or breach of contract. Yet it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations. Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest - if, for example, the doctor has a financial interest in a hospital or a pathology laboratory - so as to give rise to fiduciary obligations (44). But that is not this case.

23. Thus in Rogers v Whitaker (45), where the issue was the extent of a doctor's obligation to inform a patient of the risks inherent in proposed treatment, the Court based its decision squarely upon the duty of the doctor to observe the appropriate standard of care and not upon any fiduciary relationship. The majority said (46):

"The law imposes on a medical practitioner a duty to

exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment' (47); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (48). It is of course necessary to give content to the duty in the given case."

24. The appellant relied upon the decision of the Canadian Supreme Court in McInerney v MacDonald (49) in which La Forest J, delivering the judgment of the Court, held that a patient is entitled to reasonable access to examine and copy the doctor's records. Non-disclosure, his Lordship held, may be warranted only if there is real potential for harm either to the patient or to a third party and there is a general superintending jurisdiction in the court. La Forest J accepted that the medical records in that case were the property of the doctor and declined to rest the obligation which he found to exist upon an implied contractual term. It was conceded by the appellant physician that a patient has a right to be advised about the information concerning his or her health in the physician's medical records, but La Forest J, relying upon a line of United States cases (50), concluded that "the fiducial qualities of the relationship extend the physician's duty beyond this to include the obligation to grant access to the information the doctor uses in administering treatment" (51). In basing the duty upon a fiduciary relationship, La Forest J was giving expression to the view that it is the duty of the doctor to act with "utmost good faith and loyalty" (52). Such a duty hardly fits with the undoubted duty of a doctor in this country to exercise reasonable skill and care in the giving of treatment and advice. It is, perhaps, reflective of a tendency, not found in this country, but to be seen in the United States and to a lesser extent Canada, to view a fiduciary relationship as imposing obligations which go beyond the exaction of loyalty and as displacing the role hitherto played by the law of contract and tort by becoming an independent source of positive obligations and creating new forms of civil wrong (53). But, with respect, that is achieved by assertion rather than analysis and, whilst it may effectuate a preference for a particular result, it does not involve the development or elucidation of any accepted doctrine. There is no foundation in either principle or authority in this country, however different the position may be in Canada, for the conclusion reached by La Forest J that (54):

"information about oneself revealed to a doctor acting in a

professional capacity remains, in a fundamental sense, one's own. The doctor's position is one of trust and confidence. The information conveyed is held in a fashion somewhat akin to a trust. While the doctor is the owner of the actual record, the information is to be used by the physician for the benefit of the patient. The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue."

It should be observed in relation to that passage that the Court was not concerned in that case, as we are not in this, with a patient's right to information. It was concerned with access to the actual records containing the information, notwithstanding that in places the passage appears to regard "information" as interchangeable with "the actual record".

25. In England, s 3 of the Access to Health Records Act 1990 (UK) gives a prima facie right of access to health records by the individuals to whom they relate and other persons, but s 5(1) provides:

"Access shall not be given under section 3(2) above to any

(a) which, in the opinion of the holder of the record, would

(i) information likely to cause serious harm to the physical

(ii) information relating to or provided by an individual,

other than the patient, who could be identified from that information; or

(b) which was made before the commencement of this Act."

That Act was passed as a result of the decision of the European Court of Human Rights in Gaskin v United Kingdom55 which held that the refusal to allow access by the applicant to certain health records was in breach of his right to respect for his private and family life under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

26. In R v Mid Glamorgan Family Health Services the Court of Appeal (56) upheld a decision by Popplewell J (57) dismissing an application by a patient for access to his medical records. Popplewell J was of the view that there had been no breach of Art 8 because the respondent had offered to make available the records (which predated the 1990 Act) to an independent medical adviser who might judge whether the information was likely to cause harm to the applicant or anyone else. However, he reached "the clearest possible conclusion" (58) that at common law there was no right of access by the applicant to records pre-existing the Access to Health Records Act. In the Court of Appeal Nourse LJ (with whom the other members of the Court agreed) referred in his judgment to the well-known passage in the speech of Lord Templeman in Sidaway v Governors of Bethlem Royal Hospital in which he said (59):

"I do not subscribe to the theory that the patient is

entitled to know everything nor to the theory that the doctor is entitled to decide everything. The relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for fees payable by the patient. The doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctor's training and experience and as a result of the doctor's diagnosis of the patient. An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor's contractual obligation to have regard to the patient's best interests. Some information might confuse, other information might alarm a particular patient. Whenever the occasion arises for the doctor to tell the patient the results of the doctor's diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said."

