Heath Care Complaints Commission v Dowla

Basis for the application to set aside the summonses

1. The HCCC relies on several different bases to set aside the summonses: 1. The HCCC submits that the summons to Medicare should be set aside on the basis that the documents sought (a list of names of doctors the patient has seen since the date of the asserted sexual assault by the practitioner) is a classic case of fishing, that the material sought has no apparent relevance, and could not throw light on the issues in the case. 2. As noted above, the HCCC only seeks to set aside, in a limited way, access to the documents from Mr Druitt Health Care and Blacktown Community Mental Health Service, and from Dr Bagherian and Dr Mirshahmir. It is conceded that the practitioner's lawyers set out a legitimate forensic basis for much reduced summonses. However, it is submitted that there is no legitimate basis to assert that it is "on the cards" that records post July 2017 will reveal prior sexual abuse allegations (pre December 2015). 3. The opposition to the paragraphs in the summonses addressed to Dr Bagherian and Dr Mirshahmir, in which correspondence between those doctors and the HCCC is sought, is based on the submission that no legitimate forensic purpose is established and the documents (insofar as they relate to the HCCC) are protected under s 99A of the Health Care Complaints Act.

Issues to be determined in this interlocutory application.

1. The parties' helpful written submissions set out the relevant principles to be considered in an application of this type. There was no real dispute about the core principles and their application. I discern that this application requires determination of the following matters: 1. Should the summons to Medicare be set aside? Is the summons a "fishing" expedition? 2. Is the limitation proposed by the HCCC on the records from Mr Druitt Health Centre reasonable and appropriate, or has the practitioner demonstrated a reasonable forensic basis for inspection of all the material produced? 3. Has the practitioner demonstrated a reasonable forensic basis to inspect the documents produced by the Blacktown Community Mental Health Service? 4. Is the correspondence between the HCCC and Dr Bagherian and Dr Mirshahmir "protected" by reason of s 99A of the Health Care Complaints Act? 5. If the Health Care Complaints Act does not protect the documents, has a legitimate forensic purpose been established for their inspection? 6. Has a legitimate forensic purpose been established for the inspection of the documents between Dr Bagherian and Dr Mirshahmir and the Medical Council?

