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Breach of confidence in the public interest?

Feature Articles

Cite as: (2006) 80(12) LIJ, p. 54

Has confidentiality of medical records ended since the Victorian Court of Appeals decision in Royal Women’s Hospital v Medical Practitioners Board of Victoria?

By Elizabeth Kennedy

Has confidentiality of medical records ended since the Victorian Court of Appeals decision in Royal Women’s Hospital v Medical Practitioners Board of Victoria?
By Elizabeth Kennedy

In Royal Women’s Hospital v Medical Practitioners Board of Victoria,[1] decided in April this year, the Victorian Court of Appeal held that public interest immunity was confined to protecting the functioning of government. It also held that the hospital did not perform governmental functions and was therefore precluded from arguing that a medical file, the subject of a search warrant executed by the Board, was protected by public interest immunity.

This article discusses this narrow view of public interest immunity in the context of English and American cases where confidential health records have been held to be protected from disclosure, and explores what legislative solutions may be possible to give better protection to medical privacy.

The concept of professional secrecy is one of the oldest of all ethical principles governing the practice of medicine. Yet the general obligation of confidentiality is not absolute. Disclosure of confidential health information may be required by law – the mandatory reporting of suspected child abuse is one example, and disclosure may be required pursuant to court order.

Every day hospital medical files containing health information about patients are delivered to courts in response to a subpoena served by a party to litigation involving a patient of a hospital. Hospitals comply with subpoenas without fuss, because the consent of the patient is said to be implied if not expressed in that process.

But what if the patient does not consent? Section 28(2) of the Evidence Act 1958 (Vic) allows the patient to claim medical privilege. But the privilege does not arise if the proceedings are not curial or in a court (or are criminal).

What if the requirement to produce documents arises because of the execution of a search warrant? This was the question that arose for determination in the case involving a medical file belonging to the Royal Women’s Hospital which was required by the Medical Practitioners Board of Victoria.

Background

On 8 May 2003, the Medical Practitioners Board of Victoria wrote to the Royal Women’s Hospital asking for the medical record of a patient who had undergone an abortion at the hospital in 2000 to be forwarded, so that it could investigate a complaint received from Senator Julian McGauran about the abortion.[2]

The hospital wrote to inform its patient of the request and the patient contacted her lawyers, who refused permission for her record to be released to the Board. The Board then made a request of the hospital under the Freedom of Information Act 1982 (Vic) to obtain the medical record. The hospital had no difficulty in denying the Board access to the file, because it did not have the patient’s consent to release it.[3]

The Board then applied for search warrants to be executed in respect of the file. Under the provisions of the Medical Practice Act 1994 (Vic) the Board is empowered to apply to a magistrate for the issue of a search warrant.[4]

The hospital resolved that, as the patient had expressly refused her permission and did not want a Board investigation, it would place the medical file and the other documents sought in a sealed envelope and deliver it into the custody of the Court, and request that the matter be dealt with according to law.

The matter took five days to argue before the magistrate who had originally issued the warrant. The hospital argued that the medical file was protected by medical privilege,[5] the confidentiality provisions of the Health Services Act 1988 (Vic)[6] and public interest immunity.

On 15 March 2004, the Court ordered that the documents be handed over to the Board. A stay was granted, and the hospital appealed to the Supreme Court of Victoria. The case was heard before Gillard J on 28 and 29 April 2005, three years after the Board had first written to inform the doctors concerned of its decision to investigate the McGauran complaint.

On 27 June 2005, Gillard J handed down his decision, which was to uphold the magistrate’s decision that the documents were not subject to medical privilege under the provisions of the Evidence Act, were not protected under the Health Services Act from disclosure, and that the hospital had failed to establish that public interest immunity applied to them. On the other hand, Gillard J held that the public interest in the Board’s proper investigation of any complaint that was not frivolous or vexatious was “manifest”.[7]

The hospital was granted special leave to appeal against this decision on 12 August 2005, on the single ground of public interest immunity. The Court of Appeal heard the appeal on 27-28 October 2005.

Decision of the Court of Appeal

On 21 April 2006, the Court of Appeal (Maxwell P, Warren CJ and Charles JA) unanimously dismissed the hospital’s appeal against the earlier Supreme Court ruling.[8]

The Court of Appeal held that public interest immunity does not arise in respect of medical records maintained by public hospitals and is confined to protecting the functioning of “government” (and not the effective functioning of statutory bodies, which do not, in the Court’s view, form part of either the executive or the public service).

