Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85

Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85 - VSCA 2006 case summary — Zoe

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38 I have had the advantage of reading in draft the reasons for judgment of the Chief Justice and of Charles, J.A. I gratefully adopt their Honours' summaries of the facts and the proceedings, and their analyses of the authorities.

39 Like the Chief Justice, I consider that the Hospital's claim for public interest immunity ("PII") fails at the threshold. That is, the class of documents the subject of the claim is not capable, as a matter of law, of attracting PII. No occasion therefore arises to engage in a "balancing exercise". My reasons are as follows.

Public interest immunity

40 PII, where it exists, is a powerful shield. The immunity protects the relevant documents (or information) from compulsory production in any forum. The immunity applies both in court proceedings - to relieve the holder from the usual obligation to produce relevant documents, whether on discovery or in answer to a subpoena - and in administrative investigations such as the present, where coercive powers are conferred on a statutory authority to obtain information in the public interest.

41 It is axiomatic that decisions - whether by courts or by public authorities - are more likely to be correct when all relevant information is available to the decision-maker. Hence PII can be seen to be inimical to sound decision-making in the public interest. Like a claim of privilege, a claim of PII operates "as a fetter on the discovery of truth"[31]. The conferral of such immunity necessarily limits the ability of a court to do justice between parties. Of course, like the cognate common law privileges - legal professional privilege and the privilege against self-incrimination - the immunity exists because other dimensions of the public interest are seen to override the public interest in full disclosure.

42 It follows, in my view, that the limits of PII must continue to be very strictly drawn. Given the far-reaching protection which it confers, the immunity should be given no greater scope than is demonstrably necessary. It may be accepted that the categories of PII are never closed, but a court should be very slow to entertain a claim - such as that made by the Hospital in this case - for the recognition of a new class of PII.

43 This is especially so, in my view, since PII is an immunity conferred by judges, not by the legislature. Prima facie, it should be for the legislature, not the courts, to decide when an overriding public interest warrants exempting a class of information from the usual rigours of public disclosure.

44 As an example of such legislation, the Trade Practices Act 1974 (Cth) contains its own statutory form of PII. Sub-section 155(7A) provides that the obligation imposed by s.155(5) - to comply with a notice from the Australian Competition and Consumer Commission requiring the furnishing of information or the protection of documents - does not require a person -

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54 Once it is recognised that what matters is the character of the information for which protection is sought, not the nature of the agency which holds the information, it can be seen that the question whether the agency in question - in this case, the Hospital - is or is not 'governmental' is of little or no relevance. This is just as well since, as demonstrated by the recent decision of this Court in Central Bayside Division of General Practice v. Commissioner of State Revenue[48], such classification decisions involve multiple criteria, whose application in any given case raises difficult questions of fact and degree.

55 It will be apparent from what I have said that I consider the Hospital's claim for PII to have been misconceived from the outset. On no reasonable view could information of this kind have satisfied the stringent criteria for such immunity. The information was wholly unrelated to decision-making "at the highest levels of government". Indeed, disclosure of the information would reveal nothing about the Hospital's decision-making or its internal deliberations, even assuming (contrary to my view) that such information could attract PII.

Personal health information should be kept confidential

56 Properly characterised, the class of information which defines the Hospital's class claim is information of a purely personal nature. In this particular case, the information relates to the acute medical crisis in which the patient found herself. Using the language of s.33(1) of the FOI Act, what the documents contained was "information relating to the personal affairs" of the patient. The concern of the Hospital, as fully set out in the affidavit of Dr. Bayly,[49] is that disclosure of this patient's records to the Board would discourage other women in need of similar critical medical assistance from seeking such assistance, or from speaking frankly to a doctor about their circumstances. At worst, Dr. Bayly says, the consequence might be that women in such need would seek other, unsafe, means of obtaining a termination.

57 These are grave considerations indeed. I have no reason to doubt Dr. Bayly's assessment. Like the Chief Justice and Charles, J.A., I do not share the view of the learned trial judge that the "exigencies of the occasion" will ensure that pregnant women "will reveal all that is necessary to enable their treatment to be properly and carefully performed". But my own views are of no consequence, since this is not a matter on which, in my view, a judge is equipped to express any opinion at all - at least not in the face of uncontested expert evidence from someone of Dr. Bayly's specialist experience.

58 What matters for present purposes, however, is that these are concerns about the importance of maintaining the confidentiality of the patient-doctor relationship. This is a matter of high public importance. The preservation of medical privacy is of concern to the whole community. Appropriately, therefore, as Charles, J.A. has pointed out[50], the Victorian Parliament has legislated to provide wide - though not unqualified - protection of that confidentiality.

59 The balancing of the public interest in medical privacy against other, competing, public interests is properly a matter for Parliament. In this regard, I note that one of the stated objects of the Health Records Act 2001 (Vic) is -

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Protection of confidential information in the hands of the Board

60 The problem of confidentiality which this case throws up would seem to be inherent in the Board's discharge of its statutory function of regulating the medical profession in Victoria. In very many - perhaps most - cases where a complaint is made against a doctor, and in particular where (as here) the complainant is a third party, the patient will not want any public disclosure of the fact that she/he has consulted the doctor in question, less still that a complaint has been lodged.

61 Concerns about confidentiality are not, of course, confined to the medical field. A taxpayer whose affairs are being investigated by the Commissioner of Taxation will typically not wish that fact - less still the nature of the investigation - to be made public. The understandable desire for privacy is not, however, met by denying the Commissioner the right to obtain information by compulsory process[51], but rather by the imposition of stringent secrecy provisions prohibiting disclosure of any information so obtained[52].

62 To remove any misapprehension in this regard, the Board has declared from the outset that it will do whatever is necessary to ensure that the information is kept confidential. It is vitally important that this be done. Once it is appreciated that there will not be - indeed, was never proposed to be - any public disclosure of the information, the adverse consequences foreshadowed by the Hospital seem far less likely to occur.

63 Given that confidentiality issues of this kind inevitably arise when the Board is conducting investigations, I would have expected the Medical Practice Act - which gives the Board its investigatory duties and functions - to have imposed a strict secrecy regime[53]. Surprisingly, the Act is silent on this subject. This omission should be corrected as a matter of urgency. The inclusion of a secrecy provision in the Act would in turn render such documents exempt from access under the FOI Act[54].