Relevant Legal Principles

1. Paragraphs 31 to 34 of the NCAT Procedural Direction in relation to Summonses are clear. Those paragraphs deal with the situation such as the present dispute. Paragraphs 31 to 34 provide as follows: If the person named in the summons objects to complying with the summons or if another person affected by the summons objects to the summons being complied with, they should try to resolve the objection with the party who applied for the summons to be issued before the time for compliance. 32. Common objections are: (a) the summons is oppressive, for example because it is too wide in scope and imposes too great a burden on the person named in the summons; (b) the summons is too vague so that the person named in the summons cannot clearly identify what documents or other things are required to be produced; (c) the evidence, documents or other things are privileged from disclosure, for example because they are confidential communications between a lawyer and a client; (d) the evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings. 33. If the objector is unable to resolve the matter informally, the objector should: (a) before the time for compliance, inform the registrar and the party who applied for the summons of the basis for the objection. This should be done in writing; (b) attend the Tribunal on the date for compliance and be prepared to explain the basis for objection. 34. Objections that cannot be resolved by discussion and agreement will be referred to a Member for decision.
2. The authorities emphasise that documents required to be produced under summons should be those which have a "legitimate forensic purpose" and do not represent a "fishing expedition" (see NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139; Principal Registrar of the Supreme Court v Ali Tastan (1994) 74A CrimR 498 per Barr AJ). Other well-known authorities also refer to the "legitimate forensic purpose" test (see Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers' Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372; see also National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648; [1979] HCA 11).
3. In Council for the NSW Bar Association v Lott [2016] NSWCATOD (21 December 2016) I noted that "It is not in dispute a party seeking access to documents produced under subpoena (or in this case summons) carries 'at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case' (see Norris v Kandiah [2007] NSWSC 1296)".
4. I also noted that, in In the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491, Ward J had reviewed the authorities, both criminal and civil, dealing with documents whose production has been sought under a subpoena or Notice to Produce.
5. Her Honour cited as relevant Brereton J's (as his Honour then was) statement in Portal Software v Bodsworth [2005] NSWSC 1115. His Honour noted the test as being whether the documents have: A sufficient apparent connection to justify their production or inspection.
6. Further, in Council of the NSW Bar Association v Lott I noted that senior counsel for Mr Lott succinctly described alternate bases on which documents may demonstrate a legitimate forensic purpose if the documents had substantive relevance or adjectival relevance. In that matter, senior counsel submitted: "Substantive" relevance (relating to direct proof of a factual issue in the proceedings) or "adjectival" relevance which encompasses the notion that it is "on the cards" that the material sought to be produced will throw light on issues in the case.
7. In criminal proceedings Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65, Beazley JA rejected the argument that mere relevance might be sufficient to establish a legitimate forensic purpose.
8. Ward J, in One.Tel Ltd, noted Brereton J's explanation that the adjectival relevance test, as distinct from substantive relevance, "will be satisfied if the material has apparent relevance and is established if the documents called for 'could possibly throw light on the issues in the main case'".
9. Although judges in a number of cases have followed the test as enunciated by Brereton J in Portal Software, that a legitimate forensic purpose will be established if it appears "on the cards" that the documents sought will materially assist, Ward J explained in One.Tel Ltd that the "on the cards" test has not been broadly embraced, and referred to the decision of Nicholas J in ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306.
10. At [31] in One.Tel Ltd, Ward J adopted the reasoning of Nicholas J in ICAP Pty Ltd v Moebes saying: Applying in this case the test in civil proceedings, as stated by Nicholas J in ICAP (namely that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will", at [30]) and noting that it must be reasonable to infer that the documents so sought exist), a careful consideration is required of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena….
11. In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, Tobias JA referred to the use of the word "likely", in the context of "likely to materially assist an identified issue", as not being any different from "on the cards" (see also Sharpe v Grobbel [2017] NSWSC 1065 at [35]).
12. More recently, Ward J (Chief Judge in Equity) in Rinehart v Rinehart [2018] NSWSC 1102 set out a comprehensive review of the principles relevant to determine whether a subpoena is properly issued or should be set aside in whole or part. Her Honour explains at [43]-[48]: As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: ... it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): ... the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise. In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes "fishing".

