Sifredi v Medical Practitioners Board [1999] VCAT 87

Mr Sifredi as I have noted remains convinced that his wife died as a result of medical malpractice and therefore he disagrees with the Board's conclusions. As a result he made an application under the Freedom of Information Act 1982 whereby he sought access to the documents generated by that enquiry. A very large volume of material was released to him as a result of that application. It included the responses made by all the treating practitioners involved to the Medical Board's enquiry with the exception of Dr Berryman. Dr Patience's response was released as was the response of a physician, Dr Fiddes. In addition the Board referred the matter for report to two independent medical practitioners and their reports have been made available to Mr Sifredi.

What remains in dispute however are some four documents. These are two letters from Dr Berryman and a small number of paragraphs from two reports written by Dr Griffin, the Board's Investigating Officer. The Board says that these documents are exempt pursuant to Section 35(1)(b) of the Freedom of Information Act 1982. Before going to that exemption I should state in a general sense that the Freedom of Information Act creates a right of access to all members of the public to all documents generated by Government agencies. There is an exception to that general right where one or more of the several exemptions provided for in the statute is made out. Section 35 is such an exemption.

Section 55(2) of the Freedom of Information Act provides that the burden of proof in making out an exemption is laid upon the agency and not upon the applicant.

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

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

The operation of that exemption was considered by the Full Court of the Supreme Court of Victoria in Ryder v Booth [1985] VicRp 86; [1985] VR 869. Young CJ considered the meaning of the exemption and at page 871 of the report stated:

"Paragraph (b), which has been set out above is, as Gray J. has written a wordy provision and I agree with his Honour that the paragraph would probably have achieved its purpose if it had read "the disclosure of the information would impair the ability of the agency to obtain similar information in future". I take the phrase "by reason that" to mean "because"."

I respectfully adopt His Honour's construction of the true meaning of the exemption.

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

Dr Berryman, gave evidence before me and was subjected to cross-examination. He said that the material for which exemption is claimed was furnished by him to the Medical Practitioners Board under an assurance of confidentiality. Since his evidence stands uncontradicted I accept that the material was communicated in confidence therefore the first element of the exemption is fully made out. The more difficult issue is whether the second portion of the exemption has been established. Dr Berryman himself in a written statement said:

"Had I been aware that these documents were likely to be released to parties other than the Board, I would have framed my communications differently, taking into account the potential recipients of such communications and the uses that might be made of them. It is also likely that I would have made a brief response to the Board and not included the detailed information which is contained in both my letters."

The Doctor added by way of cross-examination that his reluctance and objection to the release of this information was not based upon a view that properly understood, the information reflected badly upon him but rather that he was apprehensive it might be misconstrued.

I have also had placed before me a witness statement by Mr Russell John Ball, a solicitor and partner of the firm John W. Ball and Sons which acts for the Medical Defence Association of Victoria. Part of Mr Ball's statement says:

"Were it to be the case that information provided during the course of preliminary investigations was to become the subject of disclosure I would be placed in a position where it would be necessary for me to advise my clients that a defensive stance would need to be taken. Were this to be the case with respect of preliminary investigations, it is my view that the procedure would become unsatisfactory to the Board in that it would become difficult for them to be satisfied that they had a full and frank picture of what had occurred prior to making a decision upon a complaint against a doctor."

"I would advise clients that when providing information to the Board, the real possibility that such information may be released must be taken into consideration."

I should pause at this stage to note that Ms Mendes Da Costa (who represents the respondent Board) has submitted, upon its proper construction, the Medical Practitioners Act bestows no coercive evidence gathering powers upon the Board save and except for two circumstances. First, the Board has the opportunity to obtain a search warrant upon sworn information laid before a Magistrate and secondly if the Board elects to conduct a formal hearing it has the power to call evidence, administer oaths and require witnesses to attend. In any other circumstances and certainly in the circumstances that obtained here, where it conducted only preliminary investigations or an information investigation which is specially provided for in the statute, the Board is dependent solely upon the co-operation of the practitioner or practitioners the subject of the enquiry and other persons who may be willing to provide evidence to it.

I also received a statement from a Mr John H. Smith, the Registrar of the Medical Practitioners Board and its predecessors for a period of almost 20 years. Mr Smith said:

"If practitioners were aware that information which they provided to the Board in these circumstances, that is in an informal enquiry or a purely preliminary enquiry were liable to be disclosed it is my view that practitioners would feel constrained in their responses."