64 At the same time, the Board is subject to the strict privacy regime imposed with respect to "health information" by the Health Records Act 2001 (Vic). Clearly, that Act applies to the Board[55] and, equally clearly, the information contained in these documents is "health information", being:

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(c) considering whether a restraint of trade was reasonable;[61] and

(d) exercising a discretion to exclude confessional evidence.[62]

73 In John Fairfax Publications Pty Ltd v Doe,[63] Gleeson CJ (as Chief Justice of New South Wales), in considering whether the means of protecting privacy of communication under Part VII of the Telecommunications (Interceptions) Act 1979 (Cth) lacked proportionality, referred to the international recognition of the need for stringent controls in the interests of privacy.

74 There are three important ways in which such instruments, and the associated learning, can influence the resolution of disputes under domestic law[64]. This is so notwithstanding that, unless an international convention has been incorporated into Australian municipal law by statute (as has occurred with the Commonwealth's Racial Discrimination Act 1975 and Sex Discrimination Act 1984), the convention cannot operate as a direct source of individual rights and obligations under Australian municipal law.

75 First, the provisions of international treaties are relevant to statutory interpretation. In the absence of a clear statement of intention to the contrary, a statute (Commonwealth or State) should be interpreted and applied, as far as its language permits, so that it conforms with Australia's obligations under a relevant treaty.

76 Secondly, the provisions of an international convention to which Australia is a party - especially one which declares universal fundamental rights - may be used by the courts as a legitimate guide in developing the common law. The High Court has cautioned that the courts should act with due circumspection in this area, given that (ex hypothesi) the Commonwealth Parliament itself has not seen fit to incorporate the provisions of the relevant convention into domestic law.

77 Thirdly, the provisions of an international human rights convention to which Australia is a party can also serve as an indication of the value placed by Australia on the rights provided for in the convention and, therefore, as indicative of contemporary values.

78 The leading case from which these propositions flow is the High Court decision in Minister for Immigration and Ethnic Affairs v Teoh.[65] That case involved an application for permanent entry into Australia by a married man with children in Australia. The Convention on the Rights of the Child, to which Australia was a party, had been ratified by Australia but had not been incorporated by statute into Australian domestic law. The High Court, by majority, held that ratification of the Convention gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of the applicant's children as a primary consideration. The Minister had not done so, and the applicant had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision inconsistent with that legitimate expectation.

79 The decision in Teoh has not gone unchallenged. Successive governments have attempted to override the effect of the decision - first by executive statements,[66] and subsequently by Bills which, in each case, lapsed before they had been voted on. More recently, in Lam's case,[67] some members of the High Court made remarks suggesting that, on the question of legitimate expectation, Teoh might well be decided differently by the present High Court. But the occasion for that re-examination of Teoh has not yet arrived, and the legitimate expectation test continues to be applied in the courts.

80 In any case, the question of legitimate expectation represents only one part of what was said in Teoh. The other propositions to which I have referred about the relevance of international human rights law are still good law, and continue to be applied.[68]

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81 The question in this appeal is whether the Royal Women's Hospital ("the Hospital") may refuse production to the Medical Practitioners Board of Victoria ("the Board") of the medical records of a woman patient on the ground of public interest immunity. The Hospital claims that the public interest requires that all medical records of "women patients in public hospitals seeking advice and treatment concerning reproductive matters including obstetrics and gynaecological care" should be immune from compulsory production.

The Hospital

82 The Hospital, a body corporate, operates a public hospital in Carlton, specialising in maternity cases and the health of women. It enjoys a reputation as a centre of excellence. At all material times the hospital was required under the Health Services Act 1988 to have a board of directors, appointed by the Governor-in-Council on the recommendation of the Minister for Health. The Governor-in-Council, on the recommendation of the Minister, had power also to remove a director of the Board.

The Board

83 The Board is a body corporate established under s.65 of the Medical Practice Act 1994 ("the Act"). It is convenient at this point to set out in some detail the Board's jurisdiction and authority under the Act. One of the main purposes of the Act is said to be "to protect the public by providing for ... investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners ... ".[69] The Board's functions include "to regulate the standards of medical practice in the public interest"[70]; and to "investigate the professional conduct, professional performance or ability to practice of registered medical practitioners".[71] For this purpose it has power under Part 3 of the Act to investigate the professional conduct of registered medical practitioners, to hold hearings into a complaint and to impose a punishment where appropriate. The Board must investigate a complaint if it concerns the professional conduct of a registered medical practitioner, provided, in effect, that the complaint is not frivolous or vexatious, and has not been dealt with by the Health Services Commission.[72] I shall return to the functions of the Board later.

The circumstances of the Board's investigation

84 In January 2000 Mrs X, a woman pregnant with a foetus at 32 weeks, went to the hospital with a request that her pregnancy be terminated. She had been informed, as a result of an ultrasound performed before she went to the Hospital's emergency department, that her foetus may have skeletal dysplasia, a condition commonly known as "dwarfism". She was referred for counselling and a further ultrasound was taken which confirmed the diagnosis of skeletal dysplasia. As the judge of the Trial Division of this Court put it[73] -

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The magistrate's reasons for decision were published on 8 October 2004. Her Honour[74] found that s.28(2) of the Evidence Act and s.141(2) of the Health Services Act did not apply to the facts of the case; and also concluded that the doctrine of public interest immunity did not apply. Accordingly, the magistrate ordered that the documents seized be released to the Board, but also that there be a stay of 30 days on the release of the documents.

Appeal to the Supreme Court

88 The Hospital then appealed to the Supreme Court under s.109 of the Magistrates' Court Act 1989 raising questions of law. The Hospital again relied on s.28(2) of the Evidence Act and s.141(2) of the Health Services Act. The principal claim was, however, that the magistrate had been in error in failing to find that the documents were excluded from production by the principle of public interest immunity. On 29 June 2005 the judge dismissed the appeal on all three grounds, but stayed the orders of the magistrate until 22 July 2005.

The claim to public interest immunity before the magistrate

89 In the hearing before the magistrate the Hospital made a class claim for immunity in terms that "all medical records of public hospitals should be immune from production", but directed the claim specifically to "medical records of patients in public hospitals", rather than medical records generally. The magistrate accepted that there was a link between the government and public health. Her Honour said that there had however been no evidence provided in support of the class of the public interest claimed in the form of a review of expert literature or expert body of opinion. She said that the evidence in the affidavit of Dr Bayly was both wider and narrower than the class defined by the Hospital. Nor was any material put forward to establish why public hospital documents (as opposed to those of a private hospital) should be entitled to immunity. Her Honour said that unless there were distinctive features to lift the documents into an identifiable recognisable class, and since she was bound to exercise constraint in creating a new class of documents entitled to public interest immunity, the Hospital's claim failed.

