Kadian v Richards

CITATION : Kadian v Richards [2004] NSWSC 382 HEARING DATE(S) : 11 March 2004 JUDGMENT DATE : 22 June 2004

JURISDICTION: Common Law Professional Negligence List JUDGMENT OF : Campbell J DECISION : Declaration that right of confidentiality with treating doctors waived by commencing proceedings not made. Application for proceedings to be stayed until plaintiff provided authority for treating doctors to discuss management and treatment of plaintiff with legal representatives of defendants dismissed.

CATCHWORDS : CONFIDENTIAL INFORMATION - doctor-patient confidentiality - sources of obligation of confidentiality - content of obligation - whether obligation waived by patient commencing litigation which puts his or her health in issue - whether proceedings should be stayed unless plaintiff consents to interview taking place between defendant's lawyers and plaintiff's present treating doctors - PROFESSIONS AND TRADES - medical and related professions - doctor-patient confidentiality - sources of obligation of confidentiality - content of obligation - whether obligation waived by patient commencing litigation which puts his or her health in issue - whether proceedings should be stayed unless plaintiff consents to interview taking place between defendant's lawyers and plaintiff's present treating doctors - PROCEDURE - miscellaneous procedural matters - stay of proceedings - when appropriate - PROCEDURE - Supreme Court procedure - claim for declaration that right had been waived - need for person affected by that right to be party to the litigation - EVIDENCE - proof of a negative proposition - onus of proof Evidence Act 1995 (NSW) Health Insurance Act 1980 (Ont) Health Records and Information Privacy Act 2002 LEGISLATION CITED : Medical Practice Act 1992 Medical Practice Regulation 1998 Medical Practice Regulation 2003 Privacy Act 1988 (Cth) A and Others v Hayden and Others (1984) 156 CLR 532 A and Others v Hayden (1984) 156 CLR 532 Abrath v The North Eastern Railway Company (1883) 11 QBD 440 Gustav Adolph Abrath v The North Eastern Railway Company (1886) 11 App Cas 247 AG Australia Holdings Ltd v Burton and Another [2002] NSWSC 170; (2002) 58 NSWLR 464; (2002) 58 IPR 268 Alliott v Smith [1895] 2 Ch 111 Ansley v Ansley (1973) 12 RFL 93; [1973] 5 WWR 181 Apollo Shower Screens Pty Ltd and Another v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR Attorney-General v Mulholland; Attorney-General v Foster [1962] 2 QB 477 Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 Australasian Oil Exploration Limited v Lachberg (1958) 101 CLR 119 Baker v Campbell (1983) 153 CLR 52 Banning v Wright [1972] 1 WLR 972 Bolckow, Vaughan, & Co v Fisher and Others (1882) 10 QBD 161 Borque v LeBlanc (2002) 225 DLR (4th) 720 Breen v Williams (1996) 186 CLR 71 Browne v Dunn (1893) 6 R 67 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Cook v Ip et al (1985) 22 DLR (4th) 1; 5 CPC (2d) 81; 52 OR (2d) 289 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another (1987) 14 FCR 434 Crowley v Glissan (No.2) (1905) 2 CLR 744 Currie v Dempsey (1967) 69 SR (NSW) 116 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 The Dairy Farmers' Co-operative Milk Company Limited and Another v The Commonwealth and Others (1946) 73 CLR 381 Davlon Pty Ltd v Ku-ring-gai Municipal Council (1968) 89 WN (NSW) 26 Doe et al v Eli Lilley & Company Inc. et al (1983) 99 FRD 126 Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 Evers v Firth (1986) 10 NSWLR 22 Frenette v Metropolitan Life Insurance Co (1992) 89 DLR (4th) 653; [1992] 1 SCR 647 Garner v Garner (1920) 36 TLR 196 Gartside v Outram (1856) 26 LJ Ch 113 Griffin v Sogelease Australia Ltd and Others (2003) 57 NSWLR 257 Grofam Pty Ltd and Others v KPMG Peat Marwick and Others (1993) 43 FCR 396 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Halliday and Johnstone v McCulloch and Insurance Corporation of British Columbia (1986) 14 CPC (2d) 70; 1 BCLR (2d) 194 Halls v Mitchell [1928] 2 DLR 97; [1928] SCR 125 Hay v University of Alberta Hospital (1990) 69 DLR (4th) 755 Hope v Brown (1990) 45 CPC (2d) 22; [1991] 2 WWR 638, 52 BCLR (2d) 234 Hunter v Mann [1974] 1 QB 767 CASES CITED : Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 Kaiser Resources Ltd v Western Canada Beverage Corp (1992) 71 BCLR (2d) 236; 34 ACWS (3d) 1025 Kroeker v Macewan [1991] BCJ No 2084 Kunstler v Kunstler [1969] 1 WLR 1506 London Passenger Transport Board v Moscrop [1942] AC 332 Lyell v Kennedy (No.2) (1883) 9 App Cas 81 M (A) v Ryan (1997) 143 DLR (4th) 1 M (N) v Drew Estate (2003) 230 DLR (4th) 697 Mann v Carnell (1999) 201 CLR 1 McGrory v Electricity Supply Board (Supreme Court of Ireland, 24 July 2003, unreported) McGuire v Ferguson and Anor (Supreme Court of New South Wales, 11 December 2001, Solomon AJ unreported) Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 Re Moage Ltd (in liq); Sheahan v Pitterino and Others (1998) 26 ACSR 726 Morin v Tessier 5 WDCA (2d) 123; [1994] OJ No. 361 News Ltd and Others v Australian Rugby Football League Ltd (1996) 21 ACSR 635 Nicholson v Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (24 June 1999, unreported) Nur v John Wyeth & Brother Ltd [1996] 7 Med LR 300 Parramatta City Council v Bolton [1974] 2 NSWLR 241 Parry-Jones v Law Society and Others [1969] 1 Ch 1 R v Elizabeth Gibbons (1823) 1 Car & P 97; 171 ER 1117 Rogers V Hunter et al (1981) 34 BCLR 206 Sankey v Whitlam (1978) 142 CLR 1 Sharpe v Smail and Another (1975) 49 ALJR 130 Shaw v Skeet Aung Sooriakumaran [1996] 7 Med LR 371 Slavutych v Baker et al (1975) 55 DLR (3d) 224; [1976] 1 SCR 254; 38 CRNS 306 Smith Kline & French Laboratories Limited and Others v Inter-continental Pharmaceuticals (Australia) Pty Limited and Another (1969) 123 CLR 514 St Louis v Feleki (1990) 75 DLR (4th) 758 St Louis v Feleki (1993) 107 DLR (4th) 767 Stoodley v Ferguson (2001) 93 Alta LR (3d) 78 Sugarman v Radomsky (1997) 214 AR 118; 26 CPC (4th) 379; [1997] AJ Number 596 Sullman v Sullman [2002] NSWSC 169; (2002) DFC 95-248 Swirski v Hachey (1995) 132 DLR (4th) 122 Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 V (KL) v R (DG) (1993) 81 BCLR (2d) 191; 40 ACWS (3d) 1050 W v Edgell and Others [1990] Ch 359; p1990] 1 All ER 835 Walton v Gardiner (1993) 177 CLR 378 Watson v M'Ewan; Watson v Jones [1905] AC 480 Wells v Paramsothy (1996) 98 OAC 233; 32 OR (3d) 452 Welsbach Incandescent Gas Lighting Company v New Sunlight Incandescent Company [1900] 2 Ch 1 West v Mead [2003] NSWSC 161 Wheeler v Le Marchant (1881) 17 ChD 675 Williams and Others v Spautz (1992) 174 CLR 509 Ankur Kadian (by his tutor Janak Kadian) - First Plaintiff Janak Kadian - Second Plaintiff PARTIES : Gurmeet Kadian - Third Plaintiff Bruce Richards - First Defendant Western Sydney Area Health Service - Second Defendant FILE NUMBER(S) : SC 20219/01 I Butcher - Plaintiffs COUNSEL : S Woods - First Defendant Ms Organ, Solicitor - Second Defendant McLaughlin & Riordan - Plaintiffs SOLICITORS : Blake, Dawson Waldron - First Defendant GIO Australia Ltd - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20219/01 ANKUR KADIAN BY HIS TUTOR JANAK KADIAN AND ORS v BRUCE RICHARDS AND ANOR

Nature of the Application 1 The plaintiffs in this matter are a six-year-old boy ("Ankur") and his parents. Ankur was born on 20 January 1998 with a congenital heart disease and a defective right kidney. 2 The First Defendant is a paediatrician who had care of Ankur during the first nine months of his life. Ankur sues him for negligence, concerning an alleged delay in diagnosis of the congenital heart disease, where that delay is alleged to have caused irreversible damage through the onset of pulmonary hypertension. The Second Defendant is a public authority which operates the Auburn Hospital, where Ankur's mother received some antenatal treatment, and where Ankur was born. Ankur sues it for negligence. The parents sue both defendants for negligence, consisting of the same allegedly defective treatment on which Ankur sues, which is alleged to have caused them damage through nervous shock. 3 When Ankur was nine months old, the First Defendant referred him to Dr Gary Sholler, a paediatric cardiologist. The application was presented before me on the basis that since that referral all the treatment which Ankur has received has been appropriate. Dr Sholler continues to be his consulting cardiologist. 4 Ankur's defective right kidney was diagnosed before he was born. Its existence has, however, been a factor which needs to be taken into account in evaluating the treatment he has received. Dr Deborah Lewis is a paediatric nephrologist who has treated Ankur from time to time, throughout his life, and continues to treat him. 5 The orders which the First Defendant seeks in this application are: "1. A declaration that in commencing these proceedings the first plaintiff has waived his right to confidentiality which arises from the doctor/patient relationship between the first plaintiff and Dr Gary Sholler and Dr Deborah Lewis. 2. An order that the proceedings be stayed until the plaintiff provides a signed written authority permitting Dr Gary Sholler and Dr Deborah Lewis to discuss their management and treatment of the first plaintiff with legal representatives of the first defendant."

Relationship Between this Application and the Proceedings 6 The proceedings were begun by Statement of Claim filed on 29 March 2001. The records of Dr Sholler have been produced under subpoena, issued on behalf of the First Defendant. Apart from two letters passing between Dr Sholler and the solicitor for the Plaintiffs, for which privilege was claimed, all parties have had access to those records. 7 On 21 March 2002 Blake Dawson Waldron ("BDW"), the solicitors for the First Defendant, wrote to McLaughlin & Riordan ("M&R"), the solicitors for the Plaintiffs, requesting that the First Plaintiff "expressly waive the claim to doctor/patient confidentiality (although, of course, retaining any claim to legal professional privilege that is appropriate)", so that they could speak to Dr Sholler. The reasons given for wishing to do this were "in order to understand the cause of the first plaintiff's pulmonary hypertension" and "to discuss with Dr Sholler issues relevant to the nature and extent of the first plaintiff's congenital heart defects and the relationship between those and his pulmonary hypertension." After three reminders, M&R replied on 12 July 2002 declining to waive the confidentiality. A Notice of Motion seeking orders like those now sought before me (though relating only to Dr Sholler, not to Dr Lewis) was filed on 6 September 2002. The hearing of that Notice of Motion was delayed until some other matters concerning the proceedings became clearer. It was only on the hearing of the application before me that the Notice of Motion was amended so that the orders sought extended to Dr Lewis. 8 On 16 October 2002 M&R wrote to BDW saying: "With respect to the Order sought, "permitting Dr Gary Sholler to discuss his management and treatment of the first plaintiff with legal representatives of the first defendant", please specify whether the first defendant proposes such discussions by way of conference, or by way of written report in relation to specific questions put by the first defendant. In an attempt to resolve this dispute before 1st November, please provide us with a list of questions which the first defendant proposes to have Dr Sholler address, so that we can consider whether to advise the plaintiffs to authorise Dr Sholler to address such questions in writing. We suggest that the said list of questions be provided to us by way of a proposed letter of instruction addressed to Dr Sholler, requesting a formal report. If the first defendant will not agree to provide us with such a document, necessitating argument on the Notice of Motion on 1st November, we will tender this letter in any subsequent application for costs." 9 BDW replied on 24 October 2002 saying: "1. We propose to have a conference with Dr Gary Sholler; 2. We do not propose to prepare a specific list of questions. It is not practicable to do so as the answers to set questions may necessitate other areas of inquiry; 3. We are prepared to provide you with a list of issues in paragraph 4 below which we intend to discuss with Dr Sholler. We note, however, for the reasons set out in paragraph 2 above, it may be necessary to proceed beyond the listed issues; 4. We intend to discuss the following matters with Dr Sholler: (a) Dr Sholler's observations of Ankur, including but not limited to signs and symptoms of pulmonary vascular disease, during consultations; (b) Findings on examination of Ankur; (c) The history of Ankur's illness, including the onset of signs and symptoms, reported to Dr Sholler by the Kadians; (d) Provisional and preliminary diagnosis of Ankur's condition made by Dr Sholler; (e) The nature of Ankur's pulmonary vascular disease; (f) Development of Ankur's pulmonary vascular disease, in particular but not limited to the likely timing of the establishment of Ankur's pulmonary vascular disease; (g) The likelihood of detection of the pulmonary vascular disease at particular times during the first 9 months of Ankur's life; (h) On what occasions, if any, did Dr Sholler detect a heart murmur and the difficulty or otherwise involved in detecting the heart murmur; (i) Dr Sholler's comment in a treatment report regarding Ankur that "it may be that pulmonary resistance has remained relatively high from birth"; (j) Whether Dr Sholler was informed that a heart murmur was detected by Dr Bolisetty; (k) Details of Ankur's underlying venous sclerotic process and its impact on pharmacological and surgical treatment of pulmonary vascular disease; (l) The impact of the timing of diagnosis on outcome; and (m) Timing of surgery and impact on outcome." 10 M&R wrote to BDW on 31 October 2002 saying: "We are not prepared to consent to your client obtaining a written report in lieu of a conference with Dr Sholler, based upon the issues you have outlined, as the vast majority of these are matter which any medico-legal expert would be able to address." 11 The proceedings have not yet been set down for trial. At present, the plaintiffs have given no indication as to whether Dr Sholler and Dr Lewis will, or will not, be called by the plaintiffs as witnesses at the trial. PART B - HAY AND ITS AFTERMATH

Hay v University of Alberta Hospital 12 Hay v University of Alberta Hospital (1990) 69 DLR (4th) 755 is the start of a line of Canadian cases on which the First Defendant relies in support of his submission that doctor-patient confidentiality between Ankur and Doctors Sholler and Lewis has been waived. It is a decision of Picard J, in the Alberta Court of Queen's Bench. In that case the plaintiff sued the defendant for negligent performance of heart surgery. The plaintiff was treated by three other doctors after that surgery. The plaintiff authorised the release of medical records from the treating doctors to defence counsel, but refused to consent to any discussions or consultations between defence counsel and those doctors. The defendant made an application for an order permitting defence counsel to interview the treating doctors. The plaintiff proposed to call the treating doctors as witnesses at the hearing. 13 Picard J posed the problem she was considering at 757-8: "The issue requires a consideration of the position of a treating physician who will be called as a witness in a lawsuit. The fact that such a person is both a physician and a witness raises legal principles that may seem to conflict. The physician-patient relationship is clothed with confidentiality, a right which may be waived by the patient. Confidentiality is an important attribute of the physician-patient relationship, essential in promoting open communication between physician and patient. The patient may expressly waive this right or, by his actions, be found to have impliedly waived it. Alternatively, an overriding public interest or a statutory direction may justify a physician disclosing information about the patient. In the absence of such circumstances, the right remains and a physician who divulges confidential information could face an action for breach of confidentiality, a possibility which obviously causes physicians some concern. However, once in the witness-box, a physician is like any other witness and cannot claim privilege, that is to say he is compellable to testify about matters involving the patient even in the absence of the patient's consent. An exception arises where privilege may be asserted on the basis of solicitor-client privilege but that is not the case here. Thus, in court, a physician must testify if asked about matters which would have been protected by the patient's right to confidentiality at an earlier time. In the pre-trial stage, if the right to confidentiality is removed, the physician is in the position of any other witness and may be contacted without the requirement of consent of the party who will be calling him. Whether a witness agrees to an interview and what he chooses to say is within his authority and responsibility." 14 Picard J referred to Cook v Ip et al (1985) 22 DLR (4th) 1 (a case concerning a defendant's lawyers obtaining access under a subpoena to a plaintiff's medical records), Ansley v Ansley [1973] 5 WWR 181 (a case concerning disclosure of the names of physicians who had provided treatment to a litigant), and to a passage in Wigmore on Evidence para 2389 (McNaughton Rev, 1961) concerning waiver, by bringing suit, of the medical privilege which some United States jurisdictions recognise. Concerning that passage from Wigmore her Honour said, at 761, "although this excerpt addresses the issue of waiver of privilege, the comments are relevant to this application and waiver of confidentiality". Her Honour then continued, at 761-2: "I find that the right of the patient to confidentiality ceases when he puts his health in issue by claiming damages in a lawsuit; the raison d'etre for confidentiality is gone. The right to confidentiality is then eclipsed by the right of those who face the action to know the basis and scope of the claim being advanced. The patient cannot use confidentiality to preclude the normal operation of the legal process and the adversary system. While many possible evils such as tampering with a witness' evidence can be postulated, I believe a physician may be less vulnerable to this than other witnesses and that few, if any, in the legal profession would stoop to such tactics. I find that the reasoning applied to the release of medical records by the Ontario Court of Appeal in Cooke v Ip , supra , applies equally to the opportunity prior to trial to speak with a witness who is a treating physician. That court found that the patient had waived his right to confidentiality, however in that case, and unlike the one before me, the patient had given consent to the release of the information in issue. Here the plaintiff has forbidden contact between his treating physicians and the lawyers who wish to contact them. The difference is not decisive. It is the action of commencing litigation which removes the cloak of confidentiality from that information which might under other circumstances remain confidential. Any subsequent consent or prohibition by the patient is nugatory. Thus, in this case, the patient's prohibition from contact with defence counsel is of no effect. The patient's waiver of his right to confidentiality in this case flows from the action that he has taken in putting his health in issue."

