Gaudin, John --- "Breen v Williams - patients unrewarded in the High Court" [1996] PrivLawPRpr 56; (1996) 3(6) Privacy Law & Policy Reporter 106

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Breen v Williams -- patients unrewarded in the High Court

John Gaudin

On 6 September 1996, the High Court handed down its long-awaited decision on the issue of a patient right of access to medical records held by a private practitioner -- Breen v Williams (unreported, High Court of Australia, FC 96/205, 6 September 1996). Ms Breen appealed to the High Court after failing in her claim to access the records of her plastic surgeon in the NSW Supreme Court and Court of Appeal (see <2 PLPR 10>). The High Court's unanimous decision to reject Ms Breen's appeal was not particularly surprising, and places the issue back on the legislative agenda where, arguably, it has always more appropriately belonged.

This article surveys the issues covered in the judgments and the broader implications of the case for access to personal records. This was a test case to establish whether the courts would accept a general principle that patients had access to their records as of right. The plaintiff's case was broadly argued over a range of possible grounds for such a right. In addressing each of these grounds, the judgments suggest some broader implications for the provision of information in a medical context.

Brennan CJ and Gummow J delivered individual judgments and joint judgments were delivered by McHugh and Gaudron JJ and by Dawson and Toohey JJ. The judgments identified four (or in one case, five) separate grounds for the claimed right:

• a proprietary right in the records;
• an implied contractual term giving access;
• a right to one's records based on fiduciary duty; and
• a more general right to know.

This last right was variously characterised as an innominate common law right evidenced in the English Court of Appeal judgment in R v Mid Glamorgan Family Health Services (1995) 1 WLR 110 or a right which could be implied from the changing legal context of medical care evidenced in the recent High Court judgment in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

Procedural obstacles

Two of the judgments called attention to procedural aspects of the case arising from the way it had been pursued as a test case. While Ms Breen's ostensible reason for pursuing her claim was so that the records could be filed in settlement proceedings in the US, the records had not themselves been sought in the original hearing or through an order for discovery in support of the US action. The responses of Dawson and Toohey JJ and of Gummow J reflect different degrees of willingness to deal with Ms Breen's claim purely as a test case.

Dawson and Toohey JJ thought that the patient's claim was presented in an unsatisfactory form because she made no attempt to access the records to which the case related by way of discovery or subpoena, either in the current proceedings or in support of exercising an opt-in to the proposed US settlement. As a result the trial judge was expected to make orders in respect of documents he had not seen and whose nature he could only determine by inference. The process of seeking declaratory relief was thus flawed by the hypothetical nature of the facts on which relief was to be based (at 12-13).

Gummow J also felt that the absence of clear findings as to the identity of the records to be accessed, made it difficult to decide the case in accordance with the doctrine of precedent. He considered that it would have been within the inherent jurisdiction of the Supreme Court to grant an order of particular discovery, in aid of the US opt-in proceedings. However, on the original appeal the plaintiff had expressly disavowed reliance on these proceedings. He was nevertheless prepared to accept that these deficiencies cleared the way for deciding the case on the issues of general principle that the appellant wished to assert.

Proprietary rights to information

The way the judgments treated the proprietary argument are of interest given the claim which is sometimes made that a right to privacy is based on the subject's ownership of her personal information. The court's unanimity in rejecting a proprietary basis for a right of access is scarcely surprising. Courts have generally been reluctant to recognise proprietary rights in information except in the metaphorical sense in which an equitable interest can be characterised as similar to property or within the statutory framework of `intellectual property'.

There were some differences in the way the judgments characterised the argument they were required to refute. Two of the judgments suggested that the appellant's arguments showed a misunderstanding of the applicable law of property. The chief justice linked this misunderstanding to the way in which the language of property is sometimes used to support the equitable jurisdiction to restrain disclosure of information provided in confidence.

While Gummow J agreed that `to some extent these submissions reflect an imperfect understanding of some basic matters of the law of personal property', he was prepared to recognise that the appellant's case expressed a broader property based argument drawing from doctrines dealing with fiduciary duty, confidential information, undue influence and unconscientious transactions (at 58 and following). However, he went on to suggest that these arguments give insufficient attention to legal protections arising from the ownership of the records as physical chattels or the rights of the author arising from the law of copyright.

