Breen v. Williams

186 CLR 71
138 ALR 259

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(Judgment by: Dawson J, Toohey J)

Between: Breen
And: Williams

Court:

Judges: Brennan CJ

Dawson J
Toohey JGaudron 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

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Judgment by:
Dawson J
Toohey J

In 1977 the appellant had a bilateral augmentation mammoplasty which involved the insertion of a silicone implant in each of her breasts. Thereafter she developed bilateral breast capsules. In 1978 she consulted the respondent, who is a plastic surgeon, but not the plastic surgeon who performed the implant. The respondent advised the appellant that the capsules should be compressed and he performed that operation. The appellant experienced severe pain and, after two further consultations with her, the respondent operated and performed a bilateral capsulotomy. The appellant has not consulted the respondent since that operation, although she corresponded with him in 1983 over matters unrelated to this appeal.

In 1984 another doctor, Dr McDougall, diagnosed a lump in the appellant's left breast as silicone gel which had leaked from the breast implant. As a result, he performed a partial mastectomy upon the appellant. Since then she has had further corrective surgery on her left breast and has had the right silicone breast implant replaced. These operations were not performed by the respondent.

The appellant became interested in litigation in the United States by way of a class action against the manufacturer of the breast implants claiming that they were defective. In that litigation she was given the opportunity to "opt in" to a settlement which had been given conditional approval by a United States court. It appears that it was a condition of opting in that the appellant do so before 1 December 1994 and that she file with the United States court copies of medical records in support of any claim which she wished to make. The appellant sought to have access to the medical records kept by the respondent in her case and maintains that she did so both to secure advice whether she should opt in to the United States settlement and to comply with the condition imposed should she decide to do so. She also maintains that she has a right of access to the medical records to ensure that she has all information relating to her health at her disposal which will, in turn, ensure that she is able to make decisions regarding her future treatment.

The appellant could have secured access to the medical records by compulsory court process. It would appear that an order for discovery of the records was within the equitable jurisdiction of the Supreme Court of New South Wales. Another procedure was by way of letters rogatory. These were obtained from the United States court by several litigants in her position and orders were made by the Supreme Court of New South Wales compelling the production of medical records to the Court in aid of the United States proceedings. The appellant did not avail herself of this procedure because, she said, the time available was too short. Instead, she commenced this action in the Supreme Court of New South Wales claiming a declaration that she is entitled to access to the medical records kept by the respondent in relation to herself. It is convenient to refer to those as the appellant's medical records, although to some extent this begs the question to be decided in this appeal. The appellant also sought an order that the respondent allow her access to her medical records to examine them and obtain copies of the information contained in them.

Those records were not in evidence but the trial judge, Bryson J, found by inference that they comprised the following:

"(a)

The defendant has handwritten notes of his own.

(b)

There may be letters reporting to referral doctors although the evidence does not clearly show this.

(c)

There may be hospital advice slips but the evidence does not clearly show this.

(d)

There is correspondence with the patient, and the defendant does not resist inspection of these and annexed copies to his affidavit.

(e)

There is no evidence whether there are reports to the defendant from other doctors. Dr McDougall wrote him a letter (probably in 1991) about the plaintiff.

(f)

There probably are communications with the NSW Medical Defence Union.

(g)

There probably are photographs."

The trial judge specifically found that there was no document in the appellant's medical records confirming the nature of the implants such as the manufacturer's lot number, a sticker from an implant box or other document of that type. The records, so the trial judge found, did not contain any results of blood or other tests, pathology reports, x-rays or mammograms. These documents were referred to in the appellant's claim for relief. For practical purposes, the relief sought by the appellant related in the end to the respondent's handwritten notes and it was upon these that argument centred.

