• establishing whether the alleged victim had mental health conditions which would, in turn, impact on her credibility and reliability as a witness; and
• establishing whether an account of the alleged incident had been relayed by the patient to her treating practitioners.

The Tribunal did not consider these factors a strong basis for the issue of the requested summonses. Additionally, any account of the incident relayed by the patient to her practitioners would likely be protected communications for the purposes of s 67E of the Evidence Act 1929 (SA). The Tribunal weighed up the public interest in maintaining confidentiality of patient records and the public interest in securing a fair hearing for the respondent. It held that the summonses were not appropriate or necessary.

The respondent alleged that he could not have performed the physical acts described by the patient due to a physical health condition he suffered at the time. In response, the Board applied to the Tribunal for the issue of summonses to various health practices where the respondent was treated, and for an order that the respondent submit to medical examination.

The Tribunal made an order that the Board's summonses be issued as requested, and an order that the respondent undergo a medical examination.

Administrative tribunals - Procedure - Statutory powers - Summonses

South Australian Civil & Administrative Tribunal Act 2013 s 44

Evidence Act 1929 s 67E

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 13, 14

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 44

1. This is a disciplinary proceeding in which it is alleged (inter alia) that the respondent engaged in sexualised physical contact with a patient (the patient) on 14 July 2018 without her consent. The respondent says that the alleged conduct did not occur.
2. The respondent seeks that summonses be issued to the Norwood Village Medical and Dental Centre (NVMDC) and the Blair Athol Medical Clinic (BAMC). Each proposed summons would seek records relevant to the mental health of the patient for the period from 1 January 2016 to date.
3. It appears that the patient may have been treated at the NVMDC between January 2016 and the time of the alleged conduct. It also appears that the patient attended the BAMC for a blood test on one occasion in late 2019. There is no reference to any other attendance at that Clinic.
4. There is clear evidence suggesting that the patient has suffered at relevant times from depression and anxiety and lack of assertiveness. The stated forensic purpose for the summonses is that they may reveal evidence of alternative mental health conditions which may reflect on the patient's credibility or reliability as a witness. In particular, there may be evidence to support a theory that the patient's allegations may have been the product of a "dissociative episode".
5. I note that the respondent already has some substantial information concerning the patient's mental health, including:
   • A statement of the patient.[1]
   • Information, including clinical notes, from the notifier (a psychologist) whom the patient consulted in early 2016 and again in October 2018.[2]
   • A Mental Health Assessment and Treatment Plan prepared by her general practitioner at NVMDC, Dr Kajani, in March 2018 for referral to the respondent.[3]
   • The respondent's own records and knowledge gained from his treatment of her between April and July 2018.
   • Information and notes from Dr B Agnew, a general practitioner whom the patient consulted in October 2018.[4]
   • A Mental Health Assessment and Treatment Plan prepared by Dr Agnew in October 2018.[5]
6. There is nothing in these materials to suggest that the records sought to be summonsed are likely to reveal any other psychological disorder or mental health condition relevant to the proceeding. To the contrary, the available information tends to confirm the accuracy of the patient's own statement as to that issue. Furthermore, the Board has already obtained the records of the NVMDC (up to 3 June 2020) and submits that there is nothing of relevance to be disclosed from those records. This is of course not conclusive but provides some further assurance in the light of the Board's obligations as a model litigant.
7. The other forensic purpose put forward by the respondent is that the records might include accounts of the alleged incident given by the patient to her treating general practitioners. It is suggested that such records might be used to test and challenge her evidence. It seems to me that such accounts, if they existed, would probably be protected communications for the purposes of s 67E of the Evidence Act 1929. It would run counter to the aim and purpose of s 67E to issue a summons for the stated purpose. Furthermore, there is no reason to think that such accounts were given to practitioners at either of the nominated surgeries.
8. For the above reasons, I do not consider that there is a strong basis for the issue of the requested summonses. They are essentially fishing exercises. As submitted by counsel, the Tribunal must carry out a balancing exercise. There is a public interest in patients coming forward with information about alleged professional misconduct and being prepared to give evidence before the Tribunal. Many might be discouraged from doing so by the fear that their confidential medical records (particularly those relating to mental health) would as a result be provided to the alleged perpetrator and used in formal proceedings to attack their credibility. There is a public interest in maintaining confidentiality of such records. There is also a public interest in securing a fair hearing for the respondent. In some cases, there will be a compelling reason for requiring the production of medical records and this may outweigh the concern for confidentiality. In the present case, I do not consider on balance that the issue of summonses is necessary or appropriate. The request is refused.
9. The other application by the respondent was for the production of documents. This has been resolved by the production of such documents and an acceptance of assurances given on transcript (on instructions) as to the completeness of such disclosure. The respondent applies for the costs of this application.
10. The Board applies for:
    • An extension of time until 18 June 2021 for the filing of materials.
    • An order that the respondent submit to examination.
    • Issue of summonses to various health practices where the respondent has been treated.
11. The respondent has raised his physical health condition (as at July 2018) as an issue in the case. He says he could not have performed the physical acts described by the patient. He has filed reports from a general practitioner[6] and an orthopaedic surgeon[7] which address this issue. The surgeon saw the respondent only once, in July 2018. The general practitioner has treated him throughout and apparently continues to do so. Her report suggests significant and ongoing incapacity, through to the present time.
12. I am satisfied that examination of the respondent could produce relevant evidence to assist the Tribunal in the determination of this matter. If the Tribunal is required to exercise a discretion under s 13 and 14 of the Health Practitioner Regulation National Law (South Australia) Act 2010, I would exercise that discretion in favour of ordering an examination. I note that this matter has not, in my view, been referred to a substantive hearing. The Tribunal on 14 April 2021 merely requested that the Registry explore available dates, pending the completion of various preliminary steps by the parties and the determination of the preliminary issues I am now considering. I will make an order as envisaged by s 14.
13. It follows that the summonses sought by the Board should be issued in the form requested, rather than restricted as suggested by the respondent. The issue of the summonses was not otherwise opposed. I will direct that the summonses be returnable within a short period so that the timetable for progression of this matter to full hearing is not compromised.
14. It also follows that an extension of time should be granted to the complainant to file its material after the summonses have been returned and the examination has taken place. The material filed by the respondent on 22 March 2021 raised a substantial new issue. I do not consider that there has been any delay in responding to that issue which should disincline the Tribunal to grant the extension sought. It is important that the matter is thoroughly prepared. The matter should still be substantially on track for a hearing in about August.

1. The Tribunal makes the following orders:
   1. The respondent's requests for summonses to be issued are refused.
   2. The time for filing and service of materials by the complainant is extended to 18 June 2021.
   3. Summonses are to be issued as requested by the complainant. These are to be returnable by midday on Thursday, 27 May 2021.
   4. A copy of the material produced on summons is to be provided to the respondent's solicitor as soon as received. The respondent has until close of business on Friday, 28 May 2021 to outline in writing any objection to inspection by the complainant.
   5. Subject to consideration of any objections, a copy of the material produced on summons will be provided to the complainant on Monday, 31 May 2021.
   6. Pursuant to s 13 and 14 of the Health Practitioner Regulation National Law (South Australia) Act 2010, I confirm that the respondent's medical condition is in issue in these proceedings and order that the respondent must submit to a medical examination by Dr Robin Chase on 2 June 2021 (or as otherwise agreed by the parties) as requested by the complainant.
   7. Costs of these interlocutory applications are to be costs in the cause.