Plaintiff v Defendant

Supreme Court of Victoria|2007-08-15|Before: HOLLINGWORTH J

Evidence - Documents - Subpoena - Production of plaintiff's medical records pursuant to subpoena - Medical privilege - Whether defendant entitled to inspect medical records - Whether implied waiver of privilege - Evidence Act 1958 s28(2)

1 The plaintiff claims that since late June 2000, she has been either partially or totally disabled from working as a dentist. The defendant has refused to pay to the plaintiff the income protection benefits to which she claims to be entitled under her insurance policy with the defendant. Relevantly, for present purposes, the plaintiff alleges that since June 2000, she has been suffering from a depressive disorder for which she was under the care of a medical practitioner.

2 The defendant denies that the plaintiff is disabled, as alleged by her. Further, the defendant says that it is entitled to avoid the insurance policy by reason of the following matters:

(a) Prior to the inception of the insurance policy on 15 July 1998, the plaintiff represented that, apart from depression whilst suffering from glandular fever in 1984, she had never had any mental illness, depression, anxiety state or nervous condition; and

(b) In fact, at some time after 1984, but prior to the policy inception date, the plaintiff suffered from a number of psychological conditions, including significant anxiety and stress, which should have been, but were not, disclosed to the defendant.

3 Documents filed with her insurance claim form relevantly disclosed that the plaintiff was treated by Dr Karen Strungs, a psychiatrist, from March 2001, until Dr Strungs moved to Sydney in July 2001.

4 On 26 April 2007, the defendant issued a subpoena seeking the production by Dr Strungs of the following documents: "All patient notes, clinical notes, specialists' reports, medical reports, referrals, and all other documents relating to [the plaintiff]." Dr Strungs complied with the subpoena by producing her file to the Prothonotary.

5 On 28 May 2007, the plaintiff's solicitors gave notice that the plaintiff objected to the defendant inspecting the subpoenaed documents, on the basis that the subpoena had been drafted too broadly and the subpoenaed documents were not limited by time or content. By a further letter dated 16 July 2007, the plaintiff's solicitors relied as an additional ground of objection on s28(2) of the Evidence Act 1958 ("the Act").

6 The Prothonotary referred the objections to a master for determination. On 18 July 2007, a master upheld the plaintiff's objections to inspection by the defendant. The defendant now appeals against the master's order.

7 During the course of the hearing of the appeal, the defendant's counsel indicated that the defendant does not press for the production of any subpoenaed documents:

(b) In so far as they refer to a medical condition which is unrelated to the issues in dispute in this proceeding.

8 That concession disposed of the plaintiff's objections as to the width of the subpoena, leaving the question of medical privilege as the only live issue on the appeal.

9 It is long established that the common law does not recognise any privilege attaching to doctor-patient relationships. However, s28(2) of the Act provides:

No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.

10 Section 28(2) applies to prevent the divulging of confidential information which is in either oral or written form.[1]

11 Section 28(2) is the modern embodiment of a provision which was first introduced into Victorian law in 1857.[2] Whether s28(2) should, strictly speaking, be described as imposing a prohibition or granting a privilege may be debated[3]; however, it is convenient to refer to it, as many of the cases do, as medical privilege.

12 Medical privilege under s28(2) is not as broad a privilege as legal professional privilege. For example, section 28(2) only applies to the disclosure of information in civil, not criminal, proceedings. Save for the specific exception in the case of accident compensation investigations, it also does not apply to investigative procedures, such as investigations by the Medical Practice Board.[4]

13 It seems that the underlying policy behind s28(2) is to preserve confidentiality to a person who has been treated by a doctor.[5] Confidentiality is obviously a far more limited public policy basis than that which underlies legal professional privilege. Nevertheless, the section must be given full effect, even if the effect may be to keep the court in ignorance of the true facts (as indeed is the case with all rules which fetter the giving of evidence).[6]

14 Section 28(2) prohibits disclosure without the patient's consent. It was not disputed that a patient's consent may be express or implied. Both parties also proceeded on the basis that the principles which govern the implied waiver of legal professional privilege would also govern the implied waiver of medical privilege, in particular, the principles of waiver by disclosure and issue waiver.[7]

15 In the present case, the defendant relies upon the so-called "issue waiver" limb. This arises where the privilege holder has put the contents of an otherwise privileged communication in issue for the purpose of mounting their case, with the consequence that an inconsistency or unfairness arises between the making of the assertion and the maintenance of the privilege. The most obvious way in which the communication may be put in issue is by the privilege holder's pleadings. In each case it is necessary to consider the extent to which the privileged communication has been put in issue, and the extent of any unfairness or inconsistency caused thereby.

