Between: Breen
And: Williams

Judges: Brennan CJ
Dawson 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:
Gummow J

Introduction

The respondent is a medical practitioner. In 1978 he was consulted by the appellant and she was treated by him. In these proceedings, the appellant seeks to establish and enforce her legal entitlement to have access, for any purpose she may have, to records in the possession, custody or control of the respondent which contain information relating to the provision of treatment or advice to her by the respondent. In particular, the appellant asserts a legal right, upon reasonable request, to be given access by the respondent to examine and to obtain copies of those records, whether by copying herself or by provision of copies to her at reasonable cost.

Broadly, the respondent's position is to accept that the patient or former patient has a right to be informed of all relevant factual information contained in the medical records of the patient but to deny; any entitlement in the patient to examine those records or to obtain copies.

The respondent submits that his stance is in accordance with the relevant resolution of the Federal Council of the Australian Medical Association ("the AMA"). At its meeting on 29 and 30 October 1993, the AMA resolved as follows:

"That the AMA endorses the following guidelines on patients' access to records concerning their medical treatment:

The patient has a right to be informed of all relevant factual information contained in the medical record, but all deductive opinion therein recorded remains the intellectual property of the doctor or doctors contributing to, or recognised employing hospital or other organisation maintaining the record. Where appropriate, such deductive opinion may be separately recorded.

On request, the patient should be informed of any or all content of the following sections of the medical record;

History

Physical Examination Findings

Investigation Results

Diagnosis (Diagnoses)

Proposed Management Plan

The patient should be allowed access to any other contents of the medical record (such as reports by specialists) beyond the materials above specified only at the discretion of the doctor or doctors who completed such additional section or sections, or by hospital administration after consultation with the doctor(s) who completed such section or sections, or as the result of a legal requirement.

Doctors and hospitals are entitled to recoup their costs of providing information contained in a medical record from the patient or other legally authorised requestor [sic] of the information." (emphasis added)

The facts and the history of the proceedings

In October 1977, the appellant underwent a surgical procedure by which a small silicone implant was inserted in her left breast and a larger implant in her right breast. The operation was performed by another medical practitioner. In August 1978, the appellant consulted the respondent, Dr Williams. Dr Williams has practised in Sydney since 1974 as a consultant surgeon specialising in plastic surgery. The appellant consulted him with respect to both her condition following the surgical procedure of October 1977 and some facial scarring. There were two further consultations concerning both matters in August and September 1978. In November of that year the respondent operated on the appellant under general anaesthetic to perform a bilateral capsulotomy for the compression of hard capsules which had; developed since the earlier surgical procedure. The respondent then had no further consultations with the appellant until May 1983. She then wrote to him concerning further plastic surgery, including removal of the breast implants and their replacement with larger implants. Correspondence concerning this possible further treatment continued until September 1983.

In 1984 the appellant noticed the development of a lump under her left breast. This was diagnosed as a leakage of silicone gel from the breast implant and an operative procedure was performed by another medical practitioner.

It is the practice of the respondent to maintain a file with respect to each patient. Usually this will include handwritten notes containing a variety of information bearing upon such matters as the description provided by the patient of the patient's medical condition, the circumstances in which the patient was referred to the respondent, the respondent's notes of his observations upon examination of the patient and conclusions in relation thereto (including what the respondent called his "medical musings" about the patient's condition), and communications with other practitioners treating the patient and with the family and friends of the patient. Further, where the respondent has reason to believe or suspect that there may be criticism of his treatment or advice, he keeps short notes of any information or developments which may bear upon any such future dispute. All of these notes are written in an abbreviated fashion which conveys meaning to the respondent but which might be difficult for others to follow.

In 1993, the appellant, with many others from Australia, the United States and other countries, became involved in litigation against various parties, including the manufacturer of the breast implants, Dow Corning Corporation. Numerous "class actions" had been commenced in United States District Courts against 16 manufacturers of silicone gel breast implants, including Dow Corning Corporation. On 25 June 1992, the Judicial Panel on Multidistrict Litigation ordered that all of these actions be transferred to the United States District Court for the Northern District of Alabama for co-ordinated or consolidated pre-trial proceedings. ^[F136] By orders of that Court made 1 September 1994, Australian litigants were excluded from a proposed settlement but the Court afforded them an opportunity to "opt in". It was a term of the "opting in" procedure that each claimant, including the present appellant, file with the United States Court copies of medical records in support of any claim they wished to propound.

It was in this setting that the appellant commenced a proceeding in the Equity Division of the Supreme Court of New South Wales. The appellant failed at first instance before Bryson J. The crucial passage in his Honour's reasoning was as follows:

"The [respondent] was not made the [appellant's] medical adviser for the purpose of making him a collector or repository of information for the [appellant] to have available to her for whatever purposes she chose. Collecting and retaining information by him was a purpose of the relationship, but it was a subsidiary purpose, to lead only to medical advice and treatment to be administered by him or on his referral. It is not in my judgment unconscionable for the [respondent] to retain the information and keep it to himself except when and insofar as it is required for the purpose of treatment by him. A doctor is not put in a position to receive, compile and retain information for the very purpose of having it available when it is required and for whatever purpose it is required."