The Medicare Summons

1. The summons to the Department of Human Services seeks a list of the names of doctors whom Patient A consulted in the period 1 December 2015 to date, and the names of the medical practices she attended in the same period.
2. In his submissions at [4] and [5] counsel for the practitioner notes: These proceedings concern a complaint made by the Complainant to the Commission (the Complaint) that she was subjected to inappropriate touching of a sexual nature by Dr Dowla during a consultation at Dr Dowla's medical practice on 1 December 2015 (the Incident). The only persons present during the Incident were the Complainant and Dr Dowla. As a result, credit is a central issue in these proceedings. Accordingly, evidence of the complaints made by the Complainant to other persons referring to the Incident is crucial.
3. The submissions refer to entries in the notes of the Mt Druitt Health Service when Patient A saw Dr Shamilia Sadhu very shortly after the alleged sexual assault occurred. The doctor recorded that Patient A said she "felt that he [the practitioner] behaved inappropriately" and that the incident "brought back memories of childhood abuse". It is also noted that Dr Mirshahmir, when she saw the patient on 6 January 2016, recorded that "she [Patient A] had a flash back of her past (sexually abuse and assaulted [sic]) ".
4. It is asserted by the practitioner's counsel that medical records produced by the Blacktown Community Mental Health Service for the earlier proceedings reveal that Patient A "alleged that she has been the victim of one or more prior unrelated incidents of sexual abuse". A report by Dr Bagherian of 8 December 2015 is noted to record "previously been involved with rape but never been believed". The submission notes at [12]: Plainly, this suggests that one or more other persons previously formed the view that the Complainant [Patient A] had made a false complaint of sexual abuse.
5. It is also noted in the submission that the medical records produced by the Blacktown Community Mental Health Service disclose that Patient A has "a history of serious mental health issues, including Borderline Personality Disorder (BPD) and Bipolar Illness".
6. It is submitted by counsel for the practitioner that given Patient A "made representations" about the asserted sexual assault the subject of the complaint to medical practitioners alleging prior sexual abuse, and because Patient A has mental health issues, it is "on the cards she has made representations about these matters to the same and/or other medical practitioners since 1 July 2017".
7. It is not disputed that the summons directed to Medicare is for the purpose of obtaining the names of all medical practitioners Patient A has seen since 2015 so that a summons can be directed to each medical practitioner named.
8. I am not satisfied that the practitioner has demonstrated a legitimate forensic purpose for this summons. First, I do not accept, on the evidence adduced before me and relied on by the practitioner's counsel, that Patient A has necessarily made prior inconsistent statements (and that it is therefore on the cards that she has made other inconsistent statements to doctors). The asserted prior inconsistent statements are the recording in brief clinical notes of general practitioners during consultations with Patient A close in time of the alleged assault by the practitioner. They are not the patient's own statements.
9. While I accept that the patient's records already available to the parties disclose she has had mental health issues, that fact does not lead me to a conclusion that it is on the cards that she has made disclosures of other prior sexual abuse to any or all of the medical practitioners she has consulted since 2015. There is simply no evidence before me to support a conclusion that, because Patient A, or any other patient, unfortunately suffers a mental illness, it is on the cards that she or he will make allegations of other sexual abuse to a doctor.
10. Secondly, I have regard to the purpose for which the summons has been issued. The purpose of the summons is to identify names of any medical practitioner to issue summons to those practitioners. The connection between any practitioner Patient A may have consulted and a disclosure of any prior sexual assault is, in my view, speculative, and constitutes a fishing expedition. I do not accept that the summons loses that character, as submitted by counsel for the practitioner, because Patient A referred to a previous episode of sexual abuse at the time she consulted her general practitioners shortly after the alleged assault by the practitioner.
11. Thirdly, I am not satisfied that a legitimate forensic basis is established for inspection of the documents produced by the Department of Human Services on behalf of Medicare (given the ultimate purpose of the material disclosed by the summons). The practitioner's counsel submits at [14] of his submissions: Dr Dowla intends to adduce expert evidence in relation to the effects of BPD and possibly the other illnesses from which the Complainant suffers on the veracity of the Compliant.[sic]
12. The oral submission made by counsel for the practitioner before me is that expert evidence will be adduced to demonstrate that persons who suffer Borderline Personality Disorder have a propensity to make sexual abuse claims, and it is a legitimate exercise in these circumstances to examine all Patient A's medical records. There was no expert evidence of this asserted characteristic of persons who suffer borderline personality disorder before me, or even identification of the expert proposed to adduce such evidence. Rather, I am satisfied that the summonses to be issued, from the list of names revealed by Medicare, is essentially based on mere speculation that one or more records may contain other sexual abuse disclosures.
13. The practitioner's counsel also relied on the decision of Brereton J in Liristis v Gabelrabb [2009] NSWSC 441 that it is not proper to object to a subpoena on the basis that it seeks documents only relating to credit. However, his Honour's reasoning discloses, while stating the general proposition, that he adopted as correct the reasoning of Weinberg J in Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911, namely, that "it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness". In other words a "fishing expedition". But Brereton J went on to explain that a legitimate purpose may be established if it is on the cards that relevant documents, even if only relevant to credit, will be produced in response to a subpoena. In the instant case before his Honour there was evidence that a party had criminal convictions for dishonestly and perjury and in those circumstances there was a legitimate forensic purpose in the subpoena addressed to the Police Commissioner.
14. Here, the relevant nexus, between the ultimate purpose of the summons (to elicit practitioners' names to issue further summons on the basis that some doctor's records may contain a report of sexual abuse prior to 2015) and the issue of credit, is purely speculative.
15. I am satisfied it would be an abuse of process for summonses to be issued to any practitioner Patient A has consulted. This is because the practitioners would be involved in the expense of producing clinical records based on speculation that the patient may have made disclosures prior sexual abuse. Accordingly, I propose to order that the documents produced by the Department of Human Services be returned to that department.