16 I was referred to a handful of cases in which waiver of the privilege under s28(2) has been considered. In Abondio v Women's v Children's Healthcare Network[8], Hedigan J applied the principles which govern the implied waiver of legal professional privilege. His Honour held that privilege in certain hospital records had been waived by the disclosure of other medical records of the same patient by the same hospital.[9] The defendant's counsel had argued in the alternative that, because the plaintiff's claim alleged that the defendant's negligence caused her disability, the plaintiff had thereby impliedly waived privilege in all documents relating to all issues necessary to establish the plaintiff's claim, including causation issues. However, given his finding of waiver by disclosure, it was not necessary for his Honour to consider the alternative argument based on alleged issue waiver.[10]

17 I was referred to two decisions of Judge Wodak in the County Court of Victoria. In O'Brien v Mercy Health & Aged Care Inc[11], the plaintiff claimed she had suffered a mental injury as a result of negligent medical care and treatment at the defendant's hospital during June 2000. She relied upon s28(2) to claim privilege over the records of a psychiatrist who had treated her in early 2006. Her counsel announced that she did not intend to call the psychiatrist as a witness. The defendant argued that, by pleading a mental injury, she had waived privilege over the issue of her mental state. Judge Wodak held that the plaintiff was free to call whichever witnesses she chose, and she was not obliged to call the psychiatrist. His Honour held that there had been no waiver of privilege in respect of the psychiatrist's records, because there was no inconsistency or unfairness in alleging a particular injury and choosing not to call a doctor who may have treated that injury.

18 In Whitford v Rehfisch & Ors[12], the plaintiff sued two surgeons and a hospital for negligent treatment. The defendants served a subpoena on another specialist who had treated the plaintiff. The plaintiff initially claimed privilege under s28(2) in respect of the subpoenaed document. The claim for privilege was subsequently abandoned. However, in considering arguments as to costs, Judge Wodak had to consider a submission that the plaintiff's claim to privilege was "hopeless", because she had clearly waived privilege by the nature of her claim and her conduct in the proceeding, and should never have argued to the contrary. Even though his Honour accepted that the plaintiff had no intention of calling the specialist as part of her case, he considered it inevitable that there would be evidence at trial concerning the operation and treatment by the specialist. Having regard to principles of inconsistency and unfairness, his Honour concluded that the position taken by the plaintiff as to privilege was "not maintainable."

19 In the present case, the defendant argues that the plaintiff has impliedly waived the privilege by reason of the following:

(a) The nature of the plaintiff's claim in this proceeding; and

(b) Consent forms signed by the plaintiff at the time of lodging her claim under the insurance policy.

20 The defendant alleges that the privilege has been waived by reason of the issues raised by the plaintiff in this proceeding and there is an inconsistency between the plaintiff maintaining her claim in this proceeding and maintaining the privilege.

21 The plaintiff has put in issue the fact that she is disabled within the meaning of the policy. In order to succeed, she needs to prove that at all relevant times she was suffering from one or more relevant disabling conditions.

22 Paragraph 8 of the amended statement of claim pleads that the plaintiff was under the care of a medical practitioner at various times, including between March and June 2001 (being the time she was consulting Dr Strungs). No particulars of paragraph 8 have yet been provided, although they have apparently been requested. However, the claim for benefits under the policy on which the plaintiff relies is said to be contained in her letter of 28 November 2001. That letter relies on the fact that the plaintiff was under the care of Dr Strungs for 3 months from 5 March 2001, as do the attending doctor's statements.