An appeal to the Court of Appeal was dismissed by a majority (Mahoney and Meagher JJA, Kirby P dissenting). ^[F137]

In his dissenting judgment, Kirby P would have granted the appellant relief in these terms: ^[F138]

"(a)

DECLARE that the appellant has a right, upon request, to be given reasonable access by the respondent to examine, copy and/or at reasonable cost, to obtain [copies] of records or information concerning her, created or obtained by the respondent in the course of providing medical treatment or advice to her, being recorded in the medical records or in other tangible form in the possession, custody or control of the respondent, subject [to] the exclusion therefrom of such records or information as the respondent may lawfully exclude from such access;

(b)

DECLARE that the respondent may lawfully refuse to provide access to the appellant to records and information in his possession:

(i)

created or obtained solely for the benefit of the respondent in the conduct of his practice or in respect of which he may lawfully claim legal professional or other privilege;

(ii)

the disclosure of which the respondent reasonably believes is likely to cause serious harm to the physical or mental health of the appellant; and

(iii)

the disclosure of which would found an action for breach of confidence;

(c)

ORDER that the respondent provide the appellant with reasonable access to records or information in his possession, custody or control as aforesaid concerning the appellant, subject to the; exclusion therefrom of records and information in respect of which the respondent has a lawful excuse for not providing access".

The three matters identified in the second declaration respond to the contentions advanced for Dr Williams that the imposition of a general obligation of disclosure would impinge upon his right to legal professional privilege, could conflict with an obligation of confidence owed by him to third parties and may require disclosure of material likely to cause harm to the health of the patient. The last-mentioned matter has been described as the "therapeutic privilege".

Discovery

On its face, the relief which Kirby P would have given, and for which the appellant contends in this Court, bears some resemblance to an order for particular discovery which might have been made in aid of the "opt in" procedure laid down by the United States District Court. The question is whether, in its inherent jurisdiction as a court of equity, the Supreme Court would have had the authority to make such an order, if its jurisdiction in that regard had been invoked by the appellant. The contrary was not asserted in the submissions to this Court.

In dealing with bills of discovery under the old procedure, Story wrote: ^[F139]

"[I]t constitutes no objection to a bill of discovery that it is to assist proceedings in a court which sits in a foreign country, if in amity with that where the bill is filed; for it is but a just exercise of that comity which the mutual necessities and mutual convenience of all nations prescribe in their intercourse with each other".

Hare, ^[F140] Mitford ^[F141] and Chancellor Kent ^[F142] were of the same view. Later English decisions, notably those of Shadwell V-C in Bent v Young ^[F143] and of Kay J in Dreyfus v Peruvian Guano Company, ^[F144] appeared to decide that the Court of Chancery and then the High Court of Justice would not entertain an action for discovery in aid of proceedings in a foreign court, at least unless it appeared that the foreign suit had been instituted, discovery was essential to it and the foreign court could not compel the discovery sought. ^[F145] It was also suggested in Bent v Young ^[F146] that "in the contemplation of the Court of Chancery, every foreign Court is an Inferior Court" in the; same way as in England the ecclesiastical courts were treated as courts inferior to the Court of Chancery. However, this reasoning was decisively rejected in the United States, notably in the judgment of Field J in Post v Toledo, Cincinnati and St Louis Railroad Company. ^[F147] His Honour referred to earlier United States authority, such as the decision of Chancellor Kent in Mitchell v Smith ^[F148] and stated that the suggestion that all foreign courts should be treated as having the same status as a domestic inferior court did "not require serious consideration". ^[F149]

Moreover, more recent developments in England itself have revived, and perhaps extended, what was the previous jurisdiction to entertain bills for discovery. In Norwich Pharmacal v Customs & Excise, ^[F150] the House of Lords held that the proposition that discovery did not lie against a "mere witness" did not bar an action for discovery for disclosure to the plaintiff of the identity of a wrongdoer in whose tortious acts the respondent innocently had become involved. That decision was applied in British Steel v Granada Television. ^[F151] More recently, in Mercantile Group AG v Aiyela, ^[F152] Hoffmann LJ, who gave the leading judgment in the Court of Appeal, held that discovery was not limited to finding out the identity of a tortfeasor. His Lordship referred to Bankers Trust Co v Shapira ^[F153] where discovery was ordered against a bank which, innocently, had received the proceeds of a fraud, the purpose of the discovery being to trace what had happened to the money.

Accordingly, it may be accepted that it would have been within the inherent jurisdiction of the Supreme Court, as a court of equity, to make an order for particular discovery, in terms resembling the relief; which Kirby P would have granted. It would have been no sufficient objection to the existence of such jurisdiction that the relief was sought to assist the appellant in complying with "opt in" procedures laid down by the United States District Court, or that the relief was sought not against a party to the United States litigation but against a stranger to it. So much appeared to be common ground in this Court.