And later at 762: "Having found that confidentiality has been waived, the treating physicians with whom the right to speak is sought are like any other witnesses. There being no property in a witness, these physicians may be contacted and, subject to the rules of ethics of the legal profession, interviewed if that is agreed by any or all. My decision that confidentiality is waived and the physicians in this case are in the position of any witness precludes the need for an order and I find that an order would be inappropriate." 15 The College of Physicians and Surgeons of Alberta had appeared as intervenors in the case. The College took the stance, "… that a right to request an interview with a physician exists and … that no order is necessary to support this right" (at 757), but "that a court order or consent of the patient would be required before a physician could ethically consent to an interview" (at 762). In response to this, her Honour stated, at 763: "Because the act of the patient in putting his health in issue is a clear and unequivocal one and is his act, I find it is a case of implied consent by the patient to his treating physician releasing medical information … … confidentiality is waived by a patient when he places his health in issue in a lawsuit. The result is that the patient cannot prohibit a treating physician from speaking to a lawyer, and a treating physician who is to be a witness is in the same position as any witness in a lawsuit. In this case the lawyers for the defendant may contact the physicians who treated the plaintiff. It rests with each physician as to whether he agrees to be interviewed."

The Reception of Hay in Canada 16 The decision in Hay has met with a mixed reception within Canada. It has been followed by trial judges in Alberta and British Columbia, was rejected in Ontario very soon after it was decided, and has come to be rejected in New Brunswick. Even in Alberta, where it was decided, both a trial judge and the Alberta Court of Appeal have pronounced Hay ripe for reconsideration. One explanation offered for its different reception in different provinces has been that Ontario and New Brunswick have rules of court which allow pre-trial examination of non-parties under some circumstances, while British Columbia and Alberta have no such rules: Borque v LeBlanc (2002) 225 DLR (4th) 720 at 731. (That statement is itself incorrect, as British Columbia has at all relevant times had a rule 28 in its Supreme Court Civil Rules which allows pre-trial examination of non-parties in some circumstances, and Alberta has since come to have such a rule.) The Supreme Court of Canada has uttered dicta which have been taken to be favourable to Hay, but later dicta which appear inconsistent with it. Even in those cases (or jurisdictions) where Hay has been adopted different views have been expressed about whether the patient's lawyer ought be entitled to be present at any out of court conference with a treating doctor which was permitted, and about whether, and if so how, the court should exercise control over the disclosure process to ensure that only relevant information is disclosed. 17 I will trace the outlines of Hay's reception in Canada, without mentioning every case which has considered it. 18 St Louis v Feleki (1990) 75 DLR (4th) 758 arose from the defendant's lawyers having interviewed some of the treating doctors of the plaintiff, prior to trial, without the plaintiff's consent. Craig J, in the Ontario Court (General Division) said, at 762-3: "With great respect to Madame Justice Picard, it is my opinion that, whatever the practice might be in Alberta, there is no proper basis in Ontario for holding that simply by commencing an action for damages resulting from personal injuries, a litigant-patient waives the right to confidentiality arising out of the patient-physician relationship, or that the litigant-patient impliedly consents to the physician releasing information to the defendants. If it is held that the right to confidentiality is waived, or if it is held that there is an implied consent, doctors may inadvertently disclose matters which are not relevant to the issues in the case, or doctors may disclose matters which they think are relevant but which prove later to be irrelevant, or not admissible as evidence at trial. A doctor might be subjected to subtle cross examination by a defence solicitor without anyone present for the plaintiff; he might disclose matters which the patient-plaintiff would not consent to under any circumstances unless ordered to do so. The important right of a patient-litigant to confidentiality must be balanced against the right of a defendant to access to information as to plaintiffs' claims. It is my opinion that in Ontario adequate provision has been made by regulation and legislation to ensure that the defendant is informed of the case to be met in cases of this kind; put another way, when a plaintiff commences an action for damages, the deck is not stacked against the defendant in favour of the plaintiff. I refer to the Rules of Civil Procedure relating to the right to a defence medical examination, or more than one if appropriate, the right of examination for discovery and production of documents, including medical records (particularly rule 30.10). In Cook v Ip (1985), 22 DLR (4th) 1, 5 CPC (2d) 81, 52 OR (2d) 289 (CA), it was ordered that the clinical notes made by a treating physician must be produced in the circumstances of that case. Also, because of the requirements of rule 53.03 and s.52 of the Evidence Act , RSO 1980, c. 145, a defendant will not be taken by surprise." 19 The conclusion of Craig J, at 764 was that: "… fairness requires that defence counsel now disclose to [plaintiffs' counsel] the names of the attending or treating doctors of the infant plaintiff from whom information was obtained ex parte , and without consent, and all the information obtained from them that differs in any substantial way from the information contained in the reports and documentation provided to the defendant by the plaintiffs." 20 There was an appeal from this decision: St Louis v Feleki (1993) 107 DLR (4th) 767. However that appeal was disposed of without a review of the merits. Instead, the Ontario Court (General Division) Divisional Court (O'Brien, Moldaver and HJ Smith JJ) withdrew the leave to appeal which had been granted, because by that time the issue had become moot. 21 In Frenette v Metropolitan Life Insurance Co (1992) 89 DLR (4th) 653; [1992] 1 SCR 647 the Supreme Court of Canada, in a judgment delivered by L'Heureux-Dubé J, quoted (at 681-2 of DLR) with apparent approval the three paragraphs from the judgment in Hay which I have set out at para [13] above (apart from the last sentence of the third paragraph). Some later Canadian cases have treated that citation from Hay as indicating approval by the Supreme Court of the entire Hay decision. However, as Frenette was a case concerning access to medical records any apparent approval would be obiter. Any such approval would also be made less persuasive by the fact that St Louis v Feleki was not referred to in her Honour's judgment. However, the most significant matter in understanding what importance to attach to this quotation from Hay is that the passage which L'Heureux-Dubé J quoted is one which posed the problem that was being considered in Hay, not one which stated the answer arrived at in Hay. For this reason, I do not read Frenette as involving endorsement by the Supreme Court of Canada, even obiter, of the proposition that medical confidentiality is automatically waived by starting litigation which puts one's health in issue. 22 In Swirski v Hachey (1995) 132 DLR (4th) 122 Wilkinson J, in the Supreme Court of British Columbia, dealt with an application for a declaration that a plaintiff had waived her right to patient confidentiality from her treating doctors. Wilkinson J noted the decision in St Louis v Feleki, and another Ontario decision, Morin v Tessier 5 WDCP (2d) 123; [1994] OJ No 361 (considered further at para [181] below), where the Court had declined to follow Hay. Wilkinson J himself declined to follow St Louis v Feleki, and Morin v Tessier. He said, at 130: "I have been unable to locate authority for the distinction between a waiver of confidentiality (or the implied authorisation to release) as to a medical matter generally, documents relating to that medical matter, and the persons providing such medical service. Counsel have not provided any. On the other hand, there is a vast array of undoubted authority for the proposition that confidentiality is waived simply by the commencement of action."

Wilkinson J did not specifically identify that "vast array of undoubted authority", but he had, at pages 126-127 of his judgment, identified all the cases he had been referred to. I discuss those cases in an appendix to this judgment at para [159] and following, and give reasons why, in my view, those cases do not amount to a "vast array" supporting the proposition that confidentiality is waived simply by the commencement of an action. I also give some explanation, additional to that in the body of this judgment, why those cases do not lead to the view that Hay should be followed in Australia. 23 Another reason why the persuasive value of Swirski v Hachey is limited is because the question of whether doctor-patient confidentiality was waived by commencement of action was not a matter in dispute in that case. Wilkinson J said, at 130: "There appears to be general agreement, and I do not take plaintiff's counsel as opposing this in principle, that the commencement of action by a plaintiff for injury waives doctor-patient confidentiality with respect to that injury and medical information bearing on and relevant to that injury. (I pause to note that it is necessary because of the particular wording of the medical Code of Ethics, to phrase the principle as one of implied consent to the release of the information as opposed to a waiver of the confidentiality.) The real question is not as to whether confidentiality is waived, but as to the extent of such waiver. That is to say, is there medical information in the possession of the doctor which is not relevant to the issue being litigated (to which confidentiality is still attached) and which might be released inadvertently." 24 Further, at 131, Wilkinson J said: "… I see merit in the plaintiff's argument that the Hay decision may be too wide if it is interpreted as holding that a plaintiff puts his or her entire medical and psychological history at issue by making a claim for any particular medical matter or condition. The case refers to the patient putting his "health" in issue and if this is taken to mean the plaintiff's entire medical history in every case, it is too broadly stated. Halliday [ Halliday v McCullouch (1986) 1 BCLR (2d) 194, a case concerning access to medical records] makes it clear that material can be excepted on the basis of relevance." 25 At 134-135 Wilkinson J summarised his findings as follows: "1. There is no doctor-patient confidentiality attaching to the plaintiff's treating doctors concerning information relevant to the claims made herein for purposes of this action. 2. Defendants' counsel in this case are at liberty to discuss such matters with the plaintiff's said physicians in the absence of the plaintiff or her counsel. 3. In this province, the commencement of an action for damages for injury is a waiver of doctor-patient confidentiality for medical matters relevant to and bearing upon matters raised in the action. 4. In this province, such waiver also constitutes as a matter of law an implied authorisation to the physicians for the release of such information for purposes of the litigation. 5. Absent privilege, the only basis for imposing any restriction on such discussion, would be the risk of inadvertent release of irrelevant (and thus still confidential) information. 6. In future cases (unless and until this decision has been overruled), it is not necessary for defence counsel to apply for approval to discuss the case with the plaintiff's physicians, but as a matter of practice in preparing the case for the court, general notice should be given to the plaintiff of an intention to seek informal discussions with named medical treatment givers. The notice should not be given until the limits of relevance and confidentiality have been set with reference to documents. 7. The onus will then be on the plaintiff to make application to bar or restrict such interviews. 8. My decision in no way compels plaintiff's treating doctors to take part in such meetings. They may do so or not as they wish and may impose such conditions as they wish, just as any other witness may do. 9. In this and future cases, where deletions have been made in doctors' medical records, copies of the amended records should be supplied by defendants' counsel and the doctors' attention drawn to information still regarded as confidential. The Professional Conduct Handbook ought to be followed." 26 Wells v Paramsothy (1996) 98 OAC 233; 32 OR (3d) 452, a decision of a Divisional Court (O'Driscoll, O'Leary and Gravely JJ) of the Ontario Court of Justice (General Division), involved a medical malpractice action, in which the defendants had sought an order allowing their counsel to speak with the plaintiff's caregivers in an unrestricted manner. That motion had been dismissed, and the defendants appealed. That appeal was itself dismissed. Gravely J (delivering the judgment of the Court of Appeal) posed the problem, at [11], as follows: "… the plaintiff's health care professionals have a duty to refuse to disclose information about their patient until required to do so in the litigation. There is some conflict in the case law as to the correct approach to this medical disclosure process."

After reviewing the case law, Gravely J said, at [21]-[23]: "For the purposes of this appeal it is not necessary to determine if the mere commencement of an action for personal injuries by a patient releases a doctor from the duty of confidentiality as Picard J found in Hay or if the principles set out in Cook v Ip are to be extended beyond records cases. It is clear from all the authorities that no privilege attaches to doctor-patient information and that within the context of the action all medical information that relates to the cause and extent of the injuries claimed must be disclosed. The issue essentially is what degree and nature of control a court should exercise over the disclosure process. Relying on the principle of implied waiver Picard J in Hay concluded that no judicial control was appropriate. However, St Louis v Feleki and Morin v Tessier raised important policy and procedural concerns that were not addressed in Hay and as Wilkinson J pointed out in Swirski v Hachey , the Hay case, while purporting to follow Cook v Ip , failed to canvass the basic issues of relevance and procedure. In allowing uncontrolled access to the plaintiff's doctors Hay left the door open to a potentially improper and damaging invasion of the right of a plaintiff to medical privacy. In Cook v Ip Cory JA made clear that linked to the concept of implied waiver must be judicial supervision and control over disclosure procedure. In all cases where the plaintiff relies on medical confidentiality and where the parties cannot agree as to disclosure it would appear that judicial supervision is required. The nature of such supervision has varied. While Wilkinson J in Swirski found it necessary to create a code of disclosure, Craig J in St Louis v Feleki , Wilkins J in Morin v Tessier and Cory JA in Cook v Ip all concluded that the appropriate method of supervision in Ontario is to be found in the Rules of Civil Procedure . I see no reason why that should not be the procedure in the case before us ... The Rules provide for disclosure of documents in the possession of parties and non-parties, for defence medical examinations, for oral discovery of parties and, with leave under Rule 31.10, oral discovery of non-parties. The pre-trial oral examination of a medical witness under Rule 31.10 can provide all the information properly obtainable from the witness in a setting that responds to most of the concerns expressed by Craig J in St Louis v Feleki and Wilkins J in Morin v Tessier . A trial judge may have to make special disclosure orders as was done by Granger J in Marchand v Public General Hospital but that should not be necessary if the issue is properly addressed at the pre-trial stage." (emphasis added) 27 In M (A) v Ryan (1997) 143 DLR (4th) 1 the Supreme Court of Canada, in another case concerning access to medical records, held that such records could sometimes be privileged from disclosure (in accordance with a test for privilege which is the law in Canada, but not in Australia). On that test, as McLachlin J (with whom La Forest Sopinka, Cory, Iacobucci and Major JJ concurred) said, at 14-15: "The result depends on the balance of the competing interests of disclosure and privacy in each case … Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage." 28 McLachlin J also said, at 15: "It remains to consider the argument that by commencing the proceedings against the respondent Dr Ryan, the appellant has forfeited her right to confidentiality. I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation."