Specifically, the hospital was held not to perform “governmental functions” and, although Charles JA held in his judgment that the hospital is clearly part of the public service, and potentially “within the reach of public interest immunity”, it did not follow that in the provision of medical services the hospital was involved in a “relevant government function”.[9]

The Court of Appeal held that medical records do not relate to the operation of government, and therefore do not fall within the protection afforded by public interest immunity. Specifically, medical confidences of non-incarcerated patients do not form a class of public interest immunity.[10]

Appeal Court president Maxwell J, in his judgment, called for a secrecy provision to be inserted in the Medical Practice Act in order to better protect confidentiality while the Board goes about its investigative duties and functions.

The Court of Appeal decision, as was reported in the media, is, in my opinion, a disappointing result for the hospital, which had fought long and hard to resist the search warrant executed by the Board in response to receiving a complaint (or notification as it is now known) from Senator McGauran.

Even more disappointing, however, is the “narrow view”[11] of public interest immunity taken by the Court of Appeal.

In Sankey v Whitlam,[12] Gibbs ACJ stated that: “The general rule is that the court will not order the production of a document although relevant and otherwise admissible if it would be injurious to the public interest to disclose it”.[13]

As Monash University Louis Waller Chair of Law Professor Bernadette McSherry has observed, this would seem, at first glance, to indicate that there is a general public interest test that can be applied to documents in general.[14]

But Sankey v Whitlam was a case about production of Cabinet documents, such as minutes of Cabinet meetings, minutes of discussions between heads of departments, and papers brought into existence for the purpose of preparing a submission to Cabinet – each and all of which documents are within the context of a “matter of state”.[15]

In R v Young[16] Spigelman CJ stated:

“Public interest immunity is concerned with, and the terminology should be confined to, the conduct of governmental functions ... In my opinion, it is not correct to treat public interest immunity as if it were a ‘residual category’ of circumstances in which courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a ‘public interest’”.[17]

The Court of Appeal president in his judgment confined public interest immunity to “decision-making by instruments of government at the highest level”.[18]

In her judgment Warren CJ stated: “I agree with the analysis of Spigelman CJ (in Young’s case). In the context of the common law doctrine of public interest immunity it is not appropriate for courts to arbitrarily speculate about what the benefit (or for that matter the disbenefit) of the public may or may not be outside the categories of the established categories as they apply to the proper functioning of government”.[19]

As Professor McSherry notes in her recent article, “this narrow interpretation implies that public interest immunity can never be attached to confidential hospital records”.[20]

This approach is in stark contrast to cases in the US[21] and England,[22] where sensitive health records have been held to be immune from disclosure on the basis that a significant public interest consideration was that the release of the records, and possible breach of confidentiality as a result, would discourage people from seeking appropriate medical care.

An alternative approach in the US

A few days before the judgment in the Royal Women’s Hospital case was handed down, the US District Court of the District of Kansas permanently restrained, by way of injunction, an attempt by the Kansas Attorney-General to intrude on the medical privacy of teenagers, declaring it “irreparably harmful” and recognising that minors have a right to “informational privacy concerning sexual activity”.[23]

The Kansas Attorney-General had sought to enforce mandatory reporting of consensual underage sexual activity as sexual abuse.

Among the plaintiffs was a medical practice for women that provided a range of gynaecological services, including abortions and contraception. The defendant was the District Attorney for the District of Kansas, who was sued in a representative capacity.

The Kansas statute under which child abuse must be reported recognised the state’s interest in reporting abuse of children. The Kansas Attorney-General issued an opinion in 2003 defining the reporting requirements in cases of unmarried pregnant minors. In his opinion, a minor’s pregnancy was “inherently injurious” and must be reported as sexual abuse to the authorities.

In other words, a mandatory reporter was required by law to report any indication that a minor was sexually active.

Judge Thomas Marten noted that “compelled disclosure may violate an individual’s right to information privacy unless the disclosure served a compelling state interest in the least intrusive manner”.[24] His Honour further observed: “A legitimate expectation of privacy is based at least in part upon the intimate or otherwise personal nature of the material”.[25]

Marten J accepted the plaintiff’s evidence that serious questions arose as to whether minors would continue to seek timely medical care and psychological services if all illegal sexual activity was to be automatically reported.

