Zacek v Medical Practitioners Board of Victoria

Zacek v Medical Practitioners Board of Victoria - [2005] VCAT 114 - VCAT 2005 case summary — Zoe

[5]

1

By application for review filed with the Tribunal on 10 May 2004, the applicant sought to review a decision of the Medical Practitioners Board of Victoria (Board) made on or about 18 March 2004 refusing access to certain documents. The application arose in the following circumstances.

2

By letter dated 18 January 2004 to the Board, the applicant made an application under the Freedom of Information Act 1982 (the Act) for access to a number of documents concerning her. The request was clarified in further correspondence between her and the Board to be a request for access to documents relating to an investigation by the Board into a complaint made by the applicant about Dr Robyn Horsley. Dr Horsley is a medical practitioner registered in Victoria and subject to the regulation of the Board.

3

Further correspondence between the parties ensued and ultimately a number of documents were released to the applicant. Five documents remain in dispute and they are as follows :

•

Document 5 is a letter dated 23 July 2000 from Dr Horsley to the Board. Exemption is claimed for the document pursuant to ss 33 and 35(1)(b) of the Act.

•

Document 14 is a report of Dr Middleton investigating officer with the Board. It is dated 12 December 2001 but its correct date is 12 December 2001. It was released in part to the applicant. Exemption is claimed for the withheld parts under ss 30, 33 and 35(1)(b).

•

Document 42 is an undated file note relating to a telephone conversation with Dr Horsley on 9 March 2001. The note appears to have been made by the Board's FOI officer and it is marked private and confidential. The document has been released in part. The withheld parts are claimed to be exempt under ss 33 and 35(1)(b).

•

Document 43 is a memorandum dated 9 March 2001 from the FOI officer of the Board to Mr Stoney, Chief Executive Officer of the Board. That document has been released save for two lines for which exemption is claimed under ss 30, 33 and 35(1)(b).

•

Document 50 is a memorandum dated 5 April 2001 from the FOI officer to Dr Flynn, President of the Board. The document has been released save for two lines for which exemption is claimed under ss 30 and 35(1)(b).

[6]

4

The background to these proceedings is as follows.

5

The Board is responsible for the registration and regulation of medical practitioners in Victoria pursuant to the Medical Practice Act 1994. The Board receives complaints (now called notifications) by members of the public and others concerning the conduct of registered medical practitioners. In the ordinary course of events, when a complaint is received about a medical practitioner, an investigating officer conducts a preliminary investigation into the complaint and makes recommendations to the Board. Those recommendations can be that the investigation not proceed further, or that there be a formal hearing or an informal hearing into the matter.

6

In 1995, the applicant, whilst employed by Australia Post, made a claim for worker's compensation payments on the basis that she had sustained a psychiatric injury as a result of stress and harassment at work and that she was incapacitated for work.

7

The applicant began treatment with a psychiatrist, Dr Ranawera, in about December 1995. Dr Ranawera referred the applicant to Dr Horsley, who is an occupational physician, for the purpose of initiating a return to work plan. A previous return to work plan had failed and the applicant asserted that this was because there had been further harassment in the workplace.

8

It appears that the applicant saw Dr Horsley on two occasions in July 1996 in relation to the return to work plan. Dr Horsley subsequently prepared a report dated 22 July 1996 which was provided to the applicant and to Australia Post. In the report Dr Horsley set out a proposed a plan of action and the restrictions which she considered should be included in any return to work plan for the applicant.

9

By letter dated 30 May 2000 to the Board, the applicant made a number of complaints about Dr Horsley. They included that Dr Horsley had not paid sufficient attention to reports from her treating psychiatrist, that Dr Horsley had intentionally ignored her medical condition, that Dr Horsley recommended an inappropriate return to work programme and that Dr Horsley had discussed her case with people prejudiced against her.

10

By letter dated 4 July 2000 to Dr Horsley, Mr John Smith, at that time Registrar of the Board, informed Dr Horsley of the complaint, enclosed a copy of it and requested a written response to the allegations. The letter stated in part:

[10]

14

After the hearing commenced I inspected the documents for which exemption was claimed. The inspection revealed that Document 5 referred to 13 people by name, and that the Board claimed exemption under s 33 of the Act in relation to those people as well as Dr Horsley. It also became apparent that none of those people other than Dr Horsley had been informed of the proceedings, or their right to intervene in accordance with s 53A of the Act.

15

In such circumstances, at the conclusion of the evidence, I directed that the Board give written notice of the proceedings in accordance with s 53A(1) and (2) of the Act to those people by 8 November 2004 and that they be requested to inform the Tribunal and the Board within 14 days (and not 21 days as specified in sub-section 2(b)) whether they intended to intervene. I directed that a Directions Hearing take place on 23 November 2004 to consider any responses that had been received from them.

