Arnold Mann v Board of Health and Others [1995] ACTSC 30 (31 March 1995)

SUPREME COURT OF THE ACT

ARNOLD MANN v. BOARD OF HEALTH and OTHERS
No. SC458 of 1991
Number of pages - 6
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Practice and Procedure - Pleading - Application to strike out - Defamation - Publications by officers of Health Services - Not subject to secrecy provisions.

Health Services (Consequential Provisions) Act 1990 s.56

Health Act 1993 ss.11,12
Health (Consequential Provisions) Act 1993
Interpretation Act 1967 s.38

HEARING

CANBERRA, 17 March 1995
31:3:1995

Plaintiff's Instructing Solicitors: Self

Counsel for 1st-5th Defendants: Mr R. Bayliss

Defendant's Instructing Solicitors: ACT Government Solicitor

Counsel for 6th and 7th Defendants: Mr K. Crispin QC

Defendant's Instructing Solicitors: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:
The application be dismissed.

DECISION

MASTER A HOGAN This is an application, by the sixth and seventh defendants in an action, to strike out certain allegations in a Statement of Claim.

2. The plaintiff is a medical practitioner who formerly carried on practice as a surgeon in the Australian Capital Territory.

3. In January 1988 he entered into an agreement with the then Board of Health to provide services to the Board in consideration of remuneration provided for in a Fee for Service Agreement.

4. In this action, commenced by writ on 9 July 1991, the plaintiff alleges that, contrary to an agreement entered into in November 1990, the Board of Health, which is the first defendant, failed to renew his Fee for Service Agreement. He also claims that the Board, in not renewing his Fee for Service Agreement, acted contrary to another agreement entered into in 1986, when he had retired from service as a salaried surgeon.

5. The sixth defendant was Director of the Renal Unit and Chairman of the Medical Staff Committee of the Board. The seventh defendant was a fee for service general surgeon engaged by the Board.

6. The fifth defendant was from 1990 to 1994 Executive Director, Clinical Services, employed by the Board.

7. Paragraphs 29, 30 and 31 of the further amended Statement of Claim allege that certain communications took place in September 1990 between the fifth defendant and the sixth and seventh defendants, concerning certain professional conduct of the plaintiff with respect to a patient.

8. Paragraphs 40, 41, 42, 43, 44, 45, 46 and 47 relate to the publication and republication, in March 1994, of certain statements about the plaintiff, which included statements made by the sixth and the seventh defendants, and allegations that the written statements made by them in September 1990, as well as the statements made in March 1994, were defamatory of the plaintiff, and were things done in pursuance of a conspiracy to harm the plaintiff.

9. The sixth and seventh defendants seek to have those allegations struck out, on the ground that to litigate those matters would be in breach of the secrecy provisions of the Health Services Act 1990.

10. The Health Services Act 1990 was notified in the Gazette on 28 December 1990. Its operative provisions came into effect on 31 January 1991.

11. Among those operative provisions is s.56, which reads as follows:

"56. (1) This section applies to every person who is or has been -
(a) a member;
(b) a member of staff; or
(c) a health services consultant.
(2) A person to whom this section applies shall not, either directly
or indirectly, except in the performance or exercise of a function or
power under this Act -
(a) make a record of, or divulge or communicate to any person, any
information concerning another person acquired by the first-mentioned
person by reason of -
(i) holding an office or appointment;
(ii) being employed or engaged; or
(iii) performing or exercising a function or power;
under this Act;
(b) produce to any person a document furnished for the purposes of
this Act;
or
(c) be required to divulge any of that information to, or to produce
that document in, a court.
Penalty: $5,000 or imprisonment for 6 months, or both.
(3) A person to whom this section applies may -
(a) divulge or communicate specified information or produce a
specified document to such persons as the Minister directs if the
Minister certifies that it is necessary in the public interest that
the information should be so divulged or communicated, or the document
so produced;
(b) divulge or communicate information, or produce a document to a
prescribed authority or prescribed person; or
(c) divulge or communicate information, or produce a document to a
person who is expressly or impliedly authorised by the person to whom
the information or document relates to obtain it.
(4) An authority or person to whom information is divulged or
communicated, or a document is produced, under subsection (3) and any
person under the control of that authority or person is, in respect of
that information or document, subject to the same rights, privileges,
obligations and liabilities under this section as if the authority or
person were a person performing or exercising functions or powers
under this Act and had acquired the information or document in the
performance or exercise of those functions or powers.
(5) ...
(6) In this section -
"court" includes any tribunal, authority or person having power to
require the production of documents of the answering of questions."