The claim to immunity before the judge

90 Before the judge of this Court, the Hospital put forward a redefinition of the class of documents for which it claimed protection, in more restricted form in the manner set out in the first paragraph of these reasons. The judge agreed to consider this new definition of the class for which protection was claimed. His Honour then concluded that the magistrate had wrongly applied the decision of the Court of Appeal of New South Wales in R. v. Young[75] as requiring evidence of a review of expert literature or expert body of opinion. The judge also decided that the magistrate should have engaged in a balancing exercise, weighing the harm to the public interest that would be done by the production of the documents against the public interest which is vital to the proper investigation pursuant to a statutory obligation of a complaint against a medical practitioner and concluded that the magistrate had erred in failing to perform this balancing exercise. The judge also concluded that public interest immunity is not confined to government matters, and went on to consider the balancing exercise. Having done so his Honour ultimately concluded that the Hospital had failed to establish any of the bases for refusal of production.

The appeal to this court

91 The Hospital sought leave to appeal from two judges of this Court on 12 August 2005. The Court granted leave to appeal from the decision of the judge on the single ground that the judge erred in failing to find that the documents the subject of the search warrant should not be produced, they being protected by the principle of public interest immunity. Leave to appeal in relation to the claim that the documents were also subject to the protection of s.28(2) of the Evidence Act 1958 was refused.

The Board's notice of contention

92 The Board by notice dated 6 October 2005 claimed -

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The Hospital's contentions in this Court

93 In argument on behalf of the Hospital, it was accepted that the claim for public interest immunity was a class claim (as opposed to a claim based on the contents of a particular document or documents), that the claim was novel in that such a claim had not been previously accepted by any court, and that a person asserting such a claim bore a heavy burden in establishing it.[76]

94 The first submission was that the judge had properly embarked on the balancing exercise, but that in doing so his Honour had failed to give any or proper weight to the particular circumstances of the public interest in the suppression of documents in this case. It was put that the judge had failed to give weight to the threat by Mrs X to leave the hospital and commit suicide, her continuing fragile mental state which was further threatened by the fear of her confidentiality being breached, the fact that she had refused her consent to the release of the documents, and the fact that the complaint (made by Senator McGauran) was not made by the patient or a member of the patient's family. It was submitted that the unique importance of this case and the weight that should have been given to the public interest were demonstrated by the contents of the affidavit of Dr Christine Bayly, the Associate Director of Women's Services at the Hospital. I shall return to the contents of Dr Bayly's affidavit later. It was argued that there was an inextricable link between confidentiality and public health and that the failure to recognise the public interest in the confidentiality of medical records posed a threat to public health because of the risk that people might be deterred from seeking medical assistance. Next it was argued that the patient, having provided information to the Hospital on a confidential basis, might well seek alternative, inferior treatment (as might other women) if disclosure of the information she had provided would result; and the Hospital would be unable to perform its functions properly and effectively if such confidential information were liable to be disclosed. It was argued that the nature and extent of the harm far outweighed the desirability of the evidence being given to the Board.

95 Secondly, it was argued that having embarked on the requisite balancing exercise, the judge had failed to inspect the documents in question and, implicitly, that it was essential that his Honour do so.

96 Thirdly, it was submitted that it had not been open to the judge to reject the proposition that "the breakdown of the confidential relationship will have adverse effects upon pregnant women approaching hospitals or they will fail to look after their own interests when obtaining treatment from a public hospital" because they may not make adequate disclosure or provide misleading information. The judge had taken the view that pregnant women would seek treatment if it became necessary and would reveal all that was necessary to enable their treatment to be properly and carefully performed, and it was argued that his Honour was not entitled to come to this conclusion.

97 Fourthly, it was argued that the judge had failed to give proper weight to the particular circumstances of the public interest in the production of the documents in this case. It was submitted that the documents were not crucial to the Board's investigation because the Board already had the majority of the documents in its possession.

98 A fifth argument was that in the balancing exercise the judge should have considered and given weight to applicable provisions of international human rights conventions to which Australia is a party as a guide to contemporary values and to conceptions of the public interest. It was submitted that the judge had erred in failing to have any regard whatsoever to the content of the relevant international conventions. I shall come to them later.

The principal issues before this Court

99 The Hospital's arguments, taken with the issues raised by the Board in its Notice of Contention, lead to three principal questions for this Court -

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In the same case Gummow, J. said[82] that the need to discharge a "heavy burden" in maintaining a class claim was now accepted. Similar statements can be found in R. v. Young[83] by the Court of Appeal of New South Wales, and by the Court of Appeal of Victoria in State of Victoria v. Seal Rocks Pty Ltd[84].

102 Public interest immunity is similarly invoked when objection is made by the Director of Public Prosecutions or police officers to the production of documents or the giving of evidence which will reveal the identity of a police informer. The identity of an informer has been protected against disclosure in order to prevent damage to the administration of criminal justice since Eyre, C.J. laid down the rule in Thomas Hardy's case[85] in 1794. The rule was reaffirmed in 1846 in Attorney-General v. Briant[86]. In D v. NSPCC, Lord Diplock[87] said that by the time of Marks v. Dreyfus[88] this had "hardened into a rule of law. "

103 In Attorney-General for N.S.W. v. Stuart[89], Hunt, C.J. at C.L. gave the rationale for the rule as being that if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime; this being part of a broader public interest, the maintenance of social peace and order; and it also being essential that nothing used by police in their pursuit of criminals should be disclosed which might give any useful information concerning continuing enquiries to those who organise criminal activities, or which might impede or frustrate the police in that pursuit.[90]

104 The right to immunity from disclosure for police informers was said to be limited to public prosecutions (carried on by the Director of Public Prosecutions) in Briant's case[91], and also in Marks v. Dreyfus[92]. In Rogers v. Home Secretary[93] the immunity was extended to a situation where a person who had been refused a certificate from the Gaming Board sought production of a letter written about him to the Board by the Assistant Chief Constable of the County. The House of Lords[94] said that the same considerations as applied to police informers must apply to those who volunteer information to the Board.

105 Then in D v. National Society for the Prevention of Cruelty to Children[95], the rule was extended by direct analogy to the relationship between the Society and ordinary persons volunteering information and lodging complaints with the Society. A false report had been made by a person to the Society alleging that D had been guilty of cruelty to her 14 month old daughter. An inspector of the Society called at D's home to inspect the child. The mother claimed to have suffered severe and continuing nervous shock and brought action against the Society claiming damages for negligence. She sought to obtain the identity of the informant in order to join that person to the action against the Society. The House of Lords held that an immunity from disclosure similar to that which the law allowed police informers should be extended to those who gave information about neglect or ill-treatment of children to the Society.