Both of the joint judgments rejected the proposition that a right to ownership of medical records arose from an agency relationship between doctors and their patients. Dawson and Toohey JJ distinguished the right of a patient from that of a beneficiary under a trust to inspect records of the administration of the trust. Gaudron and McHugh JJ rejected an argument premised on the assumption that there was no owner of the records as being antithetical to common law assumptions about the ownership of chattels which had not been abandoned.

Copyright

During argument of the case the issue of copyright was raised from the bench but was never fully addressed by the parties (Daily Telegraph, 22 November 1995). Each of the judgments referred to the implications of copyright law for the property-based arguments of the plaintiff. Brennan CJ simply noted that where a professional person is the owner of the copyright, he or she has the sole right to copy or permit copying of the record (at 4). Dawson and Toohey JJ considered that it was unnecessary to reach any conclusion on the issue of copyright other than noting that it would raise problems if the appellant was to succeed on the grounds she had argued (at 16). Gaudron and McHugh JJ saw Dr William's ownership of the copyright in the records as a further argument against an attempt to derive a right to copy the records from a supposed fiduciary duty.

Gummow J felt that the appellants submissions in relation to an alleged proprietary right to access and copy records gave insufficient regard to the effect of copyright law in conferring exclusive proprietary rights in the practitioner who produced the records.

As federal legislation, the Copyright Act is capable not only of restricting the potential development of competing common law rights. The judgment provides a timely reminder that it could also pose a challenge to state legislation which attempted to confer rights to obtain copies of records relating to them on non-copyright holders or licensees. Under NSW freedom of information legislation, a right to obtain copies of records owned by public sector agencies carries an implied licence to copy them. However the issue of copyright of third party documents has been raised and arguably not fully resolved, for example, where local councils purport to provide copies of plans attached to building and development applications under freedom of information or planning legislation. The absence of a right to copy under the NSW regulation which gives people access to private hospital records, also probably reflects uncertainty over the effect of the Copyright Act (Pt 6, cl 1.6.3 of the Private Hospitals Regulation, 1990 (NSW)).

Contractual rights

In the absence of an explicit contract between Ms Breen and Dr Williams, the High Court was invited to imply a term in the contract obliging the doctor to act in the best interest of the patient. A right to access and copy records was said to arise from the acceptance of this term.

Courts are reluctant to imply terms into contracts except where the implication is by operation of law, is necessary to give effect to the intention of the parties entering into the contract, it is self-evident or obvious that the parties would have accepted it when entering into the contract if their attention had been drawn to it or the term can be seen to be implied by custom or usage. While resisting the plaintiff's invitation the judges were prepared to concede a more limited obligation to provide the patient with information.

For Brennan CJ, the doctor's contractual obligation was limited to advising and treating his patient with reasonable skill and care. This obligation was not necessarily confined to giving advice and treatment when consulted. It could extend to the provision of information to the patient, where the request for information is reasonable, where reasonable reward for providing the information is tendered or assured, and where refusal to provide the information might prejudice the patients health.

Gaudron and McHugh JJ considered that even if the court was prepared to imply a contractual obligation to act in the patient's best interest term (which they did not) it would be necessary to restrict such a term to the context of medical care. It would not, therefore, impose an obligation to disclose records for any purpose.

Gummow J was prepared to entertain the notion that contracts between doctor and patient could include an implied term that the patient be informed on reasonable request of relevant factual material contained in her records. He suggested that the October 1993 resolution of the meeting of the AMA Federal Council recognising the patient's right to be informed of all relevant factual information contained in their medical record, could in future be incorporated into doctor-patient contracts on the basis of custom. However, in the present case, the claimed right to access and copy went further than this and beyond what was necessary for the reasonable or effective operation of the contract.

Fiduciary duty -- McInerney rejected

The High Court was invited to follow the Canadian Supreme Court judgment in McInerney v McDonald (1992) 93 DLR (4th) 415, which recognised a right of access to records arising from the fiduciary duty of the doctor to his patient. Fiduciary obligations arise in two circumstances, when the obligated party is an agent of the other party, or where the other party is in a particularly vulnerable position, for example, because of their reliance on the knowledge, understanding or skill of the obligated party and the freedom of action of the obligated party is thereby restrained. While there were differences over the fiduciary elements which might arise in the doctor patient relationship, none of the judgments were prepared to accept that there were sufficient fiduciary elements to lead to a right of access. The judges also stressed the mistake of assuming that a uniform set of obligations arose from the mere existence of a fiduciary relationship.