12. It is clear from the pleadings that the plaintiff and the sixth and seventh defendants were persons to whom s.56 applied.

13. Insofar as the publications pleaded in the paragraphs of the Statement of Claim that are in issue on this application related to the plaintiff, the prohibition in subs.56(2) would not operate, as the communication would come within the exception created by para. 56(3)(c). By bringing this action he impliedly authorises the Court, and the defendants and their advisors, to obtain the relevant information about himself.

14. However, inextricably bound up in the statements alleged to have been made about the plaintiff are details relating to his treatment of certain patients, and it is not suggested that they, or any of them, authorised the divulging of any information about themselves.

15. Paragraphs 29, 30 and 31 of the Statement of Claim refer to communications made in September 1990. The Health Services Act 1990 did not come into operation until 31 January 1991. I raised with Counsel the suggestion that the subject-matter of the communications could not, therefore, have been information acquired by any of the persons involved by reason of their holding an office or appointment, being employed or engaged, or performing or exercising a function or power under that Act. I think that he is correct in his submission that the answer to that suggestion is found in s.17 of the Health Services (Consequential Provisions) Act 1990, by which s.56 of the Health Services Act 1990 applies to former officers, members or consultants as if a reference in that section to the new Act (i.e. the Health Services Act 1990) were a reference to the Ordinance or Act under which the former officer, member or consultant was appointed, employed or engaged.

16. The remaining allegations concern matters which happened in March 1991, although the allegedly defamatory statements were not made until 1994. While s.56 was extant it did in terms prohibit the communication of any information acquired by the relevant parties by reason of their holding office or appointment under the Act or under former legislation.

17. Whether those terms should be read down in any way, so as to make them workable or just, I do not think I need to determine.

18. The prohibition of disclosure enacted by the section is not absolute. The persons subject to it may do the acts otherwise prohibited where the person is acting in:

- The performance or exercise of a power or function under the Act
(subs.56(2));
- The Minister certifies that is is necessary to do so in the public
interest (subs.56(3)(a) and (5)(a));
- The recipient of the communication is a "prescribed authority" or a
"prescribed person" (subs.56(3)(b));
or
- The person to whom the information or document relates expressly or
impliedly authorises the communication (subs.56(3)(c)).

19. It is clear from the pleadings and from their terms that the communications which are alleged to be defamatory were not themselves subject to the prohibition, as they were obviously made in the performance or exercise by the defandants of their powers and functions under the relevant legislation.

20. The objection raised on the defandants' behalf is not based on an allegation that the allegedly defamatory statements were themselves prohibited by s.56. It is based on the fact that to litigate their defamatory nature in this Court involves disclosure, in pleadings and otherwise, which is prohibited. Many of the plaintiff's arguments appear to me to be misconceived because of a failure to recognise this distinction.

21. The Health Services Act 1990 was repealed on 1 March 1993 by the Health (Consequential Provisions) Act 1993, on the coming into operation of the Health Act 1993.

22. The Health Act 1993 provided for the appointment of Quality Assurance Committees, called "approved committees" in that Act. Sections 11 and 12 of that Act are as follows:

"Admissibility of evidence
11. A statement or disclosure (whether oral or written) made, or
produced, before or a finding of, or recommendation by, an approved
committee is not admissible as evidence in any proceeding, civil or
criminal.
Members not compellable
12. A person who is or has been a member of an approved committee is
not compellable -
(a) to produce before a court, tribunal, board or person any document
in his or her possession or under his or her control that was created
by, at the request of or solely for the purposes of such a committee;
or
(b) to divulge or communicate to a court, tribunal, board or person
any matter or thing that came to the person's notice in his or her
capacity as such a member.

23. It is not suggested that the subject-matter of the allegations in the Statement of Claim came within either of those sections.