106 The mother's counsel sought to argue (as the Board also did in the present appeal) that public interest immunity was based on central government interest, or that of the organs of central government appointed by statute, such as the Gaming Board. The House of Lords, however, rejected the view that public interest as a ground for non-disclosure of documents or information was confined to the effective functioning of departments or organs of central government.[96] But their Lordships also rejected a submission made by D's counsel that whenever there is a public interest to be served by withholding information from disclosure in legal proceedings, the Court has a duty to weigh that interest against the public interest in the administration of justice.[97]

107 The Society was one of three categories of persons authorised by statute to bring care proceedings in respect of neglected or ill-treated children, the other two being local authorities and police officers, and there was evidence that the public were more ready to bring information to the Society than to the police or the welfare services. Their Lordships stressed that the public interest to be protected was the effective functioning of an organisation authorised under Act of Parliament to bring legal proceedings for the welfare of children.[98] Lord Hailsham of St Marylebone[99] said that the welfare of children, particularly young children at risk of maltreatment by adults, had been "from the earliest days, a concern of the Crown as parens patriae, and the subject of a whole series of Acts of Parliament". In this context, the immunity preventing disclosure of an informer's identity is, in one sense, very much related to a central government function. The relevance, in this respect, of the administration of justice was discussed by Lord Simon of Glaisdale[100], pointing out that the administration of justice is a crucially important aspect of the maintenance of social peace and order, and saying[101] -

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108 The Supreme Court of this State, constitutionally the third arm of government, has a vital interest, and a critical role to play in government. To the extent therefore that the release of an informer's identity or other like information might damage the administration of justice, or the maintenance of the Queen's peace, it can be seen that the immunity acknowledged in Marks v. Dreyfus, and accepted in D v. NSPCC as having[102] "by the time of Marks v. Dreyfus ... already hardened into a rule of law", is, therefore an element in the public interest intrinsically involved in government.

109 The courts in England appear to have taken the decision in D v. NSPCC as establishing a broad scope for the operation of public interest immunity. The decision was followed in Re M (a Minor)[103] by the Court of Appeal which held that social work records and analogous records kept by a local authority were the subject of a special immunity. In London and County Securities Ltd. & Ors v. Nicholson & Ors[104], Browne-Wilkinson, J. accepted that D v. NSPCC established a broad scope for the operation of public interest immunity. See also Medway v. Doublecock Ltd. & Anor[105]. In Buckley v. Law Society (No. 2)[106] Sir Robert Megarry, V.C. held that public interest immunity applied to the Law Society's exercise of its statutory functions. These authorities give some support to the view that in the United Kingdom public interest immunity has a broad application particularly in relation to local authorities performing a regulatory function.

110 In this case, the judge (as I have said) took the view that public interest immunity was not tied to government information and documents, nor was it confined to government matters. In so doing his Honour relied on what had been said by the House of Lords in D v. NSPCC[107] as well as similar statements in Bell v. University of Auckland[108]. The judge also referred to the decision of the House of Lords in Science Research Council v. Nassé[109], which involved discretionary powers conferred on industrial tribunals to order discovery and inspection of documents in cases of alleged discrimination in the employment field, where the claimants sought access to confidential assessments and other documents relating to fellow employees. The House of Lords rejected the proposition that public interest immunity applied to such documents. In applying the decision of D v. NSPCC, it was made plain by at least three members of the House[110] that public interest immunity, although not confined strictly to government departments or other organs of central government, was nevertheless confined the immunity to bodies exercising statutory duties or functions, and in situations analogous to the police informer immunity. In particular, Lord Scarman said[111] -

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"I incline to the view that the common law of Australia would uphold a claim of public interest immunity in the factual situation addressed in Clifford, including (in particular) any clearly established situation involving compulsion to submit to medical tests under section 29 of the Corrections Act 1986 Vic. or any interstate counterpart. But Clifford involved a unique concatenation of facts ... and the situation is (to me) much less clear once one moves away from them.

To the extent that the common law insists upon the presence of a governmental interest (N.B. Young), that interest is present in such a context because the medical and psychiatric assessment of a prisoner upon reception into the prison system is a vital step in proper prison administration. It goes well beyond the private interest of the prisoner. Likewise with medical tests directed by the principal medical officer.

But it is not nearly so clear in relation to the voluntary, ongoing medical treatment of a serving prisoner or to the result of a psychiatric assessment initiated by the prisoner for his or her own purposes. The affidavit that grounded the decision in Clifford and the affidavit read in the present application show a tenable basis for a public interest in confidentiality, but it is far from clear that such interest outweighs the public interest in getting at the truth in litigation. Medical confidences involving non-incarcerated patients do not form a class of public interest immunity (see Young at 699 [89]) and it is difficult to see why the patient's status as a prisoner should alter this in the general run of cases.

There may be particular situations where such a claim would be attracted, but it is not clear why it should be attracted in relation to every or even most aspects of prison medical treatment. It is easy to conceive of situations where the public interest in upholding the claim is so tenuous as to be non-existent (for example, criminal proceedings against an assailant who assaulted a fellow prisoner). Young explains the caution that should attend the discovery of new categories of public interest immunity."

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115 Notwithstanding the reservation expressed by Mason, P. in Mok as to what had been said by Spigelman, C.J. in Young, the conclusion of the latter has the formidable support of Cross on Evidence[127]. The editors of Cross take the view that public interest immunity is concerned only with the conduct of governmental functions and does not arise merely as a result of weighing the public interest in disclosure against any factor that can be described as a "public interest", citing the dicta of Spigelman, C.J. in R. v. Young[128] in support of the proposition.[129]

116 Having regard to the authorities previously discussed, in my view public interest immunity is restricted to what must be kept secret for the protection of government at the highest levels and in sensitive areas of executive responsibility, governmental function in this context being defined to include the courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity. It follows that, with respect, I do not accept the judge's view, that a governmental interest is not required. This difference of opinion is, however, of little consequence to the outcome of the appeal.

A governmental function?

117 Counsel for the Hospital argued that there had been established the requisite public interest which requires public interest immunity, being the effective functioning of an entity which has been authorised under an Act of Parliament to deliver health services to the public. Accordingly it was submitted that the Hospital is entitled to claim public interest immunity attaching to the medical records and other documents referred to in the search warrant the subject of this appeal. It was put that the public interest requiring protection is indistinguishable from the public interest which required protection and was held sufficient to attract public interest immunity in D v. NSPCC.