Is the limitation proposed by the HCCC on the records from Mr Druitt Health Centre reasonable and appropriate, or has the practitioner demonstrated a reasonably forensic basis for inspection of all the material produced?

1. As noted above, the HCCC concedes that any clinical notes, relevant to the practitioner's reporting of the alleged abuse by the practitioner after July 2017 to date, may be inspected.
2. The HCCC disputes the practitioner's assertion that evidence in the Stage 1 proceedings, which they have inspected, contains prior inconsistent statements by Patient A when compared to the complaint. I do not have the benefit of any statement adduced in evidence in the prior proceedings by Patient A. Nonetheless, I note that this submission appears to be based on the extracts of the general practitioner's records set out earlier in these reasons. I agree with, and accept the HCCC's submission, that "At their highest the notes record what was written by the medical practitioner not necessarily what was said by the complainant".
3. The HCCC submissions note that the fact that Patient A may have been sexually abused in the past "says nothing adverse as to her recollection of matters on 1 December 2015 or the veracity of her complaint". It is noted that Patient A reported the alleged abuse ("the incident") shortly after it occurred.
4. It is also submitted that "it is difficult to see how it is on the cards that a mental health illness suffered by the complainant in 2018 impacts on the veracity of a complaint about an incident on 1 December 2015". A second basis for resisting inspection of the clinical records is that such material may not be admissible in the proceedings "given it is a protected confidence". Reference is made to s 126A and s 126B of the Evidence Act 1995 (NSW).
5. I accept the concessions, made by the HCCC, that a genuine forensic purpose has been established, in part, in respect of the summonses issued to Blacktown Community Mental Health Service and Mt Druitt Health Care. The practitioner has a legitimate purpose, where the credit is a central issue to be determined, to test Patient A's evidence, including any reporting she has made of the incident post July 2017.
6. I am not satisfied that the practitioner has established that there is a reasonable likelihood, or that it is on the cards, that post July 2017 Patient A has reported other prior sexual abuse. The reporting of the prior sexual abuse was made contemporaneously with, and in the context of, the alleged abuse by the practitioner. I am satisfied that it is a matter of speculation that Patient A may have made further reports post July 2017.
7. I accept that the limitations on the material produced by Mr Druitt Health Care, sought by the HCCC, are appropriate. Accordingly, I propose to order that initial inspection be limited to the HCCC. The HCCC must thereafter produce copies of relevant entries in the clinical records, if any, to the practitioner's solicitors within 7 days of the date of these orders.

Has the practitioner demonstrated a reasonable forensic basis to inspect the documents produced by the Blacktown Community Mental Health Service?

