Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33

5. Before turning to the relevant statutory provisions and the affidavit material, I will briefly describe the background to the proceeding. The late wife of the respondent, Mrs. Sifredi, had attended the Benalla Clinic for some time. She was, as I understood the material, ordinarily attended by Dr. Patience, but on other occasions was attended by his partner Dr. Berryman. She had complained of epigastric pain and had also presented with a large thyroid, apparently a long-standing condition which did not appear to have altered in size, according to what she told Dr. Berryman. Dr. Berryman ordered a number of tests, he apparently thought the thyroid was enlarged but inactive and that there were no carcinoma indications. At a later stage, the clinic, through Dr. Berryman, discovered that Mrs. Sifredi had become ill, apparently being told of this by Mr. Sifredi when he attended for some purpose of his own. She was then in a serious condition at St. Vincent's Hospital. She there came under the care of specialists but ultimately died from an aggressive thyroid carcinoma which caused respiratory failure. This was on 10th June 1995. On 24th July 1995 Mr. Sifredi made complaint to the Medical Practitioners Board regarding the clinical management of Mrs. Sifredi by the practice, that is either by Dr. Patience or Dr. Berryman or both. It would appear that Dr. Patience had been Mrs. Sifredi's general practitioner from 1989 until her death but that on five occasions during 1994 she consulted Dr. Berryman when Dr. Patience was absent from the practice. On 7th August 1995 the Board requested in writing Dr. Patience's comments and explanation regarding the clinical management of Mrs. Sifredi and he did so on 14th August 1995. Ultimately an E.N.T. specialist wrote to the Board regarding his clinical management of Mrs. Sifredi in May 1995 on referral from Dr. Patience and in October that year St. Vincent's Hospital provided records concerning her in-patient admission in May 1995. On 16th November 1995 Dr. Berryman wrote to the Board concerning his clinical management of Mrs. Sifredi in 1994. This document was written on the understanding of its confidentiality and so marked. It is the first of the documents claimed to be exempt by the Board. The Board thereafter made contact with the specialist physician, Dr. Fiddes, who clinically managed Mrs. Sifredi after referral from Dr. Berryman in 1994. The Board obtained this information. On 22nd November 1995 the Board's investigator Dr. Griffin interviewed Mr. Sifredi. On 15th February 1996 Dr. Berryman wrote to the Board and on 29th February Dr. Griffin, the investigating officer retained by the Board reported the recommendation that expert opinion should be obtained before proceeding with the matter. As it turned out, it is the third document which in part the Board declined to produce.

8. The Board apparently accepted Dr. Griffin's report and sought additional expert opinion concerning Mrs. Sifredi's clinical management. This was from two doctors, Drs. Garner and Martin, both of whom reported to the Board in April 1996. In May Dr. Griffin recommended that no further steps be taken by the Board to investigate Mr. Sifredi's complaint and in June the Board accepted that recommendation. However, it appears that subsequently the sub-committee which looked into the matter discussed it further with Dr. Griffin. It was decided the complaint be re-opened and that further information from Drs. Berryman, Fiddes and Patience be obtained in relation to X-rays taken in August 1994. This was an X-ray of Mrs. Sifredi's chest after which she had been referred to Dr. Fiddes. The Board pursued those avenues and in October 1996 sought comments from Drs. Berryman and Patience concerning that X-ray report and what was told to Mr. and Mrs. Sifredi about it. At about this time Dr. Fiddes wrote to the Board regarding a chest X-ray which was performed after his cardiac assessment and gastroscopy. On 24th October Dr. Patience communicated with the Board and on 28th November 1996 Dr. Berryman wrote to the Board with comments concerning the chest X-ray arranged by him on 29th August 1994. This is the second document which the Board claimed to be exempt. On 2nd January 1997 Dr. Griffin reported again to the Board and this is the fourth document in respect of which partial exemption is claimed. After receiving that report the Board decided not to proceed with the matter further and informed Mr. Sifredi of that decision on 29th January 1997. In February 1997 a number of meetings between the Board's sub-committee and Mr. Sifredi took place. On 4th September 1997 Mr. Sifredi made an application to the Board pursuant to the provisions of the Act for access to "all documentation forwarded to the Board by Drs. G. Patience, G. Berryman and Dr. Fiddes as regarding the late Mrs. Hedwig Sifredi." The Board informed Mr. Sifredi in January 1998 that it would grant access to some documents but not correspondence from Dr. Berryman. Mr. Sifredi applied for a review of this to VCAT in January 1998 and as a consequence of an order then made to extend the FOI request to include Board investigation reports, the appellant released two investigation reports in full and two investigation reports in part and one of the Berryman communications that it had previously declined to produce. Mr. Sifredi persisted with his application in the face of the refusal to grant complete access to all of the material. The result was that the Tribunal (Deputy President McNamara) heard the application on 16th November 1998. Thus then the documents remaining the subject of the claimed exemption were: (1) a letter to the Board from Dr. Berryman of 16th November 1995 which was marked private and confidential; (2) a letter to the Board from Dr. Berryman of 28th November 1996; (3) Dr. Griffin's report to the Board of 29th February 1996 (part of which had been released); and (4) a further report of Dr. Griffin of 2nd January 1997, also partially released. I was informed by Miss Mendes Da Costa who appeared before me for the Board that the non-disclosure of those parts of Dr. Griffin's reports were inextricably linked with the letters written by Dr. Berryman in November 1995 and in 1996. I was also informed that it is the practice of the Board to offer practitioners who respond to the Board's request for information during a preliminary investigation (the Board then not having the coercive powers which it has when a hearing is actually commenced) an undertaking that the response would remain confidential so far as the Board is concerned. It does appear however that Dr. Berryman claimed confidentiality with respect to his communications.