118 The circumstances which are said to result in the Hospital performing a governmental function were as follows. Three separate periods were referred to in evidence. The first, from 1 August 1995 to 30 June 2000 was as follows. The Hospital was said to be a "campus" of the Women's and Children's Health Care Network and a "metropolitan hospital" incorporated under the provisions of the Health Services Act 1988. Each "metropolitan hospital" was required to have a board of directors, by s.40D of the Health Services Act, now repealed. The board was appointed by the Governor in Council on the recommendation of the Minister for Health of Victoria. Section 40D(2) of the Health Services Act prescribed the functions of the board of directors of each "metropolitan hospital", and these functions included the development of strategies to ensure the provision of health services of the hospital. The Hospital was established pursuant to guidelines for the delivery of public hospital services to eligible persons in Victoria. The Governor in Council had power to remove a director of the board. The Chief General Manager pursuant to the Health Services Act could give directions in writing to the Hospital about the number and types of patients the Hospital should treat, the facilities which the Hospital should employ or refrain from employing, the manner in which and the extent to which the admission of patients, patient care and treatment should be coordinated between hospitals, accounts and records to be kept by the Hospital and the inspection of them, and acts that should be "taken or avoided to enable the State to comply with the terms of any agreement made between it and the Commonwealth".

119 From 1 July 2000 to 30 June 2004, the Hospital continued to be a "campus" of women's and children's health and a "metropolitan health service" incorporated under the provisions of the Health Services Act. As before the Hospital as a "metropolitan health service" was required to have a board of directors, appointed by the Governor in Council on the recommendation of the Minister. The Governor in Council retained the power to remove a director of the board. Section 65S(2) of the Health Services Act prescribed the functions of the board of each "metropolitan health service" which plainly included the Hospital. These functions included the development of strategies to ensure the accountable and efficient provision of health services and the establishment and maintenance of effective systems to ensure that the health services provided met the needs of the community served by the "metropolitan health service". The government retained control over the Hospital under the Health Services Act, for example if the Minister were satisfied that the "metropolitan hospital service" was not performing to the appropriate standard, the Minister was entitled to exercise certain powers.

120 From 1 July 2004 to the present, the Hospital was established as a "public health service" as defined in the Health Services Act 1988. The objects of the Hospital included the object of providing high quality health services to the community, and the core object of the Hospital was to provide public health services in accordance with the principles established as guidelines for the delivery of public hospital services in Victoria. As before the Health Services Act required that the Hospital have a board of directors, appointed by the Governor in Council, who also had power to remove a director. The Health Services Act continued to prescribe the functions of the board of directors of the Hospital, and the Minister retained power to issue directions to the board on any matter which the Minister considered to be in the public interest. The board was required to prepare a strategic plan for the operation of the "public health service". The Minister retained control to exercise powers under the Health Services Act if satisfied that the Hospital was not performing to the appropriate standard. The Hospital is required to prepare and submit an annual report.

121 The foregoing material clearly shows that the Hospital was at all relevant times a public hospital with a board of directors appointed by the Governor in Council, and from which any director could be removed, in each case on the recommendation of the Minister for Health. The Hospital delivers public hospital services to eligible persons (specifically women and children) free of charge in accordance with directions emanating from government covering the number and types of patients the Hospital should treat, the facilities the Hospital should employ, and the manner in which and extent to which the admission of patients and patient care should be coordinated between hospitals. The Hospital carries out these activities with public funding for which it is required to account under the Financial Management Act 1994.

122 It follows that the Hospital is, I think, clearly part of the public service and potentially within the reach of public interest immunity, if and insofar as that concept is limited to a "governmental function".[130] It does not necessarily follow, however, that in the provision of medical services the Hospital is involved in a relevant governmental function.

123 It is, I think, an issue of considerable difficulty whether the Hospital can be said, as was contended, to have demonstrated the requisite public interest requiring protection insofar as it provides advice and treatment to women patients concerning reproductive matters including obstetrics and gynaecological care. In so doing, the Hospital does, of course, provide such services in the very same manner as do a number of private hospitals - although that would not alone prevent the provision of such services by the Hospital being regarded as governmental in nature.[131] In this context, I note that in British Steel Corporation v. Granada Television[132] Lord Fraser of Tullybelton stated that public interest immunity did not protect information imparted in confidence by patients to their doctors. To like effect is the statement in R. v. Young[133] by Spigelman, C.J. (already quoted) that -

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1. Public hospitals provide services to women patients of a gynaecological and obstetric nature which because of expense cannot always be performed in the private health system.

2. The provision of good health care for pregnant women depends upon a relationship of trust between patient and the provider of the health services.

3. Trust requires non-disclosure of personal information and treatment and the maintenance of the confidential relationships.

4. The patient knows of the privacy obligations and relies upon them.

5. The provision of proper and accurate information by a patient is necessary for the health professional to know to determine and carry out the necessary treatment.

6. The prospect of disclosure may discourage patients from seeking care or lead to them going from hospital to hospital or withholding information which is relevant to the treatment or giving misleading information resulting in delayed or adverse outcomes.

7. The withholding or misrepresentation of information may delay health services resulting in further and unnecessary expense.

8. Loss of trust could adversely affect the whole public health system because of the reluctance of pregnant women to seek treatment or failure to reveal accurately or at all, all relevant information.

9. Women patients expect privacy in sensitive areas relating to relationships, sexual behaviour, contraception, fertility, sexually transmitted diseases, and reproductive health and if a woman patient knows such information could be disclosed by compulsion of law, it could lead to non-disclosure of, or misleading, information.

10. Pregnancy termination is a major health issue and history prior to the Menhennitt ruling in 1969 shows that desperate pregnant women sometimes took desperate measures which are health and life-threatening. There is a concern that this could happen again if confidence was not maintained.

11. The fear of disclosure may discourage women from seeking safe care in a timely way in respect to termination of a pregnancy.

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127 Counsel for the Hospital argued that this compilation failed to include Dr Bayly's enumeration of examples and special requests for confidentiality which it was said showed the special sensitivity of the women's concerns and the frequency with which the Hospital's staff were asked for assurances as to confidentiality. Particular complaint was made that mention had not been made of Mrs X's anxiety and the risk to her fragile mental health due to the fear of her confidentiality being breached.