Of these the respondent said:

"The handwritten notes... are prepared and maintained by me, along with the other documents described above in the belief that such records belong to me and are private to me.... [S]ome of these records will contain information supplied to me in confidence by family and friends of the patient in circumstances where I have been told by such persons that they do no[t] wish the patient to be aware of their communications with me. Often the information I receive from such sources is what I would regard as sensitive and confidential, and I would not wish to divulge my knowledge of it or source unless I judged it necessary to do so in the interest of the patient. In some cases because of the state of mind or health of the patient these records will contain information the disclosure of which in my judgment might be detrimental to the patient's well being if disclosed at all or if disclosed without full explanation. Because these notes are prepared by me in the belief that they will remain private to me, they often contain conclusions, commentary and musing which might well be different in form and substance if the notes were prepared by me in the knowledge that the patient was entitled to a copy of my records. I would be concerned that these notes and some of the other records maintained by me might, at least in some cases, cause confusion and unnecessary worry and stress to patients if they were made available to them without adequate explanation. Finally, in part, these notes contain information which relates solely to the business and administration of my practice and not to aspects of the treatment and management of my patients."

On 4 August 1993 the appellant's solicitors wrote to the respondent requesting copies of the appellant's medical records, not a medical report. By a letter dated 10 August 1993 the respondent replied to the appellant herself, saying:

"As [your solicitors] well know, it is a longstanding legal tradition in this Country that such records are the doctor's property, an aide memoire to his treatment of the patient, and may only be released on production of a court subpoena.

Accordingly the advice which I have received from my Medical Defence legal advis[e]rs is that this situation still holds, but that they would be very happy for me to release your records, were you to supply me with a document which would release me from any claim that might arise in relation to my treatment of you."

Despite the reference in that letter to a claim against the respondent, the appellant has not sought, nor does she seek, to make any claim against the respondent based upon his default. Had she commenced proceedings upon that basis she would have been entitled to discovery of her medical records in the ordinary course. Nevertheless, the appellant was not prepared to give the undertaking sought by the respondent's insurers and sought access to her medical records as of right.

During the trial of the appellant's action, the respondent made an open offer to provide a report in writing to the appellant about the contents of her medical records, excluding his correspondence with the New South Wales Medical Defence Union and with the appellant's solicitors. The offer encompassed the history taken by the respondent, his physical examination findings, investigation results, diagnosis and proposed management plan, treatment or advice. The offer was not accepted but was not withdrawn. The trial judge found that the appellant did not wish to have a report such as that offered by the respondent and thus regarded himself as not called upon to consider whether the respondent's readiness to provide a report was reasonable or extended sufficiently far to satisfy any contractual duty which the respondent might have to provide a report.

Notwithstanding the purposes which the appellant asserted for wanting access to her medical records, her claim was that, in general, any patient is entitled to require from a treating doctor copies of all; records relating to that patient for whatever purpose the patient has in mind. The trial judge concluded that:

"It was the wish of the plaintiff and those representing her to treat the litigation as an opportunity to test whether a patient has a right of access to all information in medical records maintained by the patient's treating doctor, and to test the contrary proposition that it is within the power of the treating doctor to grant or withhold access to those records as the doctor decides."

However, the appellant conceded that the right which she asserted must be subject to qualification. She accepted that "a doctor may withhold information where disclosure would be adverse to the patient's interests" and referred to this as the "therapeutic privilege". ^[F19]

The trial judge refused the appellant the relief which she sought. She appealed to the New South Wales Court of Appeal which, by a majority (Mahoney and Meagher JJA; Kirby P dissenting), dismissed the appeal. ^[F20] It is from the order of the Court of Appeal that the appellant now appeals to this Court.