“Automatic mandatory reporting of illegal sexual activity involving a minor will change the nature of the relationship between a health care provider and the minor patient to some degree. Based on studies that evaluated the effects of parental notification there will be a significant decrease in minors seeking care and treatment related to sexual activity.”[26]

In granting the injunction, Marten J considered the public interest in enforcement of the criminal law, in protecting minors and in promoting the health and welfare of the citizens of the state. The court found that the plaintiffs faced irreparable harm, that threatened injury outweighed the harm that the injunction may cause and that the injunction would not hurt the public interest.

The court recognised the importance of the healthcare professional’s ability to obtain and maintain a young patient’s confidence, in order to treat the patient appropriately. It was accepted by all parties that sexual activity among underage persons occurs and that any such activity that “injured” a minor would be reported.

This US decision, it is submitted, correctly acknowledged the need to preserve confidentiality of the sensitive health information of young patients, by balancing the competing public interests.

It is interesting to note that the plaintiff medical clinics in that action were private medical practices. There was no suggestion in the judgment that they were therefore precluded from arguing that the Attorney-General’s overexpansive interpretation of the reporting statute failed to serve the public interest.

On the contrary, Marten J held that the interpretation actually served to undermine the public interest.

A different judicial approach to public interest considerations

This District Court of Kansas case serves to demonstrate a different judicial approach to the need to protect private communications with health care workers from that which was stated to be a “narrow” view of public interest immunity by the Court of Appeal in Royal Women’s Hospital v Medical Practitioners’ Board of Victoria.

The hospital argued, in its case before the Court of Appeal, that if the confidence and trust of patients is betrayed by passing information to others, then trust in the relationship between the hospital and its patients is lost. The hospital placed reliance on unchallenged evidence that its reputation would be affected by the release of sensitive health information without consent from the patient, and that women would seek care elsewhere, or might delay seeking care.

For example, the hospital placed reliance on the unchallenged evidence of its Associate Director of Women’s Services that a woman might defer her request for a termination of pregnancy and thereby exacerbate the difficulties associated with that procedure. It was put in evidence that the release of medical records might even see a return to the days of unsafe, illegal abortions because women would not seek appropriate care if they knew that confidentiality of their health care information was not to be protected.

This evidence was consistent with the evidence adduced by the plaintiff medical clinics in the District Court of Kansas case above, namely that pregnant girls would not seek timely and appropriate medical care if the fact that they had engaged in underage sex was to be reported to authorities as sexual abuse.

In the US, this argument won the day, whereas in Victoria the narrow view of public interest immunity taken by the Court of Appeal now precludes such an argument being advanced by public health care providers.

Legislative solutions

Gillard J’s judgment[27] in the Royal Women’s Hospital case confined medical privilege to “curial” (or court) proceedings, and health services are now, as a result, precluded from arguing medical privilege in response to a search warrant or subpoena issued by for example, police or disciplinary bodies as part of an investigation.

For example, police routinely seek access to sensitive health information without consent of the patient. They are told (by health services) that they need to obtain a search warrant, as the disclosure would amount to a criminal offence as a breach of s141 of the Health Services Act 1998 (Vic) and, in the case of a patient suffering a mental illness, s120A of the Mental Health Act 1986 (Vic). Exceptional circumstances apply permitting disclosure, such as the health of another or the public being at risk).

On execution of the search warrant, health services cannot now, because of the decisions in the Royal Women’s Hospital case, argue before the magistrate that the information is protected from disclosure because of medical privilege (or public interest immunity).

The NSW Evidence Act protects “confidential communications”, and it is submitted that analogous provisions could be introduced in Victoria were the uniform Evidence Act to be adopted here. The protection should be extended to cover non-curial proceedings. For example, documents required for the purposes of an investigation would be prima facie covered by this provision. If this approach were adopted, medical privacy could be better protected, but health agencies would still want to rely on public interest immunity in appropriate cases, such as where the documents sought did not fall within the definition of “confidential communications”.

Yet public health services were held in the Royal Women’s Hospital case not to perform governmental functions, and not therefore be able to claim public interest immunity.

