Breen v. Williams
186 CLR 71138 ALR 259
(Judgment by: Brennan CJ)
Between: Breen
And: Williams
Judges:
Brennan CJDawson J
Toohey J
Gaudron J
McHugh J
Gummow J
Subject References:
MEDICINE
Doctor/patient relationship
Medical records
Patient's right to access
Contractual right
Doctor's duty to act in patient's 'best interests' with utmost good faith and loyalty
Patient's proprietary right or interest in information contained in records
Whether doctor under fiduciary duty to grant access
'Right to know'
Judgment date: 6 September 1996
Judgment by:
Brennan CJ
The circumstances which give rise to the issues in this appeal are set out in other judgments. The appellant, who has been a patient of the respondent medical practitioner, claims a legal right to reasonable access to the records kept by the respondent with respect to the appellant and a right to inspect and/or copy those records. Subject to certain admitted exceptions, the appellant submits that that right is enforceable by declaration and injunction. The right is submitted to be based variously on contract, property and fiduciary duty. In my view, none of these bases gives any support to the appellant's claim. I state my reasons.;
Contract
In the present case, there was no formal contract between the appellant and the respondent. No more appears than that the appellant consulted the respondent as a medical practitioner and he provided medical services accordingly.
In the absence of special contract between a doctor and a patient, the doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care. The consideration for the undertaking may be either a payment, or promise of payment, of reward or submission by the patient, or an undertaking by the patient to submit, to the treatment proposed. A duty, similar to the duty binding on the doctor by contract, is imposed on the doctor by the law of torts. The advice and treatment required to fulfil either duty depends on the history and condition of the patient, the facilities available and all the other circumstances of the case.
The provision of advice and treatment with reasonable skill and care may not exhaust the duty of the doctor. Unless the contract between doctor and patient is especially restricted, the doctor's obligation is to maintain or improve the health of the patient generally and to use reasonable skill and care in doing so, even though the advice or treatment required on a particular occasion is in a specialist field or is to be provided only on that occasion or for a limited time. The patient may be thought of as made of many parts some one of which may need treatment at a given time, but the patient is nonetheless an entirety whose life spans, or hopefully spans, the ills or disease of each moment. Once it is perceived that the duty of the doctor is owed to the patient as an entirety, it is not appropriate to assume that the duty is discharged merely by the giving of advice or treatment on the particular occasion.
In some situations, there may be a duty to provide to the patient or to the patient's nominee information which the doctor has acquired in the course or for the purpose of advising or treating the patient. That is information received or otherwise acquired by the doctor pursuant to an authority given - expressly or impliedly - by the patient for the purpose of enabling the doctor to perform the doctor's contractual duty to maintain or improve the health of the patient generally. Absent the patient's permission, the doctor must not use that information for any other purpose. When the future medical treatment or physical or mental wellbeing of a patient might be prejudiced by an absence of information about the history or condition or treatment of the patient on an earlier occasion, the doctor who has acquired that information for the benefit of the patient's health must make it available to avoid or diminish that prejudice. Such an obligation is implied by the doctor's acceptance of the patient's authority under the contract to obtain that information. The authority is given in order to benefit the patient's health generally; the authority must be accepted and acted upon for the same purpose. As the obligation is implied, it can be excluded by express provision.
The obligation is not unqualified. As it arises from and is conditioned by the doctor's duty to benefit the patient's health generally, the obligation falls to be discharged only when the patient's health would or might be prejudiced by refusing to make the information available. And, as the service of making the information available is not ordinarily covered by the fee paid for advice or treatment, the doctor is entitled to a reasonable reward for the service. [F1]
For these reasons, I would hold that information with respect to a patient's history, condition or treatment obtained by a doctor in the course or for the purpose of giving advice or treatment to the patient must be disclosed by the doctor to the patient or the patient's nominee on request when (1) refusal to make the disclosure requested might prejudice the general health of the patient, (2) the request for disclosure is reasonable having regard to all the circumstances and (3) reasonable reward for the service of disclosure is tendered or assured. A similar duty may be imposed on the doctor by the law of torts but, in particular situations, for example, some emergency treatments, the relationship between doctor and patient may not give rise to a duty that extends so far. It is not necessary now to consider that problem.
An undertaking to provide information is one thing; a duty to give the patient access to and to permit the patient to copy the doctor's records is another. The doctor's duty to provide information not only can be discharged, but in some circumstances ought to be discharged, without allowing the patient to see the doctor's records. Where that duty can be performed without giving the patient access to the doctor's records, there is no foundation for implying any obligation to give that access. There is no evidence in this case to suggest that access to the respondent's records might have been necessary to avoid or diminish the possibility of prejudice to the appellant's health.
The appellant argued for an implied term in the contract between the appellant and respondent that the respondent would act in the appellant's "best interests", even to the extent of testifying for her in litigation. The propounded "best interests" obligation was said to encompass an obligation to give a patient access to the doctor's records. The term implied in the ordinary contract does not go so far. It is limited by the subject matter to which the contract relates, namely, benefiting the health of the patient.