Brennan CJ simply held that McInerney did not represent the legal position in England and Australia.

Dawson and Toohey were critical of the way the Canadian Supreme Court in McInerney was prepared to identify a fiduciary duty on doctors to act in utmost good faith and loyalty, which they saw as possibly reflecting a divergence in the development of obligations and remedies as between Anglo-Australian and North American law. They singled out for specific disapprobation the passage in McInerney in which patient information was characterised as held (at 22):

In a fashion somewhat akin to a trust' giving rise to `an expectation that the patient's interest in and control of the information will continue.

Gaudron and McHugh JJ agreed that it was impossible to subscribe to general statements as to the circumstances in which fiduciary relationships could be said to exist and noted that the doctor-patient relationship was not a generally accepted fiduciary relationship. Although there were features of the doctor-patient relationship which courts could have used to find a fiduciary relationship this would not render the relationship fiduciary for all purposes. A fiduciary duty to act in the best interests of the patient was at variance with the scope of the doctor's contractual duty. Their Honours stressed that while contractual and fiduciary relationships could co-exist as between parties, the fiduciary duties arose within a framework defined by the contract and had to be accommodated within its terms (at 38, citing Mason J in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 97).

There was a clear divergence between the way that fiduciary duty had developed between Australian and Canadian jurisdictions with the latter supporting obligations which were prescriptive as well as proscriptive. The Canadian development had effects on the law of negligence, contract, agency, trust and companies, and on property rights which their Honours evidently considered to be unfortunate.

Their Honours rejected the argument that Dr William's offer to provide Ms Breen access to the records provided that she indemnified him against legal action could be treated as raising a conflict of interest in a fiduciary context. In the current case there was no evidence of conflict of interest, unauthorised profit or loss resulting from a breach of duty on which to found a fiduciary duty.

Their Honours considered that the suggestion in McInerney that doctors held patient records in a manner akin to a trust because the patient had not relinquished her interest in controlling the information was unhelpful. Medical records often include information from other sources and information like the doctor's own observations which are not obtained from the patient. They concluded that the patient could have no rights of control over information that has not come from him or her. To say that the fiduciary duty is grounded in the patient's interest in her records is unhelpful, firstly because that interest is not founded on legal rights and secondly because this would lead to the conclusion that any professional who received personal and confidential information had a similar duty to disclose it to the person who had provided it (at 42).

Gummow J was less ready than other judges to dismiss McInerney as evidence of a divergence between North American and Anglo-Australian legal doctrine. He attempted to distinguish the fact of the Canadian case, pointing out that the records at issue were medical reports prepared by other doctors and communicated confidentially to Dr McInerney, and which the Supreme Court suggested might have a bearing on possible improper conduct (at 64, 72).

Gummow J emphasised that fiduciary duties could arise in relation to the relationship of doctor and patient and could extend to the disclosure of information. He also appears to have been more prepared to recognise that fiduciary relationships could exist in association with contractual relationships rather than in contradiction to them. Perhaps his most pointed criticism of McInerney can be found in his warning against applying the kind of fiduciary standards imported from the specific area of trusts to fiduciary obligations in general.

The arguments on fiduciary duty were arguably the most crucial to the case, if only because this was the only ground on which Kirby P (as he then was) was prepared to find for the plaintiff in his dissenting Court of Appeal judgment. While the two joint judgments in particular, appear to have closed off for the future this potential avenue for finding a right of access to records, this may need to be seen in relation to the particular facts of this case. The court was simply not prepared to deduce a fiduciary obligation expressed in general terms from an ambiguous factual basis.

The right to know

This ground was variously put as an innominate common law right of access or a `right to know' the contents of ones medical record as a result of a fundamental shift in the doctor patient relationship evidenced in Rogers v Whitaker.

Gaudron and McHugh JJ pointed out that the English case cited in favour of an innominate right, R v Mid Glamorgan Family Health Services relied on an interpretation of the contractual obligation of the doctor to act in the patient's best interest which they had already explicitly objected in the present judgment. The case was therefore not good authority. While not prepared to dismiss the assertion of a general movement of the law towards a more frank acceptance of patient autonomy, a rejection of medical paternalism and the ability of the medical profession to determine appropriate standards of care they felt this trend fell far short of what the plaintiff claimed for it.