11. Given the circumstances, it is not surprising that the respondent Mr. Sifredi, having been supplied with virtually all the other parts of the Board's file, was and is suspicious that there lies within the parameters of the four documents which the Board is claiming to be exempt the true explanation of his wife's illness and death. The documents to which I refer were set out in the Board's amended schedule of the exempt documents filed with the Tribunal prior to the application. Attempts to resolve the matter having failed, the matter came on for hearing.

14. Before turning to later aspects, it is necessary to refer to the critical section of the Act:

"35. Documents containing material obtained in confidence.

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future."

21. It was agreed both at the hearing at the Tribunal and before me that the relevant part is s.35(1)(b). It will be observed for documents to be exempt under this section they would have to be communicated in confidence and, additionally, the disclosure of the information would be contrary to the public interest on the "impairment" ground. In this case, the first condition for exemption is fulfilled because of the communication in confidence. The debate is concerned with the conditions of sub-paragraph (b). It would appear from what was said to me that in the main all communications are made in confidence or, even if originally made in confidence, no objection to exemption on the ground of confidentiality is maintained if the doctor does not require that to be done. Before the Tribunal the Board tendered two witness statements. Mr. Sifredi was not represented before the Board. He raised no objection to the tender of the statements and did not wish to question the witnesses. The first witness statement was that of John Hartley Smith, the Registrar of the Medical Practitioners Board. Mr. Smith has been the Registrar of the Board since the Act was amended in 1994 and was the Secretary of the previous Medical Board of Victoria for 12 years. In effect he is the principal officer of the Board to consider FOI requests. His statement set out many of the matters to which I have referred. It is apparent from the statement that the determination not to release the relevant documents was made on the basis of it being either Dr. Berryman's own reports or references in Dr. Griffin's reports to Dr. Berryman's statements. He referred to the Board's practices when conducting investigations including the fact that medical practitioners often inform of their position in confidence and stated that:

"If practitioners were aware that information which they provided to the Board ... was liable to be disclosed, it is my view the practitioners will feel constrained in their responses. This would compromise future investigation in the future conduct of medical practitioners. ... A release of these documents would adversely affect the Board's ability in the future to elicit the co-operation of medical practitioners during its investigations."

Mr. Smith referred to the co-operation of practitioners being essential at investigation stage because of the Board's lack of power to compel co-operation.

26. The second statement was that of Mr. Russell Ball, a partner of John W. Ball & Sons who are the solicitors for the Medical Defence Association of Victoria was tendered. Mr. Ball, an experienced solicitor in that field, stated that the Medical Defence Association of Victoria represented about 70% of Victorian doctors. He said confidentiality was of importance to the medical profession. He stated:

"Were it to be the case that information provided during the course of preliminary investigations was to become the subject of disclosure I would placed in the position where it will be necessary for me to advise my clients that a defensive stance would need to be taken."

He went on to say that that procedure would make the procedures before the Board unsatisfactory and that there might be cases in which he would advise clients that it would be in their interests to decline to participate in preliminary investigations.