23 Here, the plaintiff's counsel informed the court that the plaintiff does not propose to call Dr Strungs to give evidence at trial, as she no longer lives in Melbourne. It is of course a matter for the plaintiff's lawyers to determine which doctors they will call on behalf of the plaintiff, in order to prove her case. And once a doctor is called to give evidence on behalf of the plaintiff, there would obviously be a waiver of any privilege in respect of information acquired by that doctor. The plaintiff's lawyers may of course change their mind as to whether or not to call Dr Strung. Even if they do not do so, the mere fact that a particular doctor is not called does not, of itself, dispose of the question of waiver, as acknowledged by Judge Wodak in Whitford v Rehfisch & Ors. It is still necessary to consider how the plaintiff's case is put, as well as questions of unfairness and inconsistency.

24 It is, of course, the plaintiff's claim that is relevant here. The defendant puts in issue the plaintiff's failure to disclose her psychiatric condition between 1984 and 1998. But I agree with the plaintiff that the fact that a defendant raises a matter in its pleading is not sufficient to put it in issue for the purposes of issue waiver.

25 The plaintiff's claim against the defendant clearly puts in issue her mental state since June 2000. She claims to be entitled to policy benefits because she has suffered from a depressive disorder for which she was under the care of a medical practitioner at all relevant times. Her treating psychiatrist for three months during that period was Dr Strungs. Even if Dr Strungs is not called as a witness, it is difficult to see how the plaintiff's case could proceed in respect of this period without the plaintiff giving some evidence as to her treatment by Dr Strungs.

26 There is a further fact which is relevant here, which did not arise in any of the waiver cases I have mentioned so far. Here, the defendant relies on the fact that the plaintiff has signed two insurance claim forms, dated 22 December 2001 and 17 January 2003 respectively, which include the following consent:

I hereby authorise any dentist, hospital, doctor or other person who has attended me, to release to [the insurer] all information with respect to any sickness or injury, medical history, consultations, prescriptions or treatment and copies of all hospital or medical records.

27 That is to say, since suffering from the injury, and in order to advance her claim against the defendant, the plaintiff has authorised the disclosure to the insurer of all relevant medical records. That disclosure would clearly include the subpoenaed documents. Such a consent may not of itself constitute express consent to the use of the documents in court, as was recognised by Lush J in Carusi v Housing Commission.[13] But it is, in my opinion, not irrelevant to a consideration of questions of fairness, when considered in the context of issue waiver (something which was not considered in Carusi).

28 I am satisfied that there has been issue waiver in respect of the subpoenaed documents, save for any which are excluded on the basis of the relevance concession referred to earlier in these reasons. It follows that the appeal should be allowed.

I certify that this and the 7 preceding pages are a true copy of the reasons for ruling of Hollingworth of the Supreme Court of Victoria delivered on 15 August 2007.

[1] In Fitzgerald v Munro [1998] VSC 30 at [19], Beach J noted that it would make a mockery of the section if a doctor could be precluded from giving oral evidence, but his or her medical notes could nevertheless be divulged without the patient's consent. See also Abondio v Women's and Children's Healthcare Network [2000] VSC 51.

[2] For a detailed discussion of the history of s28(2), see the decision of Gillard J in Royal Women's Hospital v Medical Practitioners Board of Victoria [2005] VSC 225.

[3] Carusi v Housing Commission [1973] VicRp 19; [1973] VR 215 at 219 per Lush J.

[4] Royal Women's Hospital v Medical Practitioners Board of Victoria op cit at [79]-[82]. The Court of Appeal did not grant leave to appeal against Gillard J's findings as to s28(2): see Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22.

[5] PQ v Australian Red Cross Society [1992] VicRp 2; (1992) 1 VR 19 at 24 et seq, per McGarvie J; Fitzgerald v Munro op cit at [18], per Beach J.

[6] Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112 at 115 per Gillard J; _PQ v Australian Red Cross Societ_y op cit at 25.

[7] The relevant principles in relation to implied waiver of legal professional privilege are set out in Mann v Carnell ([1999] HCA 66; 1999) 201 CLR 1, Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341 and Secretary to the Department of Justice v Osland [2007] VSCA 96.

Compensation Act 1985

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Judgment (49 paragraphs)

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