16

At the Directions Hearing, Mr Gorton, counsel for the Board, informed me that all but one of the persons had been contacted in accordance with my directions. Each person had been informed that whilst the document the subject of the dispute was confidential, they could telephone the Board's solicitor to discuss the matter. One person could not be contacted as that person's union would not provide the person's address or forward on information to him. Of the other people contacted, six notified the Board that they would not be taking any action or did not wish to be involved, three people did not make any contact with the Board, two people had no objection to release (both being medical practitioners) and another person, a medical practitioner indicated he/she was unlikely to object.

17

Both parties relied on written submissions. In addition, Mr Smith, now Deputy Chief Executive Officer of the Board and the applicant, gave viva voce evidence and Mr Smith also relied on a written statement dated 8 October 2004.

18

It was apparent from the Board's submissions and the documents in dispute that Dr Horsley opposes release of Document 5.

[17]

25

Mr Smith expressed the view that to release the withheld parts of Document 14 containing such information would inhibit the ability of investigating officers to frankly express a view on the merits of complaints because they would be loathe to put information in the reports if they did not have the permission of the medical practitioner to do so. This would inhibit the Board's ability to adequately assess the report and recommendations made. Mr Smith said that the Board was concerned to maintain confidentiality in the communications made by Dr Horsley to its officers in the course of the investigation into the applicant's complaints and the initial FOI request and that this was particularly so given the nature of the applicant's underlying stress condition, the candour of the views expressed by Dr Horsley and the fact that the Board did not proceed to an informal or formal hearing against Dr Horsley.

26

Mr Smith said that if an investigating officer's report was released in circumstances where a medical practitioner sought confidentiality, it might well mean that the officer did not put information in the report but may provide the information orally at professional conduct committee meetings of the Board. In addition to making a verbal report, he said that no one would take file notes of what was said, if such information was released.

27

He was asked by Mr Gorton whether he was aware of any situations where an investigating officer had reported orally to the Board beyond the substance of the material in his or her written report. Mr Smith replied that he could recall two occasions where this occurred. They involved the professional conduct committee but he could not recall the circumstances, or whether it was confidential information, save that one of the cases may have related to a family member who had provided information and there was concern that the information may have been released under FOI.

28

Mr Smith said he was opposed to the release of Document 14, whether or not it contained information which Dr Horsley sought to keep confidential, because it was an internal working document. He said that if this document was released it would mean that all such reports would have to be released and if the recommendation in a report was not accepted by the Board, this would call into question the competence of the investigating officer.

[35]

40

I did not understand Mr Smith to be saying that doctors would refuse to respond to a request from the Board for information in the event a doctor's request for confidentiality was not observed. Rather he opined that doctors would be less inclined to make a full and frank disclosure. However, as Macnamara DP observed in Sifredi (p8) it is apparent from Ryder v Booth (per Young CJ at 892) that mere apprehension of lack of full frankness and candour is not sufficient to make out the exemption.

41

It may be that there will be cases where the withheld information is particularly sensitive. For example, it may include a doctor's opinion about a patient's mental state which the patient may be unaware of. This is not the case here. Dr Horsley saw the applicant to initiate a return to work and any views in her report as to the applicant's psychiatric condition are known to the applicant because she has had released to her a fairly robust report by a psychiatrist, Dr Mendelson. He appears to have examined the applicant at the request of Australia Post.

42

Dr Horsley did not provide a witness statement and she was not called to give evidence. Accordingly it was not possible to test the basis for her concern about release of Document 7. However, she was aware when she responded to the applicant's allegations that the Board was subject to the Act and that it might be obliged to disclose some or all of the material. This was made clear in the letter from Mr Smith to her of 4 July 2000.

43

I turn now to Document 14 being Dr Middleton's report. I am satisfied from the evidence of Mr Smith that the report was provided in confidence by Dr Middleton to the Board. I am not satisfied however, on the material before me, that disclosure would be reasonably likely to impair the ability of the Board to obtain similar information in the future.

44

For reasons given in relation to Document 5, I am not satisfied that the exemption has been made out in relation to the material provided by Dr Horsley and included in Document 14. Further, I was not convinced by Mr Smith's evidence that release of such material in an investigating officer's report would impair the ability of the investigating officer to frankly express his or her views on the merits of the complaint because investigating officers would be loathe to put information in the report if they did not have the permission of the doctor to do so. Mr Smith agreed that an investigating officer would always carry out an investigatory role and express a view, irrespective of release of any material. In his long experience as an officer of the Board, he could only recall two instances where an investigating officer had reported orally to the Board beyond the substance in the written report and the circumstances of those cases were not entirely clear.