128 Counsel for the Hospital made the following submissions based principally on the evidence of Dr Bayly, in submitting that the judge had erred in the requisite balancing exercise. The first argument was that the judge failed to take into account the particular circumstances of this case. It was in evidence that Mrs X threatened to leave the Hospital and commit suicide if her pregnancy were not immediately terminated and that her mental state continued to be fragile and was further threatened by the fear of her confidentiality being breached. She had refused her consent to the release of the documents and reference was made to the fact that the complaint had not been made by the patient or any family member related to Mrs X. It was submitted that as in Clifford v. Victorian Institute of Forensic Health, where attention had been concentrated on the potential harm to the individual affected, this case involved a "unique concatenation of facts". The unique importance of this case and the weight which should be given to the public interest was said to be supported by the statement of Dr C that the patient had said that she would kill herself rather than have the baby, and that he was very concerned she would take her life unless her pregnancy was terminated. Dr Bayly had also deposed that she was concerned that the release of the medical records in this case could even in part see a return to the unsafe and illegal attempts to secure abortion where many women were damaged for life in the circumstances existing prior to the Menhennitt ruling. Dr Bayly had also deposed that if the medical records in this case were released, there is a likelihood that other women who had already been treated at the Hospital would be concerned about similar exposure. Accordingly it was contended that there is an inextricable link between confidentiality and public health and that the encouragement of patients to seek medical assistance is the first step in reaching the goal of promoting public health and the effect of medical treatment of good quality. Preservation of confidentiality, it was argued, is the only way of securing public health. Drawing on what had been said by Bowen, C.J. in Aboriginal Sacred Sites Protection Authority v. Morris & Ors.[139] the factors claimed to be of critical importance in deciding whether public interest immunity should attach were said to be the confidentiality of the material, the fact that disclosure might dry up a source of information, the protection of informers against disclosure, and the question whether the information was necessary for the statutory body (in this case the Board) to perform its functions.

129 It was then argued that on the facts of this case it should be recognised that the patient provides information to the Hospital on a confidential basis. The patient may well seek alternative, inferior "confidential" treatment to their detriment if disclosure would result. Patients must be encouraged to seek necessary treatment and avoid inferior treatment and the Hospital could not perform its functions properly and effectively if confidential information of the relevant class were liable to be disclosed. Accordingly, the nature and extent of the harm outweighed the desirability of the evidence being given. In this case it was submitted that there was particular harm to the patient, physical, psychiatric and psychological, as well as general harm to the work of the Hospital, its reputation and the community at large.

130 I have already mentioned[140] the next four arguments made by the Hospital, that the judge should have inspected the documents, that his Honour reached conclusions to which he was not entitled, that the judge should have taken into account that the Board already had the majority of the relevant documents and finally that his Honour did not take into account applicable provisions of international human rights conventions.

131 I shall take first the last of these submissions, then the second, and finally the first, third and fourth together.

Relevant Victorian legislation

132 Before dealing with the international conventions relied on by the Hospital, it is convenient to mention relevant Victorian legislation. There is plainly a considerable public interest in the protection of medical confidentiality, which was not disputed by the Board. The Victorian Parliament has, however, dealt with questions of medical confidentiality in several pieces of legislation. First, s.28(2) of the Evidence Act 1958 provides that no physician or surgeon shall without the consent of his patient divulge in any civil suit, action or proceeding any information which he has acquired in attending the patient. Next, s.141(2) of the Health Services Act 1988 provides a further measure of protection to medical confidentiality, although the section does not prevent the disclosure of medical information to which the section applies if the person is "expressly authorised, permitted or required to give such information under this or any other Act". The sub-section is also subject to a lengthy list of exceptions set out in s.141(3). Furthermore, the Health Records Act 2001, to which the Health Privacy Principles are attached (by Schedule 1) also provides further protection to medical confidentiality, although similarly qualified. Health Privacy Principle 2.2(c) permits the use of health records where "the use or disclosure is required, authorised or permitted whether expressly or implicitly by or under law (other than a prescribed law)".

133 In the present matter the Board obtained a warrant to obtain records from the Hospital pursuant to s.93A of the Medical Practice Act 1994. The warrant was sought under s.93A(1)(b), namely for the purposes of investigating a complaint under the Act which if substantiated might provide grounds for suspension or cancellation of registration of a medical practitioner.

134 Reference to the legislation previously referred to shows that under the relevant legislative provisions, Parliament has taken the view that the public interest in medical confidentiality is not unqualified. In each case, Parliament has recognised that the public interest in the protection of medical confidentiality may be required to give way to a competing public interest. It is necessary to bear in mind, therefore, when considering the Hospital's claim to public interest immunity for medical records, that Parliament has considered the question of the protection necessary for medical confidentiality in great detail in various pieces of legislation, and the fact such legislation permits the disclosure of medical records when a different public interest (such as a requirement for disclosure under other legislation) is considered to require it. As Abadee and Barr, JJ. observed in R. v. Young[141], the Court is in effect invited by the Hospital to prevent disclosure of the documents in such a way as to supplant the judgment of Parliament and thus to perform a legislative function, and this in circumstances where it has been said that "It is clear that both common law and statute law subordinate private confidence [in medical confidentiality] to the wider public interest."[142]

The international conventions relied on by the Hospital

135 The Hospital relied first on article 17 of the International Covenant on Civil and Political Rights (ICCPR) which provides -

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Australia is a party to the ICCPR although it has not been fully incorporated by statute into Australian municipal law. The Hospital argued, however, that Victorian statutes should be interpreted and applied, as far as their language permits, so as to be in conformity with Australia's obligations under an international convention, and put forward various authorities to demonstrate that Australian courts had been prepared to consider the use of international human rights conventions in considering the proper interpretation of legislation.[143]

136 In my view article 17 of the ICCPR does not assist the Hospital's argument. It could only have a bearing upon whether the Board had the power to seize medical records if that seizure could properly have been found to be "arbitrary or unlawful". In the circumstances of this case, it seems to me impossible to argue that the seizure of the documents under a warrant issued by the Magistrates' Court under s.93A of the Act could be said to be arbitrary or unlawful. The Board's attempts to obtain access to these medical records were made only after the Board had received a complaint, and had determined that the documents were required so that it could discharge its functions by investigating a medical procedure which was indisputably "at the extreme margins of current practice at the Hospital". The Board has a statutory duty to investigate notifications that it receives[144]. The Board was plainly entitled, indeed required, to investigate notifications that it had received, and if the complaint were substantiated it was possible that one or more medical practitioners involved could be found to have engaged in unprofessional conduct of a serious nature. When the Board sought to investigate these allegations, the non-coercive attempts first used to obtain the documents had been exhausted before the search warrant was obtained. It follows in my view that the application to the Court in these circumstances for the obtaining of a search warrant could not be described as "arbitrary".

