HEARING DATES: 14 December 1999, 4 April, 1 May 2000

Evidence - Doctor/patient communications - Statutory privilege.

Causton v Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453, referred to.

Procedure - Stay pending submission to medical examination.

O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124; Weedon v Green [1978] Tas SR 117, referred to.

Judgment Number: [2000] TASSC 41

1 The plaintiff has sued the defendant for damages for personal injuries suffered by her at the defendant's supermarket in November 1994. The defendant's solicitors now seek an order, pursuant to the Evidence Act 1910 ("the Act"), s25, that the action be stayed until certain notes of the plaintiff's medical advisers are made available to a Melbourne based rheumatologist appointed by the defendant.

2 The purpose of the defendant's request is set out in a letter from the defendant's solicitors to the plaintiff's solicitors dated 11 August 1999 which says, in part:

"We have now been advised by Dr David Baraclough [sic], Rheumatologist, who has been asked for an opinion on the nature and extent of your client's injuries, the surgery performed upon her and the relationship between her pre-existing conditions and her current symptoms.

Dr Baraclough [sic] has advised that he is not able to provide that opinion without access to the notes of Dr Hilton Francis and Dr Visage [sic]. There is mention in the nursing notes from St Johns Hospital of chronic pain going back 20 years. There is no reference to this in other reports. Dr Baraclough [sic] requires access to the notes of Dr Francis and Dr Visage [sic] particularly with reference to around the time of the incident in November 1994 but also prior to that before he can conclude his opinion.

We would expect Dr Baraclough [sic] to also require access to the notes of Mr Papson's earlier general practitioners if Dr Visage [sic] has not been treating her for an extended period.

Would you please advise if Dr Baraclough [sic], who consults from the Royal Melbourne Hospital, can have access to those notes."

3 The plaintiff's solicitors responded by letter dated 24 August 1999 in the following terms:

"We note your request in relation to Dr Baraclough [sic]. It is not appropriate that we provide him with access to the notes of our client's treating doctors. We will provide you with proofs from these doctors in due course."

4 The application, following amendment, is in the following terms:

"The plaintiff applies for the following orders pursuant to section 25 of the Evidence Act 1910:

1 That this action be stayed until the plaintiff gives the following facilities and information to Dr David Barraclough, Rheumatologist;

(a) access to the notes of Dr Hilton Francis Rheumatologist, from the time he first saw the plaintiff in approximately October 1993 until November 1994 and specifically those notes which detail:

(ii) the dates of attendances and presenting complaints;

(iii) investigations and treatment including medications;

all or any of which relate to any sort of chronic pain.

(b) access to the notes of Stefan Visagie, general practitioner and any other of the plaintiff's usual general practitioners for the period November 1989 to November 1994, and specifically those notes which detail;

(ii) the dates of attendances and presenting complaints;

(iii) investigations and treatment including medications;

all or any of which relate to any sort of chronic pain."

5 The defendant has not issued any demand to the plaintiff to attend Dr Barraclough for a medical examination at this stage. Two affidavits sworn by Dr Barraclough on 15 November 1999 and 23 December 1999 were read into evidence. Dr Barraclough has deposed that in order for him to "ascertain fully the nature and extent of the plaintiff's injuries" he requires the documents referred to in the application. In par6 of his second affidavit, Dr Barraclough says:

"I require access to Dr Francis's and the General Practitioners' notes in order to determine whether the plaintiff was pre-disposed to chronic pain, whether her current symptoms are a result of that pre-disposition or a pre-existing condition, or the incident which occurred in November 1994 or any combination of those. The condition osteitis pubis can develop over a long period of time, and the question of whether it has been caused by the injury in November 1994 can only be made [sic] after considering the prior relevant medical history of the patient."

6 The plaintiff submits that the orders sought should not be made because:

(1) absent a demand that the plaintiff attend for an examination, the plaintiff has no obligation to provide to the defendant's appointed medical practitioner any facilities or information;

(2) the information is being sought not from the plaintiff, but from her treating doctors;

(3) the information sought is likely to include communications which are privileged pursuant to the Act, s96.

7 The relevant provisions of the Act are as follows:

"25 - (1) Where proceedings are taken against a person (in this section referred to as 'the defendant') in respect of any injury sustained by another person (in this section referred to as 'the injured person'), a medical practitioner appointed by the defendant shall be entitled, on demand of the defendant, to examine the injured person, and the injured person and all other parties (if any) to the proceedings shall give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury.

