Do no harm – adducing medical records in proceedings

The NSW Civil & Administrative Tribunal (NCAT)(the Tribunal) was recently required to consider whether the respondent in discrimination proceedings was entitled to access the applicant’s medical records produced on summons [Czerniecki v TAFE NSW [2017] NSWCATAD 278]. The respondent to the proceedings sought access to the applicant’s medical records to consider whether the applicant had a ‘disability’ in order to prepare its evidence and submissions to respond to the claim that it had discriminated against the applicant on the basis of a disability. This was in the context where the respondent asserted that the applicant had not provided sufficient evidence of suffering a disability. The applicant objected to the respondent having access to her medical records on the basis that they are subject to ‘professional confidential relationship privilege’ or alternatively, on the basis the summons was oppressive as it was too wide.

In relation to the position that access should be refused as the records are subject to professional confidential relationship privilege, the Tribunal had regard to s67(1)(c) of the NCAT ActThis provides that no-one can be required to disclose a document, or give access to it, if the Tribunal is satisfied that the document could not be adduced in proceedings before a NSW Court as it is subject to professional confidential relationship privilege.

The Tribunal accepted, having reviewed the documents produced on summons by the applicant’s doctor, that some of the documents contain a ‘protected confidence’ as defined by s126A(1) of the Evidence Act. That is because the doctor was acting in a professional capacity when the applicant, his patient, communicated various confidences to him and the doctor is obliged not to disclose the contents of those communications. The Tribunal was then required to consider whether under s126B(3) of the Evidence Act it is likely that harm would or might be caused to the applicant if the evidence was adduced and if so, whether the nature and extent of the harm outweighs the desirability of the evidence being given. S126B(4) of the Evidence Act lists a number of matters to be taken into account when considering if the evidence should be adduced or not.

The Tribunal concluded, based upon the evidence, that the ‘harm’ the applicant says she has suffered arises from her inability to forewarn her doctor that a summons may be issued and the perceived consequential damage to the relationship she has with her doctor as a result of this. The Tribunal noted however, that the Evidence Act requires the harm to be caused, or possibly caused, by the adducing of the evidence not some other cause. In this case the ‘harm’ was caused by the perceived damage to the relationship as a result of the applicant not forewarning her doctor that a summons was to be issued, not by the adducing of evidence. The Tribunal was not satisfied that harm would likely be caused, or might be caused, if the notes were adduced into evidence or disclosed to the respondent. This decision turned on the applicant’s evidence that the damage had largely already been done.

In relation to whether the summons was oppressive, the Tribunal concluded that where the respondent denies that the applicant has a disability, the documents sought under the summons have a legitimate forensic purpose to the respondent’s defence. Further the documents were found to be relevant to the Tribunal being able to determine whether a defence of unjustifiable hardship, which the respondent seeks to rely upon, will be able to be made out.

As a result, the Tribunal refused to set aside the summons and allowed the respondent to access the medical records.

Having regard to the relevant provisions of the Evidence Act contained with Division 1A of the Act, which relate to professional confidential relationship privilege, a party to proceedings in NSW may be able to successfully argue that their medical records should not be adduced into evidence if they can establish that to do so is likely, or might cause, harm to them and the nature and extent of that harm outweighs the desirability of the evidence being given.

Post by Karen Kumar 

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