Monash Health Legal News – February 2021

Welcome to the first issue of Legal News, a new quarterly newsletter to help you understand your legal obligations at Monash Health and provide advice about common scenarios.

Navigating your obligations under the law in a health environment can be daunting. That’s why the Legal team is here to guide, support and assist. We hope you’ll recognise situations requiring consultation with the team and seek assistance right away – if in doubt please remember that it’s always better to ask.

In this newsletter, we will introduce you to some scenarios you may not have experienced before. The articles address common themes we see in the Legal team, from court appearances to subpoenas to privacy.

If you have thoughts or ideas about what you’d like to see in the newsletter; such as legal questions or scenarios you’d like us to explore, please email medico.legal@monashhealth.org

Peter Ryan
Director Legal Services / Chief Legal Officer

Dealing with subpoenas to produce documents

From time-to-time, Monash Health employees are required to attend court to give evidence and to produce documents in the course of their duties. Generally speaking, this happens because they have been served with a subpoena, which is a court order which must be complied with. Many of these subpoenas also require the production of patient medical records.

Patient medical records belong to Monash Health, so any subpoena to produce records must be addressed to Monash Health and not to individual employees.

Once received, subpoenas to produce medical records should be immediately directed to health.info@monashhealth.org. Where patient records are ordered to be produced to a court, the corporate legal team will carefully review the material and may speak to treating practitioners to understand what the court proceeding relates to. This process is critical, as Monash Health will object to producing documents to a court if the subpoena has been issued by a litigant’s lawyers for an improper purpose, such as “fishing” for information to use against another party to the case.

In one recent case, Monash Health successfully objected to producing a child’s counselling records to the Family Court, pursuant to a subpoena issued by the lawyers for the child’s father. The lawyers for the child’s father argued that the records could establish whether alleged family violence had taken place, and also assist to assess the parenting capacity of the child’s mother. The Family Court rejected this argument and upheld Monash Health’s submission, finding that the Family Court should be slow to require the release of these types of records in circumstances where the release had the potential to undermine the therapeutic benefit of the relationship between client and counsellor. This is a helpful recognition of the therapeutic relationship in the Family Law context. The same considerations apply when protecting the interests of clients of the South Eastern Centre Against Sexual Assault (SECASA).

On occasions the law actually operates to prevent Monash Health from complying with a subpoena. Section 32C of the Evidence (Miscellaneous Provisions) Act is a piece of Victorian legislation that operates to prohibit Monash Health from producing records under a subpoena if the records relate to a “confidential communication”. A confidential communication means any communication, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client. In these cases, an application has to be made to the court for permission to issue the subpoena. In some cases (for example where the documents are sought by an accused person in criminal proceedings) Monash Health will object to production of these records on the basis that there is no proper purpose to be served by allowing access to such sensitive communications. Most of these objections succeed.

There are very strong public policy reasons to prevent access to confidential communications and to prevent accused persons from using the records to challenge the credit of the patient or client.

Where a subpoena to produce medical records is received, the corporate legal team will attempt to liaise with treating clinicians to ascertain if production of the records should be resisted by Monash Health. Depending on the circumstances, the views of the patient or client may also be sought.

It is critical to carefully review every document proposed to be produced under a subpoena, because unexpected confidential communications can frequently be found in medical records relating to other, unrelated treatment.

The key message here is you must contact the corporate legal team if you receive a request to attend court or produce evidence.

Tips for attending Court to give evidence

Having to give evidence to a court can feel like quite an intimidating experience. If you receive a subpoena to attend court or a tribunal to give evidence in the course of your duties, the Monash Health corporate legal team can assist you with preparing and planning the process and ensuring that things go smoothly.

It is important to understand the type of court proceeding that you are involved in. Our employees give evidence in a wide range of matters, extending from very serious criminal proceedings, through to intervention and child protection applications, workers compensation and Fair Work Commission claims, and occasionally damages claims and Coronial Inquests.