One consideration which would arise when deciding to grant such relief would be the availability of an alternative compulsory court process. One such possibility would have been the issue of Letters Rogatory by the United States District Court. Other Australian litigants who are parties to that proceeding did take this course. In the present case, Kirby P ^[F154] observed that, whilst orders had been made by judges of the Supreme Court of New South Wales in response to such Letters Rogatory obtained by other litigants, the costs, delays and complications of that procedure were significant.

However, when the matter was raised at the hearing of the appeal in this Court, the appellant expressly disavowed any reliance upon the law as to discovery in aid of a foreign proceeding as a foundation for the relief she seeks.

Moreover, the United States proceeding appears to be at a standstill. This Court granted special leave to appeal from the decision of the Court of Appeal on 12 May 1995. At the hearing of the appeal, the Court was informed that, on 15 May 1995, certain steps were taken in respect of the defendant in the United States proceeding, under Ch 11 of the United States statute the Bankruptcy Reform Act of 1978. These had the effect of staying the orders made by the District Court on 1 September 1994. ^[F155]

The right asserted by the appellant

It was submitted to this Court that the objective of the proceeding in this country was not only to obtain assistance, as described, in aid of the United States action but also "to have the information relating to [the appellant's] personal health for her information" and, "to ensure that she is able to make decisions regarding her future treatment".

Further, in argument, the appellant shifted ground and asserted that the right for which she contended arose and was enforceable regardless of what, if any, purpose moved her to assert it. Accordingly, the appellant contends that she has what one might describe as a "free-standing" legal right which is exercised or vindicated by declaratory and other relief in terms as specified by Kirby P and set out earlier in these reasons.

The appellant argued unsuccessfully in the Court of Appeal ^[F156] that there was a legal doctrine, "the right to know", which provided, by itself, sufficient support for her claim. That submission was abandoned in the course of argument before this Court.

By letter dated 10 August 1993, addressed to the appellant, the respondent replied to a request from her solicitors for copies of all her medical records by saying, in part:

"As they 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 advisors 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."

This was unacceptable to the appellant, if only by reason of the condition requiring provision of a release by her of any claims she might have in respect of her treatment by the respondent. Later, at the trial in the Equity Division, counsel for Dr Williams announced to the Court:

"I am instructed to make an offer in open court which is for the [respondent] to provide a report in writing to the [appellant] as to the contents of the documents which are comprised in the document marked 1 for identification relating to any of the following; history, physical examination findings, investigation results, diagnosis, proposed management plan, treatment or advice furnished to the [appellant]."

The tenor of this offer is that the report was to convey information, but not to set out in full the text of any documents held by the respondent. Thus it still was unacceptable to the appellant.

The material marked "MFI1", referred to by counsel for the respondent, was Dr Williams' file. For reasons which do not appear, this was never tendered in evidence. The result was that the primary judge was left to infer from other evidence the contents of the file. On that footing, Bryson J found that the file contained handwritten notes of Dr Williams and correspondence with the patient and that there might also be included letters reporting to referral doctors, hospital advice slips, communications with the New South Wales Medical Defence Union and photographs of the patient taken to assist diagnosis and treatment.

This absence of a clear and unequivocal finding as to the identity; and contents of the records held by the respondent has a significance for the repeated reference in the appellant's submissions to this as a "test case". The consequence is to impede the effective operation of the doctrine of precedent which seeks to provide an appropriate measure of certainty in the law. Rather, what is involved is an attempt to establish an abstract principle of law which is not derived from a firm foundation of fact provided in the case.

However, the appellant asserts a right given to her by the law and the respondent denies the existence of that right. We should, therefore, determine that controversy.

Contract

The relationship between medical practitioner and patient may engage the law in various respects. Traditionally, there has been a contractual relationship, the medical practitioner performing services in consideration for fees payable by the patient. ^[F157] That established pattern now may require adjustment to accommodate wholly or partly state operated or financed health schemes, established by statute. The "bulk-billing" provisions of the Health Insurance Act 1973 (Cth), considered in Edelsten v Health Insurance Commission, ^[F158] provide an example of this.

The appellant, as I understand it, submitted that the right for the existence of which she contended was a term of contract with the respondent. There was exiguous evidence as to the form taken by, and the express terms of, any contract between the appellant and the respondent for the provision of medical advice and treatment. This makes it difficult for the appellant to succeed on a contention that the term in question gives effect to an apparent underlying intention of the parties as to the provision of business efficacy to their contract. Where, as here, the contract was not reduced to any complete written form, the question is whether the implication of the term was necessary for the reasonable or effective operation of the contract in the circumstances; of the case; only where this can be seen to be so will the term be implied. ^[F159]

As I have indicated, the appellant asserts not merely a term which confers upon the appellant a right to be informed by the respondent, on reasonable request, of relevant factual material contained in her medical records. If that was all that was in the case, then the Court might well accept the existence of such a term. As I understand his position adopted in this Court, the respondent would not now deny its existence. Moreover, as time goes on, the ground will strengthen for the importation of a term in contracts between doctor and patient which accords with the AMA resolution set out earlier in these reasons and which may by then have become customary, in the sense described in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd. ^[F160] But the appellant goes further. She claims an entitlement to examine her records and to obtain copies.