Though the court did not refer to the decision in Hay , this last quoted remark appears inconsistent with the view that whenever a patient puts his or her health in issue, this is an implied consent to his or her treating physician releasing medical information, or a waiver of doctor-patient confidentiality. 29 Sugarman v Radomsky (1997) 214 AR 118; 26 CPC (4th) 379; [1997] AJ Number 596 was a decision of Lee J in the Alberta Court of Queen's Bench. Defence counsel in a medical malpractice suit had interviewed the treating doctor of the plaintiff, without the plaintiff's consent. The plaintiff asked the court to not permit them to continue to act. That application was refused, for reasons including that the plaintiff failed to establish any prejudice as a result of the unauthorised conference (at [40]). Hay was treated as still applicable in Alberta, but subject to a restriction (at [44]): "I further conclude that Justice Picard's decision in the Hay case must also implicitly be subject to the general concept of relevance as it pertains to matters discussed during the "contact" between the attending physician and the Defendant's solicitor. The issue of "relevance" can sometimes only be determined with respect to certain issues and discussions between the attending physician and the Defendant's solicitor by way of a court application initiated by the Plaintiff's solicitor. Such a Court application is only possible if the Plaintiff's solicitor is given proper notice so that a reasonable decision can be made on behalf of the Plaintiff's solicitor and the Plaintiff as to whether or not their attendance at the meeting is necessary. During the course of the "contact" or "meeting" if the relevance of the subject matter being discussed between the attending physician and the Defendant's solicitor becomes an issue, Plaintiff's counsel is then at liberty to bring an application to the Courts with respect to the issue of relevance."

His Honour concluded, at [49]: "It may well be that given the number of years that have transpired since the Hay decision, the number of cases that have commented on the Hay decision and the ever changing and somewhat expansionary tendency that the Rules of Court in Alberta provides for in regards to pre trial discovery and disclosure, that on the proper compelling fact situation modifications to the Hay decision should be made." 30 In Stoodley v Ferguson (2001) 93 Alta LR (3d) 78, a decision of the Alberta Court of Queen's Bench, Burrows J reviewed the Canadian case law, and concluded, at 87: "Given the fundamental importance of the duty [owed by doctor to patient], it seems to me it should be considered "waived" only to the extent necessary to accommodate the defendant's right to full disclosure of relevant information in the action the plaintiff has commenced. That accommodation justifies release to the defendant of relevant medical records held by the doctor. It justifies compelling the doctor to testify as to the plaintiff's medical condition at trial. It also justifies the defendant having an opportunity to interview the doctor prior to trial. But, in my view, it does not justify that interview occurring in the absence of the plaintiff or his counsel unless the plaintiff otherwise consents. Where otherwise confidential medical records are released and when a doctor is obliged to testify at trial, both the plaintiff and defendant have complete knowledge of the information released. That is not so in the case of an interview by defence counsel of the plaintiff's doctor held in the absence of the plaintiff. I cannot see how it follows from the fact that the plaintiff has raised issues concerning his medical condition in a public forum that he has given up both the right to the continued maintenance of confidentiality and the right to know what previously confidential information is communicated. Justice requires no more than that there be disclosure. It does not require that there be ex parte disclosure." (emphasis in original)

And at 88: "In my view the "waiver" effected by the commencement of the action is not a total release of the doctor from her fiduciary obligation to maintain the confidentiality of the information she holds. The duty continues to exist to prevent the doctor from releasing any of the information to anyone other than the defendant. It continues to prevent the doctor from releasing any information not relevant in the action. It continues to require that the patient plaintiff be fully informed of the information released by the doctor. What procedure should be adopted to ensure that the doctor's continuing fiduciary obligation is respected? The procedure must protect the doctor from subsequent accusations of breach of the continuing fiduciary obligation. It seems to me the doctor will be reasonably protected from such accusations if any interview by defence counsel in which she agrees to participate: a) is conducted in the presence of counsel for the plaintiff b) is reliably recorded, and c) is subject to plaintiff's counsel being given i) the right to object to any question asked on the ground that it contemplates the release of confidential information not relevant to the action, or of privileged information, and ii) the opportunity to have the merits of that objection adjudicated before the answer is given. Nothing requires the doctor to participate in such an interview. If she does, the plaintiff's lawyer is not her lawyer. If she wishes to have her own counsel present, she should be entitled to require that."

If objection were taken at such an interview to a question which occurred early in a proposed line of questioning, the procedure envisaged by Burrows J is one which could involve several interviews attended by the doctor and lawyers on both sides, interspersed with applications to the court about whether particular questions are permissible. 31 Borque v LeBlanc (2002) 225 DLR (4th) 720 was a decision of the New Brunswick Court of Appeal. The trial judge in that case had ordered that the defendant's counsel be permitted to interview certain doctors as to the contents of their medical reports, and if the doctors refused to answer the questions at the interviews because of confidentiality, the doctors should attend an examination for discovery. The New Brunswick Court of Appeal overturned that decision (notwithstanding that it was a discretionary and interlocutory decision) on the ground that it was "clearly wrong and resulted in an injustice" (at 735). The Court of Appeal held that the procedures available under the court rules for pre-trial oral examination of a witness provided sufficient means of obtaining full disclosure, and in any event the plaintiff had made full disclosure concerning her medical condition. 32 In M (N) v Drew Estate (2003) 230 DLR (4th) 697, a decision of the Alberta Court of Appeal, the plaintiff had consented to the defendant's lawyers speaking with his treating doctor, on the condition that his own counsel was present. A chambers judge had refused to disallow that condition. An appeal from the chambers judge was dismissed. Côté JA, (with whom Fruman JA concurred), said, at 705: "… The court overrides confidentiality to produce fairness, much as courts occasionally override solicitor-client privilege in the interests of fairness. For example, it is not fair to a litigant selectively to pluck and proffer a few plums out of a privileged pudding, without revealing the pits in the pudding. That theory might apply where the plaintiff pleaded that he had relied upon medical advice, or that he had been temporarily disabled by medical treatment. But where is serious unfairness if the plaintiff merely pleads that the defendant broke the plaintiff's leg, and so the plaintiff could not work as a mail carrier? Merely pleading a fact (not a communication) has never been held a ground to override privilege. I cannot see why it should override confidentiality. It is no more unfair. At best such incursions on confidentiality would have to be very case specific."

Those remarks do not sit well with the notion that whenever a plaintiff puts his or her health in issue, doctor-patient confidentiality is automatically waived. 33 His Honour then referred to para [38] of the Supreme Court of Canada's decision in M (A) v Ryan (quoted at para [28] above) and the introduction in Alberta of a Rule allowing non-party experts to be "examined for discovery" in long trial cases, and (at 707) wondered whether even a treating physician could be examined for discovery under the Alberta Rule which allowed a person "employed by the other party" to be so examined. This explains his remark, at 705-6, that: "The earlier cases on interviewing physicians may have to be re-examined in light of the 1997 Ryan decision, supra , and those amendments to the Alberta Rules of Court."

His Honour accepted that a physician was free to decline to be interviewed, and pointed out various practical problems for the treating doctor in agreeing to such an interview. He said, at 714: "For all the reasons above, the whole question of whether the law lets a defendant ask to interview the patient's treating physician without the plaintiff's consent needs careful re-examination. I do not necessarily approve of any of the decided cases on that question (pro or con). As noted, it is not necessary to decide that larger legal question today." 34 In the result, there is no consensus in the Canadian cases in favour of Hay. The decision of the Supreme Court of Canada in Frenette does not give even obiter support to Hay's thesis that the commencement of litigation which brings one's health into issue of itself terminates doctor-patient confidentiality. The decision of the Supreme Court of Canada in M (A) v Ryan may require Hay to be reconsidered in those jurisdictions which have adopted it. Even in Alberta, the province where it was decided, Hay has been treated by a trial judge as qualified by an implied limitation of relevance and by the need for the patient's lawyer to have the opportunity to be present, and as possibly needing to be re-examined, and has been treated by the Court of Appeal as needing to be re-examined.

The Reception of Hay in England and Ireland 35 In Nur v John Wyeth & Brother Ltd [1996] 7 Med LR 300 Kennedy J, in the Queen's Bench Division, Leeds Crown Court gave interlocutory rulings in group litigation brought against the manufacturer of a pharmaceutical drug. Notwithstanding the date of the report, the decision was given in 1993. One of the orders sought by the defendant was an order that: "A Plaintiff upon whom notice requiring him to waive confidentiality relating to his medical treatment has been served by any Defendant shall within 14 days provide a waiver of confidentiality signed by him."

The lawyers for the manufacturer explained to the judge that they wanted authority to approach the general practitioners (at 305): "… to learn what they can about the plaintiff's history (so far as it is material to the present complaints), the indications for the prescription of their drug, the presence or absence of any complaint about its effects during or after administration, the rate and quantity prescribed and the period involved. They also wish to enquire into that doctor's knowledge of the benzodiazepines and his sources for that knowledge, as well as his prescribing habits. They wish to discover his likely reaction to this or that change in their product information. In short they want to know what light the plaintiffs' general practitioners can throw on the individual cases. They need an order in the terms sought because medical ethics forbid doctors discussing their patients and their problems." 36 The only issue before his Honour, however, was whether it was premature to make such an order - the question of principle, of whether such an order should be made at all, was conceded by counsel for the plaintiffs (at 306). Kennedy J had cited to him the decision in Hay, and said, at 306: "I am grateful for the assistance of that case, and I adopt its reasoning. Any plaintiff in such a case as this inevitably puts in issue his medical history and his manner of life. His GP has, in principle, independent and reasonably reliable knowledge of those facts."

The decision in St Louis v Feleki was evidently not cited to his Honour. The order which the manufacturer sought was made, even though his Honour recognised that, in practice, it would involve a plaintiff agreeing not to sue the doctor who had prescribed the drug, if that doctor was to talk to the drug manufacturer. His Honour was prepared to make the order, on the basis that (at 307): "… a plaintiff is highly unlikely to be discarding any worthwhile right by agreeing not to sue those who prescribed him the drug." 37 In Shaw v Skeet Aung Sooriakumaran [1996] 7 Med LR 371 Buckley J, in the Queen's Bench Division, decided an interlocutory application in a medical negligence suit brought against a doctor. The application was for an order staying all further proceedings until the plaintiff had provided a written authority for the doctor being sued to interview the treating doctors of the plaintiff. Again, the fundamental question of principle was not at issue; the only issue was whether the plaintiff's solicitor should be present at the interview. His Honour said, at 374: "… the plaintiff recognised that if he wished to pursue this action, he would have to give his consent to the treating doctors talking to the defendants' solicitors. In other words, they should waive confidentiality and release the treating doctors from their duty of confidentiality. However, the plaintiff's solicitors sought to impose a condition, namely, that the plaintiff's solicitor be present during the statement taking interviewing process."

His Honour continued, at 374: "The cases to which I have been referred indicate - and this has been recognised by the courts for some time - that in bringing a personal injury action, a plaintiff, as it is said, waives his right to confidentiality; he puts his medical condition in issue and therefore it is appropriate for the court to insist that this evidence be brought before it. I do not dispute that appreciation of the situation at all. I believe it could be put on an even wider basis, namely, that unless the material evidence is placed before a court, the judicial process is impeded; it is not going to be able to function. A plaintiff who seeks to bring an action but, by his own actions, prevents material evidence being obtained by the other side and placed before the court, is at the same time impeding the process of law and of course that would bring into play and does bring into play the court's inherent power to protect its own processes. Hence, the court has no hesitation in entertaining an application to stay proceedings if that is indeed what it takes to enable the proper evidence to be brought before the court. So one sees in personal injury cases that for some time now the courts have either stayed or threatened to stay proceedings if, for example, the plaintiff refuses to be medically examined or to give consent to hospitals or doctors to disclose otherwise confidential matters. It seems to me in general, and in view of those basic principles, that it is undesirable for conditions to be attached to any such consent."

His Honour held that there was no justification in the instant case for requiring the presence of the plaintiff's lawyers. The only cases to which his Honour stated he had been referred were Hay and Nur v John Wyeth & Brother Ltd . 38 In Nicholson v Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (24 June 1999, unreported) the plaintiff sued her employer, alleging working conditions which caused her to develop a repetitive strain injury. She had been operated on for that condition by a Professor Stanley. The defendant wished to confer with Professor Stanley. Professor Stanley had made his records available, and stated his view was "my concern would be for the doctor/patient relationship and I would be reluctant to be involved unless specifically instructed to do so by the Court." The County Court had refused to make the order which the defendant sought. The defendant then appealed to a Divisional Court (Beldham LJ and Sumner J). There, the question at issue was narrowed to whether the defendant's lawyers should be compelled to put their request for information in writing, or whether they were entitled to have a conversation with Professor Stanley. Sumner J referred to the decisions in Hay, Nur v John Wyeth & Brother Ltd, and Shaw v Skeet, noted that the two English authorities were on the narrow points of whether an application was premature, and whether conditions could be applied to a stay, and continued: "It is implicit in both those cases and I accept, that the court will grant a stay unless a claimant consents to relevant information being obtained from a treating doctor. There is no property in a witness, but there is the right of confidentiality between a patient and his treating doctor which the law will uphold. It is a right which it is for a patient to waive and he can only waive it voluntarily. The court will not order him to waive such a right. But in an appropriate case, the court can order that the claim be stayed until such time as he consents to waive his right of confidentiality." 39 That statement apparently does not accept the possibility that a right of confidentiality can be waived impliedly or by conduct - which had been the basis of Hay. The statement was also obiter, because the question being argued was the narrow one of whether Professor Stanley's disclosure should be in response to written questions, or oral questions. Sumner J appears to have been of the view that it was a matter for the defendant to decide which was the most appropriate way of obtaining the information from Professor Stanley. However, he agreed with the type of order for stay which Beldam LJ pronounced. Beldam LJ seems to have been of the view that it was sufficient for Professor Stanley to provide information in writing on two identified topics. The form of order pronounced by Beldam LJ was: "… unless within 14 days the claimant consents to waive her right to confidentiality so that Professor Stanley can state, firstly what anatomical reasons were found during the operation carried out on the claimant's right forearm in May 1996, and secondly, what condition required the repair of the lesion then found, this action be stayed." 40 McGrory v Electricity Supply Board (Supreme Court of Ireland, 24 July 2003, unreported) was a decision which arose when the plaintiff in a personal injuries action refused to consent to the defendant's doctor discussing his case with the plaintiff's treating doctor. The defendant's solicitors had requested such a consultation after the plaintiff had delivered a Summons, but before a Statement of Claim had been filed. The plaintiff was willing to have an exchange of medical reports take place once the pleadings had closed. The defendant was granted an order staying the proceedings, until such times as the plaintiff consented to the consultation taking place. The decisions in Hay, Nur v John Wyeth & Brothers Ltd, and Shaw v Skeet were discussed. Keane CJ (delivering the judgment of the Court) then said: "Those principles, which have been adopted by courts in other common law jurisdictions, should also, in my view, be adopted in our jurisdiction. The plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy which he would otherwise enjoy in relation to his medical condition. The law must be in a position to ensure that he does not unfairly and unreasonably impede the defendant in the preparation of his defence by refusing to consent to a medical examination. Similarly, the court must be able to ensure that the defendant has access to any relevant medical records and to obtain from the treating doctors any information they may have relevant to the plaintiff's medical condition, although the plaintiff cannot be required to disclose medical reports in respect of which he is entitled to claim legal professional privilege. … There is no room today in properly conducted litigation for an approach which denies one side access to relevant material which in any event will be available at a later stage of the proceedings …" 41 While there is obiter support for Hay in both Nur v John Wyeth & Brothers Ltd and Shaw v Skeet, Hay is not adopted as part of the ratio of those decisions. It is, with respect, not clear what attitude to Hay emerges from Nicholson, but at least it can be said that Hay is not adopted as part of its ratio. McGrory, however, adopts Hay as part of its ratio.