31. Dr. Berryman made a statement and gave evidence. As I understood his evidence, his reticence about the production of (and therefore his claim for confidentiality for) his correspondence was not founded upon what was there but upon its capacity to be misunderstood. He stated that if he had known that the documents would likely to be released to a party other than the Board he would have framed his communications differently taking into account the potential recipients of such communications and the use that might be made of them. In effect he would have been more brief. He also stated his belief that practitioners would feel more constrained if they were aware that the communications might be released.

34. The Tribunal denied the exemption claimed with respect to the relevant documents and ordered access be granted within 28 days. The Tribunal stated, with reference to s.35(1)(b) that:

"The operation of that exemption was considered by the Full Court of the Supreme Court in Ryder v. Booth [1985] VicRp 86; [1985] V.R. 869. Young, C.J. considered the meaning of the exemption and at p.871 of the report stated: 'Paragraph (b) which has been set out above is, as Gray, J. has written, a wordy provision and I agree with his Honour that the paragraph would probably have achieved its purpose if it had read "The disclosure of the information would impair the ability of the agency to obtain similar information in future." I take the phrase "by reason that" to mean because.'"

The Tribunal adopted the Chief Justice's construction and went on to say:

"It will be seen that the exemption consists of two features. First, the communication of information to the relevant agency, in this case the Medical Practitioners Board, in confidence and secondly proof that disclosure would be reasonably likely to impair that agency from obtaining similar information in the future."

40. The Tribunal also relied upon statements in the Chief Justice's reasons in Ryder v. Booth to the following effect (872):

"The question is, would the disclosure of the information damage the ability of the Board to obtain frank medical opinion in the future. It may be noted that it is the ability of the Board that must be impaired. The paragraph is not concerned with the question whether a particular doctor whose report is disclosed would give similar information in future but whether the agency would be able to obtain such information. There may well be feelings of resentment amongst those who have given information 'in confidence' and having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by section 52 of the Act."

44. The Tribunal went on to express the view that practitioners approached in an investigatory phase who believe that they are not guilty of any wrongdoing would have the strongest incentive to speak out and speak fully. In the case of a practitioner the subject of an inquiry, considerations of reticence were, in the Tribunal's evaluation, more important than the issue of confidentiality. It took the view that neither of the witnesses suggested practitioners would refuse to make any response whatsoever but that the responses might be tailored to accommodate risk. The Tribunal took the view that the material filed went no further than to indicate that there was an apprehension of lack of full frankness. This was not sufficient to make out the exemption. The inquiry, it was said, was directed to the entire class of potential suppliers of the relevant information and the Tribunal noted that the other practitioners involved in this case had consented to the release of documents that they had furnished to the Board thus indicating to the Tribunal the view that the concern and reticence that Dr. Berryman expressed was not held universally. It concluded:

"In my view ... the evidence was taken in its totality and in light of all the observations that I have made goes no further than to demonstrate there is a risk of less frankness and candour and the feeling of betrayal of confidence were these documents released under freedom of information."

Thus it concluded that the evidence did not go the distance that Ryder v. Booth required.

49. In her submissions before me, Miss Mendes Da Costa appeared to repudiate reliance upon the statements of Young, C.J. in Ryder. It is not clear whether or not her submissions to the Board initiated the references to Ryder v. Booth and she frankly conceded before me that whether that was so or not she was now clearly not relying upon the Chief Justice's statements but some parts of the judgment of King, J. in the same case. In submissions to me there seemed to me to be some confusion between the reliance upon the decision of the Full Court in the Department of Rural Affairs v. Binnie [1989] VicRp 73; (1989) V.R. 836 with reliance upon some parts of Ryder v. Booth (supra). Binnie's case is concerned with the interpretation of "reasonably likely" in a related context. It was there concluded that that was something different from being "probable" and meant "a prospect of the event occurring which was more than a remote possibility but less than a certainty." Clearly, "reasonably likely" does not simply mean "probable" for this legislation, not the least because there are degrees of probabilities. See the discussion by Marks, J. in Binnie of the nuances in the meaning of "probable" (842). And as to "likelihood" the sensitivities of context will be potent in deciding its effect in a statute. See also my own discussion of such features and the authorities in Attorney-General v. David (1992) 2 V.R. 47 at 87 and the discussion in another FOI context of this aspect in Attorney-General v. Cockroft (1986) 64 A.L.R. 97 at 106. It appears that the Tribunal approached the issue of "reasonably likely to impair" in a composite way, with principal focus on predicted impairment. This is probably because no submissions were made as to the meaning of "reasonably likely" i.e. no reference to Binnie or other cases were made.

