The Victorian of Court Appeal has settled the uncertainty regarding the protections provided by statutory privilege over medical records in the Victorian Civil and Administrative Tribunal (VCAT).
The Victorian Court of Appeal has reversed a previous decision and confirmed that patients’ medical records are not protected by statutory privilege in a disciplinary hearing of the Medical Board of Australia (the Board) in VCAT. 
Dr Kemp was the subject of complaints by three of his patients. The notifications to the Board related to Dr Kemp’s prescription of medication, his clinical management and the sufficiency of the medical records. The Board referred the matter to VCAT on the basis that it reasonably believed that Dr Kemp had behaved in a way that constituted professional misconduct.
The Board sought to have the Court Registrar issue summonses to Dr Kemp (along with a number of other practitioners) to reveal the medical records of the three patients concerned. This occurred in circumstances where two of the patients that had made complaints withdrew their earlier consent to the Board accessing their medical record.
Dr Kemp contended, that in the absence of the patient’s consent, section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (the Act) applied to protect the medical records with statutory privilege, and prevent their disclosure.
Section 28(2) of the Act 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 and which was necessary to enable him to prescribe or act for the patient.
The phrase “civil suit action or proceeding” is not defined in the Act, however “legal proceeding” is defined in section 3 as including:-
Any civil criminal or mixed proceeding and any inquiry in which evidence is or may be given before any court or person acting judicially.
The Board contended that the medical records were necessary for it to be able to present its case of alleged misconduct against Dr Kemp before VCAT. The Board relied on the Victorian decision in Royal Women’s Hospital v Medical Practitioners Board  VSC 255 (The RWH case). In The RWH case, the Victorian Medical Practitioner’s Board (MPBV) obtained a search warrant from the Magistrate’s Court, in order to access patient’s medical records for the purpose of investigating the termination of the patient’s foetus. The Hospital argued that the medical records were subject to the privilege under section 28 of the Act, and could not be relied upon without the patient’s consent. Gillard J rejected the Hospital’s argument, finding that the application of s28 (2) was limited to proceedings held in a Court, and that VCAT was not a Court for that purpose, with the result that the Board could provide VCAT with the medical records that had been seized from the Hospital in response to summonses, without the consent of the relevant patients.
VCAT applied the decision of Gillard J in The RWH case, compelling the medical records of Dr Kemp’s patients to be made available to the Board.
On Appeal, the Supreme Court found that the VCAT proceeding is a civil proceeding for the purposes of section 28(2) with the consequence that VCAT could not give the Board access to the medical records of Dr Kemp’s patients, without their consent.
The Board obtained leave to appeal.
In the Court of Appeal, the Board did not seek to rely on The RWH case, instead arguing a different interpretation of s28(2), that it did not apply in disciplinary proceedings because it only applies to proceedings that are brought by someone who stands to benefit from the proceeding. The Board argued that s28(2) of the Act had no application, because the Board brought the VCAT proceedings not for the benefit of the Board, but in the public interest.
The Appeal was allowed.
In the leading judgment, Niall J found that the hearing and Determination by VCAT was not a civil suit, action or proceeding with the result that s28(2) of the Act did not prevent VCAT from compelling production of the medical records. Niall J concluded that the phrase describes a process that engages a type of function, namely the ‘curial adjudication of private rights’, but not one necessarily confined to Courts. His Honour rejected the Board’s argument that s28(2) only applies to a proceeding that is brought for the purpose of benefitting the party bringing the action. That interpretation was rejected as too uncertain and narrow.
His Honour noted that the effective enforcement of the system of regulation of Health Practitioners by the National Law, depends upon a decision maker having access to relevant information, which is in the context of a disciplinary hearing at VCAT, likely to include medical records.
As a result of this decision, it is now clear that s28(2) of the Act will not operate to preclude the Tribunal from compelling production of health records from medical practitioners in disciplinary proceedings, even absent a patient’s consent.
This article was written by Principal, Kellie Dell’Oro, and Lawyer, Rosemary Blanden. Please contact us if you have any questions or if you would like further information.
This article follows a previous Health Insights, from February 2018, which provided a discussion of the Appeal by Dr Kemp from VCAT, to the Victorian Supreme Court, written by Principal, Kellie Dell ‘Oro and Associate Anna Martin.
 Medical Board of Australia v Kemp  VSCA 168.
 Kemp v Medical Board of Australia  VSC 691 .
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