Nourse LJ observed that that passage provided "a sensible basis for holding that a doctor, likewise a health authority, as the owner of a patient's medical records, may deny the patient access to them if it is in his best interests to do so" (60). However, Lord Templeman was referring to information and was not directing his attention to a patient's right of access to the physical records. Moreover, his remarks were made in the context of the duty of a doctor to warn of risks inherent in treatment which a patient has a right to refuse or accept. It is difficult, therefore, to gauge the intended effect of the concluding observation of Nourse LJ where he said (61):

"It is inherent in the views above expressed that I do not

accept that a health authority, any more than a private doctor, has an absolute right to deal with medical records in any way that it chooses. As Lord Templeman makes clear, the doctor's general duty, likewise the health authority's, is to act at all times in the best interests of the patient."

27. It is indeed the doctor's duty to act in the best interests of the patient - if by that is meant no more than that the doctor must exercise reasonable care and skill in the treatment and advice of the patient - and that may require that a doctor provide information from his records regarding a particular patient. But that is not to say that the patient has a right to those records. Indeed, reposing judgment in the doctor of what is in the best interests of the patient is to deny that proposition because if a doctor is to judge what information is to be provided in the interests of the patient and, having made that judgment, must provide the information, no point is to be served by a right of access to the records, qualified or unqualified, on the part of the patient. We are not, of course, speaking of litigation where a patient has a right of access to the records for the purposes of the litigation. Nourse LJ identified no legal source for a right of access otherwise. Certainly he did not suggest the existence of any fiduciary duty giving rise to it. There would have been difficulty in his doing so for in Sidaway Lord Scarman (in dissent, but not on this point) said (62):

"Counsel for the appellant referred to Nocton v Lord

Ashburton (63) in an attempt to persuade your Lordships that the relationship between doctor and patient is of a fiduciary character entitling a patient to equitable relief in the event of a breach of fiduciary duty by the doctor. The attempt fails: there is no comparison to be made between the relationship of doctor and patient with that of solicitor and client, trustee and cestui qui trust or the other relationships treated in equity as of a fiduciary character."

28. We can find no basis in the law of this country for discerning a fiduciary relationship between doctor and patient carrying with it a right of access on the part of a patient to medical records compiled by the doctor in relation to that patient.

29. The appellant did not submit before this Court that she had a right to know the contents of her medical records independently of her claims arising from proprietorship of the information contained in the records, from contract and from the existence of a fiduciary relationship between herself and the respondent. However, she sought to call in aid in furtherance of those claims something which she called a movement in the law governing the relationship of doctor and patient in the direction of acceptance of the principle of personal inviolability and patient autonomy and the rejection of medical paternalism. In this regard she sought to rely upon the decision in Rogers v Whitaker (64).

30. There are two observations which may be made about that case. The first is that it was concerned with the provision of information, not access to medical records, by a doctor in the context of a decision to be made by a patient whether to undergo proposed treatment. The second observation is that the decision affirmed the proposition to which we have earlier referred, namely, that it is a matter of judgment for the doctor to determine what the patient should know in his or her best interests. It was pointed out that in making that judgment the doctor is required to exercise reasonable skill and care and that the court would determine for itself whether that standard was observed rather than apply the Bolam (65) approach which placed reliance upon the opinion of a responsible body of medical practitioners. Nevertheless it was held that it is a judgment to be made by the doctor, notwithstanding that in the particular context of the revelation of the risks inherent in proposed treatment all relevant information to enable the patient to make a decision whether to undergo the treatment would ordinarily be required. In that sense the case does affirm patient autonomy. We are not able to discern that the case has anything additional to say about personal inviolability (whatever that may mean in the context). Nor does it have anything to say about medical paternalism save, perhaps, to the extent that it decides that it is for the court, not medical opinion, to determine whether the required standard of care has been observed.

31. It will be apparent from what we have already said that we can detect no movement in the law which would sustain the appellant's claims. We have endeavoured to explain why the appellant is not, in our view, the owner of the information contained in her medical records and why there is no basis for the implication of the term for which she contends in the contract between her and the respondent or for the recognition of any relevant fiduciary relationship. In any event, even if the movement in the law claimed by the appellant were to exist it could have no significance where established principle points to a clear conclusion as, in our view, it does in this case.

32. No doubt considerations of policy (and that is what this part of the appellant's argument involves) may justifiably influence the adaptation or development of the law or the recognition of new categories where that is open upon the basis of settled legal principle. But policy considerations cannot justify abrupt or arbitrary change involving the abandonment of settled principle in favour of a particular result which is merely perceived as desirable.

33. In any event, the desirability of the result which the appellant advocates is far from self-evident. There is more than one view upon the matter and the choice between those views, if a choice is to be made, is appropriately for the legislature rather than a court. Indeed, the declaration sought by the appellant, which Gummow J reproduces in his judgment, is cast in terms which make plain its legislative character.

34. For these reasons, we would dismiss the appeal.

GAUDRON AND McHUGH JJ. The question in this appeal is whether a patient has a right to inspect and/or obtain copies of his or her medical records that are held by that person's doctor.