In my view, it cannot be said that a term in that form is necessary for the reasonable or effective operation of the contract. A term in the form urged by the appellant is not to be imported to give effect to a tacit intention of the parties in the circumstances of the case.

Nor is such a term imported by law in all contracts of a particular class, namely the provision of treatment or advice by medical practitioner to patient, and in the absence of an expression of contrary intent. Certainly, it has been held in England that the law implies a term into the contract between medical practitioner and patient that the former is to keep the affairs of the latter secret and not disclose them without just cause. ^[F161] However, it could not be said, as would need to be the case, that, unless the term for which the appellant contends were implied as a matter of law, the enjoyment of the rights conferred upon the patient by the contract with the medical practitioner would, or could, be rendered nugatory, worthless or, perhaps, be seriously undermined. ^[F162]

"Informed consent"

Reference is made in submissions to statements of principle by this Court in Rogers v Whitaker ^[F163] as supportive of a doctrine of "informed consent". That case was an action in negligence. The Court was considering the duty of a medical practitioner to exercise; reasonable care and skill in provision of professional advice and treatment. The particular issue was whether the appellant's failure to advise and warn the respondent of the risks inherent in a particular operation undergone by her constituted a breach of that duty. The Court determined that, except in the case of an emergency or where disclosure would prove damaging to the patient (the so-called "therapeutic privilege"), a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. Further, risk is material where, in the circumstances of a particular case, a reasonable person in the position of the patient, if warned of the risk, would be likely to attach significance to it or where the medical practitioner is or should reasonably be aware that a particular patient, if warned of the risk, would be likely to attach significance to it.

This formulation of principle was made for the purposes of the tort of negligence, and the elucidation of the overall duty of care owed to the patient by the medical practitioner. The Court observed ^[F164] that, in the context in which it was considering the matter, nothing was to be gained by reiterating expressions used in American authorities such as "the patient's right of self-determination" or even "the oft-used and somewhat amorphous phrase 'informed consent'". The Court pointed out that the phrase "informed consent" is apt to mislead as it suggests a test of the validity of the patient's consent and that, moreover, consent is relevant to actions framed in trespass, not in negligence.

To this it may be added that in fiduciary law "informed consent" is an answer to circumstances which otherwise indicate disloyalty, not a mainspring of equitable liability. In the United States, the phrase "informed consent" in this area of legal discourse appears to represent some assumed synthesis between the tort of negligence and principles of fiduciary duty law. ^[F165] The Privy Council and House of Lords recently have cautioned against such processes. ^[F166] There is a fundamental principle that it is an answer to a claim against an erring fiduciary that the plaintiff gave an informed consent, after full and; frank disclosure of all material facts, ^[F167] to the alleged breach of duty. However, it seems that, in the United States, this is translated into a "free-standing" action for damages brought against the medical practitioner by the patient for failure to treat the patient only with the "informed consent" of the patient. ^[F168]

The law in Australia has been established in Rogers v Whitaker in the manner I have described. It is impossible to extract from the formulation of principle in that decision support for the existence of the legal right asserted by the appellant in this case. Indeed, and in any event, the appellant does not seek a remedy against the respondent for failure to treat her only with her fully informed consent. She has no such complaint against the respondent. Rather, she claims the legal right to inspect and take copies of records.

Property rights

The appellant also sought to draw support for the right she asserts from a complex of equitable institutions and doctrines dealing with fiduciary duty, confidential information, undue influence, and with unconscientious transactions of the nature considered in such authorities as Louth v Diprose. ^[F169]

To some extent these submissions reflect an imperfect understanding of some basic matters of the law of personal property. Other submissions concern classification as "property" of the information contained in the records in question. As the submissions for the appellant appear to reflect some confusion of thought, it is appropriate, before proceeding further, to draw several basic distinctions.

First, as I understand the submissions, the appellant did not contend before us, and she had not contended before the Court of Appeal, ^[F170] that she owned the relevant records "as such". That concession (as the Court of Appeal agreed) ^[F171] was correctly made. The documents in question, including any photographs, are chattels, ownership and the right to exclusive possession of which appear to be enjoyed by the respondent. Access to those records would be an incident of those rights. They would be protected against invasion by the law of tort, in particular by actions for detinue and conversion.; Thus, in Moorhouse v Angus & Robertson (No 1) Pty Ltd, ^[F172] McLelland J held that a cause of action in detinue had been established by an author against his publishers by reason of their failure to comply with his demand for the return of his original manuscript.