1. I turn now to the issue of the patient's mental health records. As I understand it, records from the Blacktown Community Mental Health Service up to 1 July 2017 were admitted into evidence at the prior hearing.
2. In this application I am not making a determination about admissibility, but it is appropriate that I consider whether the documents, if inspected and sought to be tendered, are admissible, having regard to ss 126A and 126B of the Evidence Act.
3. Section 126A provides as follows: 126A Definitions (1) In this Division: harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. protected confider means a person who made a protected confidence. protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence. (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication.
4. Section 126B is as follows: (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section.
5. It will be remembered that, unlike professional disciplinary proceedings involving lawyers, the rules of evidence in relation to admissibility of evidence do not apply in these proceedings (see Sch 5D cl 2 of the National Law) but the Tribunal can inform itself in any way it sees fit. However, the Tribunal is bound to observe the rules of natural justice and procedural fairness. The provisions of the Evidence Act provide a relevant and useful framework to consider matters of procedural fairness.
6. It is unnecessary that I determine, at this stage, any application to adduce into evidence Patient A's clinical records from the Blacktown Community Mental Health Service. Such records may be matters of extreme sensitivity affecting Patient A and potentially other persons such as her family members. Their admission may be harmful to the patient. There may also be good public policy reasons why such evidence should not be admitted. On the other hand, procedural fairness to the practitioner may dictate the records should be admitted. I simply note that if the records are inspected and subsequently sought to be adduced, there may be issues about admissibility. However, that is not determinative of the issue in this application.
7. The practitioner's counsel submits that the records from the Health Service previously produced reveal that Patient A "regularly attended on that service and made representations to medical practitioners about the alleged assault, her alleged prior sexual abuse, the relationship between those two matters and her mental health". It is submitted that it is likely that Patient A continued to make such allegations.
8. From the material before me I discern, at its highest, the practitioner essentially asserts that the factual matter, which the documents sought could prove, or tend to prove, is that Patient A continues to suffer a mental illness such that her evidence of the events, which occurred in December 2015, is unreliable, or at least it is likely the records will disclose ongoing mental illness which may affect the reliability of Patient A's evidence.
9. I find there is some force in the argument advanced by counsel for the HCCC that, prima facie, it is difficult to see how a mental illness suffered by a complainant in 2018, if any, impacts on the veracity of a complaint made about an incident on 1 December 2015, which was reported soon after that date. I also accept that the asserted basis for inspection of these records, namely that expert evidence will be adduced to establish a link between bipolar disorder and or borderline personality disorder and reporting of sexual abuse, is not presently established.
10. The only other basis for inspection is a general one relating to credit. At its highest, I must consider whether it is on the cards that the documents produced are likely to establish some linkage between Patient A's mental health post 2017, and the reliability of Patient A's evidence of events in 2015. Of course, unreliability, if any, may be due to the effluxion of time since the alleged assault rather than any other cause. However, I find there is a degree of artificiality in the HCCC's position that the records up to July 2017 (being the date of the Stage 1 proceedings) are available to both parties but not thereafter. I propose to allow inspection of the material produced by Blacktown Community Mental Health Service.

Is the correspondence between the HCCC and Dr Bagherian and Dr Mirshahmir "protected" by reason of s 99A of the Health Care Complaints Act?

If the Health Care Complaints Act does not protect the documents, has a legitimate forensic purpose been established for their inspection?