2. In the Supreme Court of New South Wales, Bryson J held that the appellant, Ms Julie Breen, a patient of the respondent, Dr Cholmondeley W Williams, did not have a right to copy or to have access to her medical records. A majority of the Court of Appeal of the Supreme Court (Mahoney and Meagher JJA) agreed with the decision of Bryson J (66). Kirby P, dissenting, held that a doctor owes a patient a fiduciary duty which entitles the patient to inspect or obtain copies of his or her medical records (67). Pursuant to the grant of special leave, Ms Breen now appeals to this Court against the order of the Court of Appeal. In our opinion, the appeal should be dismissed.

3. In October 1977, Ms Breen underwent a bilateral augmentation mammoplasty operation involving the insertion of silicone implants in her breasts. Sometime after the operation she noticed the development of breast capsules. She consulted Dr Williams who, after a series of consultations, performed a bilateral capsulotomy operation on Ms Breen in November 1978. In 1984, another surgeon removed the implants. Apart from correspondence in 1983 as to the possible removal of the implants and other unrelated medical conditions, Ms Breen and Dr Williams appear to have had no further contact until the correspondence, commencing in 1993, which gave rise to this litigation.

4. In 1993, Ms Breen became involved in a class action in the United States of America against the company which manufactured the implants. In that action, the plaintiffs claimed that the implants were defective. On 4 August 1993, her lawyers wrote to Dr Williams asking if he would forward to them photocopies of medical records in his possession concerning Ms Breen. Dr Williams replied that he would release the records to Ms Breen if she would supply him "with a document which would release (him) from any claim that might arise in relation to (his) treatment" of her. Ms Breen declined to give this undertaking.

5. A claim that a patient has a right of access to his or her medical records is a question of great social importance. But absent a contractual term, such a claim has no foundation in the law of Australia. Nevertheless, every possible argument that could be made in support of the claim by Ms Breen was put. Dr Cashman, who appeared for Ms Breen, contended that one or more of five legal principles or doctrines supported or gave to Ms Breen a right of access to records in the possession of Dr Williams that relate to his treatment of her, subject to lawful exceptions.

6. First, the common law gave her a "proprietary right and interest" in the actual information contained in Dr Williams' records. Second, the common law implied a term in the contract between her and Dr Williams to the effect that she had a right of access to the documents in Dr Williams' file. Third, there was an innominate common law right of access to medical records. Fourth, the common law recognised a patient's "right to know" all necessary information concerning his or her medical treatment including, where requested, access to records containing that information. Fifth, the law imposed on Dr Williams a fiduciary duty, enforceable in a court of equity, to give her access to her medical records.

Did Ms Breen have a proprietary right or interest in the medical records?

7. Dr Cashman did not submit that Ms Breen owned the actual documents which comprised the medical file. She did not, he said, "seek to divest the doctor of the pieces of paper" comprising the records. The concession that Ms Breen did not own the documents was plainly correct. Professional persons are not ordinarily agents of their clients even though they often have express, implied or ostensible authority to enter into contracts on their clients' behalf. Documents prepared by an agent are ordinarily the property of the principal. But documents prepared by a professional person to assist him or her to do work for a client are the property of the professional person, not the lay client. Speaking of documents which a firm of valuers had prepared in the course of its professional employment, MacKinnon LJ said (68):

"If an agent brings into existence certain documents while

in the employment of his principal, they are the principal's documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. I think it would be entirely wrong to extend to such a relation what may be the legal result of the quite different relation of principal and agent. ... (The documents in question) are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore, they cannot be said to be the property of the principal."

The doctor-patient relationship, like that of valuer and client, is not one of agent and principal. Dr Williams' notes were prepared to assist him to fulfil his professional duties. The property in the medical records relating to Ms Breen which he prepared belongs to him; Ms Breen has no proprietary right in respect of those records. The right of ownership of Dr Williams is, statute or contract apart, good against the world and entitles Dr Williams to prevent any person from having access to those records.

8. Although Dr Cashman conceded that Ms Breen did not own the records, he contended that she had a proprietary right or interest in the documents that entitled her to access to them. The premise of this argument was that the records were not owned by anybody. However the idea that an item of personal property that has not been abandoned has no owner is ill-founded. Ownership may be divisible in the sense that one or more of the collection of rights constituting ownership may be detached and vested in a number of persons. Ownership may also be divorced from possession in numerous circumstances (69). But the notion that personal property that has not been abandoned may have no owner is one that is foreign to the common law. Statute or contract apart, medical records, prepared by a doctor, are the property of the doctor. That property right entitles the doctor to refuse other persons access to the records. Dr Cashman's argument based on Ms Breen having a proprietary right or interest in the records must fail.