Leaving aside cases where a term is implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties, [F2] a term is not implied in a contract if the contract is effective without it. [F3] In the present case, it is not suggested that access to the respondent's records is needed for any therapeutic reason. Nor could such a suggestion be made. The respondent made an open offer to provide a report in writing relating to the history, physical examination findings, investigation results, diagnosis, proposed management plan, treatment or advice furnished to the appellant. That offer, if accepted and if fulfilled, would have discharged any obligation that might have arisen by implication from the contract between the parties. The offer was not accepted, the appellant contending not for a right to be informed but for a right of access to the doctor's records. As the contract between the appellant and respondent was wholly effective without any term entitling the appellant to access to the respondent's records and requiring the respondent to give that access, there is no foundation for implying such a term. Accordingly, the first basis of the appellant's claim fails.
Property
The appellant concedes that the property in the records as chattels is in the respondent. The concession is rightly made. Documents prepared by a professional person to assist the professional to perform his or her professional duties are not the property of the lay client; they remain the property of the professional. [F4] In the light of that principle, it is not easy to see what relevance the law of property has to the supposed right of the appellant to access to the respondent's records. If (as it was put during argument) the respondent is said to have no proprietary right that would entitle him to refuse access, the question whether the appellant has a right to be given access still remains. On that approach, the supposed right (if any) must find some basis other than property. But even on that approach, the argument is flawed. Absent some right to require, or the exercise of some power to compel, production of a document for inspection, its owner is entitled by virtue of the rights of ownership to refuse to produce it. As for copying, where the professional person is the owner of the copyright, he or she has the sole right to copy or to permit the copying of the document. [F5]
If the approach is that a right to access and to copy arises because the information contained in the records is proprietary in nature, the approach mistakes the sense in which information is described as property. The sense in which information is so described is stated by Lord Upjohn in Phipps v Boardman [F6] in these terms:
"In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, "know-how," confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship."
As information is not property except in the sense stated by Lord Upjohn, the remedies which equity grants to protect against the disclosure of certain kinds of information do not have their source in notions of property. Deane J pointed this out in Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2]: [F7]
"Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained."
Equity might restrain the respondent from disclosing without authority any information about the appellant and her medical condition that is contained in the respondent's records and, in that sense, it might be arguable that that information is the property of the appellant. Even if such a description were correct - and it is not necessary to consider that question - the description would provide no foundation for the existence of a right to access and to copy enforceable in equity. The mere possession by the respondent of his records relating to the appellant breaches no obligation of conscience and thus it attracts no equitable remedy that might clothe the information with some relevant proprietary character. There is no obligation in conscience requiring the respondent to open his records to inspection and copying by the appellant. Whichever approach is taken to the relevance of the law of property, it fails to provide any basis for the appellant's claim.
Fiduciary duty
Fiduciary duties arise from either of two sources, which may be distinguished one from the other but which frequently overlap. [F8] One source is agency; [F9] the other is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other. [F10] Whichever be the source of the duty, it is necessary to identify "the subject matter over which the fiduciary obligations extend". [F11] It is erroneous to regard the duty owed by a fiduciary to his beneficiary as attaching to every aspect of the fiduciary's conduct, however irrelevant that conduct may be to the agency or relationship that is the source of fiduciary duty. As Fletcher Moulton LJ pointed out in In re Coomber; Coomber v Coomber, [F12] fiduciary relations are of many different types [F13] and where there is a fiduciary relation the court may interfere and set aside acts which, between persons in a wholly independent position, would have been perfectly valid. His Lordship then added:
"Thereupon in some minds there arises the idea that if there is any fiduciary relation whatever any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. There is no class of case in which one ought more carefully to bear in mind the facts of the case, when one reads the judgment of the Court on those facts, than cases which relate to fiduciary and confidential relations and the action of the Court with regard to them."
As Mason J said in Hospital Products Ltd v United States Surgical Corporation: [F14]
"it is now acknowledged generally that the scope of the fiduciary duty must be moulded according to the nature of the relationship and the facts of the case."
In the same case, Gibbs CJ said: [F15]
"Fiduciary relations are of different types, carrying different obligations... and a test which might seem appropriate to determine whether a fiduciary relationship existed for one purpose might be quite inappropriate for another purpose."
What is the nature of the doctor-patient relationship? Generally there is no relationship of agency. But the relationship of doctor and patient is one where the doctor acquires an ascendancy over the patient and the patient is in a position of reposing trust in the doctor. Such a relationship casts upon the doctor the onus of proving that any gift received from the patient was given free from the influence which the relationship produces. [F16] But in this case the doctor has received no gift; he has taken no step to procure an advantage for himself. Nor has he taken any advantage of his ascendancy over his patient or of her trust in him. His refusal to give access to his records does not deny his patient a benefit to which the patient was entitled either by reason of his position as the appellant's medical adviser and provider of medical treatment or by reason of the trust she reposed in him to provide medical treatment. In Canada, the Supreme Court has held that the relationship between doctor and patient casts on the doctor a fiduciary duty to provide the patient with access to his or her medical records: McInerney v MacDonald. [F17] But in this respect the notion of fiduciary duty in Canada does not accord with the notion in the United Kingdom. [F18] Nor, in my opinion, does the Canadian notion accord with the law of fiduciary duty as understood in this country. There is simply no fiduciary relationship which gives rise to a duty to give access to or to permit the copying of the respondent's records. There is no relevant subject matter over which the respondent's fiduciary duty extended.
Accordingly, the third basis advanced to support the appellant's claim fails. I would add my agreement with what Dawson and Toohey JJ have written as to a patient's "right to know". As their Honours point out, the appellant did not rely in this Court on any such right as a basis of her claim to a right of access to, and to copy, the respondent's records.
The appeal should be dismissed.