45

The applicant referred me to an unreported decision of Macnamara DP in Anderton v Medical Practitioners Board (1995/02145) in the Administrative Appeals Tribunal. The Deputy President in dealing with a claim under s 30 in relation to an investigating officer's report observed as follows :

[57]

63

Dealing first with Documents 5 and 14, there are several circumstances which persuade me that disclosure would not be unreasonable. In this case, the withheld information whilst relating to the personal affairs of others, including Dr Horsley, more particularly relates to the applicant's personal affairs. Much of it is factual in nature and likely to be known to the applicant.

64

Further, in my view the applicant has received inadequate information as to the basis for the Board's decision not to further investigate her complaint. Release of the material in Document 5 (reflected in Document 14) will assist the applicant in understanding the reasons for the Board's decision. It is relevant in this regard that Mr Smith conceded that she had received minimal information and that the Board now gives more detailed reasons to people who have made notifications. In so saying, I make no findings (and the material does not permit me to do so) as to whether there is any merit in the applicant's complaints concerning Dr Horsley and the Board's investigation.

65

Mr Smith expressed concern about release having regard to the applicant's stress condition and the candour of the view's expressed by Dr Horsley. Mr Gorton submitted that the second last sentence in Document 5 was particularly sensitive. I think it unlikely that either document 5 or 14 (including the sentence referred to by Mr Gorton) would hold any surprises for the applicant if they were released. The material largely deals with Dr Horsley's involvement with the applicant and the actions taken by her to initiate a return to work.

66

As to the other people whose personal affairs are sought to be affected, I note that none sought to intervene in these proceedings or objected to release. Further, on its face the information concerning them does not appear to be particularly sensitive, except for four people who are named on pages 2 and 5 in Document 5 as being the subject of certain proceedings. In my view it would be unreasonable to release their names (given release is to the world at large) in the circumstances pertaining here. Accordingly, the reference to those names at the foot of page 2 and at the third dot point on page 5 are exempt. Save for those names I am not satisfied on the material before me that disclosure would be unreasonable. Accordingly, save for those names the claim for exemption under s 33 is not made out for Documents 5 and 14.

67

I turn now to Documents 42, 43 and 50. The withheld material on its face concerns Dr Horsley's own sensitivities and perceptions which, in the circumstances, it would be unreasonable to disclose. Release of the information would not, in my view, assist the applicant in understanding the basis of the Board's decision not to further investigate her complaint. In my view, these matters outweigh the applicant's right to information concerning her. Accordingly that material is exempt.

[69]

72

Mr Macnamara's observations in my respectful opinion have some weight. However, I will also consider the application of s 30(1)(b).

73

The Board, in its statement of public interest grounds filed with the Tribunal referred to the following public interest considerations :

•

the public interest in private and sensitive information being protected generally - the relevant private information here includes not just the detailed information about the applicant and her medical state and treatment but also the information about the conduct and opinions of Dr Horsley and various other persons mentioned in the report;

•

the public interest in persons under investigation providing information and full and frank explanations to investigating officers, particularly when the provision of that information cannot otherwise be enforced. The public interest is promoted by efficient investigations, and efficient investigations are promoted by the provision of full and frank information. If the provision of confidential and sensitive information to an investigator resulted in that information becoming public (including to the complainant), there would be a much greater reluctance to volunteer information. This would impede effective investigation, and the public interest would thereby be affected;

•

the public interest is promoted by officers of the respondent being able to prepare memoranda that refers to relevant confidential and sensitive information without that information being made public. Otherwise such persons are likely to be less full and frank in their memoranda and such memoranda are likely to be of less assistance in the efficient management of the respondent.

74

I am not satisfied that it would be contrary to the public interest to release the document. I have already dealt with the public interest grounds raised above in connection with sections 33 and 35(1)(b) and rejected the assertions which form the basis of the public interest grounds.

75

Mr Smith, in his evidence, said he was opposed to the release of Document 14 because it was an internal working document. It is apparent from the terms of s 30(1) however, that a document is not exempt merely because it is such a document. Section 30(1)(b) must also be satisfied. It might, in any event, be thought that release of such reports under the Act has the potential to improve the standard of investigation and investigators' reports.

76

Mr Smith also indicated his opposition to release of such documents on the basis that if the document was released it would mean that all such reports would have to be released. I do not accept his evidence to this effect. Each case will necessarily turn on its own facts and it may well be that the particular facts will support a claim for exemption under s 30. Mr Smith also expressed concern that if it became known that a recommendation in a report was not accepted by the Board, this would call into question the competence of an investigating officer. Such circumstances are not relevant in the present case.

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)

Zacek v Medical Practitioners Board of Victoria (FOI) [2005] VCAT 114 (20 January 2005)

Parties

Legislation Cited (1)