In at least one respect the appellant's case was presented in an unsatisfactory form. Although her claim related to specific medical records, she made no attempt to obtain access to those records in the course of the proceedings which she commenced or in any other proceedings. She did not seek discovery of them nor did she seek to subpoena them. The result was that the trial judge was asked to make a declaration (or an order) in respect of documents which he had not seen and the nature of which he could only determine by inference. Not only that, but it could not be said whether the documents fell within any exception to any right on the part of the appellant to have access to them, at least one exception, the so-called therapeutic privilege, having been acknowledged as part of the appellant's case. ^[F21] No doubt the power to grant declaratory relief is wide, ^[F22] but even in a test case a claimant must establish a cause of action upon the particular facts of the case. Thus it has been said that a person seeking declaratory relief must have a real interest and relief will not be granted if the question is purely hypothetical, if relief is claimed in relation to circumstances that have not occurred and might never occur; or if the court's declaration will produce no foreseeable consequences for the parties. ^[F23] It is relevant in that context to observe that there was no exploration in argument whether, had the appellant obtained access to the medical records in the course of litigation, that would have had any effect upon her entitlement to the relief which she claims.

That observation having been made, it is convenient to turn to the way in which the appellant put her case. She contended that a right of access to her medical records arose from three sources, namely, a patient's proprietary right or interest in the information contained in the records, an implied term of the contract between patient and doctor and a fiduciary relationship between patient and doctor. In addition, it is fair to say that the appellant's submissions were pervaded by a more general assertion of what was said to be a patient's "right to know". That right was not said to arise from any particular source, but was said to reflect the law's acceptance of personal inviolability and patient autonomy and its rejection of a paternalistic approach involving the application of standards determined exclusively by the medical profession. In this latter respect, the appellant relied upon the recent decision of this Court in Rogers v Whitaker. ^[F24] We now turn to deal with each of these contentions.

Proprietary right or interest

The appellant did not claim ownership of the actual documents comprising her medical records. It is understandable that she did not do so, because they do not include any documents obtained on her behalf and paid for by her, such as x-ray photographs or pathology reports, the ownership of which she may well be able to claim. As we have said, for all practical purposes they comprise the written notes of the respondent and with respect to these there can be no doubt that they are the property of the respondent. The duty of the respondent, both in contract and tort, was to exercise reasonable care and skill in giving treatment and advice ^[F25] and it was in carrying out this duty that the respondent compiled the records. In doing so the respondent did not act as agent for the appellant and the documents were his property alone. The general principle is that documents brought into existence by an agent while in the employ of a principal belong to the principal and not to the agent. ^[F26] Of course, sometimes in a relationship between a professional and a client, the professional may act as an agent in the course of providing services in which case documents brought into existence may be the property of the client.; For example, a contract or deed produced by a solicitor for a client and paid for by the client is the property of the client. On the other hand, as was observed in Chantrey Martin v Martin: ^[F27]

"Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remain his property, although brought into existence in connexion with work done for clients."

In this case, the appellant's medical records were clearly compiled by the respondent for his own information in treating and advising the appellant and not in any sense as agent for the appellant. The appellant was correct, in our view, in not seeking to contest the ownership by the respondent of the records.

On the other hand, the appellant encounters no less difficulty in seeking to maintain that she has, in the information recorded by the records, a proprietary right or interest which entitles her to access to them. No analogy can be drawn between her situation and that of a beneficiary under a trust. Of that relationship Lord Wrenbury said in O'Rourke v Darbishire: ^[F28]

"If the plaintiff is right in saying that he is a beneficiary, and if the documents are documents belonging to the executors as executors, he has a right to access to the documents which he desires to inspect upon what has been called in the judgments in this case a proprietary right. The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own. Action or no action, he is entitled to access to them."

Those remarks were accepted or referred to without demur in In re Londonderry's Settlement ^[F29] and have been accepted in this country. ^[F30] But the right of access of a beneficiary to trust documents arises because of the beneficial interest of the beneficiary in the trust property and it is in that sense that the right may be described as proprietary. The relationship between doctor and patient is not that of trustee and beneficiary, although for certain purposes, as will be seen, duties of a fiduciary nature may be imposed upon the doctor. Essentially the relationship between doctor and patient is a contractual one whereby the doctor undertakes to treat and advise; the patient and to use reasonable skill and care in so doing. That affords no basis for a proprietary interest in records kept by the doctor for the purpose of carrying out that function.