Whilst all subpoenas will nominate a day for your attendance, cases frequently settle or are adjourned. Or a case might start but you will not be required on the nominated date. You are entitled to reasonable notice to attend court, and for you to be on standby to attend, rather than spending hours waiting at a court venue.

It is also important to be prepared early, to know why your evidence is important to the court, who the parties are to the proceeding, and what is likely to happen on the day. Court etiquette is important, in terms of knowing how to address the court, how best to answer questions and how to deal with (for example) questions that you don’t understand or know the full answer to.

In some cases, it will be necessary to object to giving evidence, such as where the evidence might relate to a confidential communication, or where there is a question of legal privilege. The corporate legal team will assist by managing these issues and if necessary communicating with the court and other parties in the case to resolve the issues. Please direct any queries to medicolegal@monashhealth.org

Remember, the corporate legal team will support and guide you should you be required to give evidence in relation to any matter relating to your employment at Monash Health.

Consequences of breaching patient privacy: S&S v Northside Clinic

A recent decision by the Australian Information Commissioner and Privacy Commissioner highlights the importance of being very careful when sending emails which contain any patient information to ensure that the addressee is correct.

S&S v Northside Clinic involved two HIV positive patients, who claimed damages against their private treating clinic for breach of their privacy. The clinic had sent them two emails on one day. On each occasion one letter in the email address was mistakenly mistyped, so the emails both went to the wrong recipient. The emails contained information regarding the patients, including their names, the fact that they were in a relationship, and their HIV status. Enquiries revealed that the email address to which the confidential information was mistakenly sent was valid. The Commissioner was therefore prepared to conclude that the emails had been read. In June 2020, compensation totalling $13,000 was awarded to the two patients.

This case highlights how easy it is to mistakenly breach patient privacy. In Victoria, the right not to have privacy unlawfully or arbitrarily interfered with is recognised as a human right in the Charter of Human Rights and Responsibilities Act 2006. Where patient privacy is breached, public health services may be ordered by VCAT to pay up to $100,000 in compensation for distress and humiliation, and can be ordered to undertake other remedial and redress actions.

A breach of privacy is a serious matter. You must ensure you are clear on how to ensure you always maintain patient and consumer privacy. Please seek assistance and if you have any questions or concerns, contact medicolegal@monashhealth.org

Legal obligations owed under the Coroners Act 2008

Monash Health employees are frequently requested to prepare statements by the State Coroner in investigations, and occasionally in inquest hearings.

Section 33 of the Coroners Act 2008 provides that a registered medical practitioner who was responsible for a person’s care immediately before their death, or who was present at or after the person’s death, must give the coroner any information or assistance that the coroner requests for the purposes of the investigation. This obligation is owed personally and directly by medical practitioners, and is not owed by Monash Health itself. Failure to discharge this obligation is an offence punishable by heavy fines, and lead to practitioners being required to attend court personally to explain non-compliance with a coroner’s request.

Where you are requested to provide a statement, it is essential that you ensure that is written in your own words, that it is detailed, accurate, and that it is prepared by you in the understanding that you might be required to give evidence and answer questions based on the statement. If you write a poorly worded or incomplete statement it is likely that you will receive a more detailed request from the court, and it becomes more likely that you will be required to give evidence in the case. It is also essential that you ensure that the statement is completed and lodged with the coroner on time.

The Monash Health corporate legal team acts as a triage point between the Coroners Court and Monash Health, performs an oversight function where Monash Health is an interested party in a coronial proceeding, and reviews each statement to obtain assurance that it is of the appropriate standard and quality to be provided by Monash Health employees. The corporate legal team does not perform a secretariat, diary or editorial function, and it is essential you prepare your statement with this in mind when requested the coroner. Where extra time is required to complete the statement, the corporate legal team can request this on your behalf.

The key message is that careful attention is required to ensure that statements prepared at the request of the State Coroner are accurate, complete and are provided to the court on time. Please direct any queries to medicolegal@monashhealth.org



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