The Reception of Hay in Australia and New Zealand 42 The only Australian or New Zealand case which has previously considered Hay is McGuire v Ferguson and Anor (Supreme Court of New South Wales, Common Law Division, 11 December 2001, Solomon AJ, unreported.) It was, likewise, a case where representatives of a medical practitioner sued for negligence wished to interview the current treating doctor and certain other doctors who had been involved in the treatment of the plaintiff. His Honour set out submissions made to him, which had a strong resemblance to the submissions made to me. His Honour's own reasoning consisted of saying (at pages 5-6): "… I decline to follow Hay v University of Alberta Hospital and I do not find that the plaintiff waived her right of confidentiality by bringing proceedings against the first defendant. I am of the view that the public interest is best served by not interfering with the obligation of confidence owed to the plaintiff by [the treating doctors]. 43 Counsel for the First Defendant submitted that McGuire v Ferguson is distinguishable, on the ground that in that case the application was made at a time when the trial was imminent, and that the treating doctors were to be called at the trial. While I accept counsel's statement from the Bar table that those were the factual circumstances in which the application was made in McGuire v Ferguson, those facts form no part of the reasoning of Solomon AJ. I decline to distinguish the case on that basis. Given that the reasoning consists of announcing conclusions without explaining why they are right, neither am I prepared to simply follow the case without giving independent consideration to the relevant principles. PART C - THE DOCTOR'S OBLIGATION OF CONFIDENCE

Doctor's obligation of Confidence Under the General Law 44 A doctor is under a duty not to voluntarily disclose, without the consent of his or her patient, information which the doctor has gained in his or her professional capacity save in very exceptional circumstances: Hunter v Mann [1974] QB 767 at 772. 45 Those "very exceptional circumstances" include circumstances where the information which the doctor obtains is information which, if not disclosed, could endanger the lives or health of others (W v Edgell and Others [1990] Ch 359; [1996] 1 All ER 835), where the information which the doctor gains in the relationship is information concerning a dishonesty or other "iniquity" inherently incapable of being the subject matter of an obligation of confidence (Gartside v Outram (1856) 26 LJ Ch 113; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another (1987) 14 FCR 434), where the information is acquired in the course of an actual or reasonably apprehended breach of the criminal law (A and Others v Hayden and Others (1984) 156 CLR 532; Grofam Pty Ltd and Others v KPMG Peat Marwick and Others (1993) 43 FCR 396), or where a statute requires certain types of information to be disclosed (Hunter v Mann [1974] 1 QB 767). See also Halls v Mitchell [1928] 2 DLR 97; [1928] SCR 125 (quoted at para [159] below), and P Finn, 'Professionals & Confidentiality' (1992) 14 (Syd LR) 317. 46 This is not a case where there is any basis to believe that any information acquired by Doctor Sholler or Doctor Lewis, concerning Ankur, fits into any such "very exceptional circumstances". The mere fact that confidential information might be of use to a party to civil litigation is not enough to cause an obligation of confidence not to apply: AG Australia Holdings Ltd v Burton and Another [2002] NSWSC 170; (2002) 58 NSWLR 464; (2002) 58 IPR 268 especially at [135] - [163]. 47 There is no contract with Dr Sholler or Dr Lewis whereby an express obligation of confidentiality is imposed. However, it might arise as an implied contractual term. In Hunter v Mann [1974] 1 QB 767 at 772, Boreham J accepted, at 772: "… that the duty not to disclose information is enforceable at the behest of the patient in an action of contract or for breach of duty."

(May J and Lord Widgery CJ, at 775, agreed). 48 Lord Denning MR in Parry-Jones v Law Society and Others [1969] 1 Ch 1 at 7, and Diplock LJ at 9 (with both of whom Salmon LJ agreed), accepted that the duty of confidence between doctor and patient was of contractual origin. In Breen v Williams (1996) 186 CLR 71 Gaudron and McHugh JJ, at 102, accepted that "the doctor-patient relationship is contractual in origin" and stated, at 102-103, tests for implication in law of contractual terms. Their Honours said, at 103, that: "… 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". 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." (Citations omitted)

See also at 78-79 per Brennan CJ, 90-92 per Dawson and Toohey JJ, and 123-124 per Gummow J. If the term exists as a matter of contract law, there might well be no occasion for equity to impose a duty. However, it is not submitted that the scope of any obligation arising at common law or in equity are different, or that this is a situation where the different remedies which common law and equity offer for breaches of an obligation of confidence are of any practical importance. Hence it is not necessary, for the purposes of this case, to decide whether the obligation of confidentiality is one which exists as an implied term in the contract between doctor and patient, or whether it arises in the exclusive jurisdiction of equity.

Doctor's Obligation of Confidence Under the Privacy Act 1988 (Cth)? 49 The plaintiffs rely upon the Privacy Act 1988 (Cth), as providing a statutory basis, additional to the basis in the general law, for a medical practitioner's obligation of confidentiality. A medical practitioner is an "organisation", within the meaning of section 6C of that Act. That is because "organisation" is defined to include an individual that is not a small business operator, and section 6D(4) says that an individual is not a small business operator if he, she, or it, "provides a health service to another individual and holds any health information except in an employee record". Section 6 provides that "health information" means: "(a) information or an opinion about: (i) the health or a disability (at any time) of an individual; or (ii) an individual's expressed wishes about the future provision of health services to him or her; or (iii) a health service provided, or to be provided, to an individual; that is also personal information; or (b) other personal information collected to provide, or in providing, a health service; or (c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances." 50 The Privacy Act 1988 (Cth) contains, in section 14, a set of Information Privacy Principles, which apply, under section 12, to the activities of "agencies" which are, broadly, Commonwealth government instrumentalities, courts and tribunals. There is no reason to believe that Dr Sholler or Dr Lewis count as an "agency". 51 The Act also contains a set of National Privacy Principles which were added to the legislation in 2000, as part of a significant amendment which extended the operation of the Act from the government sector to the private sector. Section 16A says: "(1) An organisation must not do an act, or engage in a practice, that breaches an approved privacy code that binds the organisation. (2) To the extent (if any) that an organisation is not bound by an approved privacy code, the organisation must not do an act, or engage in a practice, that breaches a National Privacy Principle." 52 The National Privacy Principles, which are found in Schedule 3, contain the following provisions which might impact upon disclosure of information about Ankur's health: "2.1 An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose ) other than the primary purpose of collection unless: (a) both of the following apply: (i) the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection; (ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or (b) the individual has consented to the use or disclosure; or … (g) the use or disclosure is required or authorised by or under law; or (h) the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of an enforcement body: (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; (iii) the protection of the public revenue; (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal. …" 53 In interpreting clause 2.1(b), one must bear in mind that section 6 provides that "consent" means express consent or implied consent. 54 "Enforcement body" is defined in section 6 in a way which does not include a litigant bringing a civil claim. Thus, clause 2.1(h) does not apply in the present case. 55 Under section 16C(1A), National Privacy Principle 2 applies only in relation to personal information collected after the date of commencement of section 16C. Section 16C commenced on 21 December 2001. Thus, any obligation under the Privacy Act 1988 (Cth) to observe a National Privacy Principle could apply only to information collected by Doctors Sholler and Lewis after 21 December 2001. 56 There is power for the Privacy Commissioner to make a determination exempting an act or practice of an organisation from an approved privacy code or a National Privacy Principle, under sections 71-80E Privacy Act 1988 (Cth). There is no suggestion any such application has been made in relation to Doctors Sholler or Lewis. 57 In the present case, the evidence does not enable me to make a finding that Dr Sholler and Dr Lewis are bound by the National Privacy Principles. The primary obligation under section 16A of the Act is for an organisation to act in accordance with an approved privacy code that binds it. The National Privacy Principles come into play only to the extent that there is no such approved privacy code binding an organisation. 58 If the plaintiffs wanted to establish that the doctors were bound by a National Privacy Principle, they would bear the onus of showing that there was no approved privacy code binding the doctors. Any party that wishes to assert a negative proposition bears the onus of proving that negative: Abrath v The North Eastern Railway Company (1883) 11 QBD 440 at 449 per Brett MR, 463 per Fry LJ. In Abrath at 457 Bowen LJ said: "Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent … that is an averment which he is bound to prove positively." (emphasis added) 59 That decision was affirmed on appeal in the House of Lords: Gustav Adolph Abrath v The North Eastern Railway Company (1886) 11 App Cas 247 at 249 per Earl of Selborne. See also Crowley v Glissan (No.2) (1905) 2 CLR 744 at 754 per Griffith CJ, 762 per Barton J, 762 per O'Connor J; Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 per Walsh JA; Cross on Evidence (current Australian electronic edition) at [7060] - [7070]. 60 It has not been established in evidence that there is no approved privacy code that binds Dr Sholler or Dr Lewis. Thus I cannot find, on the evidence before me, that they are bound by any National Privacy Principle.

Doctor's Obligation of Confidence Under the Health Records and Information Privacy Act 2002? 61 It is appropriate to give consideration here to whether the Health Records and Information Privacy Act 2002 ("HRIP Act") provides any statutory basis for an obligation of confidence between doctor and patient, of a kind relevant to these proceedings. The Privacy Act 1988 (Cth) says in section 3: "It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction, disclosure or transfer of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act."

When the Commonwealth Parliament has expressed its intention in that way, section 109 of the Constitution does not prevent the HRIP Act from having effect. 62 The definitions of "organisation" and "private sector person" in section 4 of the HRIP Act have the effect that a medical practitioner in private practice counts as an "organisation". Section 11 HRIP Act requires every organisation that is a health service provider or that collects, holds or uses health information to comply with, and not contravene, the Health Privacy Principles and any health privacy code of practice or provision of Part 4 that is applicable to the organisation. 63 The Health Privacy Principles established by the HRIP Act are contained in Schedule 1. They include Principle 11(1), which is almost identical in effect to National Privacy Principle 2.1 of the Privacy Act 1988 (Cth) (extracted above at [52]), but relates only to use and disclosure of health information. 64 Unlike the Privacy Act 1988 (Cth), however, pursuant to section 19(1) HRIP Act, Health Privacy Principle number 11 applies in relation to all health information, whether collected by the organisation before or after the commencement date of Schedule 1 to the HRIP Act. 65 However, section 71 of the HRIP Act also provides: "(1) Nothing in this Act gives rise to, or can be taken into account in, any civil cause of action, and, without limiting the generality of the foregoing, nothing in this Act: (a) operates to create in any person any legal rights enforceable in a court or tribunal otherwise than in accordance with the procedures set out in this Act, or (b) affects the validity, or provides grounds for review, of any judicial or administrative act or omission. (2) A contravention of this Act does not create any criminal liability except to the extent expressly provided by this Act."

Section 71(1) prevents any part of the HRIP Act from being taken into account in these proceedings as providing a statutory basis for an obligation of confidence. Thus, the only obligation of confidence which I consider in this judgment is the obligation arising under the general law.

Watson v M'Ewan 66 Counsel for the First Defendant sought to gain assistance from Watson v M'Ewan; Watson v Jones [1905] AC 480, a decision of the House of Lords on appeal from a Scottish court. That case arose when a patient sued her doctor for having disclosed information obtained in the course of their medical relationship. The court below had treated the case as one where the plaintiff alleged a violation of the duty of secrecy which the defendant owed to her, and also that what he had said was a slander. In the House of Lords, Earl of Halsbury LC said, at 485-6: "When one examines with care the different allegations made in the condescendences and the answers, I do not think any question arises as to the confidential nature of the employment between patient and medical man."

He then went on to consider the slander question. This slander was alleged to have been uttered to a solicitor, who was taking a proof of the evidence which the doctor would give if called as a witness. Earl of Halsbury LC held, at 489, that what a witness says in this preliminary examination is within the same privilege as he would have had if he had said the same thing in his sworn testimony in court. 67 A privilege, in the common law of defamation, is a defence to what would otherwise be a libel or a slander. That the doctor in Watson v M'Ewan had a privilege, for the purposes of the law of defamation, in disclosing matters concerning his patient to a solicitor taking a proof of evidence decides nothing about whether that disclosure is itself a breach of any obligation of confidence owed. And, on the pleadings in Watson v M'Ewan, no issue was raised about whether there had been a breach of any obligation of confidence. Watson v M'Ewan does not assist the First Defendant. PART D - WAIVER OF A RIGHT OF CONFIDENTIALITY

What is a Waiver 68 "Waiver" is an imprecise term, which covers a variety of legal concepts, including election and estoppel: The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 406-7 per Mason CJ; 421-428 per Brennan J; 451-452, 456-459 per Dawson J; 466-473 per Toohey J; 480-485 per Gaudron J; 491-497 per McHugh J. The present is not a case where the First Defendant has done anything in reliance on a representation made by the Plaintiffs, or on the basis of an assumption induced in him by the Plaintiffs - thus, the present is not a situation where there could be the type of waiver which is estoppel by another name. Rather, the First Defendant contends that the type of waiver operating here is that which arises from someone seeking to take inconsistent positions. 69 In Verwayen at 406, Mason CJ said: "According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 at p. 326; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at p. 658."

In Verwayen , at 423, Brennan J quoted with approval the following statement of Lord Hailsham of St Marylebone LC in Banning v Wright [1972] 1 WLR 972 at 979: "In my view, the primary meaning of the word 'waiver' in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted." 70 Brennan J said, at 427, that a "right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it". Dawson J, at 451, said that when waiver "is not used in the sense of election between mutually exclusive alternatives, if it has any identifiable legal consequence, it is generally indistinguishable from estoppel", and, at 457, that when waiver "is not being used to describe election or estoppel it may be used loosely to indicate non-insistence on a right by choice or by default". 71 Toohey J, at 469, referred to the "idea that waiver involves a renunciation of a right or benefit". Gaudron J, at 481, recognised the possibility that there could be a waiver which did not amount to an election, because election arose when a person was confronted with two inconsistent rights, while waiver could, at least sometimes, arise when a person was confronted with the prospect of taking inconsistent positions. 72 I shall not try to define, with any greater precision, what is involved in a waiver of a right of confidentiality between doctor and patient. A waiver of a right of confidentiality in the present case does not involve any of the types of waiver identified in Verwayen as distinct from election or estoppel, unless it is the adoption of inconsistent positions identified by Gaudron J. It is not the type of waiver identified by Dawson J at 457, because his Honour goes on to explain that that type of waiver arises when a right is not insisted on at one time, but there is a later attempt to insist on it. That is not the structure of the facts in this case. Whatever other requirements there must be, before there is a waiver of a right to confidentiality in the present case there must be an inconsistency between maintaining the right to confidentiality, and taking the step, or position, which is said to be a waiver of the right to confidentiality. 73 Some support for this view can be derived from the law concerning waiver of legal professional privilege. Legal professional privilege is a substantive right which has as one of its preconditions that there be a confidential communication with a lawyer. Thus, while it is more than an obligation of confidence, it has an obligation of confidence as a necessary part of it. The test for waiver of legal professional privilege at common law has been stated by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell (1999) 201 CLR 1 at 13: "At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context: Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers & Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege: Cross on Evidence , 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication: Benecke v National Australia Bank (1993) 35 NSWLR 110, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received: Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law": eg, Goldberg v Ng (1995) 185 CLR 83 at 95. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank (1993) 35 NSWLR 110, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

The First Defendant's Contention about Waiver 74 The First Defendant's contention is that it is Ankur's act of commencing proceedings against the First Defendant which has resulted in a waiver of doctor-patient confidentiality with the two treating doctors. 75 While there are some occasions when waiver of a right involves it being waived for all purposes, it is possible for there to be a limited waiver of a right of confidentiality. Such a limited waiver would occur, for example, if the person with the benefit of the right of confidentiality gave consent to the confidential information being disclosed to a particular person or persons, but no others. The First Defendant does not contend that the commencement of proceedings has meant that the two treating doctors are free to talk about Ankur's condition with anyone they please; rather, he contends that there has been a limited waiver of the obligation of confidentiality, so that there is no breach in discussing Ankur's condition with the lawyers of the First Defendant, and for the purposes of the proceedings.