Again, in New York, it has been held that the ownership of the medical files of a deceased physician passes to the executor, the property therein having been vested in the physician, not the patients. ^[F173] Further, a former patient of several hospitals in New York wherein she had been a voluntary patient for treatment for mental illness was held to lack sufficient property interest in medical records relating to her treatment for protection, under the Fourteenth Amendment to the United States Constitution, against deprivation of property without due process of law by reason of refusal of the hospitals to grant her access to the records. ^[F174]

Secondly, the appellant's submissions gave insufficient allowance to the operation in this field of copyright law, a matter of federal statute. The composition by the medical practitioner of the material shown on the records may have involved the authorship by him of what, whilst not of literary quality, were nevertheless literary works for the purposes of copyright law. This would vest in him various exclusive proprietary rights, including that to reproduce the work in a material form. ^[F175] In Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation, ^[F176] Windeyer J referred to the fundamental distinction between copyright as incorporeal property and property in the material thing which is the subject of the copyright, the essence of the former being the power to prevent the making of a reproduction in material form. His Honour referred to authorities, including In re Dickens. ^[F177] This illustrates the distinction. On the proper construction of his will, Charles Dickens bequeathed the manuscript of an unpublished work to his sister-in-law and his residuary estate, including the copyright in the unpublished work, to his children. Ownership of the manuscript would not, of itself, carry with it the right to publish it and to reproduce it.

It is unlikely that the medical practitioner would have made the literary works in pursuance of the terms of his employment by the patient under what was classified as a contract of service, so that the patient was the owner of the copyright. ^[F178] Ownership of the copyright in any photographs, as artistic works ^[F179] would, pursuant to s 35(5) of the Copyright Act 1968 (Cth), vest in the patient only if within the meaning of that provision the patient had made for valuable; consideration an agreement for the taking of the photographs and they were taken in pursuance of that agreement.

The copyright of the respondent would not be infringed by anything done for the purposes of a judicial proceeding. ^[F180] Nor would it be an infringement to act pursuant to a licence or permission (which might be express or implied). ^[F181]

However, the circumstances of the present case, as disclosed in the evidence, do not provide support for the existence of any copyright licence or consent given to the appellant either expressly or by implication. Nor does it appear that such a licence is implied in the contract between medical practitioner and patient as a matter of law in the sense I have described earlier in these reasons.

A further distinction is to be drawn between, on the one hand, property in the physical material on which the records appear, and any literary work which might be represented in the records in question and, on the other hand, a third possible source of juristic rights. This may be sought in the information which might be conveyed to the reader of those records. ^[F182] However, in Federal Commissioner of Taxation v United Aircraft Corporation, ^[F183] Latham CJ said:

"Authorities which relate to property in compositions, & c, belong to the law of copyright and have no bearing upon the question whether knowledge or information, as such, is property. It is only in a loose metaphorical sense that any knowledge as such can be said to be property."

Those remarks are to be understood in the light of developments, largely since they were made, in equitable jurisdiction. In equity, misuse of confidential information may be restrained. The subject-matter is not confined to trade secrets. It extends to information as to the personal affairs and private life of the plaintiff, and in that sense may be protective of privacy. ^[F184]

That such equitable jurisdiction exists has been accepted on at least two occasions in appeals to this Court. ^[F185] Further, the outcome before Mason J in The Commonwealth of Australia v John Fairfax & Sons Ltd ^[F186] illustrates that a claim for copyright infringement and for; abuse of confidence made in respect of the one factual matrix may fail as to one and succeed as to the other.

A medical practitioner has been said to be under an obligation in equity not to disclose confidential information concerning a patient which is learned in the course of professional practice, an obligation from which the medical practitioner may be released only with the express or implied consent of the patient. ^[F187] But, in the present case, there is no apprehended breach of an obligation of confidence owed by the respondent to the appellant.

Nor is it acceptable to argue that, because, in some circumstances, the restraint of an apprehended or continued breach of confidence may involve enjoining third parties (as Gaudron J explained in Johns v Australian Securities Commission), ^[F188] it follows that the plaintiff who asserts an obligation of confidence therefore has proprietary rights in the information in question which in turn found a new species of legal right. In my view there is no substance in what appeared to be the appellant's submission that the existence of an obligation of confidence owed to her by the respondent brought with it a proprietary right which founded her claim to the particular relief she seeks in this litigation.

Canadian authority

The appellant also relied upon a decision of the Supreme Court of Canada, the reasoning in which appears, at least in part, to have been informed by considerations of property law. The decision is McInerney v MacDonald. ^[F189] The decision in that case was: ^[F190]

"In the absence of regulatory legislation, the patient is entitled, upon request, to inspect and copy all information in the patient's medical file which the physician considered in administering advice or treatment. Considering the equitable base of the patient's entitlement, this general rule of access is subject to the superintending jurisdiction of the court. The onus is on the physician to justify a denial of access."

However, the precise issue in the case was somewhat narrower and it is to this that one should have regard. The outcome of the litigation was to uphold the order of the primary judge in the Court of Queen's Bench of New Brunswick. This was that Dr McInerney provide to Mrs MacDonald, her patient, copies of all documents which she had received from five other physicians who had previously treated the respondent, together with the written opinions as to the respondent's medical condition prepared by consultants at the request of the other; physicians. Dr McInerney had cooperated with the patient to the extent of providing, for a fee, copies of notes, memoranda and reports prepared by her but she refused to deliver copies of the other documents on the footing that they were the property of the other physicians and it would not be ethical for her to release their reports and records. ^[F191]

By the time the case reached the Supreme Court of Canada, Mrs MacDonald had obtained copies of all the material in question, so that she had no interest in contesting the appeal. ^[F192] Her counsel appeared as amicus curiae only.