1. I commence my consideration of these questions by noting that the submissions of the HCCC refer to correspondence from the practitioner's lawyers to the HCCC dated 23 August 2018, and that no correspondence was tendered before me.
2. It appears that the basis on which the Summonses seeking correspondence between the HCCC and Dr Bagherian and Dr Mirshahmir were issued is because the practitioner has an understanding that Patient A made a complaint about the two doctors to the HCCC. The HCCC's submissions note that "It is not set out what was the Respondent's understanding of the actual complaint or how such an understanding was gained". I accept that submission accurately reflects the evidence, or rather lack of evidence, before me.
3. The practitioner's counsel does not address this aspect of the HCCC's submissions. Rather it is asserted at [52]-[53]: The legitimate forensic purpose of such documents is obvious; it will disclose documents referring to the Incident, which is the central issue in relation to these proceedings. Those documents will record what the Complainant told the doctors in relation to the Incident; and what those doctors then did (or did not do) in relation to the Incident.
4. It is further submitted by the practitioner's counsel that s 99A of the Health Care Complaints Act is not relevant in the present circumstances because "it now seems apparent that the Complainant did not institute any complaints against the two doctors; but the Commission itself is the complainant"
5. After referring to s 80 of the Health Care Complaints Act, it is submitted at [57]-[60]: Accordingly, it seems that s80(1)(c) is relevant as the Commission itself made the complaint concerned the professional conduct of the two health practitioners. Dr Dowla does not seek internal documents within the Commission considering its position in relation to what it ought to do in relation to the Complaints. What is sought is merely the correspondence between the doctors on the one hand and the Commission and the Medical Council on the other. The production of such documents is not disclosing information "obtained in exercising a function under this Act". It is akin to requiring production by an income tax payer in relation correspondence between him or her and the Australian Tax Office. Such correspondence is not "exercising a function under the Act" and is routinely produced.
6. These submissions require consideration of ss 80 and 99A of the Health Care Complaints Act as applicable to this application.
7. Section 80 provides as follows: 80 Functions of Commission (1) The Commission has the following functions: (a) to receive and deal under this Act with the following complaints: • complaints relating to the professional conduct of health practitioners • complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients • complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, (d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part, (e) to monitor, identify and advise the Minister on trends in complaints, (f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with, (g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints, (h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process, (i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions. (j) (Repealed) (2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act. (3) A code of practice developed by the Commission under subsection (1) (i) has no effect unless it is incorporated in, or adopted by, the regulations. (4) The Commission may exercise its functions even though: (a) the Commission has not developed a code of practice in relation to those functions, or (b) a code of practice has been developed but has not been incorporated in, or adopted by, the regulations. (5) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions. Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff.
8. Section 99A of the Health Care Complaints Act provides as follows: 99A Offence: improper disclosure of information (1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made: (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both. (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act. (3) Subsection (2) does not apply to the following proceedings: (a) proceedings under the Royal Commissions Act 1923, (b) proceedings before the Independent Commission Against Corruption, (c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983, (d) an inquiry under the Ombudsman Act 1974.
9. In construing ss 99A and 80 I must adhere to well-known principles of statutory construction. Those principles are succinctly summarised by Principal Member Britton in Mahony v Dental Council of NSW [2018] NSWCATOD 146 at 44 and 45, as follows: Courts and tribunals are obliged, in interpreting statutes, to give effect to the will of the legislature as can be divined from the text of the statute itself. This is not an exercise in discretion. The text of a provision is the starting point. Context and purpose must be taken into account where they rationally assist the proper understanding of a statutory provision, especially in cases where a provision is ambiguous and, on its face, capable of different constructions. But it is not necessary first to find ambiguity to consider context and purpose. Context includes material that, according to reason and logic, can inform a proper understanding of the text of a legal instrument or statute: CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2 (1997); 187 CLR 384. This may include other parts of a statute or the statute taken as a whole. Generally a statute should be read as a whole to find the proper context for interpretation of particular provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. This approach may have to be modified when the statute is divided, as is the National Law, into multiple parts but the general principle is that words receive the same meaning and are used consistently throughout a statute: see, for example, United Airlines v Sercel Australia [2012] NSWCA 24 and DC Pearce & RS Geddes, Statutory Interpretation in Australia, 8th edn (2014) [4.6].
10. I also take into account s 33 of the Interpretation Act 1987 (NSW), namely that: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
11. I accept that the correspondence between the doctors and the Medical Council is not afforded protection by s 99A of the Health Care Complaints Act (see Sinclair v Psychology Council of NSW [2017] NSWCATAD 8).
12. In Quach v RU (No 1) [2017] ACTSC 233, Penfold J considered s 99A in the context of an appeal by Mr Quach against the refusal of a Magistrate to grant a personal protection order in his favour against a solicitor employed by the HCCC. The solicitor had corresponded with the plaintiff about an outstanding costs order made in favour of the HCCC. The appellant issued a subpoena. The HCCC relied on s 99A to resist production in 8 of 21 categories of documents sought. Penfold J noted that the HCCC's initial response to the subpoena was to rely on s 99A as "a complete answer to any demand for documents". At [61]-[63] Penfold J explained: A number of comments can be made about these provisions. (a) The protection given by s 99A applies to information "obtained in exercising a function" under the Act; it does not apply to every piece of information held by the HCCC or any other relevant body. Employing staff to perform the functions listed in s 80 is unlikely, in my view, to be a "function" of the HCCC, and the protection given by s 99A seems unlikely to extend, for instance, to routine information held about staff or about their employment. (b) The provisions seem to be intended to protect the privacy of people involved in health care complaints, whether as patients, doctors or other medical professionals, rather than to protect the organisation or its employees from any scrutiny of their conduct. (c) Section 99A(1) creates an offence of disclosing the protected information except in specified circumstances, which circumstances include where the disclosure is "for the purposes of any legal proceedings arising" out of the Act, or "with other lawful excuse"; that is, the provision does not render it an offence to disclose information in those circumstances. (d) Section 99A(2) protects the HCCC from being compelled, even in legal proceedings, to reveal information "obtained in exercising a function" under the Act but again, does not prevent it releasing any such information . For all these reasons, it seems to me that the provision does not give the HCCC such a broad exemption from the production of material under subpoena as it seems to have assumed over time. The HCCC's willingness at a later stage in the proceedings to examine Mr Quach's subpoena with a view to determining whether it did seek any information that could lawfully be provided having regard to s 99A, and that should be provided, suggests that there may now be some recognition within the HCCC that the section is not as wide as previously assumed.
13. I do not accept the submission of the practitioner's counsel that the HCCC was not carrying out a function under the Act (as set out in s 80) when corresponding with the doctors. It appears to me that it was carrying out its statutory function to investigate a complaint made by Patient A. Even if I am wrong about that, and the HCCC was using the correspondence to initiate a complaint about the doctors with the Medical Council, it was exercising a function under the Health Care Complaints Act. This may be contrasted with the position which prevailed in Quach v RU where what was sought included contracts of employment including details of salary of RU, an employee of the HCCC. Accordingly I agree with the submissions of counsel for both the HCCC and the doctors that s 99A provides immunity for the documents sought. Accordingly, it is unnecessary and inappropriate to consider whether the documents sought have a legitimate forensic purpose.