137 The Hospital next sought to rely on article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR) and article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article 12 of the ICESCR provides -

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138 Australia is a party both to the ICESCR and the CEDAW, although neither of these conventions also has been fully incorporated into Australian municipal law by statute.

139 The Hospital's argument under these two conventions was that although a lack of respect for the confidentiality of patient medical information would be likely to affect both men and women, it might in particular deter women from seeking advice and treatment in relation to matters such as reproductive health and sexual or physical violence, and consequently adversely affect women's health and well being. The argument ran that a lack of confidentiality concerning a patient's medical records would be likely to affect detrimentally the accessibility and acceptability of health services and consequently detrimentally affect the right to health recognised in article 12(1) of the ICESCR. Similarly, a lack of confidentiality concerning a female patient's medical records relating to reproductive health would be likely to have a heightened detrimental effect on the accessibility and acceptability to women of reproductive health services which in turn would call into question whether health services would be available on a basis of equality between men and women as required by the ICESCR and the CEDAW.

140 The major premise of the Hospital's reliance on article 12 of both conventions was an asserted lack of confidentiality in relation to medical records. For this State, however, the legislation already referred to demonstrates that there is no such lack of confidentiality, as both the Health Privacy Principles and the Health Services Act 1988 demonstrate. On the contrary, Victorian law only permits the medical regulator, the Board, to obtain access to medical records in specific circumstances in order to assist in the discharge of its statutory duty. Insofar as the judge was required to give weight to these conventions in the interpretation of the Victorian legislation, the Hospital, in my view, gains no assistance from them. Insofar as the Hospital relied on the concept of discrimination, I think there was also no evidence to support the claim that the Board's actions were in any way discriminatory. For the reasons I have already given, I would reject the view that the seizure of the Hospital's documents under warrant obtained from the Magistrates' Court could be described as arbitrary or unlawful. I would therefore reject the fifth argument raised by the Hospital, in reliance on the international conventions.

The judge's failure to inspect the documents

141 The second argument made by the Hospital was that the judge was required in the balancing exercise to inspect the documents. There is, I think, nothing in this argument. Neither the magistrate nor the judge was asked to inspect the documents during the hearings below. There is no question of the power of the Court in these circumstances to inspect the documents privately[145]. The documents were produced to this Court. I have examined them. Having done so, I am not persuaded that inspection of the documents would have assisted the Hospital's arguments as to the balancing exercise, or affected its outcome.

The remaining arguments as to the balancing exercise

142 It is convenient now to consider the first, third and fourth arguments advanced by the Hospital, weighing them against the arguments made for disclosure of the documents to the Board. It should, at once, be emphasized that one of the principal purposes of the Medical Practice Act is -

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The Board's jurisdiction and authority have already been discussed at the outset of these reasons.[147]

143 The Board's investigation, which commenced in April 2002, concerned the termination of a 32-week old foetus, in circumstances that were described by the general manager of the Hospital as at "the extreme margins of current practice at the Royal Women's Hospital". Mrs X's concern arose because she was told that the foetus showed signs of dwarfism. But there was also an assertion in the material that after termination the foetus had been found to be normal. The complaint obviously raised a number of questions as to the competence of various medical practitioners at the Hospital, and the appropriateness of the procedures undertaken.

144 The effect of upholding the Board's claim to disclosure of the documents was argued by the Hospital to be "minimal" on the ground that the Board already had most of the documents. This is, I think, no answer. It can only be a matter of speculation whether the Board's investigation would have been impeded by the absence of documents not disclosed by the Hospital. Having examined the documents myself, I think that their contents are at least relevant to the Board's investigation. In any event, the argument should be tested on the basis that the Hospital claims to be entitled to withhold all such documents, and accordingly, that at least all other public hospitals should do likewise.

145 If the Hospital's claim to immunity from production is accepted, it has a number of serious consequences. The Board would be unable to investigate properly - if at all - claims and complaints involving medical practitioners associated with the Hospital in relation to a very substantial and important area of the health services provided by the Hospital and all other public hospitals in Victoria. Similar concerns would of course arise in relation to like health services provided by private hospitals. It would substantially remove from the Board's scrutiny the quality of the health services and the activities of the practitioners in this area of medical practice in public hospitals. Given that the Board's function under the Act is first and foremost to protect the public, the Hospital inevitably shoulders a very significant burden in seeking to show that the harmful effects of disclosure of the documents would outweigh these very serious consequences.

146 I readily accept that there would be a very strong desire for confidentiality by women patients seeking advice and assistance in relation to the matters within the class claimed for public interest immunity and that women wish to be especially private about related matters, their relationships, sexual behaviour, contraception, fertility, sexually transmitted infections and reproductive health and, like the Chief Justice, I question the judge's conclusion that pregnant women would always be willing to "reveal all that is necessary to enable their treatment to be properly and carefully performed". The "exigencies of the occasion" may from time to time be insufficient to overcome the concerns of women as to the confidentiality of their medical records, and this may well cause women to give incomplete or misleading information to the staff of the Hospital. I also accept that Mrs X was at material times in a fragile mental state and wished no further contact with the Board or any investigation of the termination of her pregnancy. Dr Bayly in her affidavit expressed a concern that Mrs X's already fragile mental state is further threatened by the fear of her confidentiality being breached. We were told during the hearing that this statement was made after Dr Bayly had interviewed Mrs X.

The confidentiality of the documents in the Board's possession

147 Dr Bayly's concerns were based to a substantial extent upon the importance of the relationship of trust between patient and health professional, and the necessity for maintaining confidentiality in relation to communications by and information about the patient. This evidence, in turn, was based in part upon an assumption that the patient's medical records would become available to the public if they were produced to the Board. The Board contends that that assumption was unwarranted, and that there was no basis for the view that if the medical records were made available to the Board, that would be any more damaging to the public interest than the disclosure of the same documents to medical practitioners other than the treating practitioners during the Hospital's own investigation. There was evidence before the judge to show that in carrying out investigations and conducting formal and informal hearings, the Board acted to protect the confidentiality of patients and to protect the reputations of medical practitioners unless and until allegations of unprofessional conduct were proved and to protect the confidentiality of patients at all times. The evidence was that the Board has practices and procedures to protect the anonymity of patients during the course of its investigations and in all publicly available documentation. On the other hand, the Hospital submitted that these supposed procedures should be ignored either because they were not effectively controlled by the Board or because the Board could not absolutely guarantee that there would not be any further disclosure and it was argued that the Board did not even have the power to close a formal hearing under s.49(b) of the Act. The Hospital also challenged the confidentiality of the Board's proceedings given the potential for records to be released under s.33 of the Freedom of Information Act 1982.