9. The doctor-patient relationship is contractual in origin (70). In general terms, "(a) doctor offers a patient diagnosis, advice and treatment", the objectives of which are "the prolongation of life, the restoration of the patient to full physical and mental health and the alleviation of pain" (71). Given the informal nature of the relationship, however, a contract between a doctor and a patient rarely contains many express terms. Because that is so, the courts are obliged to formulate the rights and obligations of the parties to the contract. As Lord Wilberforce has put it, in cases where the parties to a contract have not attempted to spell out all the terms of their contract, the function of the court is "simply ... to establish what the contract is, the parties not having themselves fully stated the terms" (72). The court does so by implying terms in the contract in accordance with established legal principles.

10. The common law draws a distinction between terms which are implied in fact and terms which are implied by law. Leaving aside terms that are presumed to apply because of the custom of a trade or business, the courts will only imply a term in fact when it is necessary to give efficacy to the contract (73). A term implied in fact purports to give effect to the presumed intention of the parties to the contract in respect of a matter that they have not mentioned but on which presumably they would have agreed should be part of the contract (74). A term implied by law on the other hand arises from the nature, type or class of contract in question (75). Some terms are implied by statutes in contracts of a particular class, for example, money lending and home building contracts. Such terms give effect to social and economic policies which the legislature thinks are necessary to protect or promote the rights of one party to that class of contract. Other terms are implied by the common law because, although originally based on the intentions of parties to specific contracts of particular descriptions, they "became so much a part of the common understanding as to be imported into all transactions of the particular description" (76). Many of these terms are implied to prevent "the enjoyment of the rights conferred by the contract (being) rendered nugatory, worthless, or, perhaps, ... seriously undermined", the notion of necessity being central to the rationale for such an implication (77). The distinction between terms implied by law and terms implied in fact can tend in practice to "merge imperceptibly into each other" (78).

11. The argument for Ms Breen started with the premise that, by implication of law, a doctor always contracts with a patient to act in the patient's "best interests". To support this premise, Dr Cashman relied on the following statement of Lord Templeman in Sidaway v Governors of Bethlem Royal Hospital (79):

"The doctor, obedient to the high standards set by the

medical profession impliedly contracts to act at all times in the best interests of the patient."

From this premise, Dr Cashman argued that, as an incident of the "best interests" term, the doctor must make available medical records concerning a patient when the patient seeks access to them. The leap from the premise to the conclusion is a long one. But we can pass that by.

12. While the notion of "best interests" is a relevant consideration in some areas of the law, such as the law relating to child welfare (80), a doctor does not impliedly promise that he or she will always act in the "best interests" of the patient. The primary duty that a doctor owes a patient is the duty "to exercise reasonable care and skill in the provision of professional advice and treatment" (81). The doctor does not warrant that he or she will act in the patient's best interests or that the treatment will be successful (82). If a doctor owed such a duty, he or she would be liable for any act that objectively was not in the best interests of the patient. The doctor would be liable for treatment that went wrong although he or she had acted without negligence. That is not the law of Australia.

13. There are good reasons why Australian courts do not imply a "best interests" term, as a matter of law, into all doctor-patient contractual relationships. First, "(w)here a term is implied into a contract it will usually embody a contractual promise and therefore create a legal duty." (83) Such a duty would be inconsistent with the existing contractual and tortious duty to exercise reasonable care and skill in the provision of professional advice and treatment. The existence of a tortious duty of care militates against "the implication of ... a general contractual duty of care" (84), particularly where "the incidents of an independent general contractual duty of care would differ from those of an independent tortious duty" (85). Second, the meaning and application of an implied term must be reasonably certain (86). The notion of "best interests" has been criticised as uncertain in the context of child welfare (87). That criticism is just as pertinent, if not more so, in the context of contract law which places a premium on certainty.

14. Even if Australian law implied a term in the contract between doctor and patient that the doctor would act in the patient's best interests in the sense that Lord Templeman propounded in Sidaway, it would not assist Ms Breen's claim to a right of access to medical records concerning her. Lord Templeman was not asserting that a doctor owed a general duty to act in the best interests of the patient. He used the term in the context of medical advice and treatment. In the paragraph preceding the statement upon which Dr Cashman relies, Lord Templeman had said that "(a) doctor offers a patient diagnosis, advice and treatment" (88). It was in that context that his Lordship went on to say that the doctor "impliedly contracts to act at all times in the best interests of the patient" (89). The duty was not one applying in respect of all matters arising out of the doctor-patient relationship and subsisting for an indefinite period. Only within the context of "diagnosis, advice and treatment" (90) was the duty to act in the "best interests" of the patient active. Moreover, "(i)t is difficult to see how a duty to act in the patient's 'best interests' can differ in any substantive way from a doctor's duty to exercise reasonable care in practising the skills of medicine" (91). In addition, Lord Templeman was not formulating an objective test of "best interests". The whole point of his speech in Sidaway was that it was primarily a matter for the doctor to determine what was in the patient's best interests. He said (92) that "the doctor, bearing in mind the best interests of the patient and bearing in mind the patient's right of information which will enable the patient to make a balanced judgment must decide what information should be given to the patient and in what terms that information should be couched."