(a) to submit himself to an examination by a medical practitioner appointed by the defendant for the purposes of this section; or

(b) to give to a medical practitioner so appointed all such facilities and information as he is required by this section to give to that medical practitioner -

the court in which any proceedings are taken by the injured person against the defendant (whether the proceedings are commenced before or after making of a demand under subsection (1)) may, on the application of the defendant, order that those proceedings shall be stayed under the injured person submits himself to the examination, or gives the facilities and information, as the case may be.

96 - (2) No physician or surgeon shall, without the consent of his patient, divulge in any civil proceeding any communication made to him in his professional character by such patient, and necessary to enable him to prescribe or act for such patient unless the sanity of the patient be the matter in dispute.

(2A) No person who has possession, custody, or control of any communication referred to in subsection (2) or of any record of such a communication made to a physician or surgeon by a patient shall, without the consent of the patient, divulge that communication or record in any civil proceeding unless the sanity of the patient is the matter in dispute."

8 Pursuant to s25, the defendant may appoint a medical practitioner. Having done so, the defendant then becomes entitled to demand the injured person to submit to an examination by that practitioner and the injured person becomes obliged to give to that practitioner "all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury". There is nothing in the wording of s25 which indicates that a demand to physically examine the injured person is a necessary prerequisite to the accrual of the obligation to provide the appointed medical practitioner, upon request, with necessary information. The effect of s25(1) was explained by Neasey J in Weedon v Green [1978] Tas SR 117 at 120 - 121 as follows:

"Section 25(1) gives on its face an unqualified right to a legally qualified medical practitioner appointed by the defendant, on demand by the defendant, to examine the injured person: and prima facie an unqualified duty upon the injured person and all other parties if any to the proceedings to give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury."

9 The words "examine" or "examination" as used in s25, do not indicate that the examination must take the form of a physical examination of, or personal consultation with, the injured person. In its ordinary meaning, "examination" includes investigation and scrutinisation. The medical practitioner appointed by the defendant is not obliged to see the injured person, if he does not need to do so, before becoming entitled to obtain x-ray or pathology reports or information which the injured person is able to provide. In my view, an examination, within the meaning of the section, can consist solely of a scrutinisation by the appointed medical practitioner of the medical records and the like which are made available, if that is all that the defendant requires.

10 As to the plaintiff's second submission, there is nothing in the section to indicate that information which cannot be personally provided by the injured person is not accessible to the defendant's medical adviser. The section refers to "facilities" and so obliges the injured person to provide the "means or opportunities that make easier the ascertainment by the examining medical practitioner of the nature and extent of the injury". O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124 at 129.

11 The final point of opposition raised by the plaintiff concerns the statutory privilege afforded by the Act, s96. The holder of the privilege is the patient. The patient is free to waive the privilege but cannot be forced to do so. Although concerned with legal professional privilege, the following remarks of Roskill LJ in Causton v Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453 at 460 are apposite:

"I am clearly of the view that this court has no power to order the production of privileged documents. Medical reports are in no different category from other experts' reports and it would be quite wrong to engraft a qualification on the doctrine of privilege according to the nature of the report or the class of professional qualification attaching to its maker. ... so long as we have an adversary system, a party is entitled not to produce documents which are properly protected by privilege if it is not to his advantage to produce them, and even though their production might assist his adversary if his adversary or his solicitor were aware of their contents or might lead the court to a different conclusion from that to which the court would come in ignorance of their existence. Some may regret this: but the law always has allowed it and it is not for us to change the law in this respect."

12 The application, in its terms, requires the notes of the plaintiff's treating doctors. Those notes are likely to include reference to discussions between the patient and her doctors. There is a probability that treating doctors will have enquired of the plaintiff of her medical history and symptoms and made notes accordingly. In O'Shea v Royal Derwent Hospital Board of Management (supra) Cox J (as he then was) said at 129:

In s25 there is no mention of reasonableness. However, it is clear from Oakley v Green [1969] Tas SR 90 and Weedon v Green [1978] Tas SR 117 that the court retains a discretion whether or not to order a stay and such a power would not be used 'if the court was satisfied that the section was being used oppressively, vexatiously or unreasonably' (per Chambers J at p92; and Neasey J at p6 respectively)."

In my view, it would be at the least unreasonable, and probably oppressive, for an order to be made which had the distinct possibility of rendering illusory the statutory privilege provided by the Act, s96.

13 The plaintiff is entitled to rely upon the privilege and it is for the defendant, either through questions asked of the plaintiff by the defendant's medical practitioner; interrogation or an application under the Act, s25, in much more confined terms, to obtain what information it can which is not privileged.