Has a legitimate forensic purpose been established for the inspection of the documents between Dr Bagherian and Dr Mirshahmir and the Medical Council?

1. I commence my discussion of this question by noting that Ms Mathur of counsel appeared for Dr Bagherian and Dr Mirshahmir. Ms Mathur explained that neither doctor had any clinical records. Both doctors formerly worked at Mr Druitt Health Care and any records relating to Patient A are held by that centre.
2. Ms Mathur submitted that to require the two doctors to produce their respective correspondence with the HCCC was seeking to obtain those documents "through the backdoor" because the correspondence was properly protected by s 99A of the Health Care Complaints Act.
3. Ms Mathur submitted, and I accept, that although the Medical Council of NSW (the Medical Council) did not appear or object to its material being inspected (as noted by counsel for the HCCC) for policy reasons, leave to inspect any material produced should not be granted. This is because the Medical Council, in carrying out its functions, may ask questions of practitioners who are bound to reply to such questions about their practice with frankness and candour. Such material may be very relevant if the practitioner, to whom the questions are directed, is the subject of proceedings in the Tribunal, but not in circumstances such as the instant case. To permit inspection could undermine the integrity of the processes of the Medical Council.
4. I am satisfied for the reasons advanced by Ms Mathur that leave should not be granted to inspect correspondence between Dr Bagherian and Dr Mirshahmir and the Medical Council. So far as I can discern, no documents have been produced by the doctors or the Medical Council.
5. I have already dealt with the issue of the correspondence between the two doctors and the HCCC above. For the reasons there enunciated, I find that the summonses addressed to Dr Bagherian and Dr Mirshahmir should be set aside.

ORDERS 1. The Registrar is requested to return to the Department of Human Services (Cth) documents produced by that Department. 2. The Summons to Dr Malahat Bagherian is set aside. 3. The Summons to Dr Maryam Mirshahmir is set aside. 4. Leave is granted to both parties to inspect documents produced by the Blacktown Community Mental Health Service. 5. Leave is granted to the Health Care Complaints Commission to inspect documents produced by Mt Druitt Health Care. 6. The Health Care Complaints Commission is to provide to the respondent's solicitors copies of any clinical record of Patient A from the Mt Druitt Health Care relating to the circumstances set out in paragraph 5 of its written submissions dated 10 September 2018 and as set out in paragraph 7 of these reasons for decision. 7. The costs of this interlocutory application are reserved to the substantive hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2018