The appellant's contention is, however, that the information contained in the records can be separated from the records themselves and it is in the information that the appellant has a proprietary right or interest entitling her to access to the records. But there can be no proprietorship in information as information, because once imparted by one person to another, it belongs equally to them both. ^[F31] It is true, as Gummow J recognised in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health, ^[F32] that equity acts to protect confidential information and the degree of protection afforded makes it appropriate to describe it as having a proprietary character, but that is not because property is the basis upon which protection is given. It is because of the effect of that protection. In this case, whilst the information provided by the appellant to the respondent was no doubt confidential, there is no question of any abuse by the respondent of that confidence and there is no property in that information in any sense upon which the appellant might base the right which she asserts.

During argument, the question of the doctor's copyright in her medical records was raised with the appellant upon the basis that the right of access claimed by her extended to the making of copies of those records. The appellant made no submissions upon this question and it is unnecessary to reach any conclusion, but obviously it would raise problems if the appellant were otherwise to succeed in her contentions.

Implied term

The implication of a term in a contract is based upon the presumed or imputed intention of the parties. In the case of a formal contract which is complete on its face, it may be said in general that no implication arises (save where it is a legal incident of a particular class of contract) unless it is necessary or obvious - necessary in the sense of being required to give business efficacy to the contract or obvious in the sense that it goes without saying. ^[F33] Where, however, as in this case, there is no formal agreement, the actual terms of the contract; must be inferred before any question of implication can arise. The test which is then to be applied was formulated by Deane J in Hawkins v Clayton in these terms: ^[F34]

"The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties."

That is to say, no question of there being an obvious implication arises in such a case because that which is obvious will be a term of the contract as a matter of inference. Moreover, the line between inference and implication will not always be easy to draw.

However, it is common ground that the obligation of the respondent under the contract between him and the appellant was to use reasonable skill and care in treating and advising the appellant. It is unnecessary to pause to examine whether that standard of care was imposed upon the respondent by inference, by implication or as a legal incident of that kind of contract. Nor is it necessary to consider the effect of the overlap of the duty imposed in contract and in tort in this area. ^[F35] What can be said is that it was not necessary for the reasonable or effective performance of that obligation that the respondent should be obliged to give the appellant access to her medical records. The careful and skilful treatment of the appellant may have required the respondent to provide her or others with such information as was necessary to ensure proper ongoing care for her health, but the respondent was prepared to provide that information, albeit in the form of a report and not by direct access to the records. Indeed, as the respondent pointed out, for him to have given the appellant free access to all the matters contained in her medical records may not have been in her interests and may have fallen short of the standard of skill and care required of him. This led the appellant to concede an exception to the obligation for which she contended in the form of the so-called therapeutic privilege, but the need for the concession, rather than supporting the existence of such an obligation, tends to show that the obligation was neither a necessary nor reasonable incident of the contract between the parties in the first; place. There can be no suggestion that it was an established professional practice for a medical practitioner to afford a patient access to the patient's medical records - the evidence was entirely to the contrary - and in our view there is no foundation for the implied term upon which the appellant relies.

Fiduciary duty

Whilst duties of a fiduciary nature may be imposed upon a doctor, they are confined and do not cover the entire doctor-patient relationship. Thus a doctor is under a duty to protect the confidentiality of information given by a patient. ^[F36] And the doctor-patient relationship is such that any substantial benefit received by the doctor from a patient (other than proper remuneration) is presumed to be the result of undue influence with the doctor bearing the onus of rebutting the presumption. ^[F37] Whether these aspects of the doctor-patient relationship are properly to be described as fiduciary may be a matter of debate. For example, in Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] ^[F38] Deane J saw the protection afforded by equity to confidential information as something separate from a wider fiduciary duty arising from the general nature of a relationship. Similarly, academic writers have classified the doctrine of undue influence as standing apart from a more general fiduciary doctrine. ^[F39] But the debate is not worth pursuing in the present context because it is plain that the appellant relies upon a wider fiduciary relationship between her and the respondent as giving rise to a duty on the part of the respondent to afford her access to her medical records.