Is There a Waiver of the Type Alleged 76 One can see easily enough how Ankur's act of commencing proceedings against the First Defendant is inconsistent with doctor-patient confidentiality continuing to exist between Ankur and the First Defendant, concerning the matters which are the subject of the litigation. As soon as the Statement of Claim was served, one could tell that it would be inconsistent for Ankur to proceed with the action, and at the same time maintain that the First Defendant was bound by an obligation of confidentiality concerning the matters of which Ankur complains in this litigation. The inconsistency arises, in the eyes of the law, because of the assumption that a person sued will have a fair opportunity to defend the case brought against them. If the First Defendant was bound by an obligation of confidentiality concerning his treatment of Ankur, it would not be possible for him to tell his own lawyers what happened concerning Ankur's treatment, so that he could defend himself. Neither could he tell expert witnesses what had happened concerning Ankur's treatment, so as to obtain their opinion on whether he had acted negligently. It is the impossibility of the defendant having a fair opportunity to defend himself, if the obligation of confidentiality is maintained, which leads to the conclusion that there is inconsistency between Ankur commencing the action, and maintaining that the First Defendant continues to owe him an obligation of confidentiality concerning the subject matter of the action. 77 But even when a patient sues his own doctor, not all obligations of confidentiality between them are waived. If there are aspects of the patient's treatment, or confidential information which the patient has disclosed, which has no bearing on the subject matter of the suit, the doctor must still maintain confidentiality concerning those matters. Inconsistency exists only to the extent to which it is necessary for the confidentiality be treated as at an end if the doctor is to have a fair opportunity of defending the action. 78 When a plaintiff sues a medical practitioner, and alleges that the negligence of the medical practitioner has had effects on his health after the time that the medical practitioner ceased acting as such for the plaintiff, the plaintiff has himself made the state of his health a relevant matter for inquiry in the litigation. It can be accepted that opportunity for investigation of those factual allegations is necessary if the medical practitioner is to have a fair opportunity to defend the action. There are, however, various means by which such a defendant can obtain information about the course of treatment which the plaintiff has undergone, and the symptoms which the plaintiff has exhibited after ceasing to be under the defendant's care, which can be obtained without an out-of-court interview impinging on the doctor-patient confidentiality between the plaintiff and his new treating doctor. 79 Whether it is inconsistent for the plaintiff to proceed with the litigation, and assert an ongoing obligation of confidence from his treating doctor, depends on whether the means available to the defendant to be informed about, and inquire into, the plaintiff's health are sufficient to enable the defendant to have a fair opportunity of defending the claim. I turn to consider the various means a defendant in such an action has of obtaining information about the plaintiff's health, so far as is relevant to the litigation.

(A) By Subpoenaing Medical Records 80 Notwithstanding any obligation of confidentiality, the medical records and treatment notes of a doctor can be subpoenaed. It is common for subpoenas seeking such records to be made returnable well in advance of the trial, and for any questions of access to those records and treatment notes to be decided well in advance of the trial. 81 In deciding what significance the power to subpoena medical records and treatment notes of a doctor has, it is relevant to consider what those records are obliged to contain. Section 126 Medical Practice Act 1992 empowers the making of regulations requiring medical practitioners to make and keep specified records. The Medical Practice Regulation 1998, Clause 13, required a registered medical practitioner to make and keep a record containing the information in Schedule 2 to that Regulation, for each patient. Schedule 2 provided: "Records Relating to Patients 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that are relevant to his or her diagnosis or treatment (eg information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), and (b) particulars of any clinical opinion reached by the medical practitioner, and (c) any plan of treatment for the patient, and (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the registered medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name or names of the person or persons who gave or performed the treatment, (d) the type of anaesthetic given to the patient (if any), (e) the tissues (if any) sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to any medical treatment (including any medical or surgical procedure) proposed by the registered medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) Abbreviations and short hand expressions may be used in a record only if they are generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A registered medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in such a manner as to obliterate, obscure or render illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a registered medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the registered medical practitioner, but only if: (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the registered medical practitioner ensures that the record is made and kept in accordance with this Schedule."

Clause 14 of that Regulation required the record to be made contemporaneously with the provision of the medical treatment, or other medical service, or as soon as practicable thereafter. Clause 17(1) of the Regulation provided: "All reasonable steps must be taken to ensure that all records are kept in such a manner as to preserve the confidentiality of the information that is contained in them and to prevent them from being damaged, lost or stolen." 82 That Regulation was replaced in August 2003 by the Medical Practice Regulation 2003. However the Medical Practice Regulation 2003 contains identical obligations to its predecessor concerning record keeping. 83 I recognise that there might be occasions when a doctor's records do not comply in all respects with the requirements of Schedule 2. However, if a treating doctor's records have been properly maintained, there is no inevitability that a medical practitioner in the position of the First Defendant will not be able to get adequate information to conduct his or her defence by subpoenaing the records of a treating doctor of a plaintiff.

(B) By Medical Examination 84 There is provision, in Supreme Court Rules Part 25 for any party who wishes a plaintiff to be medically examined by a medical expert nominated by that party. There is express power, in Part 25, rule 4, for the Court to stay proceedings if a plaintiff does not submit to medical examination when required to do so.

(C) By Discovery 85 Any documentation which an opposite party in litigation himself or herself has, and which bears on the treatment which that party has received, is discoverable.

(D) By Evidence in Court from Lay Witnesses 86 Some cases in which a plaintiff alleges ongoing bad effects on his health are ones where the real issue is the extent of the plaintiff's ongoing disability. In some of these cases, evidence of what the plaintiff is really capable of doing, from people who have observed his activities and can describe them to the court, or show video footage of them to the court, provides a defendant with better evidence than the defendant could ever obtain from a full account of what the plaintiff had told his or her own treating doctor.

(E) By Evidence in Court From the Treating Doctors 87 At common law, the obligation of confidentiality between doctor and patient does not entitle the doctor to decline to answer questions in court: R v Elizabeth Gibbons (1823) 1 Car & P 97; 171 ER 1117; Wheeler v Le Marchant (1881) 17 ChD 675 at 681; Garner v Garner (1920) 36 TLR 196; Attorney-General v Mulholland; Attorney-General v Foster [1963] 2 QB 477 at 489; Baker v Campbell (1983) 153 CLR 52 at 66, 75, 94, 128; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 230, 237. 88 While there can be no certainty, at the time an action is begun by a plaintiff, that the plaintiff will call his current treating doctors so that those doctors can be cross-examined, it is still a possibility that the plaintiff might do so. While it can be recognised that cross-examination of a treating doctor might in some circumstances not be an adequate way for a defendant to obtain information from that doctor which is relevant to the defendant's defence, that will not always be the case. More relevantly, a defendant is not necessarily denied a fair trial if the only opportunity he has of getting some items of information from a plaintiff's treating doctor is through cross-examination. 89 Further, it is always open to the defendant to subpoena the treating doctor, and call the treating doctor as a witness in the defendant's own case. If the obligation of confidentiality continues to bind the treating doctor, the defendant would need to call the treating doctor without the benefit of a conference before trial. One can readily understand how counsel would prefer not to be in a position of having to do this - but it is precisely that situation which arises whenever a witness has relevant information, and is not prepared to co-operate with a party who subpoenas him or her. It is not necessarily the case that if a defendant is in a situation of having to make a choice between calling the treating doctor without the benefit of a prior conference, and doing without the evidence of the treating doctor, that will amount to that defendant not having a fair opportunity to defend that action. 90 Section 126A Evidence Act 1995 (NSW) defines "protected confidence" as: "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."

Section 126B Evidence Act 1995 (NSW) provides: "Exclusion of evidence of protected confidences (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 … (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 … relates, (e) the likely effect of adducing evidence of the protected confidence … 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 … is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence … is a defendant or the prosecutor, (h) whether the substance of the protected confidence … has already been disclosed by the protected confider or any other person. (5) The court must state its reasons for giving or refusing to give a direction under this section."

Section 126C Evidence Act 1995 (NSW) provides: "Loss of professional confidential relationship privilege: consent This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned."

Section 126F provides: "Application of Division … (2) This Division applies in relation to a protected confidence within the meaning of this Division whether made before or after the commencement of this Division. … (4) The court may give a direction under this Division in respect of a protected confidence … whether or not the protected confidence … is privileged under another section of this Part or would be so privileged except for a limitation or restriction imposed by that section." 91 The effect of these provisions, introduced in 1997, is that, even if Dr Sholler and/or Dr Lewis were to be called as witnesses in the proceedings, it would not be inevitable that any confidential information which they had received concerning Ankur would be able to be elicited in evidence. 92 But neither is it the effect of these provisions that confidential information which they had received concerning Ankur would not be able to be elicited in evidence - it is a matter for the decision of the trial judge. In a case such as the present, any confidential information which the treating doctors had concerning Ankur's condition, which was of importance for the resolution of the trial, would be likely to be the subject of a ruling allowing the evidence to be given. Even after the enactment of the "protected confidence" provisions of the Evidence Act 1995 (NSW), it remains the situation that, in some circumstances, being able to elicit certain items of information from a treating doctor orally in court might provide an adequate opportunity for a doctor sued for negligent treatment of a patient to defend himself or herself.

Conclusion on Waiver 93 When there are all these means available for a defendant to obtain information about the course of treatment which a plaintiff who sues for personal injuries has undergone, and the symptoms which that plaintiff has exhibited from time to time, it cannot be said that the mere fact that the plaintiff sues a medical practitioner for negligence, and alleges effects of that negligence concerning which he received treatment from other doctors, means that the maintenance of confidentiality by the plaintiff's treating doctors is inconsistent with the plaintiff bringing the action he or she brings. 94 For the bringing of proceedings to count as a waiver of such confidentiality, it would have to be possible to say, as soon as the proceedings were brought, that the plaintiff would be acting inconsistently in both continuing with the proceedings, and in seeking to maintain an obligation of confidence from his treating doctors. The means of obtaining evidence which I have outlined, are ones which, in (to put it at the lowest) at least some cases will be perfectly adequate to enable the defendant to have a proper opportunity to defend himself. In any particular case, it might not be possible to say, at the time the proceedings are brought, whether the defendant will, or will not, have a fair opportunity of defending himself through obtaining information protected by doctor-patient confidentiality at the time, to the extent and in the manner, the Court's procedures allow. However, the fact that the defendant might be able to have a reasonable opportunity of defending himself using such information means that there is no inconsistency between maintaining the confidentiality and having commenced the action. For this reason, I decline to hold that the commencement of proceedings by the First Plaintiff amounts to a waiver of his right to confidentiality arising from the doctor-patient relationships between himself and Dr Sholler and Dr Lewis. I decline to follow Hay v University of Alberta Hospital, and the other cases which have followed it. 95 If Hay applied in Australia, it is difficult to see that its effect would be confined to situations where the defendant was a medical practitioner. If it is the act of putting one's own state of health in dispute in litigation which waives doctor-patient confidentiality, then any plaintiff who sues and alleges his or her health has suffered in consequence of the wrongful action of anyone would thereby waive doctor-patient confidentiality. Given the enormous volume of personal injuries litigation which there has been in Australia, it would be most surprising if this consequence of bringing personal injuries litigation, if it were good law, had not been noticed before. 96 It might happen that, in the course of preparation of a particular piece of personal injury litigation, a stage is arrived at where it becomes inconsistent for the plaintiff to continue to maintain a full obligation of confidentiality with his or her treating doctors and to press on with the litigation. Once such a stage has been arrived at, for the plaintiff to press on with litigation would involve, at least to some extent, a waiver of the right of confidentiality. There is a serious practical difficulty about how a treating doctor is to know, short of a court decision, whether that stage has been arrived at, and, if it has, the extent of the waiver of confidentiality which has occurred. If there were to be a court decision on that topic, it would be the person who contended that there had been a waiver of the right of confidentiality who would bear the evidentiary and persuasive onus. When the contention of the First Defendant has been that there is a bright-line rule, whereby the commencement of proceedings always acts as a waiver of confidentiality, it is not necessary to consider any further this possibility of waiver arising after the commencement of proceedings.

Other Matters Relating to Waiver 97 Maintaining patient confidentiality has been seen by doctors as an ethical responsibility, for millennia. Part of the Hippocratic Oath translates as: "Whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret." (Quoted in Clarke , Confidentiality and the Law , Lloyds of London Press Ltd, 1990, p 23).

No evidence was put before me about the current Australian views of medical ethics concerning patient confidentiality. If I had come to the view that there had been a waiver of a legal obligation of confidentiality, I would have required further evidence about the ethical constraints Australian doctors are currently under concerning confidentiality, and further argument about the utility of making a declaration that a legal right of confidentiality had been waived if there was a real prospect that, notwithstanding that declaration, a doctor would decline to disclose information for ethical reasons. 98 Neither Dr Sholler nor Dr Lewis was party to the present application. The declaration which was sought, about the right of confidentiality having been waived, related to the duties of confidentiality which those doctors owed. The court ordinarily will not make a declaration that certain rights or obligations exist, or do not exist, without the persons whose rights or obligations are in question being party to the proceedings: Kunstler v Kunstler [1969] 1 WLR 1506; The Dairy Farmers' Co-operative Milk Company Limited and Another v The Commonwealth and Others (1946) 73 CLR 381 at 392; Davlon Pty Ltd v Ku-ring-gai Municipal Council (1968) 89 WN (NSW) 26 at 28-29 (the disapproval of Davlon in Parramatta City Council v Bolton [1974] 2 NSWLR 241 at 251 does not affect the present point); Australasian Oil Exploration Limited v Lachberg and Others (1958) 101 CLR 119 at 133-4; London Passenger Transport Board v Moscrop [1942] AC 332 at 345; 351; News Ltd and Others v Australian Rugby Football League Ltd and Others (1996) 21 ACSR 635 at 740-743. I would not have made the declaration the First Defendant seeks, nor any contrary declaration that the rights of confidentiality had not been waived, without those doctors being joined, and given the opportunity to present such evidence and argument as they wished. When the only course I propose to take is to dismiss the application for a declaration, there is not the same need for those doctors to be joined.