15. For these reasons, the common law did not imply a term in the contract between Dr Williams and Ms Breen that he would always act in her best interests or that she had a right of access to his record of her treatment. So far as advice and treatment were concerned, the only relevant contractual term implied by law was to exercise reasonable care and skill.

16. Finally, no ground exists for implying a "best interests" term as a matter of fact. The term was not "so obvious that 'it goes without saying'", nor was it "necessary to give business efficacy to the contract" (93).

17. Accordingly, no implied term of the contract between Ms Breen and Dr Williams entitles her to access to the medical records in his possession.

Is there an innominate common law right of access to medical records?

18. Dr Cashman relied on the decision of the English Court of Appeal (Nourse, Evans LJJ and Sir Roger Parker) in R v Mid Glamorgan Family Health Services (94) to assert that there is an "innominate" common law right of access to medical records. The Court of Appeal held in that case that a public health authority had a "duty to administer its property in accordance with its public purposes" (95) and that, as the owner of a patient's medical records, the authority may deny a patient access to his or her records if it is in the best interests of the patient to do so (96). The Court of Appeal upheld the primary judge's conclusion that an offer to make the records of the plaintiff available to his medical advisers satisfied this duty.

19. Contrary to the view that we have expressed, Nourse LJ thought that Lord Templeman's speech in Sidaway (97) had decided that a doctor had a duty to act at all times in the best interests of the patient and that it was a "general duty" (98). Nourse LJ went on to say that "(t)hose interests would usually require that a patient's medical records ... should usually, for example, be handed on by one doctor to the next or made available to the patient's legal advisers if they are reasonably required for the purposes of legal proceedings in which he is involved." (99) But, as we have said, we do not think that Lord Templeman intended to lay down so sweeping a duty. In any event, for the reasons that we have given, in Australia no such duty is implied in the contractual relationship between a doctor and patient.

20. It follows that Mid Glamorgan Family Health Services is not an authority that has any persuasive effect in this country.

Does a doctor owe a fiduciary duty to a patient to give the patient access to that person's medical records?

21. Dr Cashman contends that the doctor-patient relationship is fiduciary in nature and that a doctor who denies a patient reasonable access to medical files concerning that patient is in breach of this fiduciary duty. In our opinion, this submission must be rejected.

22. Australian courts have consciously refrained from attempting to provide a general test for determining when persons or classes of persons stand in a fiduciary relationship with one another. This is because, as counsel for Dr Williams pointed out, the term "fiduciary relationship" defies definition. In Hospital Products Ltd v United States Surgical Corporation (100) Gibbs CJ said:

"I doubt if it is fruitful to attempt to make a general

statement of the circumstances in which a fiduciary relationship will be found to exist. Fiduciary relations are of different types, carrying different obligations ... and a test which might seem appropriate to determine whether a fiduciary relationship existed for one purpose might be quite inappropriate for another purpose. For example, the relation of physician and patient, and priest and penitent, may be described as fiduciary when the question is whether there is a presumption of undue influence, but may be less likely to be relevant when an alleged conflict between duty and interest is in question."

23. As the law stands, the doctor-patient relationship is not an accepted fiduciary relationship in the sense that the relationships of trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company and partners are recognised as fiduciary relationships (101). In Hospital Products (102), Mason J pointed out that in all those relationships "the fiduciary acts in a 'representative' character in the exercise of his responsibility". But a doctor is not generally or even primarily a representative of his patient.

24. However, the categories of fiduciary relationship are not closed (103), and the courts have identified various circumstances that, if present, point towards, but do not determine, the existence of a fiduciary relationship. These circumstances, which are not exhaustive and may overlap, have included: the existence of a relation of confidence (104); inequality of bargaining power (105); an undertaking by one party to perform a task or fulfil a duty in the interests of another party (106); the scope for one party to unilaterally exercise a discretion or power which may affect the rights or interests of another (107); and a dependency or vulnerability on the part of one party that causes that party to rely on another (108).

25. Some aspects of the doctor-patient relationship exhibit characteristics that courts have used to find a fiduciary relationship. For example, from the most mundane consultation with a general practitioner through to the most complicated surgical procedure by a specialist surgeon, a patient is invariably dependent upon the advice and treatment of his or her doctor. Patients also invariably confide intimate personal details about themselves to their doctors. In some circumstances, the dependency of the patient or the provision of confidential information may make the relationship between a doctor and patient fiduciary in nature. But that does not mean that their relationship would be fiduciary for all purposes. As Mason J pointed out in Hospital Products (109), a person may stand in a fiduciary relationship to another for one purpose but not for others.