The judgment of the Supreme Court of Canada was delivered by La Forest J. His Lordship began by defining in broad terms the "central issue", as being whether, in the absence of legislation, a patient is entitled, upon request, to obtain copies of the patient's medical records. ^[F193] La Forest J dealt as follows with what he identified as the nature of the interest of the patient in his or her records: ^[F194]

"As discussed earlier, 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.

...

The trust-like 'beneficial interest' of the patient in the information indicates that, as a general rule, he or she should have a right of access to the information and that the physician should have a corresponding obligation to provide it. The patient's interest being in the information, it follows that the interest continues when that information is conveyed to another doctor who then becomes subject to the duty to afford the patient access to that information."

These passages should be read having in mind the particular issue which had been in dispute, not the provision by Dr McInerney of records prepared by her, but delivery of reports and records prepared by other physicians but which had come into her possession. That, as this appeal was presented, is not the present dispute. In any event, I would, with respect to the reasoning of La Forest J, not share the view that a proprietary analysis of the equitable obligation of confidence; assists in this field. The appellant does not seek an order for delivery up of the records in question in aid of any allegation of abuse of confidence against Dr Williams.

British authority

The appellant also relies upon what was submitted to be a common law right established by the decision of the English Court of Appeal in R v Mid Glamorgan Family Health Services. ^[F195] This was a proceeding for judicial review of decisions made by the two respondents which were regional health authorities established pursuant to legislation. The Court of Appeal held that the health authorities, as the owners of the medical records of the patient, were obliged to administer their property in accordance with their public purposes. The fulfilment of this duty meant that the authorities were bound to deal with the records in the same way as a private physician. ^[F196] It followed from this that the authorities might deny a patient access to medical records if it was in the best interests of the patient to do so.

The authorities had refused to make voluntary disclosure of any of the records direct to the plaintiff on the footing that to do so would be detrimental to him and not in his best interests. However, the authorities had offered the sight of the records to the applicant's medical adviser. The Court of Appeal held that the taking of that step by the authorities was all that was necessary to comply with their duties to the applicant. The particular issue which concerned their Lordships was identified by Nourse LJ in the opening paragraphs of his judgment ^[F197] as being whether a doctor or health authority, as the owner of the medical records of a patient, was entitled to deny the patient access to them on the ground that their disclosure would be detrimental to the patient. The copying, in contrast to inspection, of the records does not appear to have been sought. The effect of the decision in Mid Glamorgan Family Health Services is that, whatever otherwise might have been the rights of the patient, the health authorities, as owners of the records, might deny the patient access to them if it was in the best interests of the patient to do so, for example, if disclosure would be detrimental to the health of the patient.

Sir Roger Parker observed ^[F198] that the circumstances in which a patient or former patient was entitled to demand access to the medical history as set out in the records would be infinitely various so that it was neither desirable nor possible to set out the scope of the duty to; afford access or the scope of the patient's rights to demand access. The decision of the English Court of Appeal thus does not provide any adequate foundation for the existence of the particular common law right which the appellant propounds in this appeal. One commentator identified an "absence of solid legal foundations in the judgments for the right to access". ^[F199]

In Scotland there is authority to the contrary of the English decision. One of the submissions in Boyle v Glasgow Royal Infirmary and Associated Hospitals ^[F200] was that the second pursuer was legally entitled at any time to see the records of her hospital treatment and, if necessary, to recover the complete record of any treatment received by her. This submission was rejected by the Court of Session. Lord Cameron said, in words indicative of reasoning akin to that of Bryson J in the present case: ^[F201]

"The records of a patient's condition and treatment are not kept for the purpose of being made available to the patient on call, but so that a full and complete record of that patient's condition, treatment and response or reaction to treatment may be kept. They may be valuable as an adjunct to research and the advancement of medical science, they may be valuable for further treatment of the patient in other or recurrent circumstances, and it is obvious that those who make or keep them must be wholly free to state fully and frankly what they have to note, express or record."

Equitable doctrines - fiduciary duty

I have dealt with the reliance by the appellant upon contract. The appellant, as I have indicated, also relies upon incidents of the relationship between medical practitioner and patient which may attract equitable intervention. In my opinion, there is no substance in these submissions.

However, in what follows I am not to be understood as supporting the existence of any necessary antipathy between concurrent contractual and fiduciary obligations. The law of partnership is an obvious example of such a concurrence. The mere presence of a contract does not exclude the co-existence of concurrent fiduciary duties and the contract may, in particular circumstances, provide the occasion for their existence. ^[F202] That is not to deny that a contractual term may; be so precise in its regulation of what a party may do that there is no scope for the creation of a fiduciary duty. ^[F203]

This is not the case of any improvident transaction between medical practitioner and patient which is the product of unconscientious pressure or influence exerted upon the patient. In Johnson v Buttress, ^[F204] Dixon J said that a physician must justify the receipt of a substantial benefit from the patient, in the same way as must a solicitor in respect of the client and a guardian from the ward. His Honour said ^[F205] that, where the parties antecedently stood in a relation which gave one an authority or influence over the other from the abuse of which it is proper that there should be protection:

"the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee".