Interrogatories as a Means of Ascertaining Information 99 As there was some discussion and argument about whether interrogatories provided a means whereby the First Defendant could obtain access to information known to Doctors Sholler and Lewis, but not contained in their written records, I should state my views concerning that topic. 100 One of the procedures which the court has to enable a litigant to obtain relevant information from another party, is the administration of interrogatories. The procedure whereby one party can require another to answer interrogatories simply by serving a notice to answer interrogatories does not apply to proceedings (like this one) on a common law claim for damages arising out of bodily injury (Supreme Court Rules Part 24, Rule 1(3)), but the court has power in any case (including common law claims for damages arising out of bodily injury) to order a party to answer interrogatories, if the court is satisfied such an order is necessary (Supreme Court Rules Part 24, Rule 5). 101 While it is only a party to the litigation who can be compelled to answer interrogatories, the obligation to answer "the substance of the interrogatory without evasion" (Supreme Court Rules Part 24, Rule 6(2)(a)) is construed as importing an obligation to answer to the best of that party's knowledge, information and belief (Lyell v Kennedy (No.2) (1883) 9 App Cas 81), and after making reasonable enquiries of his servants and agents about matters of which they have become aware in the course of their acting as such (Bolckow, Vaughan, & Co v Fisher and Others (1882) 10 QBD 161; Welsbach Incandescent Gas Lighting Company v New Sunlight Incandescent Company [1900] 2 Ch 1; Smith Kline & French Laboratories Limited and Others v Inter-continental Pharmaceuticals (Australia) Pty Limited and Another (1969) 123 CLR 514 at 520, 522, 528; Sharpe v Smail and Another (1975) 49 ALJR 130 at 132). The obligation to make enquiries extends to agents who carry on business on behalf of the litigant - "to a banker who keeps accounts, or to any other man keeping his accounts. So, where a solicitor does business for a client, he does it for his client - he does his client's business" (Alliott v Smith [1895] 2 Ch 111 at 114 per Kekewich J). 102 These principles do not, however, lead to a conclusion that information which the treating doctor of a litigant knows can be extracted by administering interrogatories to the litigant, apart from concerning some topics not likely to be of central concern in a case such as the present. There are several reasons why this is so. 103 First, there are some activities which a medical practitioner carries out as agent of his or her patient - for example, if the medical practitioner books the patient into a hospital, or orders pathology tests on the patient's behalf it is the patient who has the obligation to pay the fee pursuant to the contract the treating doctor has entered on the plaintiff's behalf. However, when the medical practitioner is examining the patient or making judgements about the patient's condition or treatment he or she is not an agent of the patient. He or she is performing tasks at the request of, and for the benefit of, the patient, but not on behalf of the patient. It is only to the extent that information is acquired while acting as agent that it can be got at by administering interrogatories. 104 Second, it is the litigant who is required to swear to the accuracy of the answers given to interrogatories. If, for example, the recollections of Ankur's parents, and of Doctor Sholler differed concerning the history which Dr Sholler had been given, all that Ankur's parents would be required to swear to the accuracy of was the information which they believed was true. 105 Third, it is a ground of objection to an interrogatory (one which is upheld unless the court decides otherwise) that the answer could disclose a protected confidence within the meaning of section 126B of the Evidence Act 1995 (NSW), and that consent by the protected confider has not been given to disclosure of the confidence (and other conditions not here relevant): Supreme Court Rules Part 24, Rule 6(3)(c)(ii). This third problem could be overcome by the court deciding otherwise, but the other two problems would still remain. 106 Thus, interrogatories are unlikely to provide a useful means of eliciting information which a treating doctor has in his or her head but not on paper. PART E - STAY OF PROCEEDINGS

Principles Re Whether a Stay Should be Granted 107 Section 76A Supreme Court Act 1970 says: "The Court may, from time to time, give such directions as the Court thinks fit (whether or not inconsistent with the rules) for the speedy determination of the real questions between the parties to civil proceedings)"

Part 26, Rule 1 Supreme Court Rules enables the court to: "… give such directions and make such orders for the conduct of any proceedings as appears convenient (whether or not inconsistent with the rules) for the just, quick and cheap disposal of the proceedings."

Part 1, Rule 3 says: "(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings. (2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule." 108 These provisions are directed to procedural matters, and are not intended to impact upon substantive rights: cf Griffin v Sogelease Australia Ltd and Others (2003) 57 NSWLR 257 at 264. It would not be open to the Court to direct, under these provisions, that the plaintiffs give up their right of confidentiality. This is recognised by the First Defendant in the form of the second order which he seeks. That second order seeks a stay of the proceedings until the plaintiff provides permission for Doctors Sholler and Lewis to discuss Ankur's treatment with the legal representatives of the First Defendant. The second order thus leaves it to the plaintiffs to decide whether or not they will provide any such authority. 109 Part of the reasoning concerning why the doctor-patient confidentiality between Ankur and his treating doctors was not waived by the mere fact of commencement of proceedings is that, as outlined above, the Court's procedures for ascertainment of such confidential information might (putting it at its lowest) be adequate to enable the First Defendant to have a fair opportunity of defending himself, while that obligation of confidentiality remained on foot. But what is to happen if those procedures prove inadequate for that purpose? 110 The Court has an inherent jurisdiction to stay proceedings if continuance of them would be unjust: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344-5; Walton v Gardiner (1993) 177 CLR 378; Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 esp at 39, 56-58; Evers v Firth (1986) 10 NSWLR 22 at 26; Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 at 287; Williams and Others v Spautz (1992) 174 CLR 509. And one possible circumstance where that might happen is where a party to litigation was using a right of confidentiality to keep hidden information which ought be available for the fair trial of the action. 111 If a litigant satisfies the court that a fair trial of the action cannot be had while the opposing litigant insists on a right to keep information confidential, the court can stay the action until that right of confidentiality is no longer insisted on. The onus is on the party who seeks such an order to establish a prima facie case that there actually is information which is being kept secret from that party, that while it is kept secret a fair trial of the action will not occur, and that the circumstances are appropriate to exercise the significant power of granting a stay. 112 If the only relevant information in the treating doctor's head is information which is also in his or her records, and those records are available for the purposes of the trial, there is nothing relevant in his or her head which is being kept secret from the other party to the litigation. Thus, the applicant for a stay, who has had the doctor's records produced, needs to make out a prima facie case that the doctor has relevant information not contained in those records. 113 If it were to be established that there was a prima facie case that a treating doctor had information not contained in his or her records, and that the plaintiff insisted on maintaining confidentiality concerning that information, there would still be a question of whether that meant that a fair trial would not occur. Apart from in the unlikely event that the treating doctor had made clear that it was only his or her obligation of confidentiality which was keeping him or her from talking with the defendant's lawyers, it would not necessarily follow that, if the plaintiff were to waive confidentiality, the treating doctor would agree to talk to the defendant's lawyers. Quite apart from any questions of confidentiality or medical ethics, a treating doctor might be unwilling to talk to the defendant's lawyers because he or she thought it would negatively affect the ongoing doctor-patient relationship, because he or she did not want to get involved in someone else's dispute, or simply because he or she preferred to spend time in some way other than talking to lawyers. 114 Whether it would be appropriate to impose a stay unless confidentiality was waived might be affected by what basis there was for believing an express waiver of the obligation of confidentiality would result in the defendant actually getting information from the treating doctor. A more likely result, however, is that the court would take the view that a trial would be unfair if held in circumstances where there was real doubt about whether the plaintiff's insistence on maintaining a right of confidentiality was the cause of relevant material being kept from the defendant prior to the trial, and about whether the information was the sort of information the defendant would be able to cope with if revealed in evidence in the course of the trial. If on the other hand the plaintiff waived confidentiality, and the treating doctor then declined to co-operate with the defendant's lawyers, the trial would be a fair one because, even though the defendant still could not get the information without calling or cross-examining the doctor at the hearing, it was not the plaintiff who was preventing the information from being made available prior to the trial. In that situation, the cause of the information not being available prior to the trial would be the doctor exercising the right any citizen has to refuse to meet and talk with someone who wants to meet and talk with them. 115 If there was information not contained in the doctor's records which was relevant but of marginal importance to the case, the Court might decide that there could still be a fair trial. To be able to decide this, the Court would need to know the nature of the information sought to be kept secret, and be able to assess its significance for the trial. As well, procedural devices of limited disclosure of the information to legal advisers, different to those who would run the main case, might need to be put in place to ensure the argument occurred with procedural fairness. 116 If it was decided a fair trial could not occur while a right of confidentiality was insisted on, it would be inevitable that the Court would also decide it was appropriate to stay the action, even though preventing a plaintiff from litigating a claim is a serious thing to do. 117 It is not sufficient to grant a stay that a party would like the opportunity of fishing to see whether there might be any information relevant to the case which is kept from him or her by reason of the confidence. Nor is it sufficient that the party would like a trial run at cross-examination without the risk of obtaining unfavourable answers that always goes with cross-examining a witness with whom counsel has not previously conferred. 118 When I say that a defendant seeking a stay must establish that there is a prima facie case, I am referring to the fact that the defendant bears the legal onus of proof, but is seeking to prove that information of a particular type is known to the treating doctor, when the defendant is not in a position to know fully what it is that the treating doctor knows. Thus, if the defendant can produce sufficient material from which an inference can be drawn that the treating doctor has such information, that can suffice to discharge the onus of proof: Apollo Shower Screens Pty Ltd and Another v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561. A "prima facie case" has been held to be required in order to prove that communications between lawyer and client were for an improper purpose (and hence that legal professional privilege did not apply - The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 at 516, 517, 525; Re Moage Ltd (in liq); Sheahan v Pitterino and Others (1998) 26 ACSR 726 at 733-734.), and also to establish that circumstances have arisen which make an obligation of confidence inapplicable: A and Others v Hayden (1984) 156 CLR 532 at 547; AG Australia Holdings Ltd v Burton & Anor [2002] NSWSC 170; (2002) 58 IPR 268; (2002) 58 NSWLR 464 at [198] - [202]. 119 When a decision is being made whether litigation should be stayed unless a right of confidence is expressly waived in certain respects, I do not see that any different questions are involved to those involved in deciding that the stage has been arrived at, in that particular piece of litigation, where it has become inconsistent for the plaintiff to maintain the right of confidentiality in those respects, and also to press on with the litigation. That is to say, I do not see that any different questions are involved to those involved in deciding that there has been a waiver of the right of confidentiality, in those respects. Thus it is not surprising that the same standard of proof applies for when circumstances have arisen to make an obligation of confidence inapplicable, and also for when circumstances have arisen such that a stay of litigation is appropriate for the reasons now under consideration. 120 In McGrory v Electricity Supply Board (Supreme Court of Ireland, 24 July 2003, unreported), discussed at [40] above, a stay was granted apparently on the basis that the information to be obtained from the conference between doctors was "relevant material which in any event will be available at a later stage of the proceedings". There was no examination of what information the treating doctor might have which was not obtainable through ordinary court processes, or what justification there was for the serious step of staying an action. I respectfully decline to adopt that approach. 121 For the purpose of seeing whether a stay ought be ordered in the present case, it is necessary to look, in some detail, at what the evidence establishes concerning the likelihood that the treating doctors have information obtainable only through questioning them.

Is a Stay Justified in this Case? 122 A five page request for particulars which BDW made on 8 March 2002 produced, on 22 August 2002, a 12 page response from M&R. No complaint is made about the adequacy of those particulars. 123 M&R have prepared, and provided to the experts instructed by them, and to BDW, a medico-legal brief of documents. It contains: · a chronology of facts and assumptions, which lists in chronological order each event which the Plaintiffs contend is of significance to their case; · the correspondence passing between medical practitioners concerning Ankur's treatment; · the records of the various hospitals where he has been admitted; · the records of various treating doctors which have been produced on subpoena, and · the "blue book" recording his neo-natal and paediatric care. 124 M&R have served expert witness reports. BDW served three expert reports by a Dr Campbell on 1 March 2004. 125 In an affidavit affirmed 6 September 2002 in support of this application, Ms Barnes, the solicitor with carriage of the file at BDW stated at paragraph 10: "I wish to interview Dr Gary Sholler in order to ascertain his opinion, as the first plaintiff's treating paediatric cardiologist at the time of the diagnosis of his pulmonary hypertension, as to the history of signs and symptoms of the first plaintiff's condition, given at the time of initial examination, his findings and examinations, the nature of the first plaintiff's underlying condition, the possibility of detection at certain times and the likely outcome had detection occurred earlier. This information is required to enable the first defendant to properly and comprehensively prepare a defence to the first plaintiff's allegation of breach of duty and causation."

She was not cross-examined on that statement, however the solicitor with carriage of the file at M&R commented on it, in an affidavit sworn 2 May 2003: "At paragraph 10 of the said Affidavit of Ms Barnes, she asserts that such information is "required to enable the First Defendant" to prepare its defence; however there is no explanation given by Ms Barnes as to why the First Defendant needs such information to be provided by Dr Sholler. In particular, the Applicant has not referred to any difficulty that it has had through any of its own forensic experts being unable to provide opinions. However, as mentioned below, most, it not all, of the factual information sought by the Applicant, has been obtained from other sources. It simply appears as though the Applicant wishes to use Dr Sholler as a forensic advisor or expert for the Applicant. As to the factual information sought, all parties have had access to usual Court processes including subpoenae, interrogatories and discovery. Dr Sholler's records have been produced to the Court. His records and the material contained therein, including test results etc are in no way inadequate for the purpose of the Applicant seeking expert opinion on the issues mentioned by Ms Barnes."

That part of the affidavit was admitted on the basis that it was a contention, not evidence of the truth of the statements in it. 126 The statement in paragraph 10 of Ms Barnes' affidavit is an extremely general one. It is insufficient to persuade me that Dr Sholler has information, not contained in his records, which the First Defendant's solicitors ought be apprised of before the hearing if the First Defendant is to have a fair opportunity to conduct his defence. Particularly is that so when Dr Sholler's records have all been made available, no submission has been put to me that they are inadequate in any respect, and the attitude the plaintiff would take to the suggestion that there was a need to interview Dr Sholler was clearly set out in the affidavit of 2 May 2003. 127 The fact that there has been no cross-examination on Ms Barnes' statement is not decisive. There is no rule of law requiring that evidence not challenged in cross-examination be accepted - Sullman v Sullman [2002] NSWSC 169; (2002) DFC 95-248 at [304]-[306]. When there has been opportunity in pre-trial preparation for the contentions of the parties to be made known one to the other by exchange of affidavits, and opportunity for each to reply to the contentions of the other, the rule in Browne v Dunn (1893) 6 R 67 does not require those contentions to be put orally to a witness at a trial: West v Mead [2003] NSWSC 161 at [94] - [99] and cases there cited; Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 at [94]. 128 In her letter of 24 October 2002 (set out at para [9] above) Ms Barnes listed various matters which she wished to discuss with Dr Sholler. However, (except to the extent I later mention) no submission was put to me about how those topics were matters which were not covered by information contained in Dr Sholler's records, or were not ascertainable from an expert instructed by the solicitors for the First Defendant. 129 At the hearing, Mr Wood, counsel for the First Defendant, pointed to some matters, most of which were beyond those identified in BDW's letter of 24 October 2002, which he submitted showed a need for the First Defendant to interview Dr Sholler. The first matter he referred to concerned the history which had been provided by Ankur's parents to Dr Sholler. The parents alleged that in early March 1998 they noticed that Ankur was breathing faster than normal for a baby, that on 13 March 1998 they told the First Defendant that he appeared to be breathing at a faster rate, but that the First Defendant told them "no, its fine". The parents also say that on 12 May 1998 they told the First Defendant that they had consulted Dr Lewis, told her about their concern about Ankur's poor weight gain, and that Dr Lewis had advised that Ankur's kidney condition was not the cause of the poor weight gain. The parents say that the First Defendant's reply was to the effect that "boys are a bit slow to gain weight. He will be alright". The parents further say that on 23 July 1998 they told the First Defendant that they had noticed Ankur grew sweaty on the head and forehead, and became tired, during breast-feeding, and that they had noticed occasional blueness of the fingers, toes and ears after crying. The First Defendant did not, they say, appear concerned. 130 According to the First Defendant's defence, it was on 6 October 1998 that he was given a history of "heavy breathing" associated with Ankur suffering from pneumonia, and on 12 October 1998 that he noted that Ankur had a "dusky" colour on crying, and that on either 12 or 20 October he obtained from one or both of Ankur's parents a history of them having noticed rapid breathing by Ankur, particularly when feeding. 131 It thus appears that there may be an issue at the trial about when Ankur's parents noticed particular problems with Ankur, and when they informed the First Defendant about having noticed those problems. At least part of what BDW wish to ascertain from Dr Sholler is what Ankur's parents told Dr Sholler about when it was that they first noticed these unusual matters concerning Ankur, and when they told the First Defendant about them. 132 The second matter Mr Wood relied on arose from a letter which Dr Sholler wrote on 24 July 2002 to Ankur's GP, where Dr Sholler said: "My main concern continues to be that there is an underlying pulmonary venous sclerotic process going on which is accounting for a good deal of his pulmonary hypertension, and in fact this may well have been a long term but clinically unapparent feature if the process began within the venous circulation. Such findings would make pharmacological intervention less likely to be successful, and surgery under these circumstances very likely to be unsuccessful."