26. In Birtchnell v Equity Trustees, Executors and Agency Co Ltd (110) Dixon J said that in "considering the operation of (fiduciary principles), it is necessary to (ascertain) the subject matter over which the fiduciary obligations extend". In the present case, if Dr Williams owed a fiduciary duty to Ms Breen, the duties and obligations which arose from their fiduciary relationship could only come from those aspects of the relationship which exhibited the characteristics of trust, confidence and vulnerability that typify the fiduciary relationship (111). They could only attach in respect of matters that relate to diagnosis, advice and treatment.

27. A consideration of the fundamental obligations of a fiduciary shows that Dr Williams owed no fiduciary duty to Ms Breen to give her access to the records that he had created. The law of fiduciary duty rests not so much on morality or conscience as on the acceptance of the implications of the biblical injunction that "(n)o man can serve two masters" (112). Duty and self- interest, like God and Mammon, make inconsistent calls on the faithful. Equity solves the problem in a practical way by insisting that fiduciaries give undivided loyalty to the persons whom they serve. In Bray v Ford (113), Lord Herschell said:

"It is an inflexible rule of a Court of Equity that a person

in a fiduciary position, such as the respondent's, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule."

In the present case, it is impossible to identify any conflict of interest, unauthorised profit or any loss resulting from any breach of duty.

28. Dr Cashman submitted that Dr Williams had a conflict of interest because in his letter to Ms Breen dated 10 August 1993 he offered to release the records subject to the condition that Ms Breen release him from any legal claims arising out of the treatment. Dr Cashman contended that this condition evidenced Dr Williams' desire to secure "a legal advantage out of the release of the information" which conflicted with his duty to act at all times in the best interests of the patient. Leaving aside the problem of identifying the basis upon which this duty to act at all times in Ms Breen's best interests is grounded, this argument is without substance. If it were correct, it would lead to the anomalous result that no breach of fiduciary relationship would exist if the doctor unconditionally denied a request for reasonable access, but that a breach of fiduciary obligation would exist if the denial was conditional. This is unacceptable. Duty must precede breach. In Tito v Waddell (No 2) (114), Megarry VC pointed out:

"If there is a fiduciary duty, the equitable rules about

self-dealing apply: but self-dealing does not impose the duty. Equity bases its rules about self-dealing upon some pre-existing fiduciary duty: it is a disregard of this pre-existing duty that subjects the self-dealer to the consequences of the self-dealing rules. I do not think that one can take a person who is subject to no pre-existing fiduciary duty and then say that because he self-deals he is thereupon subjected to a fiduciary duty."

In the present case, there was no breach of fiduciary duty in the conditional denial of access because there was no pre-existing duty on the part of Dr Williams to give access to the records.

29. It is also impossible to identify any profit that Dr Williams may have derived from the relationship beyond the payment of his authorised professional fees. Nor is the case one where Dr Williams seeks to make or has made a profit from confidential information that he obtained in the course of his relationship with Ms Breen.

30. The problem of reconciling the alleged fiduciary duty to act in the best interests of Ms Breen with other rights and obligations of Dr Williams and Ms Breen also makes it difficult to see how there could be a fiduciary duty to give access to records relating to her medical treatment. In Hospital Products, Mason J explained the relationship of fiduciary obligations and contractual rights and obligations as follows (115):

"That contractual and fiduciary relationships may co-exist

between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction."

31. The right of access claimed by Ms Breen is not one given by the contract between her and Dr Williams. Nor can it arise from any undertaking, express or implied, by Dr Williams to act as the representative of Ms Breen because no such undertaking was given. Moreover, the contract between the parties gives her no right to or interest in the medical records. They remain the property of Dr Williams (116). Furthermore, a fiduciary duty that Dr Williams would always act in Ms Breen's best interests, which is the foundation of the claim of a fiduciary obligation to provide access to the records, would conflict with the narrower contractual and tortious duty to exercise reasonable care and skill in the provision of professional advice and treatment that Dr Williams undertook.

32. In addition, Dr Williams is the owner of the copyright in the records. By federal law, ownership of the copyright gives Dr Williams a number of exclusive proprietary rights including the right to reproduce the records in any material form (117). He is the beneficial owner of those rights. He does not hold them on trust for Ms Breen. In the absence of an undertaking, express or implied, on the part of Dr Williams to allow her to copy the records, it is difficult to see how Ms Breen could be allowed to copy the records even if she had a right of access to the records.

33. In our view, there is no basis upon which this Court can hold that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. She seeks to impose fiduciary obligations on a class of relationship which has not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines governing the doctor-patient relationship, particularly in the areas of contract and tort. As Sopinka J remarked in Norberg v Wynrib (118):

"Fiduciary duties should not be superimposed on these common

law duties simply to improve the nature or extent of the remedy."