148 I should now mention a matter raised during the hearing of this appeal, but involving an argument not advanced by the Board. The Board has, in my view, a strong claim to public interest immunity in relation to documents and information produced to it without the consent of the patient involved, in circumstances where the Board is investigating the activities of medical practitioners. This claim to public interest immunity, akin to the right of police informers to immunity from disclosure of their identity, would be based on the same considerations as are urged by the Hospital in its class claim, to enable the Board to carry out effectively its investigations into the activities of medical practitioners. It seems to me that the Board undertakes an activity which is clearly governmental in character, involving the performance of statutory duties, being the authority established by the Act to protect the community and guide the medical profession in Victoria. There is a clear public interest in the Board obtaining documents of this kind, to ensure both that patients and others feel at complete liberty to make complaints anonymously to the Board to enable it to carry out its duties, and equally that when the medical records of patients such as Mrs X are provided under compulsion to the Board, patients can be assured that their confidentiality will be properly protected and that the readily understandable concerns articulated by Dr Bayly in her affidavit will be allayed as far as is reasonably possible. It follows that documents and information provided to the Board should be maintained in complete confidence, save where the patient consents to disclosure, for much the same reasons as were given by Hunt, C.J. at CL in Attorney-General for N.S.W. v. Stuart[148]. As Spigelman, C.J. noted in Young[149] -

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149 The Board also submitted that Dr Bayly's argument was flawed in that she identified the damage that would arise from the disclosure of medical records to the Board in a manner that assumed that when patients approach their medical practitioners at present, they can be confident that their medical records will never be disclosed without their consent. It was submitted that the law has long recognised that in some cases medical records must be produced despite the potential undermining of the confidentiality of the doctor-patient relationship. Examples of this that were given included that court rules of procedure in personal injury cases commonly require the exchange of medical reports. Other circumstances included the reporting of infectious diseases and the mandatory reporting of abuse. It was submitted by the Board that these limitations on medical confidentiality have not caused the health system to collapse, nor patients to be unwilling to attend their doctors.

Conclusions as to the balancing exercise

150 It is now time to reach a conclusion on the arguments in the Hospital's submission that there was error in the balancing exercise carried out by the judge. Insofar as the first argument is concerned, which focused on the particular circumstances of this case, a precise examination of the emphasis on Mrs X and her situation shows that the Hospital's argument is not really a claim for confidentiality of documents or information, but rather a concern that the Board's investigation of the termination of Mrs X's pregnancy should cease. Mrs X's identity has always been known to the Board and, as the Hospital complains, a number (if not most) of the relevant documents are already in the Board's possession. In these circumstances Mrs X's concern, quite understandably, is for there to be no further investigation at all of her treatment and for her to have no further contact with the Board. But the termination of the Board's investigation is not, I think, something that she, or the Hospital, or the medical practitioners, are entitled to demand, nor, indeed, could the Board accept it. The Board is obliged by statute to carry out its investigation. The only real question is whether it is entitled to demand delivery up of the remaining few documents to ensure that it has all the relevant information in its possession before doing so. Insofar as the Hospital's concern is that in this (I would accept) extremely sensitive area, investigations by the Board may cause the most serious trepidation to its patients, surely that is an inevitable corollary of the Board's statutory obligation to investigate complaints or potential misconduct brought to its attention. Insofar as the Hospital's obligation under statutory warrant to deliver up to the Board documents relevant to such investigations leads to such serious concerns, these documents and relevant information should be dealt with by the Board in confidence, and the Board should claim public interest immunity in response to any attempt to seek access to such documents or information, unless the patient consents to their disclosure. These considerations, I think, outweigh the concerns both of Mrs X and the Hospital, notwithstanding their importance.

151 As to the third argument I would reject that also for similar reasons. The judge took the view that disclosure to the Board would not have adverse effects on pregnant women approaching hospitals, or that women would seek such treatment in any case from public hospitals because of the exigencies of the occasion. I have already said that I share the Chief Justice's reservations as to the judge's view on this matter. The contrary concerns of Dr Bayly involve, in a sense, some speculation in that no research or other evidence (of the type discussed by Spigelman, C.J. in Young[150]) was produced to support them. Furthermore, a judge of fact is entitled to form an opinion contrary to expert evidence.[151] It seems to me in any case that the argument should be examined at a different level. I accept that the Hospital and women patients would not wish their confidentiality breached or the procedures they have undertaken to be examined by the Board. But the Hospital's argument amounts to this: that if patients became aware that the Board might investigate their treatment - or a termination of a pregnancy - in the Hospital, they might choose less safe or in effect, "backyard" operators for this purpose. I doubt if Mrs X would have been deterred by any such consideration from seeking medical assistance from the Hospital, so long as the Hospital was prepared to terminate the pregnancy, having regard to the way in which she put her demand to Dr C.[152] A woman in a distressed mental state coming to the Hospital and demanding the termination of a pregnancy may be faced with the warning that if such a procedure is undertaken, the termination may be investigated by the Board. The Hospital might, as the circumstances of this case show, be unable to say that complete confidentiality as to her identity in relation to the procedure could be maintained. I am inclined, as was the judge, to doubt that the possibility of any such investigation or possible breach of confidentiality would be sufficient to deter a woman from seeking the Hospital's assistance, or indeed to cause her to seek illegal or other means of obtaining a termination as opposed to giving misleading or incomplete information to the Hospital. To seek illegal treatment would risk police investigation and possible prosecution. But if the likelihood of any such an investigation by the Board was sufficient to cause so unfortunate an outcome, that seems to me to be a matter for Parliament to consider upon proper material, rather than for this Court to embark on an extension of the concept of public interest immunity.

152 It follows that the Hospital has not made good its argument that the judge was wrong in concluding, on the balancing exercise, that the Hospital had failed to establish any basis for refusal of production of the documents, although I arrive at this result by a path somewhat different from that taken by the judge.

153 I would accordingly dismiss the appeal.

At a glance

Court

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Judgment (125 paragraphs)

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Legislation Cited (4)

Cases Cited (16)