52. Mr. J. Riordan, who appeared on behalf of the respondent, strongly attacked the grounds of appeal. He contended that the first ground of appeal was that the requisite degree of impairment had been incorrectly determined by reliance upon the test pronounced by Young, C.J. in Ryder's case and secondly that it appeared to claiming that the question was whether or not the Tribunal erred in finding that it had to be satisfied that the relevant disclosure would damage the ability of the appellant to obtain information. He submitted that neither of these grounds had been argued or relied on before the Tribunal. On the contrary, he said, it was apparent that reliance was placed on Ryder's case.

55. Miss Mendes Da Costa appeared to concede before me that the matter raised in the first ground of appeal was not a submission made to the Tribunal. As I have estimated, it seems to me to be unlikely that the Tribunal was referred to Binnie's case or that any submission was put that the Board in assessing the requisite degree of likelihood of impairment should be guided by the description of the criteria given in Binnie's case. I say this because there is no reference to it in the Tribunal's reasons, no reference to the issue of the burden anywhere in the transcript and Miss Mendes Da Costa said she could not recall whether she made any such submission as appears to be raised in ground 2 to the Tribunal. She argued that however it was expressed, the submission clearly was that the evidence of Smith and Ball was sufficient to establish to the satisfaction of the Tribunal (particularly as there was no evidence to the contrary) that practitioners would be inhibited from providing information to the Board in future if documents or information of this type were disclosed.

58. Leaving aside for the moment the question of law as to the appropriate standard of satisfaction and leaving aside what the Board would have to be satisfied about in the way of impairment, it is apparent that if these submissions are correct, then any document provided by a medical practitioner being investigated, or possibly even one provided by a medical practitioner being asked to aid in the preliminaries in the investigation, would be exempted because Mr. Smith and Mr. Ball have estimated that unless they were in effect guaranteed exemption there would be diminished co-operation. This Court should not be seen to be supporting a construction of s.35(1)(b) that would support such a general exemption nor should it lightly conclude that the medical profession would be so introverted and self-indulgent as not to aid in legitimate inquiries into the conduct of medical practice without an assurance of exemption.

61. The estimation of whether the particular disclosure would be contrary to the public interest on the basis that it might be reasonably likely to impair the capacity of the Board to obtain similar information in the future is not a matter susceptible or proof as though it were a fact. Whilst the opinions of Messrs Smith and Ball, men of substantial experience in medical administrative matters, must be respected, nevertheless what they have stated is an opinion or estimation as to the reactions of the medical profession at large. Doubtless there would be other persons in the field with a different opinion. Furthermore, although both men have spent a long time in the positions which they now occupy, no statistical, scientific or even anecdotal information has been provided to underwrite the formation of the opinions expressed. If the position were that doctors who were being asked to co-operate had stated on frequent occasions that they would not help at all or only help to a limited degree because of the risk of their statements or advice not being held confidential, it would be surprising if no record or records of such a pattern of behaviour had been kept or exists. The Tribunal obviously thought that much of this was sheer hypothesising and formed the view that such generalized opinions, not backed by any hard evidence, had to be suspect. The Tribunal reached its conclusion bearing in mind that proof lay upon the Medical Practitioners Board to satisfy the Tribunal that the decision of the Board to exempt was justified. I note that the Tribunal examined the exempted documents, but it does not appear to have founded its decision upon the formation of any view derived from such inspection.

64. Mr. Riordan argued that no relevant distinctions could be drawn between the approach of the Chief Justice in Ryder's case and King, J. in Binnie's case, but submitted that if there were, Ryder's case should be preferred since it specifically was concerned with s.35(1)(b) and not, as in Binnie's case, s.31 which dealt with a different risk. Moreover no attempt to overrule or distinguish Ryder's case was made in Binnie. He argued that the conclusion of the Tribunal met the requirements of the principles expressed by the judges in both cases.

67. It would seem to be beyond doubt that the public interest in the objects of the Act are important matters to be weighed against the reasonable likelihood of impairment comprehended by s.35(1)(b), particularly where the question of proof of the risk is not a matter of fact and could rarely be established. It is the satisfaction about damage to the ability of the Board to obtain information in the future that is critical. In my view, language of this kind in the Act, and in the context, draws in elements of estimation and judgment rather than proof of a likelihood, as might arise about a fact in the litigation context. This is doubtless why no specific degree of likelihood or probability has been assayed in any of the authorities, leaving it to be judged in a broad way. In Ryder's case Young, C.J. (873) referred to a requirement that the release of the documents affect the Board's operation "significantly". See also Gray, J. at 880 and Marks, J. in Binnie's case at 843. No argument was advanced that resentment or reluctance of a particular doctor to the breaching of confidence could amount to a sufficient impairment.