How this pulmonary venous sclerotic process interacts with the other causes of Ankur's medical condition is, Mr Wood submits, something which needs to be investigated to sort out how significant was the undoubted lapse of time in diagnosing Ankur's heart condition as a cause of his current condition. Dr Sholler is the person best placed, Mr Wood says, to provide information on that topic. 133 Dr Wilkinson is an expert who has provided a report for the Plaintiffs, which has been served. In that report he refers to a cardiac catheter procedure which Dr Sholler arranged to have carried out on Ankur on 30 October 1998. One of the conclusions from that catheter procedure was that there was a "ventricular septal defect (single, muscular); small to moderate". Dr Wilkinson comments: "The basis for the conclusion that the ventricular septal defect was "small to moderate" is a little unclear? One would certainly expect that the ventricular septal defect would have been the main cause of the pulmonary hypertension as atrial septal defects seldom produce severe pulmonary hypertension in infants at this age. I suspect that the conclusion that this defect was "small to moderate" followed from echocardiographic appearances and the appearances on a left ventriculogram. The Ventriculogram was performed with a hand injection of contrast into the left ventricle and this may not have produced adequate pictures to properly demonstrate the size of the VSD? Certainly at the time of surgery the ventricular septal defect is described as being "one centimetre diameter". For a child of this size, this would certainly be a large VSD, which is more in keeping with the severity of pulmonary hypertension demonstrated." 134 Mr Wood submits that BDW should be able to ascertain from Dr Sholler the basis upon which he came to the conclusion that the ventricular septal defect was "small to moderate". 135 Another observation in Dr Wilkinson's report is: "Of interest is the fact that the additional small apical VSDs that were demonstrated on the previous Echocardiograms, by both Dr Lincoln Lee and by Dr Sholler, were not confirmed at the catheter. I presume that they were either judged to be insignificant or that, as they were not seen on angiography, they were thought to not be present - the implication being that they had either closed or were incorrectly diagnosed in the first place? This is probably not an important issue however as the "additional defects" were never thought to have been large enough to matter in any case!"

Mr Wood submits that BDW should be able to ascertain from Dr Sholler whether his observations were that he saw the small VSDs and judged them to be insignificant, or that he did not see them at all. 136 Another portion of Dr Wilkinson's report which Mr Wood points to refers to the fact that a repeat cardiac catheter was carried out on 20 January 1999, with a conclusion of "pulmonary hypertension; mixed; partly reversible". Dr Wilkinson continues: "A decision was then made to proceed to surgical repair of the VSD and obviously this was something that involved a degree of urgency because of the risk of progressive pulmonary vascular damage, secondary to the pulmonary hypertension. For reasons that are not entirely clear, the surgery was not in fact performed until the 10th March." 137 Mr Wood submits that BDW should be able to ascertain from Dr Sholler why it was that the surgery was not performed until 10 March 1999. He says that the Plaintiff's case is that if the First Defendant had diagnosed Ankur's coronary condition earlier, treatment could have been instituted earlier - yet Dr Sholler seems to have seen no problem in delaying surgery from 20 January to 10 March, once the need for it was established on 20 January 1999. 138 Mr Wood also points to a report of Dr Cochrane, cardiac surgeon, which the Plaintiffs have served, and which includes the statement: "In general, if a large VSD is detected, even in the presence of pulmonary hypertension, and is closed within the first 6 months of life, the prognosis is excellent, and long-term pulmonary vascular disease is very uncommon. However, the later the diagnosis and surgical closure the higher the risk of irreversible change becomes, and beyond two years of age there is a substantial risk that there is permanent change in the pulmonary arteries. At the time of diagnosis (9 months of age) I would have generally expected a reasonable chance of resolution of the pulmonary changes in the majority of infants. The presence of right to left shunting across the VSD, reported by Dr Sholler on 22/10/1998, is a disturbing feature suggesting that Ankur might indeed fall into the group of infants in whom the pulmonary hypertension would not resolve. Unfortunately, the operation was further delayed until almost 14 months of age by the performance of two cardiac catheter studies and by an episode of RSV bronchiolitis."

Mr Wood says that Dr Sholler is the person who is in the best position to cast light on why it was appropriate to carry out the two cardiac catheter studies once the condition had been diagnosed. 139 Finally, Mr Wood draws my attention to Dr Campbell's report of 10 February 2004, which says: "Dr Sholler's views on the likely aetiology, type and evolution of Pulmonary Hypertension in Ankur Kadian are obviously very important, possibly a key issue. If Pulmonary Hypertension was evolving from very early on, could this possibly have obscured other clinical signs of his congenital heart defects, and therefore made an earlier clinical diagnosis of his heart defects very difficult. Dr Sholler is the best placed person to make comments, having been involved in Ankur's care from the age of nine months. …" 140 Mr Wood did not point me to any evidence which was capable of laying the ground for suggesting that there was a specific reason or reasons why it was appropriate for the First Defendant's lawyers to talk with Dr Lewis, beyond the fact that Dr Lewis had been involved in Ankur's treatment on an ongoing basis from birth. 141 Ankur's father has expressed his views about the possibility of there being a waiver of confidentiality, so far as Dr Sholler and Dr Lewis are concerned, as follows: "… Dr Sholler … has all of Ankur's records from the beginning of his diagnosis and he is familiar with Ankur's treatment."

And: "Ankur is still seeing Dr Sholler every 3 months. His last consultations were in December and January this year where he monitored Ankur and performed an Ultrasound to test whether it would be safe to take him off his oxygen for a couple of hours during the day to enable Ankur to start school without having to be on oxygen. Ankur is due to see Dr Sholler again at the end of May. Ankur also sees Dr Lewis every 12 months or so, to review his kidney problems. He is due to see Dr Lewis again in May or June this year. Mr wife and I are very pleased with Dr Lewis' care and advice. We have been seeing Dr Lewis in respect of Ankur's kidney problems since before Ankur was even born. If Dr Sholler or Dr Lewis spoke to Dr Richards' solicitors and specifically if they ended up supporting the case against us, we would be very upset about that and we would have to find other Specialist Doctors to treat Ankur. We think that Dr Sholler and Dr Lewis are the best specialists for Ankur and we do not want to find other Doctors." 142 Mr Wood does not oppose a stay being ordered on whatever conditions the Court thinks fit, including that if the stay is later terminated by Ankur waiving confidentiality, that: 1. The first defendant undertake not to sue Dr Sholler or Dr Lewis concerning Ankur's condition. 2. The first defendant pay the doctors' reasonable remuneration for their time. 3. The first defendant fit in with the other commitments of the doctors, and only see the doctors at a time convenient to those doctors. 4. The legal representatives of the plaintiffs can attend the conference if they wish. 143 Mr Butcher, counsel for the plaintiffs, submits that no real need has been demonstrated for the First Defendant's lawyers to talk with Doctors Sholler and Lewis. 144 The reports of Dr Campbell are ones in which he states that he has read Schedule K to the Supreme Court Rules and agrees to abide by it. Schedule K includes the following requirements: "6. If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report. 7. If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed." 145 An initial report which Dr Campbell gave on 15 September 2003 contained no qualification to the effect that an opinion could not be given without extra information from Dr Sholler. His supplementary opinion of 10 February 2004, which contains the passage I have quoted at para [139] above was in response to a letter from BDW which asked for a supplementary report dealing with issues including: "Your comments on the usefulness of the provision to you of Dr Sholler's views on the likely time of onset of Ankur's pulmonary hypertension for the purpose of your report on whether or not Dr Richards' treatment met the appropriate standard of care."

Thus, Mr Butcher submits, that opinion was hardly an unprompted one. Further, he submits, the topic on which Dr Campbell says Dr Sholler's views would be very important, are not shown to be ones which a properly instructed expert witness could not also adequately express views on. 146 Reports by Dr Hugh Allen, respiratory and general paediatrician, dated 7 December 2002 and 7 August 2003, were served by the First Defendant on 11 March 2004. Those reports contain an acknowledgment of the Code of Conduct for Expert Witnesses, but do not say that the reports are in any way inaccurate or incomplete, nor that Dr Allen needs further information from Dr Sholler to be able to express a concluded opinion. 147 The fact that Dr Campbell and Dr Allen have been able to give reports, after turning their minds to Schedule K, and not stating that further information from Dr Sholler was necessary, is a matter which in my view has significant weight. 148 Mr Butcher points out that the various comments of Dr Wilkinson, on which Mr Wood relied (paras [133]-[137] above), were in a part of Dr Wilkinson's report which occurs after Dr Wilkinson has expressed his views on the appropriateness of the treatment given to Ankur by the Defendants, and occurs in response to a question "please provide your comments as to any departures from the requisite standard of care on the part of any other treatment providers since Ankur's birth to date, where you see relevant." The passages to which Mr Wood drew attention all occurred in the course of Dr Wilkinson reasoning towards a conclusion that: "With the eye of hindsight … I think it would have been better if the initial catheter study at the end of October had been carried out with general anaesthesia so that a comprehensive assessment of the pulmonary hypertension could have been made at that time. If this had happened, then a decision might have been made to proceed towards urgent repair of the VSD, which potentially could have been carried out during November 1998. (Perhaps 4 months earlier than actually happened). Although - with the eye of hindsight, this might have been a better way of dealing with the problems, I do not consider that what actually took place demonstrates any "departure from the requisite standard of care" on the part of the cardiologists or surgeons at New Childrens Hospital.

In other words, the remarks of Dr Wilkinson to which Mr Wood drew attention were all made in response to a question about who, other than those presently joined as defendants in the action, had been negligent in the treatment of Ankur, and in the course of Dr Wilkinson reasoning towards a conclusion that other treatment providers (including Dr Sholler) had not been negligent. They played no part in Dr Wilkinson's consideration of whether the First Defendant had been negligent. 149 I am not persuaded that a fair trial would not be had without the First Defendant's lawyers ascertaining verbally from Dr Sholler his recollection of what the adult plaintiffs told him about what they told the First Defendant concerning Ankur's condition. No inadequacy in Dr Sholler's notes has been demonstrated. The topic of what history the parents gave to the First Defendant is one concerning which the First Defendant has first hand knowledge and, presumably, records. 150 The next matter to which Mr Wood drew attention, the "underlying pulmonary venous sclerotic process", is not something which I am prepared to conclude, without expert evidence, is something which can only have proper light cast on it by Dr Sholler, such that a fair trial could not be had without Dr Sholler's evidence on the topic. 151 Mr Butcher's observation, that the various parts of Dr Wilkinson's report on which Mr Wood relied are all part of a process of reasoning towards a conclusion that Dr Sholler has not been negligent, is well made. Concerning those matters, and as well concerning the point which Mr Wood makes arising from Dr Cochrane's report (para [138] above), I would not be prepared to conclude that the medical information which Mr Wood submits should be obtained from Dr Sholler is information without which the First Defendant would not have a fair opportunity to defend himself, unless there was evidence to show that the information was (in practical terms and bearing in mind the extent to which it is reasonable to expect a litigant to search out for itself information useful for its case) not available from any source other than Dr Sholler. Further, expert evidence establishing, with some particularity, the importance of that missing information to the resolution of the questions in dispute, would need to be produced. The statement in Dr Campbell's report, quoted at para [139] above, does not go far enough. 152 In Nicholson v Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (discussed at para [38]-[39] above) a stay had been granted until the plaintiff consented to information being provided by the treating doctor on two particular topics; those topics were ones concerning which the defendant's expert had specifically said he lacked information. The contrast with the present case is significant. 153 No reasons have been presented at all why it is necessary for the First Defendant's lawyers to talk to Dr Lewis, if the First Defendant is to have a fair trial. Their desire to talk to her is, it seems to me, nothing more than a fishing expedition. 154 As part of submitting that he would consent to any conditions on which questioning of Dr Sholler could take place, the First Defendant submitted that if the only way the court could be satisfied it had sufficient control over the questioning process was if questioning took place before a court officer, then that is the order that should be made. The First Defendant disclaimed any wish for the court to exercise any coercive power over Dr Sholler, by requiring him to submit to any such questioning. Thus no questions arise about whether the court's power under Supreme Court Rules Part 27 Rule 1A, or its inherent power, is wide enough to require a non-party to submit to a procedure like the North American procedure of examination for discovery. Rather, the First Defendant's fallback submission was that the action should be stayed unless the plaintiffs consented to Dr Sholler and Dr Lewis being questioned orally before a court officer. 155 Even assuming, without deciding, that there is power for a Registrar or other court officer to preside over such a questioning, it would still be necessary for the First Defendant to satisfy the Court that the interests of justice required such a procedure to be gone through. For the same reasons as I am not persuaded that the interests of justice require that there be no trial unless there has been out of court questioning of Dr Sholler or Dr Lewis, I am not persuaded that the interests of justice require that there be no trial unless there has been this kind of in-court questioning of Dr Sholler or Dr Lewis. 156 It would be open to the Court in an appropriate case, to direct a plaintiff to state, within some specified period of time, whether he or she would consent to a treating doctor answering a particular list of questions. If the plaintiff declined to give the consent, or gave it only in relation to some of the questions, the Court might then consider whether it was an appropriate circumstance in which to stay the proceedings. In exercising any discretion concerning the granting of a stay in those circumstances, the Court would have a much better idea about the topics on which a plaintiff is declining to make information available than is the case if a plaintiff refuses to consent to the treating doctor engaging in an open-ended oral discussion. The First Defendant in the present case was invited by the plaintiffs to submit a list of specific questions, but has taken the view that it is not practicable to do so - see paras [8] - [9] above. Thus no such question arises here. 157 For these reasons, I am not prepared to make an order staying the proceedings until the plaintiffs consent to Doctors Sholler and Lewis discussing their management and treatment of Ankur with the First Defendant's lawyers.

Order 158 I order the application be dismissed, and reserve the costs. **********

APPENDIX - CASES LISTED IN SWIRSKI V HACHEY (para [22] above)

159 Halls v Mitchell [1928] 2 DLR 97; [1928] SCR 125 was a decision of the Supreme Court of Canada. It concerned an action for defamation by a patient against his doctor, arising from the doctor having stated to various people that the plaintiff suffered from a particular disease, when in fact the patient did not suffer from that disease. The statements of the doctor were based upon a misinterpretation of his notes. The occasion for the doctor making those statements was that the patient was making a claim for workers' compensation, which would be deleteriously affected if the patient's condition had been due to that disease. The question for decision was whether the doctor had, within the law of defamation, a privilege in making the statements he made. The Court held he had no such privilege. 160 In the course of so deciding, Duff J (with whom Anglin CJC, Mignault and Lamont JJ concurred) made some remarks about medical confidentiality. He said, at 105 of DLR: "It is not necessary, for the purposes of this appeal, to attempt to state with any sort of precision the limits of the obligation of secrecy which rests upon the medical practitioner in relation to professional secrets acquired by him in the course of his practice. Nobody would dispute that a secret so acquired is the secret of the patient and, normally, is under his control, and not under that of the doctor. Prima facie, the patient has the rights to require that the secret shall not be divulged; and that right is absolute, unless there is some paramount reason which overrides it. Such reasons may arise, no doubt, from the existence of facts which bring into play overpowering considerations connected with public justice; and there may be cases in which reasons connected with the safety of individuals or of the public, physical or moral, would be sufficiently cogent to supersede or qualify the obligations prima facie imposed by the confidential relation."

And at 107 of DLR: "It is, perhaps, not easy to exaggerate the value attached by the community as a whole to the existence of a competently trained and honourable medical profession; and it is just as important that patients, in consulting a physician, shall feel that they may disclose the facts touching their bodily health, without fear that their confidence may be abused to their disadvantage."

There is nothing in the case, however, about when an obligation of medical confidentiality is waived. 161 Ansley v Ansley (1973) 12 RFL 93; [1973] 5 WWR 181 is a decision of Berger J in the British Columbia Supreme Court. It arose at the interlocutory stage of a dispute between parents concerning the custody of their child. The wife had been under the care of various psychiatrists. In the course of a Canadian process of "examination-for-discovery", she objected to disclosing the names of those psychiatrists. The judge held she should do so. He said, at 183 of WWR: "The doctors' names ought to be given to the respondent. If the respondent or his solicitor want to look them up and talk to them, they have that right. It may be that the doctors will not talk to them. They cannot be compelled to. It may be that the respondent will decide to subpoena them. But how can he if he does not know who they are, let alone what they will say? At the hearing the petitioner can be compelled to disclose their names. They can be subpoenaed at that time. How can there be any justification for playing a game of hide-and-seek now?"