It is significant that the recently enacted Charter of Human Rights and Responsibilities Act 2006 (Vic) defines bodies such as public health services as performing functions of a public nature exercised “on behalf of the State” (emphasis added). [28]

Summary

It is contended that the law is in a very unsatisfactory state as a result of the Royal Women’s Hospital case.

It is submitted that reform of the law is required so that:

  • confidential communications are protected in appropriate cases from disclosure without consent in curial and non-curial proceedings (including investigations by disciplinary bodies, tribunals and police); and
  • public interest immunity is able to be claimed by public entities as defined in Victorian statutes such as the Public Administration Act 2004 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Each of those statutes reflects the current policy of the state government with respect to the obligations imposed on entities such as the Royal Women’s Hospital and other health services.

Health services are keen to pursue legislative solutions so as to afford better protection of privacy in medical records in appropriate cases.


ELIZABETH KENNEDY is corporate counsel at The Royal Women’s Hospital and is a member of the Joint Standing Medico-Legal Committee, Health Law Exchange and of the LIV’s Administrative Law and Human Rights Section. She thanks Paul Holdenson QC for his comments and advice on this article.


[1] [2006] VSCA 85.

[2] Senator McGauran wrote a letter to the editor of The Age newspaper, which was published on 27 April 2001, in which he stated that the Victorian Crimes Act “rules out the legality of late-term abortions” and that he hoped that the law would be clarified by the coroner (to whom the case had been reported by the hospital).

[3] See s33 of the Freedom of Information Act 1982 (Vic).

[4] See s93A of the Medical Practice Act 1994 (Vic).

[5] See s28(2) of the Evidence Act 1958 (Vic).

[6] See s141 of the Health Services Act 1988 (Vic).

[7] Royal Women’s Hospital v Medical Practitioners Board of Victoria [2005] VSC 225 at [130].

[8] Note 1 above.

[9] Note 1 above, at para 120.

[10] See Mok v NSW Crime Commission [2002] NSWCA 53 at [31], cited by Charles CJ, note 1 above at para 112; compare with Clifford v Victorian Institute of Forensic Health [1999] VSC 359.

[11] Note 1 above, per Warren CJ at [33].

[12] Sankey v Whitlam (1978) 142 CLR 1.

[13] Note 12 above, at p38.

[14] Bernadette McSherry, “Access to confidential medical records by courts and tribunals: the inapplicability of the doctrine of public interest immunity” (2006) 14 Journal of Law and Medicine 15 at p16.

[15] See, for example, s130 (1) of the Uniform Evidence Acts.

[16] (1999) 46 NSWLR 681.

[17] Note 16 above, at p693.

[18] Note 1 above, at [51].

[19] Note 1 above, at [34].

[20] Note 14 above, at p16.

[21] See, for example, Northwestern Memorial Hospital v John Ashcroft (unreported) decided 26 March 2004 before Posner, Manion and Williams, circuit judges of the US Court of Appeal, which upheld the decision of Chief Justice Kocoras (made in the US District Court for the Northern District of Illinois Eastern Division on 5 February 2004) not to release abortion records in response to a subpoena served on the hospital because “an emotionally charged decision will be rendered more so if the confidential medical records are released to the public, however redacted, for use in public litigation in which the patient is not even a party. Patients would rightly view such disclosure as a significant intrusion on their privacy”.

[22] See, for example, X v Y [1988] 2 All ER 648, where the public interest in preserving confidentiality of hospital records identifying actual or potential persons with AIDS outweighed the public interest in the freedom of the press, because people with AIDS ought not to be deterred by fear of public disclosure from going to hospital to seek treatment.

[23] See http://www.reproductiverights.org/pdf/KansasDistrict.Ct.Opinion.pdf, Aid for Women et al v Nola Foulston et al, case number 03-1353 JTM decision of Judge J Thomas Marten made 18 April 2006 in US District Court for the District of Kansas.

[24] Sheets v Salt Lake County 45 F.3d1383, 1387 (10th Cir 1995).

[25] Mangels v Pena 789 F.2d836, 839 (10th Cir 1986). See also United States v Westinghouse Electric Corp 638 F.2d570, 577 (3rd Cir 1980), where medical records were protected.

[26] Note 24 above, at p24.

[27] Note 7 above.

[28] See s4(1)(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

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