70. Thus the Tribunal concluded that the evidence went no further than to demonstrate that there was a risk of there being less frankness and candour, perhaps a feeling of confidence betrayed, rather than any confident assessment that there would be in the future such a degree of restriction of co-operation so as to dry up the sources of information. Nor did in my judgment did the Tribunal take an over-liberal view with respect to the applicant's claim for release because it appeared to accept that if a significant minority of medical practitioners strongly resisted the giving of necessary information, that would or might be enough. However the Tribunal, rightly in my judgment, concluded that the evidence fell well short of that.

73. There are matters that become unnecessary for me to examine in further detail. One is whether or not the "impairment" capacity of the disclosure is the only relevant public interest that falls for consideration on a construction of s.35(1)(b) or whether the language of s.55(2) to the effect that the Board "has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant" draws in unspecified criteria that might be considered by the Tribunal in deciding whether an adverse decision might be given to the applicant seeking release of the document. The balancing of the interests of an efficiently functioning Board and the public interest in transparency, and opposition to agencies secretly assembling facts is frequently a difficult task. One cannot overlook that the object of the Act (s.3) is:

"to extend as far as possible the right of the community to access to information ... by making available to the public information about the operation of agencies ... and creating a general right of access to information in documentary form in the possession of ... agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons..."

77. This Tribunal decided on the facts presented to it. There was no significant risk that ordering the release of those documents would prejudice the provision of medical reports from the entire class of potential suppliers of information. It is perhaps not surprising the Tribunal took this view because all doctors but Dr. Berryman made the reports available and even Dr. Berryman was concerned only with the possibility of misunderstanding what he had written rather than it reflecting badly on him. He also conceded that he was aware that his reports might be later used in litigation so that the confidentiality would not, in the event of litigation, prevail. In my view, the Tribunal rightly stood against devising a principle by which persons exercising the statutory right to information might be so easily cut off from it, by a wide construction of the likelihood of impairment, supported by not much more than the statements of two persons who in effect work in conjunction with medical practitioners and not the members of the public.

80. Mr. Riordan strongly attacked the attempt to close doors, and of entering into "cosy" arrangements to prevent full investigation of medical practitioners describing this as an "in-house mentality", which ought to concern tribunals because it involved the assertion that doctors would more readily aid in an investigation against them if they could not be held accountable. However, I take the view that the question of whether a disclosure is reasonably likely to impair the ability of an agency to obtain similar information in the future ought to be taken on case-by-case basis as the context, background or evidence may be more or less influential on the body charged with making a decision in different cases. In this case, the Tribunal adopted the view that the expression of opinions of Messrs Smith and Ball that disclosure would induce inhibition on reporting and co-operation was not sufficient. In my view this conclusion was well open to the Tribunal and the appeal must be dismissed. In any event, although it is not necessary in my judgment for me to take the matter further, the grounds of appeal appeared to raise matters never raised before the Tribunal or, perhaps even worse, raise as a complaint a matter argued for before the Tribunal. Part of the transcript was unable to be obtained because of a recording defect so that it is not absolutely clear what happened although, to the credit of Miss Mendes Da Costa, she made it clear that the argument here advanced was not what had been advanced before the Tribunal.

83. Section 148 of the Victorian Civil & Administrative Act 1998 permits an appeal to this Court on a question of law. That section does not go beyond the commonplace provisions concerning jurisdiction and powers. But it must be regarded as very unsatisfactory that an agency resisting the production of documents as exempt, up to the Supreme Court, seeks to abandon propositions put to the Tribunal and to present new ones with new arguments. I do not find it necessary to refer to well-known case law concerning the legal position when new submissions are sought to be made on appeal. In the circumstances, I have little inclination to pursue considerations concerning the proper construction of s.35(1)(b) beyond Ryder. Such analysis might await a case with more significant merits, and, since both Ryder and Binnie are decisions by the appellate division of the Court, by the Court of Appeal, when the occasion arises. This is not such an occasion. In my opinion, the Tribunal's application of the principles discernible and derivable from the limited case law was correct and I affirm its decision.