What is there said does not directly bear upon the situation with which this appeal is concerned. However, Dixon J went on, in the same passage, to observe that the doctrine which throws upon the recipient the burden of justifying such a transaction rests upon a particular principle. Of that principle, his Honour said: ^[F206]

"It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare." (emphasis added)

This reasoning was further developed by La Forest J in the following passage from his recent judgment in Hodgkinson v Simms: ^[F207]

"The concepts of unequal bargaining power and undue influence are also often linked to discussions of the fiduciary principle. Claims based on these causes of action, it is true, will often arise in the context of a professional relationship side by side with claims related to duty of care and fiduciary duty... Indeed, all three; equitable doctrines are designed to protect vulnerable parties in transactions with others. However, whereas undue influence focuses on the sufficiency of consent and unconscionability looks at the reasonableness of a given transaction, the fiduciary principle monitors the abuse of a loyalty reposed ... Thus, while the existence of a fiduciary relationship will often give rise to an opportunity for the fiduciary to gain an advantage through undue influence, it is possible for a fiduciary to gain an advantage for him- or herself without having to resort to coercion... Similarly, while the doctrine of unconscionability is triggered by abuse of a pre-existing inequality in bargaining power between the parties, such an inequality is no more a necessary element in a fiduciary relationship than factors such as trust and loyalty are necessary conditions for a claim of unconscionability". (emphasis added)

Conformably with the reasoning of Gibbs CJ and Brennan J in Daly v Sydney Stock Exchange Ltd, ^[F208] the relationship between medical practitioner and patient who seeks skilled and confidential advice and treatment is a fiduciary one. That will be so regardless of whether it is because the relationship between the parties is one which gives the medical practitioner a special opportunity to affect the interests of the patient who is vulnerable to abuse by the fiduciary of his position, or because the medical practitioner undertakes to exercise professional skill for the benefit of the patient, and particular reliance is placed upon the medical practitioner by the patient. ^[F209]

Advice given by the physician to the patient involves specialised knowledge and matters of skill and judgment, which render the advice difficult, if not impossible, of objective and unassisted assessment by the patient. Hence the particular reliance placed upon the physician. In a real sense, especially if invasive procedures upon the person of the patient are involved, the patient has delegated control to the person providing health care. Further, for the patient to obtain the benefit sought from the relationship the patient often must reveal confidential and intimate information of a personal nature to the medical practitioner. Finally, the efforts of the medical practitioner may have a; significant impact not merely on the economic but upon the fundamental personal interests of the patient. These considerations, as Professor De Mott has pointed out, serve to emphasise why there is a fiduciary element in the relationship between medical practitioner and patient. ^[F210]

However, to reach that stage of reasoning is not to attain the destination desired by the appellant. First, it is necessary to consider not only whether the relationship between the parties is such as to give rise to fiduciary obligations but also the extent of those obligations in the particular case, "the subject matter over which the fiduciary obligations extend", ^[F211] so that there may be identified the breach or apprehended breach for which the plaintiff seeks relief from a court of equity. The subject-matter here is the provision of medical treatment after, or in the course of, consultation with the patient.

Secondly, the discussion of the principle by Deane J in Chan v Zacharia ^[F212] identifies the fundamental objection by equity to the pursuit by the fiduciary of personal interest in conflict with the interests of those whom the fiduciary is bound to protect. Likewise, the fiduciary is obliged not to enter upon conflicting engagements to several parties. This is because the fiduciary (for example, a solicitor acting for vendor and purchaser) may be unable to discharge adequately the one obligation without conflicting with the requirement for observance of the other obligation. ^[F213]

As indicated earlier in these reasons, one answer to what otherwise would be breach of duty is the presence of informed consent. ^[F214] Further, a court of equity has inherent jurisdiction or power to authorise, at least in some cases, entry into transactions which otherwise would be in breach of duty. ^[F215]

The fiduciary will be brought to account for any benefit or gain which (1) has been obtained or received in circumstances where a conflict or significant possibility of conflict existed between the fiduciary duty and personal interest in the pursuit or possible receipt of the benefit or gain or (2) was obtained or received by use or by reason of the fiduciary position or opportunity or knowledge resulting from it. ^[F216] Where the breach of duty produces not a gain to the fiduciary; but a loss to the party to whom the fiduciary duty was owed, then the judgments of Viscount Haldane LC in Nocton v Lord Ashburton ^[F217] and of Sir Owen Dixon in McKenzie v McDonald ^[F218] show that there is an obligation to account for the loss by provision of equitable compensation.

But none of this avails the appellant in the circumstances of the present case. The issue here is not that which would arise, for example, where a medical practitioner had advised the patient to undergo treatment at a particular private hospital in which the medical practitioner had an undisclosed financial interest, or where the medical practitioner prescribed one of a number of equally suitable pharmaceutical drugs for the undisclosed reason that this assisted the practitioner to obtain undisclosed side-benefits from the manufacturer.