That case, likewise, has nothing to do with waiver of confidentiality in information communicated by patient to doctor. 162 Slavutych v Baker et al (1975) 55 DLR (3d) 224; [1976] 1 SCR 254; 38 CRNS 306 was a decision of the Supreme Court of Canada, delivered by Spence J on behalf of the Court. It concerned an appeal from an arbitration board, which had decided that the appellant should be dismissed from the teaching staff of a university. The only ground of arguable substance for his dismissal was that the appellant had, in a confidential document (which had been solicited from him by the university administration for the purpose of deciding whether another staff member should be granted tenure), made statements severely critical of that other staff member. 163 Spence J held (at 228 - 229 of DLR) that there was a privilege against the disclosure of the confidential communication - this conclusion was reached by adopting the statement contained in 8 Wigmore on Evidence, 3rd ed (McNaughton revision, 1961), para 2285, as to when such privilege exists. Notwithstanding that this privilege applied, his Honour held, also at 229, that the matter was: "not to be considered as a matter of the application of the doctrine of privilege in the light of evidence but rather, in view of the circumstance to which I have already referred, that the document came into being and the confidence was attached thereto by the proper officers of the University…". 164 He held that the "springboard" doctrine concerning confidential information made it inappropriate for the document to be used to prejudice the maker of the statement. He declined to hold that the allegations which the university made against the appellant were not made in good faith. Finally, some reference was made to the defence of qualified privilege concerning libel, and his Honour held that the confidential document had qualified privilege of that kind. On that basis, the conclusion was arrived at that the production of the confidential document and the basing of a charge of misconduct on it should not have been permitted, and that this amounted to misconduct by the arbitration board, and hence the appeal should be allowed. 165 This decision also says nothing about waiver of a right of confidence. Insofar as it accepts Wigmore para 2285, it suggests that confidential information has the status of a privilege in Canada (or perhaps in Alberta, the province from which the appeal came) - a situation which does not apply in Australia. 166 Rogers V Hunter et al (1981) 34 BCLR 206 was a decision of Meredith J in the Supreme Court of British Columbia. The plaintiff was a lawyer, who had been expelled from a partnership by his partners. He sued them alleging wrongful expulsion. The expulsion had occurred after a prostitute published a book in which she named a prominent citizen as one of her customers, and that person had sued the prostitute for libel. The prostitute had in fact mistaken that prominent citizen for the plaintiff. The plaintiff denied that he was a customer of the prostitute. However, he had been aware of the mistaken identity. He delayed disclosing his awareness, on legal advice. The delay was part of the reasons why the plaintiff's partners expelled him. The plaintiff raised, in the action, the fact that he had had that legal advice. 167 Meredith J held that legal professional privilege had been waived. At 207 he said: "In setting it up as a reason for the delay in disclosure the plaintiff waived the privilege which would otherwise attach. It would be unfair if the defendants were not able to examine the statements made by the plaintiff to the solicitor upon which the advice was founded."

Meredith J, also at 207, relied upon a principle stated in 8 Wigmore on Evidence , 3rd ed, (McNaughton revision, 1961) para 635-6, that in deciding whether there has been a waiver by implication: "… regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final." 168 While Rogers v Hunter concerns waiver of legal professional privilege, I accept that the circumstances in which legal professional privilege can be waived are closely similar to those in which a right of confidence can be waived. The above passage from Wigmore was quoted with approval by Gibbs CJ in Attorney-General for the Northern Territory v Maurice and Others (1986) 161 CLR 475 at 481, and quoted in part by Mason and Brennan JJ in Maurice at 488. The test for waiver there articulated is one which requires the facts of the individual case to be looked at, so that a decision can be made about how the information which the litigant has disclosed relates to the remainder which the litigant wishes to keep secret - it is not (as Hay is) a test whereby in some particular circumstance privilege is always waived. As well, it is a test of when there is a waiver by partial disclosure, not (as is relevant here) waiver by making a factual circumstance the subject of litigation. The test for waiver provides no support for Hay. 169 Cook v Ip et al (1985) 22 DLR (4th) 1; 5 CPC (2d) 81; 52 OR (2d) 289 was a decision of the Ontario Court of Appeal. It arose from a claim for personal injuries, alleged to have been sustained in a motor vehicle accident. There was an issue as to causation of the plaintiff's injuries, and the extent of those injuries. The plaintiff gave authorisation for the solicitors for the defendant to obtain copies of claim cards relating to the plaintiff that were in the possession of the Ontario Health Insurance Plan ("OHIP"). Those cards were ones which a physician must fill out, specifying the diagnosis made, the complications which arose, and the procedures undertaken. A section of the Health Insurance Act 1980 (Ont) imposed a general duty of confidentiality on persons administering the health insurance scheme, and permitted information, on certain limited topics, to be made available, but only in certain specified circumstances, which included pursuant to a subpoena. OHIP took the view that it was prohibited from providing the plaintiff's card, notwithstanding his authorisation. The issue was essentially one of statutory construction. The Court held that the statute was not intended to be a code which removed the inherent jurisdiction of the court to ensure that all pertinent documents were before it. In the course of coming to that conclusion Cory JA said, at 4-5 of DLR: "There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court. This is essential if justice is to be done between the parties. Wherever damages are claimed for injuries suffered, a review of the medical records is of vital importance to a court's decision. Evidence as to early diagnosis of injuries may be very important, for example, in cases involving head injuries, low back injuries or traumatic neurosis. Without production of all pertinent medical records, it may be impossible for either the plaintiff to prove his claim or for the defendant to determine the nature and extent of the injuries or to calculate the damages that flow from them. The production of medical records is thus fundamental to a Court's determination of the nature, extent and effect of the injuries which may have been suffered and the appropriate measure of damages flowing from them. It is also important to the parties that they have early production of these documents. Settlement of disputes at an early date is of great benefit to the parties and to the judicial system. In order to make an informed, fair and just settlement, counsel for the parties must be in possession of all pertinent material. No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accident is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff's medical records."

At 8-9, Cory JA said: "… this decision will not lead to unnecessary and vexatious fishing expeditions as the court can supervise and control the procedures which must be undertaken to obtain production." 170 Cook v Ip does not lead to a conclusion that by suing one doctor, confidentiality concerning a later treating doctor is automatically waived. There is a clear difference between obtaining access to documents, and obtaining information through an out-of-court conference, which Cook v Ip does not address. Further, Cook v Ip is concerned with obtaining access to documents through compulsory process of the court, not through any alleged waiver of confidentiality arising by operation of law. Its stress that, in the context of obtaining documents through compulsory process of law, the disclosure of information for the purposes of litigation should be under the control of the court, is a result that is at odds with the conclusion in Hay. 171 V (KL) v R (DG) (1993) 81 BCLR (2d) 191; 40 ACWS (3d) 1050 was a decision of Master Patterson in the British Columbia Supreme Court. It involved an action where the plaintiff sued her stepfather alleging numerous sexual assaults on her while she was a child. The defendant had previously been convicted by a criminal court of such an assault on the plaintiff. A probation officer had prepared a pre-sentence report concerning that assault. The plaintiff made application to the court for production of that probation officer's report. Production was not opposed by the defendant, but was opposed by counsel acting for the probation officer and for the Corrections Branch of the Ministry of Attorney General. The grounds of opposition were two-fold - privilege, and that production would be against public policy. 172 The learned Master treated the decision in Slavutych v Baker as establishing a privilege attaching to confidential information. He held that the tests there laid down for the existence of the privilege were not satisfied, saying, at 194 of BCLR "While the relationship between the probation officer and his informants is one that should be encouraged, I am not convinced that full confidentiality is essential to maintaining that relationship. In any event, the benefit gained by the correct disposal of this litigation far outweighs any injury caused by the disclosure of what may have been partly confidential communications to the probation officer." 173 This case does not represent the law in Australia. In Australia there is no privilege attaching to confidential communications, and the existence of confidentiality is not something which the courts decide by reference to the test set out in Slavutych v Baker. Insofar as the case dealt with whether production would be against public policy, it was dealing with whether there was a public interest immunity from production, of the type discussed in Sankey v Whitlam (1978) 142 CLR 1. The case does not deal with waiver of confidentiality at all. 174 Kaiser Resources Ltd v Western Canada Beverage Corp (1992) 71 BCLR (2d) 236; 34 ACWS (3d) 1025 was a decision of Bouck J in the Supreme Court of British Columbia. It was an application to restrain a firm of solicitors from acting in litigation, in circumstances where a conflict of interest was alleged but not proved, arising from that firm having previously acted for directors of one of the parties to the litigation. It has nothing whatever to do with the present problem. 175 Kroeker v Macewan [1991] BCJ No 2084, heard 17 April 1991, is a decision of Master Horn in the British Columbia Supreme Court. In a personal injuries case, the defendant's solicitor asked the plaintiff to order a medico-legal report from Dr Morrison (the ordinary treating doctor of the plaintiff), at the expense of the defendant. That request was refused, and the defendant then sought a court order that Dr Morrison submit to an examination under rule 28 of the Rules of Civil Procedure relating to his "care and treatment of the patient with regard to her injuries sustained in the motor vehicle collision". A difficulty arose from the fact that it was a precondition to the making of such an order for examination that the person sought to be examined had been asked to provide information, and refused to do so; that had not happened in the present case because a rule of the Law Society of British Columbia prohibited a lawyer from contacting a physician concerning treatment of an opposing party without the consent of that party, or the lawyer of that party. 176 The learned Master adjourned the application, on the following basis: "The defendant's solicitor is at liberty to address a request to Dr Morrison for the information that he seeks. The request should be very particular as to what is sought. The defendant's solicitor cannot simply ask for a medical-legal report. That request shall first be forwarded to the solicitor for the plaintiff with a request that he or his client consent to Dr Morrison answering that request. If that permission is unconditionally given, then the plaintiff's solicitor may apply to dismiss this application on the grounds that it was prematurely made. If such permission is denied, then the defendant's solicitor may renew this application on fresh material and the question of whether any relief should be granted and upon what terms as to costs may then be addressed in light of the plaintiff's refusal. It should be unnecessary for me to say that the plaintiff has no property in the evidence of Dr Morrison. Having put her medical condition in issue, she has no right to prevent facts or communications which are material to that issue being obtained by the defendant from Dr Morrison. The material may be confidential so far as Dr Morrison is concerned, but it is not privileged and must be disclosed if Dr Morrison is examined under rule 28."

That passage does not contemplate that the bringing of litigation to which a plaintiff's health is relevant does anything more than allow the evidence of a treating doctor to be obtained, in circumstances where the court thinks fit, by a compulsory process which is under the control of the court. I do not have available to me a copy of the Rules of Civil Procedure of the British Columbia Supreme Court in the form they had in 1991, but the present version of those rules provides that an examination under Rule 28 is on oath before an official reporter: British Columbia Supreme Court Civil Rules, Rule 28(8), 27(15). If objection is taken to a question, the question and objection are recorded so the court can decide the validity of the objection: Rule 27(24). There is no implicit unavailability of Rule 28 examinations if a witness is to be called at a trial, because Rule 40 (30) permits the use at trial of part or all of the examination of a person under Rule 28 to contradict or impeach the testimony of the deponent. (The rules are accessible at www.ag.gov.bc.ca/courts/civil/sup_crt_rules/rules/index.htm). 177 Halliday and Johnstone v McCulloch and Insurance Corporation of British Columbia (1986) 14 CPC (2d) 70; 1 BCLR (2d) 194 was a decision of the Court of Appeal of British Columbia. It was concerned with the mechanics which were to be followed when a hospital's records were subpoenaed, but the party whose records were subpoenaed wished to make a claim of "litigation privilege" with respect to some of those records. It set out a regime whereby copies of the documents should be first made available to the lawyers of the patient so that those lawyers could have the opportunity to make a claim for privilege if they wished. The case says nothing about waiver of doctor-patient confidentiality. 178 Doe et al v Eli Lilley & Company Inc et al (1983) 99 FRD 126 is a decision of Jackson, District Judge, in the United States District Court, District of Columbia. It arose in litigation where the plaintiffs sued a drug manufacturer alleging that ingestion of the drug by the child plaintiff's mother during pregnancy caused deformities in the child plaintiff. The plaintiffs were directed (at 129) " to execute appropriate forms of authorisation or otherwise to inform their physicians that no inhibitions of privilege exist with respect to the disclosure of any information they possess to defendant Eli Lilley and its agents which is relevant to the subject matter of these proceedings." The litigation arose in the District of Columbia, where there was a statutory medical privilege. The case proceeded on the basis of an important concession, at 127, that the plaintiffs: "acknowledge that their physical and mental conditions have been placed in issue by the filing of this lawsuit, and that they have (or will shortly be held to have) waived the medical privilege in so far as it would protect against disclosure of relevant evidence thereof altogether." 179 The debate was then about whether the treating doctors ought disclose information in formal deposition hearings, or in informal interviews, with the judge coming to the view that informal interviews were appropriate. 180 The report does not enable one to assess the type of information which could have been gathered from the doctors. The judge accepted as a reason in favour of an interview (at 128) that "it is a cost efficient means of eliminating non-essential witnesses from the list completely".

However, later, at 128, he said: "The privilege was never intended, however, to be used as a trial tactic by which a party entitled to invoke it may control to his advantage the timing and circumstances of the release of information he must inevitably see revealed at some time ." (Emphasis added).

Given the existence of the statutory privilege, and the concession, this is not a case which is strongly persuasive in favour of the Hay principle. 181 Morin v Tessier 5 WDCP (2d) 123, [1994] OJ No 361 was a decision of Wilkinson J in the Ontario Court of Justice (General Division). It was an application to remove the solicitors for the defendant from the record, for delivery up of all information those solicitors had obtained as a result of conversations with a chiropractor and a general practitioner who had treated the plaintiff, and to prohibit any use of the information so obtained, or any testimony from the two health-care providers at the trial. The solicitors for the defendants, having obtained medical notes and records from those practitioners on subpoena, telephoned them for assistance in reading the handwriting or interpreting the words contained in those records. 182 Wilkinson J took the view that no great harm had been done, and declined to make the orders sought. He said, at [6], that although the medical notes and records had been produced on subpoena: "The persons, however, as makers of those notes, did not have their duties of confidentiality released and, in the absence of consent of the patient, who is the plaintiff in this case, or in the absence of an appropriate court order or the application of the Rules of Practice, it is not proper for an opposing solicitor to be in direct contact with such health-care service providers."

He also said, at [10]: "In my view, the profession should be discouraged from direct contact with the health care providers of a plaintiff in litigation where a patient's health is in issue. The Rules of Civil Procedure, as they apply in the province of Ontario, make adequate provision for the disclosure of information and there is adequate case law to compel the production of clinical notes and records. Conversations directly held with the health-care providers, in my view, is taking those production steps and those cases dealing with the production of health records one step too far. In essence, I am saying that I find myself at odds with the decision … Hay v University of Alberta Hospital [1990] 5 WWR 78. I do not believe that the law of the Province of Ontario goes as far as that decision. In my view, the Rules of Practice are a more appropriate avenue than direct contact with a physician or other health service provider."

This case is clearly against the Hay principle. 183 Hope v Brown (1990) 45 CPC (2d) 22; [1991] 2 WWR 638; 52 BCLR (2d) 234 is a decision of Master Horn in the Supreme Court of British Columbia. It related solely to the procedure to be followed when medical records were subpoenaed. The learned Master decided that a procedure, like that laid down by Halliday, should be followed, so that the patient's lawyer had the first chance to sift the documents. The case decides nothing about waiver of confidentiality. 184 The other cases listed in Swirski v Hachey were Hay itself, and Frenette, both of which I have discussed in the body of the judgment. 185 Thus, the only case in this list capable of supporting Hay is Doe v Eli Lilley. **********

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