In a not uncontroversial decision by the Supreme Court of Victoria late last year, the doorway to statutory privilege over patient medical records – once thought previously unavailable to practitioners facing disciplinary proceedings in the original jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) – has been unlocked.
Dr Kemp was the subject of disciplinary proceedings brought by the Medical Board of Australia (the Board) in VCAT, regarding treatment he provided to three patients. The Board sought to have the registrar issue summonses to Dr Kemp (and a number of other practitioners) to produce the records of the patients concerned, however two of the patients did not consent to the disclosure.
Dr Kemp argued that, absent patient consent, section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (the Act) applies to cloak the records with statutory privilege and prevent their disclosure. Section 28(2) currently reads as follows:
28 Confessions to doctors
(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient. (Emphasis added)
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;
In its response to the appeal, the Board placed heavy reliance on the decision in Royal Women’s Hospital v Medical Practitioners Board  VSC 255 (RWH), which concerned an investigation by a sub-committee of the Medical Practitioners Board of Victoria (MPBV), into the termination of a foetus of a patient at the Royal Women’s Hospital (the Hospital). The MPBV obtained a search warrant from the Magistrates’ Court in circumstances where the patient refused to consent to the release of her medical records to the Board for the use of the sub-committee. The Hospital argued that absent consent, the patient’s records lodged with the court were subject to the privilege under section 28 of the Act. A Magistrate rejected the Hospital’s application, which was later affirmed on appeal by Justice Gillard in the Supreme Court. His Honour held that s 28(2) of the Act did not apply to an investigation by the MPBV because the provision is limited in its application to proceedings in a court.
Dr Kemp argued that RWH was either erroneously decided or could be distinguished on the facts from the present case. He submitted that the privilege contained in section 28(2) is not confined to proceedings in a court and therefore can be exercised in VCAT in its original jurisdiction.
It is important to note that prior to the determination of the matter, the parties accepted that any decision by the Supreme Court affirming the availability of the privilege would not prevent the production of the documents sought under the summonses issued by VCAT. Rather, the documents would need to be produced to, and examined by, VCAT to determine which parts attracted the privilege.
Justice Forrest conducted a detailed analysis of RWH and other case law considering section 28 and its predecessors, but ultimately held that the provision should not be limited by the interpretation proposed by the Board.
His Honour found that the wording of the phrase “any civil suit action or proceeding” in section 28 is manifestly general, but that the term “proceeding” should be read in its legal sense, guided by the surrounding words “suit” and “action”. In doing so, “it can readily be concluded that what is intended is a type of legal proceeding” and:
There is nothing in the text of the provision or in the other provisions of the Act that limit its operation to a court or preclude it having effect on a proceeding at VCAT.
To interpret the section in the manner suggested by the Board would require the words “in a court” to be read into the section to limit its generality. Based on an analysis of the principals of statutory interpretation, His Honour rejected that submission, holding that courts should only read words into legislation where it is “absolutely necessary” , which was not appropriate here.
By way of completeness, His Honour also considered whether the “purpose of the National Law in terms of protecting the public is potentially frustrated” by an interpretation of section 28 which allows for its applicability in VCAT proceedings. However, he dismissed this concern concluding that:
…such a construction conflicts with the evident purpose of s 28 and its importance in maintaining doctor/patient confidentiality…the legislature has, subject to nominated exceptions, given primacy to privacy.
It also should be remembered that adopting the construction I prefer does not shut the Board out from accessing the documents, provided it has the consent of the patient.
The confirmed availability of a statutory privilege over clinical records in cases where the patient withholds consent to the disclosure of said records is a boon to health practitioners seeking to defend disciplinary charges in VCAT. However, this decision is contentious and gives rise to the potential for significant issues for the Boards in circumstances where patient consent is withheld to the release of medical records for the purposes of VCAT proceedings.
Whilst many investigations and subsequent VCAT proceedings will be prompted by a patient notifier who is more than willing to release his or medical records for use in this context, ‘own motion’ investigations by the Board or investigations involving third party notifiers such as health professionals or government departments may come unstuck at the point that the matter is referred to VCAT, if the patient refuses to co-operate. On Justice Forrest’s analysis, if the section 28(2) privilege is exercised, the only way for the Board to rely upon these records in VCAT will be to obtain them by summons, following which VCAT will be required to examine the clinical records and determine which parts (if any) fall outside the privilege and are therefore admissible.
This article was written by Kellie Dell’Oro, Principal, and Anna Martin, Associate. Please contact us if you have any questions. We understand that this decision is currently being appealed, and we will keep you informed as to any developments.
 Kemp v Medical Board of Australia  VSC 691, at paragraph 34. We note for completeness that Justice Forrest provides a summary of the facts and analysis in Royal Women’s Hospital v Medical Practitioners Board  VSC 255 at paragraphs 25 – 34.
 Kemp v Medical Board of Australia  VSC 691,101.
 Ibid, 104.
 Ibid, 92.
 Ibid, 134 – 135.