In Moore v Regents of the University of California, ^[F219] an appeal was allowed against a decision to allow a demurrer to a cause of action pleaded for breach of fiduciary duty. The plaintiff alleged that his physician, who had treated him for leukaemia, had withdrawn from his body blood, bone marrow and other substances which, unknown to the plaintiff, were of use to the physician and his confederates in establishing a "cell line" in respect of which a patent was obtained. The physician then negotiated agreements for commercial development of the cell line and of products to be derived from it. The court, in deciding that a good cause of action was pleaded, pointed to the conflict between interest and duty involved where the research and commercial interests of the physician might tempt him to order a test or procedure which offered marginal or no benefits to the patient. ^[F220]

In such cases, to adapt the language of La Forest J in Hodgkinson v Simms, ^[F221] the fiduciary principle would monitor the abuse of loyalty reposed in the medical practitioner by the patient. The abuse of duty would involve derivation of a benefit or gain by use or by reason of the fiduciary position or of an opportunity or knowledge which resulted from it.

The present is not a case where, unless the respondent accedes to the right asserted against him by the appellant in this proceeding, the respondent will have derived a gain or benefit at the expense of the patient, beyond the agreed fee. Nor will Dr Williams have put himself in a position where his interests conflict with those of the patient. As; was pointed out in the Court of Appeal in this case, ^[F222] to show that a medical practitioner owes fiduciary duties in certain circumstances to the patient is not to demonstrate a right in the patient to inspect and to take copies of the notes and records of the medical practitioner.

In this regard, care is required in translating into fiduciary law in general particular principles developed in the administration of trusts, particularly express trusts constituted by will or settlement. For example, in many such cases of what Lord Browne-Wilkinson has identified as the "traditional trust", ^[F223] the trustee will stand in a fiduciary relationship to a previously unknown (or unborn) beneficiary. Any element of subjective trust and confidence in the trustee will have been reposed by the testator or settlor, not by the beneficiary. Again, in some species of constructive trust, equity imposes the trust irregardless of any confidence reposed in the trustee.

Where an express trust has been effectively constituted and under its terms the trustee is obliged to manage a trust business, the trustee is required both to observe the terms of the trust and, in doing so, to exercise the same care as an ordinary, prudent person of business would exercise in the conduct of that business were it his or her own. There is a well accepted gloss on, or adjunct to, these requirements in relation to the exercise of powers of investment of a trust fund, pending distribution to those who are or who have become absolutely entitled. ^[F224] The trustee is, of course, a fiduciary. But the above obligations arise from a particular characteristic, not of fiduciary obligations generally, but of the trust. This is the holding of the legal title to property with duties to deal with it for the benefit of charitable purposes or for one or more persons, at least one of whom is not the sole trustee.

Nor do these trustee obligations supply any proper foundations for the imposition upon fiduciaries in general of a quasi-tortious duty to act solely in the best interests of their principals. I agree with the observations of McHugh J upon what appears to be a contrary tendency in some of the Canadian decisions. I have expressed earlier in these reasons my view of the use in United States authorities of the phrase "informed consent".

Fiduciary obligations arise (albeit perhaps not exclusively) in various situations where it may be seen that one person is under an obligation to act in the interests of another. Equitable remedies are available where the fiduciary places interest in conflict with duty or derives an unauthorised profit from abuse of duty. It would be to stand established principle on its head to reason that because equity; considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interests of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty.

Conclusions

In McInerney v MacDonald, ^[F225] it was said in the Supreme Court of Canada that, if the patient is denied access to records held by the physician, it might not be possible for the patient to establish that the medical practitioner had fulfilled the duty to act with utmost good faith and loyalty to the patient. It was then said:

"If there has been improper conduct in the doctor's dealings with his or her patient, it ought to be revealed. The purpose of keeping the documents secret is to promote the proper functioning of the relationship, not to facilitate improper conduct."

Of that statement, several points may be made of present relevance. The first is that the appellant here seeks not the provision of the information contained in the documents (as to which there is an offer to provide a report which it is not suggested would be incomplete or inaccurate) but an extra-curial right to obtain, without prior invocation of the processes of the court, discovery and inspection. Secondly, the records now in question would be liable to discovery by compulsory process but the appellant has eschewed such a course. Thirdly, there is no suggestion made against the respondent of impropriety of any variety, including any alleged breach of fiduciary duty, as I have described that duty.

The engagement of the respondent was to advise and treat the appellant. The documents in question were brought into existence by the respondent or gathered by him for the purpose of providing that advice and treatment. The interests of the patient, in this case the former patient, are, one might think, protected by the general law, as it presently stands and in its various applications which I have sought to outline in these reasons.

The right asserted by the appellant does not exist nor are there any compelling grounds as to why it should be brought into existence. The immediate interests of the appellant stemming from the litigation in the United States may be met in the manner outlined earlier in these reasons. The principles of tort, contract and equity which I have outlined interact to protect the concerns of the appellant in receiving confidential advice and skilful treatment from the respondent, without abuse by him of the special position he occupies.

The appeal should be dismissed with costs.