Royal Women’s Hospital v. Medical Practitioners Board of Victoria

In January 2000, Mrs. X went to the Royal Women’s Hospital (“the Hospital”). She was 32 weeks pregnant, and, after a multiple ultrasounds, it was confirmed that her baby had skeletal dysplasia (“dwarfism”). In February, a fetal reduction procedure was done and the baby was born by stillbirth. After termination, the fetus was found to not have skeletal dysplasia. In 2001, Victorian Senator Julian McGauran made a claim to the Medical Practitioners Board of Victoria (“the Board”) alleging misconduct in the treatment and termination of Mrs. X’s pregnancy. The Board, required to investigate any non-frivolous complaint as to professional conduct, undertook an investigation into the medical practitioners involved with Mrs. X’s pregnancy termination. When the Board sought Mrs. X’s medical records, she refused to consent to their disclosure. The Board then did a preliminary investigation and determined it required her records for its investigation; it therefore sought and obtained a search warrant for the records in June 2003.

The documents were seized and then ordered to be returned, but in October the Board sought another search warrant, which was then granted in November. The Hospital again sought an order to have the documents returned, which was dismissed by the Magistrate. The Hospital appealed that decision to the Supreme Court on three grounds: (1) the documents were protected under s.28 of the Evidence Act 1958, (2) the documents were protected under s.141,(2) of the Health Services Act 1988, and (3) the documents were protected under the principle of public interest immunity. The Supreme Court Judge dismissed the appeal on all grounds.

The Hospital filed for leave to appeal the decision of the Supreme Court on error by the judge, first, in determining the records were not protected under the Evidence Act, and second, in determining they were not protected under a public interest immunity. The Court of Appeals granted leave to appeal on the second ground only.

A majority of the justices (the “Court”) held that Mrs. X’s medical records were not protected under the application of the principle of public interest immunity (“PII”) and dismissed the appeal.

The Court held that PII did not apply in this case because the application for PII was based on the argument that if medical records were not confidential pregnant women would be less likely to seek necessary medical treatment (to the detriment of the public interest).  However, the protection from disclosure only applied in a context of governmental function, and its application was limited to circumstances in which the harm to the public interest by ordering disclosure outweighed the public interest in full disclosure to the courts. The Court noted that precedents had constrained the application of PII to documents relating to the functioning of government. The Court determined that PII applied to disclosures that might frustrate the administration of justice, such as the identities of police informants or the identities of those who report child abuse. Beyond such cases, which still bore some governmental character, courts had limited the application of PII, (e.g., finding in one instance that PII did not apply to sexual assault counseling records of a patient at a public hospital).

The Court found that the Hospital had not made a sufficient showing that the documents in question fit into a class of documents that had a governmental character and that it further had not provided a sufficient justification for the expansion of the protection to a new class of documents. Maxwell, P., in his opinion, highlighted his determination that the creation of new categories of documents protected by PII should be a matter for the legislature and not the courts, and that the protection from disclosure should be based on the character of the information for which protection is sought, not the nature of the agency holding such information.

As the documents did not pass the threshold question of whether they were governmental in nature, the majority of the Court held there was no need to balance the public interest. Charles, J.A., while unsure if the Hospital met the requisite governmental character, went through the balancing of interests and found that PII still did not apply because the public interest in protecting medical confidentiality and the specific circumstances of this case were not sufficient to outweigh the public interest in full disclosure. The Court found that, while the concern that women might not seek necessary medical treatment was valid, this concern was not serious enough to lead to an application of PII.

The Court also held that, while there was certainly a public interest in protecting medical confidentiality, providing for confidentiality did not mean prohibiting disclosure, but only meant that strict secrecy orders on any information obtained would be provided. Further, the Court found that adequate legislation was already in effect that would ensure that the medical records in question would not be disclosed to the public. The Health Records Act 2001 imposed a strict privacy regime on the Board, on top of the protection already provided by the Evidence Act 1958 and the Health Services Act 1988. The Court also noted that the investigation in this instance did not require any disclosure to the public, and the Board had not suggested there would be such disclosure.

The Court found that international conventions, which Australia was party to but had not incorporated into Australian state law, were still influential on domestic courts in interpreting statutes, developing common law and indicating the value Australians placed on certain rights. Charles, J.A. held that the international conventions presented by the Hospital did not bolster the case for application of PII. Article 17 of the International Convention on Civil and Political Rights did not assist because the seizure of the medical records was neither arbitrary nor unlawful. Article 12 of the International Covenant on Economic and Social Rights and Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Woman did not help because their application was premised on the argument that a lack of confidentiality would have detrimental effects for women’s right to health care, but the Court found there was no lack of confidentiality in relation to medical records considering other protective legislation in place.

“Nevertheless, even if pregnant women are dissuaded from approaching public hospitals for treatment because they lack confidence that the confidentiality of their medical records will be protected, I do not believe that this fact, of itself, necessarily establishes the existence of a public interest immunity with respect to the class of documents which the appellant argues should attract such an immunity.” Paragraph 21.

“In applying the decision of D v. NSPCC, it was made plain… that public interest immunity, although not confined strictly to government departments or other organs of central government, was nevertheless confined the immunity to bodies exercising statutory duties or functions, and in situations analogous to the police informer immunity.” Paragraph 110

“The Factors claimed to be of critical importance in deciding whether public interest immunity should attach were said to be the confidentiality of the material, the fact that disclosure might dry up a source of information, the protection of informers against disclosure, and the question whether the information was necessary for the statutory body (in this case the Board) to perform its functions.” Paragraph 128

“…Parliament has taken the view that the public interest in medical confidentiality is not unqualified. In each case, Parliament has recognized that the public interest in the protection of medical confidentiality may be required to give way to a competing public interest.” Paragraph 134

“If the Hospital’s claim to immunity from production is accepted, it has a number of serious consequences. The Board would be unable to investigate properly - if at all - claims and complaints involving medical practitioners associated with the Hospital in relation to a very substantial and important area of the health services provided by the Hospital and all other public hospitals in Victoria. Similar concerns would of course arise in relation to like health services provided by private hospitals. It would substantially remove from the Board’s scrutiny the quality of the health services and the activities of the practitioners in this area of medical practice in public hospitals. Given that the Board’s function under the Act is first and foremost to protect the public, the Hospital inevitably shoulders a very significant burden in seeking to show that the harmful effects of disclosure of the documents would outweigh these very serious consequences.” Paragraph 145.