IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2013-443-261 [2013] NZHC 1441

BETWEEN	TARANAKI DISTRICT HEALTH BOARD
Plaintiff

AND	TE ATIAWA HEALTH CENTRE Defendant

Hearing:	14 June 2013 (by telephone) Counsel:	L P Wallace for Plaintiff Judgment:	14 June 2013

(ORAL) JUDGMENT OF HEATH J

TARANAKI DISTRICT HEALTH BOARD v TE ATIAWA HEALTH CENTRE [2013] NZHC 1441 [14 June
2013]

[1]       Earlier today, Taranaki District Health Board (the Board) sought an injunction which would have the effect of permitting its representatives to enter premises occupied by Te Atiawa Health Centre at 22 Gill Street, New Plymouth “to search for, inspect, copy and/or remove all ... medical records relating and pertaining to the Centre’s  enrolled  patients  ...  for the purpose of transferring all  information  and records held to a replacement provider”.

[2]       The application is made without notice.  The usual rules apply.  Counsel for the Board must satisfy me that an order of that type is required urgently and that the evidence  meets  the  criteria  for  the  granting  of  interlocutory  relief,  in  terms  of Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd.

[3]       I  outline  the  background  briefly.     Necessarily,  my  summary  will  be incomplete.

[4]       The Board is one of a number of District Health Boards that have contracted to an organisation known as National Hauora Coalition (the Coalition) for the provision of primary health care.  In turn, the Coalition subcontracted the provision of such services to Te Atiawa Health Centre (the Centre).  The Centre is operated by Te Atiawa Rununga Medical Trust (the Trust).

[5]       The subcontract expressly confers right on the Board to enforce provisions of the contract between the Coalition and the Centre, as contemplated by the Contracts (Privity) Act 1982.  Specific provisions for early termination of the subcontract are included in its terms.

[6]       Since around 15 April 2013, the Centre has not been able to secure the services of a general medical practitioner at their premises.   This has caused understandable concern to the Board.  In particular, I am told by the Clinical Director of the Coalition (Dr Jansen) that there are approximately 1500 enrolled patients, 300 of whom suffer from serious medical complaints which would make provision of an
accurate medical history important if they were to require further treatment.

[7]       On 4 June 2013, the Board wrote to the Coalition requiring it to terminate the subcontract.  That was done under cl D17.1(d) of the primary contract between the Board and the Coalition.   Following some correspondence and discussions, on 10
June 2013 the Coalition wrote to the Chief Executive Officer of the Trust (Mr Knuckey) terminating the agreement.  Specifically, the Coalition made it clear that termination  would  result  in  the  Board  intervening  to  manage  issues  relating  to patient safety.

[8]       The Board’s solicitors wrote to the Chief Executive Officer on 11 June 2013

seeking access to medical records.  They asked Mr Knuckey to confirm no later than

4pm that day that he agreed to access being given.   Subsequently, Mr Knuckey indicated that the Trust was taking legal advice, effectively denying the request for access.

[9]       Later that  day solicitors  who ordinarily acted for the Trust  wrote to  the Board’s solicitors indicating that Mr Knuckey had attended on them but was taking advice from solicitors in Wellington having been told that the New Plymouth firm had a conflict of interest.   It is understandable that Mr Knuckey wished to obtain legal advice.

[10]     Notwithstanding that the New Plymouth firm indicated a conflict of interest and that they were not acting for Mr Knuckey or the Centre, the solicitors for the Board wrote yesterday to that firm indicating that if the Centre did not allow the transfer of records by 4pm that day injunction proceedings would be issued.   No further correspondence appears to have ensued.

[11]     The application, when filed, was put before Kós J.  The Judge indicated that he was prepared to hear it at 11am on Monday 17 June 2013.  He was concerned about the absence of any particulars of the person or persons against whom the order was sought and was not convinced that the application needed to proceed without an opportunity, even on a Pickwick basis, for defendants to be heard.

[12]     Counsel for the Board pressed the application.  As Kós J was involved in a criminal trial in New Plymouth it was referred to me as Liaison Judge.

[13]     Subsequently, a telephone conference was held before me.  Ms Wallace, for the Board, provided a further memorandum in support.   That memorandum has identified the trustees of the Trust who have responsibility for the operation of the Centre.

[14]     Ms Wallace informed me of a recent development to which reference is not made in the papers.   Mr Knuckey telephoned her firm about 30 minutes ago indicating that he would attend the Centre’s premises tomorrow morning with a security officer, uplift hard copies of the records and deliver them to the Board.  If that were to transpire the only remaining concern would be with the need to access electronic records, as there is an apprehension that the hard copy information is not up to date.  There have also been some discussions about the transfer of electronic records to the Board.

[15]     In those circumstances, an order of the type sought is not justified.  I am sure that Mr Knuckey appreciates the overriding need to protect the health and welfare of the patients.  It appears steps are now being taken to do that.

[16]     If electronic records were made available, I would expect that the Board would withdraw the application, provided it was satisfied that sufficient records were available to safeguard interests of the patients whom they are seeking to protect.

[17]     The application is adjourned for call before Kós J at 11am on Monday 17

June 2013.  In the meantime copies of all documentation filed in this proceeding and a copy of this judgment shall be served on Mr Knuckey.  That may be done by email in the first instance, to grant.knuckey@teatiawahealthcentre.co.nz an email address from which he has previously communicated to the Coalition.

[18]     It will be for Kós J to hear from the parties on Monday morning and to make any order that he may consider is required.

[19]     I add that it is always open for the Board to seek an urgent hearing before the

Duty Judge in Auckland should the promise provided by Mr Knuckey of delivery of

hard copy records tomorrow not eventuate.  I leave it open for an application of that type to be made should that occur.  I do not expect it will be necessary.

[20]	Costs reserved.

Solicitors:
Govett Quilliam, New Plymouth

P R Heath J