"The release of these documents would adversely affect the Board's ability in future to elicit the co-operation of medical practitioners during its investigations. The co-operation of the profession is essential at the preliminary investigation stage as the Board cannot compel the co-operation of practitioners or others and my experience to date leads me to the view that their co-operation is dependent upon confidentiality."

I should also note that Ms Mendes Da Costa conceded that there is no provision in the Medical Practitioners Act establishing any code of confidentiality. The decision to proceed in this manner is one made by the Board for the reasons given by Mr Smith. It is not a duty imposed upon the Board by statute.

Having said so much, I now return to the decision of the Full Court in Ryder v Booth. Before going further I should note the subject matter of that appeal. The applicant under the Freedom of Information Act there was seeking access to medical reports furnished to the State Superannuation Board with respect to invalidity and impairment of beneficiaries of the fund which it administered. The Board resisted the provision of those medical reports on a number of bases including the exemption established by Section 35(1)(b) of the Freedom of Information Act which is the subject of this proceeding.

At page 872 of the report, commencing at [1985] VicRp 86; [1985] VR 869, Sir John Young CJ said:

"Put in terms of the present appeals this means that the question is, would the disclosure of the information damage the ability of the Board to obtain frank medical opinions in the future. It may be noted that it is the ability of the Board that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. There may well be feelings of resentment amongst those who have given information "in confidence" at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by s.55(2) of the Act."

I return then to the evidence and ask whether the proof that the learned Chief Justice suggested was necessary to make out the exemption has been provided here. The class of information that we are concerned with is a response from a doctor whose conduct has attracted the attention of the Board and in relation to whom the Board considers taking some action.

It seems to me in a general sense that a practitioner who is approached in this way by the Board and who is either innocent of any wrongdoing or is convinced that he is innocent will have the strongest possible incentive to speak out and to speak fully. Any disciplinary action is a painful and embarrassing episode in a professional life. Any professional man who believes he has the means of heading off and limiting such action will be likely to take that step. On the other hand a practitioner who has something to fear in terms of making a full disclosure to the Medical Board who are for present purposes the police of the profession, will have perhaps strong motives for being less than frank. In the case of a practitioner who is himself the subject of an enquiry or a proposed enquiry, these considerations seem to me to be the overwhelmingly important ones, rather than the question of confidentiality or no. It is obvious that where the Board seeks information from third parties who are not the subject or threatened subjects of enquiry, very different considerations would apply [cf Lapidos v The Ombudsman (No. 1) (1987) 2 VAR 82] and so I confine myself to the situation which presents itself here, namely the situation of a practitioner who is himself the subject of an enquiry or a proposed enquiry.

Returning to the evidence from the witnesses which I have quoted, it is noteworthy that none of them says that practitioners would simply refuse to make any response whatsoever. Mr Ball says that he would advise his clients to be aware of the threat - to be defensive.

Dr Berryman did not say that he would make no response, he said that he would make a much shorter response, perhaps lacking in detailed information. In that regard it seems to me that it is the evidence of Dr Berryman which goes the furthest.

Mr Smith says that there would be a lack of frankness and candour in responses received from practitioners were they to know that their responses might be disclosed under freedom of information.

The passage that I have quoted from the Sir John Young, CJ indicates that a mere apprehension of lack of full frankness and candour is not sufficient to make out the exemption, nor as His Honour noted is the question whether the particular individual involved would furnish the same information in future; rather the enquiry is directed to the entire class of potential suppliers of the relevant class of information. In that regard, it is perhaps not entirely without significance that the other practitioners involved have with perhaps a greater or lesser degree of alacrity consented to the release of the material that they furnished to the Board. That indicates to my mind that the views that Dr Berryman expresses are scarcely held universally throughout the medical practition.

Nevertheless as Ms Mendes Da Costa correctly submits, if even a significant minority of medical practitioners were firmly resistant to providing information to the Board in the circumstances of enquiries such as this, the necessary level of impairment would be demonstrated to make out the exemption.

In my view however, the evidence taken in its totality and in light of all the observations that I have made goes no further than to demonstrate that there is a risk of less frankness and candour and a feeling of betrayal of confidence were these documents to be released under freedom of information. The evidence does not to my mind go the distance which Ryder v Booth demonstrates that it needs to go and perhaps to round off the point, I should note that the court in Ryder v Booth did ultimately decide to uphold the of release the relevant reports.

Accordingly, I do not uphold the exemption claimed with respect to these documents and I will order that 28 days from this day access be granted to them.

I certify that this and the preceding 9 pages are a true and correct copy of the decision of Mr Michael Francis Macnamara, Deputy President.