Gaudin, John --- "Breen v Williams - Court of Appeal Decision" [1995] PrivLawPRpr 4; (1995) 2(1) Privacy Law & Policy Reporter 10

---

---

Breen v Williams - Court of Appeal Decision

Readers of articles by Julie Hamblin and Nigel Waters in previous issues ((1994) 1 PLPR 141, (1994) 1 PLPR 187) will be familiar with the first instance judgment of the NSW Supreme Court in this important case on patient access to records held by private medical practitioners. The appeal judgment of the Court of Appeal was handed down on 23 December 1994.

The court ruled by a majority of two (Mahoney J and Meagher J) to one (Kirby P) against Ms Breen's claim to access her record. It is understood that the Court of Appeal's judgment is being appealed to the High Court.

Kirby P was prepared to accept that the doctrine of fiduciary obligations had developed to include an equitable right of access. He dismissed the other arguments put up by Ms Breen which were based on a common law right derived from English precedents, a right derived from the duty to inform the patient of the implications of a particular course of treatment (the Rogers v Whitaker argument), or a right conferred by international convention.

Perhaps the strongest feature of his judgment is a review of policy considerations for and against the proposed extension of fiduciary obligations. He identifies contemporary trends which qualify traditional assumptions derived from the doctor's ownership of patients' records, the mobility of patients, the more co-operative team approach to medical care, a greater appreciation of patient rights and autonomy and current legislative access rights to hospital records.

To the argument that a change in the law would undermine the reliance on existing practice and render medical records less candid he counterposes the role which access will play in ensuring more effective accountability and the avoidance of wasteful litigation.

Unfortunately his judgment avoids the admittedly difficult task of deriving the scope and content of the extended fiduciary duty from previous case law.

Meagher J concurred with Kirby P's rejection of the non-fiduciary arguments but was not prepared to accept the proposed new development of fiduciary obligation. He dismissed the Canadian judgments relied on by Ms Breen as lacking any coherent definition or scope of the proposed duty. This criticism will come as no surprise to readers of the chapter on fiduciary obligations in the well-known text, Equity: Doctrines and Remedies of which the learned judge was a co-author.

Mahoney J's judgment focused on the contractual and proprietary context of medical records. He approached them as professional records which could be categorised according to the contractual relationship between the professional and the client. If this relationship was an employment or agency one the records might be seen as the property of the client. By reference to Dr Williams' description of his own record-keeping practices he concluded that, in the more typical doctor-patient relationship they were documents brought into existence by the practitioner to assist in the provision of diagnosis and treatment.

While he was prepared to admit that an obligation of disclosure would arise in the case of some records such as those containing information provided by the patient or records of tests or X-rays paid for by patients, he drew the line at records created by the doctor which included comments or musings for his own reference.

In response to the invitation to innovate, Mahoney J was prepared to see a role for judges in changing the law when it produced injustice or inefficiency, however, the current case was one about conflicting social interests which were best resolved by legislation. He considered that the Canadian cases which supported a right derived from fiduciary duty were based on premises which did not reflect the law as it applied in NSW.

Comments

The case illustrates some of the difficulties in using litigation to extend to private practitioners' records statutory rights of access to records which currently apply to public and private hospitals. It focuses attention on the attempt to develop equitable remedies to cure deficiencies in the common law, in this case through an extension of categories of fiduciary obligation. At first sight this appears to be a feasible way to adapt to the reality of new social relationships.

Fiduciary obligations typically arise where there is a significant discrepancy between the power or resources of parties to a legal relationship and the weaker party reposes substantial trust or confidence in the stronger party. A patient who provides personal information to his or her doctor or submits themselves to treatment at the doctor's hands might well be seen as having a fiduciary relationship with the doctor. This in turn could be seen as giving rise to obligations including a right of access, particularly in view of the range of purposes for which medical records are used. These uses go well beyond the function of aiding the individual practitioner in treating his patient. They include an obligation to keep records to establish legal accountability, although, following recent changes to the NSW legislation governing medical practice, this obligation is not currently spelled out.

There is a problem, however, in determining the scope of the resulting obligations. The majority of the Court of Appeal appeared reluctant to extend fiduciary obligations from established instances which typically involve deriving a financial advantage from a relationship to less tangible claims affecting records which were seen as the property of the doctor.

A number of authorities suggest that the scope of fiduciary obligations will depend on the precise nature and scope of the relationship in individual cases. This makes it difficult to sustain a claim to access as a matter of general principle, particularly when this involved a departure from the existing practice.

Kirby P's policy arguments for a change are not directly incorporated into his analysis of how a fiduciary obligation can be extended beyond existing categories. It is difficult to express the scope of the duty or locate it in relation to accepted categories of fiduciary obligation without characterising the contents of the records as in some sense being 'owned' by the patient (as the Canadian Supreme Court does in the passage from McInerney v MacDonald cited by Kirby P). In the common law, the concept of ownership is a loaded one, even if it is recognised in this case as a description of rights which fall short of property right. Along with the other judges, Kirby P appears unwilling to characterise information as property and this may explain why he does not develop the line of argument suggested by the Canadian case.

So while Mahoney J's view of the role of medical records may strike the readers as somewhat antiquated and the overall results of the case may show insufficient recognition of the reality of modern medical practice, the obstacles to legal innovation in this case should not be minimised.

Implications

Patient access to their medical records becomes an increasingly important privacy safeguard as records are computerised and are subject to more frequent disclosure to people other than the practitioner who attends the patient and creates the record. In this respect the Court of Appeal's judgment is unhelpful and underlines the need for remedial legislation.

The effect of a judgment which reinforces current practice and is based on a particular set of facts should not be exaggerated. Unfortunately, the kind of case which is needed to directly pose the issue of a patient seeking access to his or her records in order to decide whether to sue the practitioner concerned is less likely to arise. If it does, it might be noted that both Kirby P and Mahoney J support the proposition that there may be circumstances in which doctors have obligations to disclose information held on their records to the patient concerned.

Information privacy statements such as the Information Privacy Principles in the Privacy Act or the data protection principles supported by the NSW Committee recognise that rights to subject access may be qualified by a requirement or authorisation to refuse access. However this would only apply where the authorisation is made under an applicable provision of a law dealing with the provision of access to documents.

The judgment would not, therefore, appear to provide legal authorisation for a refusal of access for records held by private practitioners in circumstances where these principles would otherwise apply.

John Gaudin