Client legal privilege regarding patient

Keywords

Evidence – Client legal privilege – Whether the defendant doctor’s responses to Australian Health Practitioner Regulation Agency complaint by the plaintiff attract privilege – Advice privilege – Litigation privilege. Aust Dig Evidence [1173-1178]

Procedure – Evidence Act 2001, s 131A extends the application of Part 10, Div 1 to the pre-trial stage of civil proceedings – Part 10, Div 1 applies to the determination of objections arising during pre-trial discovery. Aust Dig Procedure [1245-1265]

Facts

Kelly Hoe (the Plaintiff) commenced a claim for personal injuries suffered as a result of the negligent medical treatment she received from Dr Gary Kode (the Defendant) during surgery on 20 June 2019.  On 25 May 2022, the Plaintiff submitted a complaint to the Australian Health Practitioner Regulation Agency (AHPRA) regarding the Defendant’s treatment of her.

AHPRA subsequently provided the complaint to the Defendant and invited his written response with any information he considered relevant.  Importantly, AHPRA notified the Defendant that any response he provides may be made available to the Plaintiff.

The Defendant provided an initial response to AHPRA (the first response). The first response was disclosed to the Plaintiff during the discovery process for the underlying medical negligence claim, on or around 17 April 2024.

On 19 April 2024, the Plaintiff was notified by AHPRA that they had received a supplementary response from the Defendant (the second response). The Plaintiff subsequently requested the Defendant disclose a copy of the second response. This request was refused on the basis that the second response was allegedly privileged.   

The Plaintiff and Defendant each brought interlocutory applications relating to the first and second responses to AHPRA.  The issue on each application relates to whether each document attracts legal privilege, and in the case of the first response, if it was privileged, whether the privilege was lost when the Defendant’s solicitor disclosed it to the Plaintiff.

The Plaintiff’s application sought disclosure from the defendant of the second response.  The Defendant’s application sought orders giving the first response, that had already been disclosed, the status of a privileged document.

Decision

Daly AsJ, decision delivered 30 September 2024. 

The Plaintiff’s application was granted. The Defendant’s application was dismissed.

Ratio

Daly AsJ ultimately found that the first response was not confidential on the basis that AHPRA were not under any obligation not to disclose the contents of that response to the Plaintiff.  The first response was a ‘first person narrative’ by the Defendant, directly addressing the Plaintiff’s complaints against him. AHPRA’s privacy police governed the exercise of its functions under the Health Practitioner Regulation National Law Act 2009 (the national law). AHPRA informed the Defendant that in accordance with its policy, AHPRA was free to disclose his response and invited the Defendant to advise them about any information he wished to keep confidential.  The Defendant made no such request.

Conversely, Daly AsJ found that the second response was confidential. The second response was prepared by the Defendant’s solicitors and written on their letterhead. The second response was a communication or document recording what the Defendant instructed his lawyers to communicate with AHPRA. Daly AsJ found that AHPRA was under an obligation not to disclose the contents of the second response with such an obligation being either express or implied.

Daly AsJ noted the evidence failed to establish that either of the responses were brought into the existence for the dominant purpose of a lawyer providing legal advice to the Defendant.   The Court accepted the Plaintiff’s submission that the purpose for which each response was brought into existence was to communicate with AHPRA, with the intention of persuading it that the Defendant treated the Plaintiff with all due care and should not uphold the Plaintiff’s notification of complaint.

In relation to the first response, the Court also noted that the Defendant’s knowing and voluntary disclosure to the plaintiff of that response was inconsistent with his subsequent application to give that document the status of privileged. The Court noted it was within the Defendant’s solicitor’s ostensible authority to waive privilege on their client’s behalf.