IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
General List		

Case No. CI-19-04848

MARIE MARIMOOTOO THUG	Plaintiff	
		
v		
		
TLC AGED CARE FACILITY PTY LTD	First Defendant	
		
and		
		
BRIDGEAST PTY LTD	Second Defendant	

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JUDGE:	HER HONOUR JUDGE K L BOURKE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 July 2020	
DATE OF RULING:	21 July 2020	
CASE MAY BE CITED AS:	Thug v TLC Aged Care Facility Pty Ltd & Anor (Ruling)	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1061		

RULING
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Subject:	PRACTICE AND PROCEDURE
Catchwords:	Discovery – medical privilege
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1958 (Vic), s28(3); Civil Procedure Act 2010, s20, s22
Cases Cited:	Victorian WorkCover Authority v Melbourne Health [2011] VCC 1170; Smith v Colac Area Health [2013] VCC 1892; Hare v Riley and Australian Mutual Provident Society [1974] VR 577; Fitzgerald v Munro [1998] VSC 30; PQ v Australian Red Cross Society and Others [1992] 1 VR 19
Ruling:	Second defendant to provide further discovery.

APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms C Kusiak	Adviceline Injury Lawyers	
			
For the First Defendant	Mr J Luca, solicitor	BN Law Limited	
			
For the Second Defendant	Ms R Kaye	Russell Kennedy	

HER HONOUR:

1	By Summons dated 8 July 2020, the plaintiff seeks discovery by the second defendant of:
“[R]ecords, continuation notes, observation notes and/or nursing notes which relate to the Second Defendant’s knowledge, belief or suspicion that the resident involved in the incident on 13 January 2017, was known to be, or could be, physically aggressive or violent or likely to behave in an unpredictable manner.”
2	The plaintiff was employed by the first and/or second defendant as a personal care attendant at TLC Homewood Residential Care in Hallam.
3	On or about 13 January 2017 (“the said date”), the plaintiff was assisting a resident at the nursing home (“the resident”) when he became aggressive and grabbed and twisted the plaintiff’s right wrist.  It is alleged as a result of this incident, the plaintiff sustained injury.
4	It is further alleged that the plaintiff was injured by the negligence of the first and/or second defendant, its servants or agents.  
5	The Particulars of Negligence included, inter alia:
“(d)	Failing to adequately respond to previous complaints of aggression perpetrated by the resident
(e)	Failing to adequately respond to the Plaintiff’s request for assistance with the resident prior to the incident
(f)	Failing to provide an additional staff member to assist with the resident.
(g)	Failing to take adequate precautions to ensure the Plaintiff’s safety when working with the resident in circumstances where he was known to be aggressive and/or difficult.”
6	There appears to be no dispute that the documents sought by the plaintiff are prima facie relevant to the issues in dispute.  As counsel for the plaintiff submitted, the second defendant’s knowledge of the resident’s behaviour, prior to the incident alleged, is a central fact in issue, and the adequacy of care plans in relation to the resident is also highly relevant.  The resident is now deceased. 
7	The second defendant, however, objects to discovering the documents sought pursuant to s28(3) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the Act”).  To date, it has not discovered any progress notes in relation to the resident (“the notes”) nor has it discovered the Adverse Events Register (“the Register”).
8	Section 28(3) of the Act provides: 
“Where a patient has died, no physician or surgeon shall without the consent of the legal personal representative or spouse of the deceased patient or a child of the deceased patient divulge in any civil suit action or proceeding any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable the physician or surgeon to prescribe or act for the patient.”
9	An affidavit in support was sworn by Killian Donohoe, solicitor for the second defendant, on 14 July 2020.  Mr Donohoe had in his possession the notes and the Register. 
10	Mr Donohoe considered the notes were privileged pursuant s28(3).  There were 200 pages of notes.  He was instructed by the second defendant that all doctors have access to residents’ progress notes and they are routinely consulted for the purposes of enabling the doctor to treat the residents. Doctors can and do make entries on the notes.
11	Further, Mr Donohoe deposed that he had received instructions that while the registers themselves were not routinely provided to doctors, often an entry prompted referral of a resident to a doctor and the information contained therein was often provided to the doctor for the purposes of treating the resident.
12	Consistent with the approach taken in Victorian WorkCover Authority v Melbourne Health and Smith v Colac Area Health, it was agreed it was appropriate for the Court to inspect all documents to determine the application.
13	Section 28 of the Act is headed “Confession to doctors”.
14	As Beach J stated in Fitzgerald v Munro, the underlying purpose of s28(2) is to preserve confidentiality to a person who has been treated by a medical practitioner.
15	However, the second defendant in this application seeks to make use of this privilege to deny the plaintiff access to certain documents relating to the resident.    
16	Section 28(3) requires the consent of the legal personal representative or spouse of a deceased patient before any physician or surgeon divulges in any civil proceeding any information which that practitioner has acquired in attending the patient and was necessary to enable them to prescribe or act for the patient.
17	Counsel for the second defendant advised consent had not been obtained. Some attempts had been made via the second defendant to contact the deceased resident’s family, but it was thought such enquiries were invasive, and they had not proceeded further.
18	Counsel for the plaintiff submitted enquiries should be made of the representative of the resident pursuant to s20 and s22 of the Civil Procedure Act 2010 before determining this application.
19	Therefore, if consent is mandatory before the information sought is divulged, the second defendant’s application is premature.
20	Leaving that issue to one side, the issue for determination is whether the information in the documents is privileged pursuant to s28(3)?
The Register 
21	There are seven Register entries relating to the resident.
22	Two entries related to falls in 2017, after the incident, and are not within the ambit of the request.  There were four entries in 2016 which not are within the category of documents sought. 
23	The Register entry of the incident date falls within the scope of the request.  It sets out the event details.  At the end of the entry it is simply noted “Seen by doctor”.  The contents of that entry do not reveal any information that the resident has provided to a medical practitioner.
24	Although it is noted “seen by doctor”, there is no evidence on the face of the note to bring it within the section.  It is not information acquired by a doctor in attending the resident which was necessary to enable him to prescribe or act for the resident. 
25	While Mr Donohoe has been instructed that information in the Register may have been communicated verbally to a doctor to enable treatment, this is pure speculation in this instance.  Mr Donohoe concedes, in paragraph 4 of his affidavit, that such registers are not routinely provided to doctors.
26	Accordingly, this Register entry is not privileged.
Progress Notes 
27	Pages 83-200 of the notes post date the incident and are therefore outside the ambit of the request.
28	Privilege under s28(3) was claimed by the second defendant on the basis that all doctors have access to residents’ progress notes, and they are routinely consulted for the purposes of enabling the doctor to treat the residents (see affidavit at paragraph 10).
29	Having perused the notes, of the 83 notes pre dating the incident, most were created and written by nursing staff at an aged care facility and mainly cover the resident’s eating habits, hygiene and sleep issues.  As counsel for the plaintiff submitted, it is probable that observations of the resident’s behaviour were often made in a non-medical context. These observations should therefore not come within the ambit of the section.
30	Notes made by doctors attending to or prescribing for the resident were not sought by the plaintiff; however, it was submitted it is insufficient for the second defendant to claim privilege over progress notes where there is merely a likelihood of doctors having acquired the information therein.  
31	Further, it was submitted there was no evidence that doctors at the premises would have referred to all of a resident’s progress notes prior to administering treatment.  
32	It is apparent on the face of the notes on sixteen occasions that the resident has been treated by a medical practitioner and at times, medication prescribed.  These entries therefore come within the ambit of s28(3) and are therefore privileged. 
33	Ultimately, it is a matter for the trial judge whether the plaintiff should have access to any further relevant documents in the possession of the defendants which are not the subject of privilege.
34	Subject to any application by the parties, costs of this application will be costs in the cause.  
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