34. Dr Cashman relied strongly on the decision of the Supreme Court of Canada in McInerney v MacDonald (119) to support his contention that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. In McInerney, the Supreme Court held that a doctor owed a fiduciary duty to his or her patient to allow access to medical records, subject to certain conditions. La Forest J, who delivered the judgment of the Court, after holding that the doctor owes a duty to his or her patient "to act with utmost good faith and loyalty" (120), said (121):

"The fiduciary duty to provide access to medical records is

ultimately grounded in the nature of the patient's interest in his or her records. ... (I)nformation about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one's own. The doctor's position is one of trust and confidence. The information conveyed is held in a fashion somewhat akin to a trust. While the doctor is the owner of the actual record, the information is to be used by the physician for the benefit of the patient. The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue."

"The trust-like 'beneficial interest' of the patient in the

information indicates that, as a general rule, he or she should have a right of access to the information and that the physician should have a corresponding obligation to provide it. The patient's interest being in the information, it follows that the interest continues when that information is conveyed to another doctor who then becomes subject to the duty to afford the patient access to that information."

36. However, in this country it is not possible to regard the doctor-patient relationship as one in which the doctor is under a general duty "to act with utmost good faith and loyalty" to the patient. When a medical practitioner undertakes to treat or advise a patient on a medical matter, "(t)he law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment" (123), not a general duty "to act with the utmost good faith and loyalty".

37. Secondly, with great respect to La Forest J, it does not help analysis of the legal issues in the present class of case to say that the information "is held in a fashion somewhat akin to a trust" or that there is an expectation that the patient's "control of the information will continue". The information is not property (124). Moreover, the only control that a patient has over the information that he or she has given to the doctor is to restrain its improper use (125). Nor is there any trust of it. Equity does not require the doctor to record, account for or even remember the information. Nor can equity at the suit of the patient prevent the doctor from destroying the records that contain the information. The records are the property of the doctor. He or she may be restrained from using the information in them to make an unauthorised profit or from disclosing that information to unauthorised persons. But otherwise the records are his or hers to save or destroy. The idea that a doctor who shreds the records of treatment of living patients is necessarily in breach of fiduciary duties owed to those patients is untenable.

38. Furthermore, the judgment of La Forest J does not deal with the fact that the medical records of a patient will often, perhaps usually, contain much more than the information that the patient has given to the doctor. In addition to any observations concerning the patient's condition and notes recording treatment and research, the records may contain comments by the doctor about the personality and conduct of the patient. They may also contain information concerning the patient that the doctor has obtained from other sources. The patient has no rights in relation to or control over any information that has not come from him or her. We can think of no legal principle that would give the patient even a faintly arguable case for access to information in the records that is additional to what the patient has given. If the relationship of doctor and patient was a status-based fiduciary relationship in which the doctor was under a general fiduciary duty in relation to all dealings concerning the patient, the patient might be entitled to access to all the information in his or her medical records. But there is no general fiduciary duty.

39. La Forest J said that the "fiduciary duty to provide access to medical records is ultimately grounded in the nature of the patient's interest in his or her records" (126). However, the patient has no legal rights in respect of significant parts of the information contained in medical records. If a patient has a legal right of access to medical records merely because he or she has given personal and confidential information to a doctor, it would seem to follow that journalists, accountants, bank officers and anybody else receiving personal and confidential information always had a fiduciary duty to give access to their records to the person who gave that information (127).

40. Thirdly, the Canadian law on fiduciary duties is very different from the law of this country with respect to that subject. One commentator has recently pointed to the "vast differences between Australia and Canada in understanding of the nature of fiduciary obligations" (128). One significant difference is the tendency of Canadian courts to apply fiduciary principles in an expansive manner so as to supplement tort law and provide a basis for the creation of new forms of civil wrongs (129). The Canadian cases also reveal a tendency to view fiduciary obligations as both proscriptive and prescriptive (130). However, Australian courts only recognise proscriptive fiduciary duties. This is not the place to explore the differences between the law of Canada and the law of Australia on this topic. With great respect to the Canadian courts, however, many cases in that jurisdiction pay insufficient regard to the effect that the imposition of fiduciary duties on particular relationships has on the law of negligence, contract, agency, trusts and companies in their application to those relationships (131). Further, many of the Canadian cases pay insufficient, if any, regard to the fact that the imposition of fiduciary duties often gives rise to proprietary remedies that affect the distribution of assets in bankruptcies and insolvencies.

41. In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations - not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed (132). If there was a general fiduciary duty to act in the best interests of the patient, it would necessarily follow that a doctor has a duty to inform the patient that he or she has breached their contract or has been guilty of negligence in dealings with the patient. That is not the law of this country.