The difficulty in dealing with the appellant's contention is that the law has not, as yet, been able to formulate any precise or comprehensive definition of the circumstances in which a person is constituted a fiduciary in his or her relations with another. There are accepted fiduciary relationships, such as trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners, which may be characterised as relations of trust and confidence. In Hospital Products Ltd v United States Surgical Corporation Mason J said: ^[F40]

"The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of; another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions 'for', 'on behalf of', and 'in the interests of' signify that the fiduciary acts in a 'representative' character in the exercise of his responsibility".

Mason J did not intend to suggest that this description of a fiduciary relationship isolated those features from other relationships of trust and confidence which do not impose fiduciary obligations. It is not the case that whenever there is "a job to be performed", ^[F41] and entrusting the job to someone involves reposing substantial trust and confidence in that person, a fiduciary relationship arises. But it is of significance that a fiduciary acts in a representative character in the exercise of his responsibility.

A doctor is bound to exercise reasonable skill and care in treating and advising a patient, but in doing so is acting, not as a representative of the patient, but simply in the exercise of his or her professional responsibilities. No doubt the patient places trust and confidence in the doctor, but it is not because the doctor acts on behalf of the patient; it is because the patient is entitled to expect the observance of professional standards by the doctor in matters of treatment and advice and is afforded remedies in contract and tort if those standards are not observed and the patient suffers damage.

Equity requires that a person under a fiduciary obligation should not put himself or herself in a position where interest and duty conflict or, if conflict is unavoidable, should resolve it in favour of duty and, except by special arrangement, should not make a profit out of the position. ^[F42] The application of that requirement is quite inappropriate in the treatment of a patient by a doctor or in the giving of associated advice. There the duty of the doctor is established both in contract and in tort and it is appropriately described in terms of the observance of a standard of care and skill rather than, inappropriately, in terms of the avoidance of a conflict of interest. It has been observed that what the law exacts in a fiduciary relationship is loyalty, often of an uncompromising kind, but no more than that. ^[F43] The concern of the law in a fiduciary relationship is not negligence or breach of contract. Yet it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations. Of course, fiduciary duties may be superimposed upon contractual obligations and it is; conceivable that a doctor may place himself in a position with potential for a conflict of interest - if, for example, the doctor has a financial interest in a hospital or a pathology laboratory - so as to give rise to fiduciary obligations. ^[F44] But that is not this case.

Thus in Rogers v Whitaker, ^[F45] where the issue was the extent of a doctor's obligation to inform a patient of the risks inherent in proposed treatment, the Court based its decision squarely upon the duty of the doctor to observe the appropriate standard of care and not upon any fiduciary relationship. The majority said: ^[F46]

"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment'; ^[F47] it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. ^[F48] It is of course necessary to give content to the duty in the given case."

The appellant relied upon the decision of the Canadian Supreme Court in McInerney v MacDonald ^[F49] in which La Forest J, delivering the judgment of the Court, held that a patient is entitled to reasonable access to examine and copy the doctor's records. Non-disclosure, his Lordship held, may be warranted only if there is real potential for harm either to the patient or to a third party and there is a general superintending jurisdiction in the court. La Forest J accepted that the medical records in that case were the property of the doctor and declined to rest the obligation which he found to exist upon an implied contractual term. It was conceded by the appellant physician that a patient has a right to be advised about the information concerning his or her health in the physician's medical records, but La Forest J, relying upon a line of United States cases, ^[F50] concluded that "the fiducial qualities of the relationship extend the physician's duty beyond this to include the obligation to grant access to the information the doctor uses in administering treatment". ^[F51] In basing the duty upon a fiduciary relationship, La Forest J was giving expression to the view that it is the duty of the doctor to act with; "utmost good faith and loyalty". ^[F52] Such a duty hardly fits with the undoubted duty of a doctor in this country to exercise reasonable skill and care in the giving of treatment and advice. It is, perhaps, reflective of a tendency, not found in this country, but to be seen in the United States and to a lesser extent Canada, to view a fiduciary relationship as imposing obligations which go beyond the exaction of loyalty and as displacing the role hitherto played by the law of contract and tort by becoming an independent source of positive obligations and creating new forms of civil wrong. ^[F53]