24. Counsel for the defendant, however, submitted that the effect of s.38 of the Interpretation Act 1967 is to preserve the effect of s.56 upon the relevant information. That section reads as follows:

"Effect of repeal
38. Where an Act repeals an Act or part of an Act, then, unless the
contrary intention appears, the repeal does not -
(a) revive anything not in force or existing at the time at which the
repeal takes effect;
(b) affect the previous operation of the Act or the part of the Act
so repealed, or anything duly done or suffered under the Act or the
part of the Act so repealed;
(c) affect a right, privilege, obligation or liability acquired,
accrued or incurred under the Act or the part of the Act so repealed,
or an investigation, legal proceeding or remedy in respect of that
right, privilege, obligation or liability; or
(d) affect a penalty, forfeiture or punishment incurred in respect of
an offence committed against the Act or the part of the Act so
repealed, or an investigation, legal proceeding or remedy in respect
of that penalty, forfeiture or punishment,
and the investigation, legal proceeding, or remedy may be instituted,
continued or enforced, and a penalty, forfeiture or punishment may be
imposed, as if the repealing Act had not been made.

25. The particular part of that section on which counsel relied was subs.(c).

26. If, for example, the plaintiff had, between 31 January 1991 and 1 March 1993, published information that had come into his possession by virtue of his office, and a prosecution were initiated to punish him for the offence, the proceedings would come within s.38, and could be instituted and continued as if s.56 had not been repealed.

27. But that does not mean that s.38 of the Interpretation Act 1967 has the effect that s.56 of the Health Services Act 1990 continues to operate in respect of all information that came into the possession of a person to whom it applied while s.56 had effect.

28. S.38 must be read according to its terms. In my opinion the information the subject of the relevant paragraphs of the Statement of Claim was not "a right, privilege, obligation or liability acquired, accrued or incurred" under the repealed Act, and there was no "investigation, legal proceeding or remedy in respect of" any "right, privilege, obligation or liability" to be preserved as if there had been no repeal.

29. Counsel for the defendants submitted that s.56 imposed an "obligation", namely one of confidentiality or secrecy, which was not affected by the repeal. I do not agree with that submission. The section in terms contains a prohibition, the sanction for the breach of which is a penalty of $5,000 or imprisonment for 6 months, or both.

30. To describe such a section as imposing an obligation is to use the language of analogy. It would be possible, I assume, to create an obligation to keep certain information secret or confidential, either by contract or by statute, and to impose sanctions upon a breach of that obligation. That process might achieve the same objectives as a prohibition with criminal sanction. That does not mean that a prohibition is the same thing as an obligation.

31. It would also be anomolous if information acquired on 2 March 1993 concerning a patient could be disclosed without penalty, whereas to disclose exactly the same sort of information, but which had been acquired on 28 February 1993, would attract criminal sanctions. I think that by restricting the secrecy provisions to the affairs of approved committees, and by removing the criminal sanctions even from those provisions (i.e. ss.11 and 12 of the Health Act 1993), I think that a contrary intention appears from the provisions of the Health Act 1993 to the reading of s.38(c) of the Interpretation Act 1967 in the manner contended for by counsel.

32. Despite counsel's submissions, my view of this interpretation is strengthened, rather than weakened, by the provisions of subs.56(4) of the Health Services Act 1990. If a person to whom the section applies communicates information to another person, and that communication is lawful because it comes within subs.56(3), then that other person was "subjected to the same rights, privileges, obligations and liabilities" as if that other person were a person to whom the section applied. If that other person then divulged the information otherwise than in accordance with subs.56(3), that other person could have been punished for doing so. That other person would be liable to the penalty provided for in subs.56(2), not because he or she was subject to the same "rights", or the same "privileges", or the same "obligations", but because he or she was subject to the same "liabilities". He or she would also not be required to divulge any of that information to a Court (subs.56(2)(c)). That would properly be described as a "privilege". But "obligations" and "liabilities" are obviously distinct concepts.

33. The only secrecy provisions in force since 1 March 1993 are those of the Health Act 1993. They do not apply. There is no prohibition currently in force to prevent discussion of the subject-matter of the paragraphs complained of.

34. The application is dismissed.