42. In Australia, therefore, McInerney cannot be regarded as a persuasive authority. In this country a court cannot use the law of fiduciary duty to provide relief to Ms Breen which, if granted, would have the effect of imposing a novel, positive obligation on Dr Williams to maintain and furnish medical records to Ms Breen. It follows that Dr Williams does not owe Ms Breen any fiduciary duty to give Ms Breen access to the medical records that relate to his treatment of her.

43. Dr Cashman contended that the law in Australia governing the doctor-patient relationship has moved to or is moving towards a recognition of the patient's "right to know" and that this was a reason why the Court should hold that a patient has a right of access to medical records concerning that person. He argued, relying particularly on the decision of this Court in Rogers v Whitaker (133), that this movement is recognisable in the law in five ways: an acceptance of the principle of personal inviolability; a rejection of a paternalistic approach which had been previously accepted; the rejection of the notion that the patient's interests are to be determined by standards exclusively fixed by the medical profession; the imposition of judicially imposed standards; and the acceptance of patient autonomy. Dr Cashman did not contend, however, that this "movement" in the law of itself gave Ms Breen the right of access for which he argued. Rather, he suggested that it advanced the validity of his other arguments.

44. While recent decisions of Australian courts have rejected the attempt to treat the doctor-patient relationship as basically paternalistic, it would require a quantum leap in legal doctrine to justify the relief for which Dr Cashman contends. Rogers took away from the medical profession in this country the right to determine, in proceedings for negligence, what amounts to acceptable medical standards. But the decision also rejected the notion of "the patient's right of self-determination" as providing any real assistance in the "balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure" (134).

45. No doubt there are people in this country who think that a patient should have an unrestricted right of access to medical records that concern that patient. Many others, Ms Breen among them, no doubt think that a patient should have access to such records, subject to limited exceptions. Perhaps only a very small minority of persons in Australia would think that in no circumstances should patients have access to information contained in their medical records. But absent a contractual right, the common law of Australia does not give a patient a right to have access to records, compiled by a medical practitioner, which relate to that patient. Nor, for the reasons that we have given, is it possible for this Court to develop existing principles to create such a right.

46. Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must "fit" within the body of accepted rules and principles. The judges of Australia cannot, so to speak, "make it up" as they go along. It is a serious constitutional mistake to think that the common law courts have authority to "provide a solvent" (135) for every social, political or economic problem. The role of the common law courts is a far more modest one.

47. In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the "new" rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions.

48. In the present case, it is not possible, without distorting the basis of accepted legal principles, for this Court to create either an unrestricted right of access to medical records or a right of access, subject to exceptions. If change is to be made, it must be made by the legislature. Order

The respondent is a medical practitioner. In 1978 he was consulted by the appellant and she was treated by him. In these proceedings, the appellant seeks to establish and enforce her legal entitlement to have access, for any purpose she may have, to records in the possession, custody or control of the respondent which contain information relating to the provision of treatment or advice to her by the respondent. In particular, the appellant asserts a legal right, upon reasonable request, to be given access by the respondent to examine and to obtain copies of those records, whether by copying herself or by provision of copies to her at reasonable cost.

2. Broadly, the respondent's position is to accept that the patient or former patient has a right to be informed of all relevant factual information contained in the medical records of the patient but to deny any entitlement in the patient to examine those records or to obtain copies.

3. The respondent submits that his stance is in accordance with the relevant resolution of the Federal Council of the Australian Medical Association ("the AMA"). At its meeting on 29 and 30 October 1993, the AMA resolved as follows:

"That the AMA endorses the following guidelines on patients'

access to records concerning their medical treatment:

THE PATIENT HAS A RIGHT TO BE INFORMED OF ALL RELEVANT

FACTUAL INFORMATION CONTAINED IN THE MEDICAL RECORD, BUT ALL DEDUCTIVE OPINION THEREIN RECORDED REMAINS THE INTELLECTUAL PROPERTY OF THE DOCTOR OR DOCTORS CONTRIBUTING TO, OR RECOGNISED EMPLOYING HOSPITAL OR OTHER ORGANISATION MAINTAINING THE RECORD. Where appropriate, such deductive opinion may be separately recorded.

On request, the patient should be informed of any or all

content of the following sections of the medical record;

History

Physical Examination Findings

Investigation Results

Diagnosis (Diagnoses)

Proposed Management Plan

The patient should be allowed access to any other contents

of the medical record (such as reports by specialists) beyond the materials above specified only at the discretion of the doctor or doctors who completed such additional section or sections, or by hospital administration after consultation with the doctor(s) who completed such section or sections, or as the result of a legal requirement.

Doctors and hospitals are entitled to recoup their costs of

Breen v Williams

At a glance

Court

Decision date

Before

Source

Judgment (494 paragraphs)

Breen v Williams ("Medical Records Access case") [1996] HCA 57; (1996) 186 CLR 71 (6 September 1996)

Parties

Legislation Cited (10)

Cases Cited (50)