But, with respect, that is achieved by assertion rather than analysis and, whilst it may effectuate a preference for a particular result, it does not involve the development or elucidation of any accepted doctrine. There is no foundation in either principle or authority in this country, however different the position may be in Canada, for the conclusion reached by La Forest J that: ^[F54]

"information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one's own. The doctor's position is one of trust and confidence. The information conveyed is held in a fashion somewhat akin to a trust. While the doctor is the owner of the actual record, the information is to be used by the physician for the benefit of the patient. The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue."

It should be observed in relation to that passage that the Court was not concerned in that case, as we are not in this, with a patient's right to information. It was concerned with access to the actual records containing the information, notwithstanding that in places the passage appears to regard "information" as interchangeable with "the actual record".

In England, s 3 of the Access to Health Records Act 1990 (UK) gives a prima facie right of access to health records by the individuals to whom they relate and other persons, but s 5(1) provides:

"Access shall not be given under section 3(2) above to any part of a health record -

(a)

which, in the opinion of the holder of the record, would disclose -

(i)

information likely to cause serious harm to the; physical or mental health of the patient or of any other individual; or

(ii)

information relating to or provided by an individual, other than the patient, who could be identified from that information; or

(b)

which was made before the commencement of this Act."

That Act was passed as a result of the decision of the European Court of Human Rights in Gaskin v United Kingdom ^[F55] which held that the refusal to allow access by the applicant to certain health records was in breach of his right to respect for his private and family life under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

In R v Mid Glamorgan Family Health Services the Court of Appeal ^[F56] upheld a decision by Popplewell J ^[F57] dismissing an application by a patient for access to his medical records. Popplewell J was of the view that there had been no breach of Art 8 because the respondent had offered to make available the records (which predated the 1990 Act) to an independent medical adviser who might judge whether the information was likely to cause harm to the applicant or anyone else. However, he reached "the clearest possible conclusion" ^[F58] that at common law there was no right of access by the applicant to records pre-existing the Access to Health Records Act. In the Court of Appeal Nourse LJ (with whom the other members of the Court agreed) referred in his judgment to the well-known passage in the speech of Lord Templeman in Sidaway v Governors of Bethlem Royal Hospital in which he said: ^[F59]

"I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everything. The relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for fees payable by the patient. The doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctor's training and experience and as a result of the doctor's diagnosis of the patient. An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor's contractual obligation to have regard to the patient's best interests.; Some information might confuse, other information might alarm a particular patient. Whenever the occasion arises for the doctor to tell the patient the results of the doctor's diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said."

Nourse LJ observed that that passage provided "a sensible basis for holding that a doctor, likewise a health authority, as the owner of a patient's medical records, may deny the patient access to them if it is in his best interests to do so". ^[F60] However, Lord Templeman was referring to information and was not directing his attention to a patient's right of access to the physical records. Moreover, his remarks were made in the context of the duty of a doctor to warn of risks inherent in treatment which a patient has a right to refuse or accept. It is difficult, therefore, to gauge the intended effect of the concluding observation of Nourse LJ where he said: ^[F61]

"It is inherent in the views above expressed that I do not accept that a health authority, any more than a private doctor, has an absolute right to deal with medical records in any way that it chooses. As Lord Templeman makes clear, the doctor's general duty, likewise the health authority's, is to act at all times in the best interests of the patient."