Dawson and Toohey JJ did not consider that Rogers v Whitaker could be extended beyond its own facts, which related to the provision of information in the context of a decision to undergo treatment. They also noted that the required disclosure of information in that case was dictated by the doctors duty as to act with reasonable care and skill.

Gummow J considered that the plaintiff's argument confused the role played by informed consent in Rogers v Whitaker, which was primarily concerned with a breach of the duty of care applicable in medical negligence, with a trend in recent North American cases to create a freestanding action based on the requirement for informed consent to treatment and which synthesised elements of negligence and fiduciary duty.

Conclusion

Any reading of the decision should not ignore the less explicit messages transmitted. One such message concerns the reluctance of judges to appear to be making law based on policy considerations which are the proper concern of the legislature. Gaudron and McHugh JJ go to some length to assert that `advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning' and to repudiate the proposition that judges can `provide a solvent' for every social, political or economic problem (at 44). Dawson and Toohey made a similar point in rejecting the proposition that Rogers v Whitaker had ushered in a climate more favourable to a positive assertion of patient rights.

These ritual expressions of self-denial should be viewed in the broader context in which the Mason High Court was criticised for inventing new law and in the attempts of the current bench to find a way of avoiding excessive judicial creativity without reverting to the declaratory fiction which was traditionally used to conceal judicial innovation. They can also be seen as a means of avoiding the more practical arguments in favour of access which were expressed by Kirby J in his dissenting Court of Appeal judgment. These include:

• the widespread expectations of health consumers over a right of access;
• the contribution which access can make to an enhanced climate of trust between doctor and patient; and
• the expanded use of medical records in contemporary society, which undermines the protection which patients might expect from traditional notions of practitioner confidentiality.

Criticism of the decision is likely to focus on this avoidance of the practical issues.

The court also may have wished to discourage some of the more sanguine interpretations of its judgment in Rogers v Whitaker, which has been both welcomed and reviled for revolutionising the relationship between doctor and patient.

Whether the case has wider implications for the issue of access to information in both medical and non-medical settings may need to be further explored. In December 1995 the former Labor Government had backed access legislation as part of a larger health package. In a statement which might be interpreted as distancing the coalition Government from any immediate response, the Federal Health Minister, Michael Wooldridge, was reported as intending to consider the judgment on his return from an overseas trip. The Federal Attorney-General's Discussion Paper on Privacy Protection in the Private Sector (see (1996) 3 PLPR 81) released the following week appears to foreshadow patient access as part of a more general package.

Even when a court rejects a proposal to break new legal ground, its reasons for doing so may include concessions which move the law in the direction which the judgment ostensibly opposes. This is part of the process whereby the law, despite its apparent rigidity, adapts to new social conditions, simply because it is constantly presented with cases which reflect the pressures of these new conditions. There are a number of passages in the case which could be taken to have broader implications for issues relating to access to information in general, and medical records in particular.

The most obvious of these involve the obligation of medical practitioners to provide relevant information falling short of a blanket disclosure of their records. The case is likely to provide an authority for future claims based on a failure to disclose information which was reasonable.

One might also note the passing reference by Gummow J to the possible need to adjust traditional assumptions about the nature of the contract between doctors and patients in the light of the third party interests represented by state operated or funded schemes, and his accompanying reference to privacy and freedom of information legislation (at 54-55 and note 158). These comments can be seen to reflect recent developments such as the Medicare Private Hospitals Charter, and the Australian Law Reform Commission's recommendations on extending freedom of information to private sector agencies (ALRC Report 77 Open Government: a review of the federal Freedom of Information Act 1982 (1995)).

Several passages restate the law on medical confidentiality in ways which authoritatively reinforce a degree of privacy protection for patient records. In this respect, Gummow J's judgment is most suggestive of a concern to recognise privacy issues, specifically in the way he cites Johns v ASC [1993] HCA 56; (1993) 178 CLR 408 (see (1994) 1 PLP 1) as authority for the equitable jurisdiction to restrain the misuse of confidential information and emphasises that this applies to personal affairs and private life as much as to trade secrets (at 61 and note 185).

Despite its disappointing outcome for the principle of unrestricted patient access, Breen is likely to become a significant authority for other aspects of privacy and access to information.

John Gaudin, Research Officer, NSW Privacy Committee.