It is indeed the doctor's duty to act in the best interests of the patient - if by that is meant no more than that the doctor must exercise reasonable care and skill in the treatment and advice of the patient - and that may require that a doctor provide information from his records regarding a particular patient. But that is not to say that the patient has a right to those records. Indeed, reposing judgment in the doctor of what is in the best interests of the patient is to deny that proposition because if a doctor is to judge what information is to be provided in the interests of the patient and, having made that judgment, must provide the information, no point is to be served by a right of access to the records, qualified or unqualified, on the part of the patient. We are not, of course, speaking of litigation where a patient has a right of access to the records for the purposes of the litigation. Nourse LJ identified no legal source for a right of access otherwise. Certainly he did not suggest the existence of any fiduciary duty giving rise to it. There would have been difficulty in his doing so; for in Sidaway Lord Scarman (in dissent, but not on this point) said: ^[F62]

"Counsel for the appellant referred to Nocton v Lord Ashburton ^[F63] in an attempt to persuade your Lordships that the relationship between doctor and patient is of a fiduciary character entitling a patient to equitable relief in the event of a breach of fiduciary duty by the doctor. The attempt fails: there is no comparison to be made between the relationship of doctor and patient with that of solicitor and client, trustee and cestui qui trust or the other relationships treated in equity as of a fiduciary character."

We can find no basis in the law of this country for discerning a fiduciary relationship between doctor and patient carrying with it a right of access on the part of a patient to medical records compiled by the doctor in relation to that patient.

The "right to know"

The appellant did not submit before this Court that she had a right to know the contents of her medical records independently of her claims arising from proprietorship of the information contained in the records, from contract and from the existence of a fiduciary relationship between herself and the respondent. However, she sought to call in aid in furtherance of those claims something which she called a movement in the law governing the relationship of doctor and patient in the direction of acceptance of the principle of personal inviolability and patient autonomy and the rejection of medical paternalism. In this regard she sought to rely upon the decision in Rogers v Whitaker. ^[F64]

There are two observations which may be made about that case. The first is that it was concerned with the provision of information, not access to medical records, by a doctor in the context of a decision to be made by a patient whether to undergo proposed treatment. The second observation is that the decision affirmed the proposition to which we have earlier referred, namely, that it is a matter of judgment for the doctor to determine what the patient should know in his or her best interests. It was pointed out that in making that judgment the doctor is required to exercise reasonable skill and care and that the court would determine for itself whether that standard was observed rather than apply the Bolam ^[F65] approach which placed reliance upon the opinion of a responsible body of medical practitioners. Nevertheless it was held that it is a judgment to be made by the doctor, notwithstanding that in the particular context of the revelation of the risks inherent in proposed treatment all relevant information to enable; the patient to make a decision whether to undergo the treatment would ordinarily be required. In that sense the case does affirm patient autonomy. We are not able to discern that the case has anything additional to say about personal inviolability (whatever that may mean in the context). Nor does it have anything to say about medical paternalism save, perhaps, to the extent that it decides that it is for the court, not medical opinion, to determine whether the required standard of care has been observed.

It will be apparent from what we have already said that we can detect no movement in the law which would sustain the appellant's claims. We have endeavoured to explain why the appellant is not, in our view, the owner of the information contained in her medical records and why there is no basis for the implication of the term for which she contends in the contract between her and the respondent or for the recognition of any relevant fiduciary relationship. In any event, even if the movement in the law claimed by the appellant were to exist it could have no significance where established principle points to a clear conclusion as, in our view, it does in this case.

No doubt considerations of policy (and that is what this part of the appellant's argument involves) may justifiably influence the adaptation or development of the law or the recognition of new categories where that is open upon the basis of settled legal principle. But policy considerations cannot justify abrupt or arbitrary change involving the abandonment of settled principle in favour of a particular result which is merely perceived as desirable.

In any event, the desirability of the result which the appellant advocates is far from self-evident. There is more than one view upon the matter and the choice between those views, if a choice is to be made, is appropriately for the legislature rather than a court. Indeed, the declaration sought by the appellant, which Gummow J reproduces in his judgment, is cast in terms which make plain its legislative character.

For these reasons, we would dismiss the appeal.