Breen v. Williams

186 CLR 71
138 ALR 259

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(Judgment by: Gaudron J, McHugh J)

Between: Breen
And: Williams

Court:

Judges: Brennan CJ
Dawson J
Toohey J

Gaudron J
McHugh JGummow 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:
Gaudron J
McHugh J

The question in this appeal is whether a patient has a right to inspect and/or obtain copies of his or her medical records that are held by that person's doctor.

In the Supreme Court of New South Wales, Bryson J held that the appellant, Ms Julie Breen, a patient of the respondent, Dr Cholmondeley W Williams, did not have a right to copy or to have access to her medical records. A majority of the Court of Appeal of the Supreme Court (Mahoney and Meagher JJA) agreed with the decision of Bryson J. ^[F66] Kirby P, dissenting, held that a doctor owes a patient a fiduciary duty which entitles the patient to inspect or obtain copies of his or her medical records. ^[F67] Pursuant to the grant of special leave, Ms Breen now appeals to this Court against the order of the Court of Appeal. In our opinion, the appeal should be dismissed.

The factual background

In October 1977, Ms Breen underwent a bilateral augmentation mammoplasty operation involving the insertion of silicone implants in her breasts. Sometime after the operation she noticed the development of breast capsules. She consulted Dr Williams who, after a series of consultations, performed a bilateral capsulotomy operation on Ms Breen in November 1978. In 1984, another surgeon removed the implants. Apart from correspondence in 1983 as to the possible removal of the implants and other unrelated medical conditions, Ms Breen and Dr Williams appear to have had no further contact until the correspondence, commencing in 1993, which gave rise to this litigation.

In 1993, Ms Breen became involved in a class action in the United States of America against the company which manufactured the implants. In that action, the plaintiffs claimed that the implants were defective. On 4 August 1993, her lawyers wrote to Dr Williams asking if he would forward to them photocopies of medical records in his possession concerning Ms Breen. Dr Williams replied that he would release the records to Ms Breen if she would supply him "with a document which would release [him] from any claim that might arise in relation to [his] treatment" of her. Ms Breen declined to give this undertaking.

The right of access

A claim that a patient has a right of access to his or her medical records is a question of great social importance. But absent a contractual term, such a claim has no foundation in the law of Australia. Nevertheless, every possible argument that could be made in support of the claim by Ms Breen was put. Dr Cashman, who appeared for Ms Breen, contended that one or more of five legal principles or doctrines supported or gave to Ms Breen a right of access to records in the possession of Dr Williams that relate to his treatment of her, subject to lawful exceptions.

First, the common law gave her a "proprietary right and interest" in the actual information contained in Dr Williams' records. Second, the common law implied a term in the contract between her and Dr Williams to the effect that she had a right of access to the documents in Dr Williams' file. Third, there was an innominate common law right of access to medical records. Fourth, the common law recognised a patient's "right to know" all necessary information concerning his or her medical treatment including, where requested,; access to records containing that information. Fifth, the law imposed on Dr Williams a fiduciary duty, enforceable in a court of equity, to give her access to her medical records.

Did Ms Breen have a proprietary right or interest in the medical records?

Dr Cashman did not submit that Ms Breen owned the actual documents which comprised the medical file. She did not, he said, "seek to divest the doctor of the pieces of paper" comprising the records. The concession that Ms Breen did not own the documents was plainly correct. Professional persons are not ordinarily agents of their clients even though they often have express, implied or ostensible authority to enter into contracts on their clients' behalf. Documents prepared by an agent are ordinarily the property of the principal. But documents prepared by a professional person to assist him or her to do work for a client are the property of the professional person, not the lay client. Speaking of documents which a firm of valuers had prepared in the course of its professional employment, MacKinnon LJ said: ^[F68]

"If an agent brings into existence certain documents while in the employment of his principal, they are the principal's documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. I think it would be entirely wrong to extend to such a relation what may be the legal result of the quite different relation of principal and agent. ... [The documents in question] are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore, they cannot be said to be the property of the principal."

The doctor-patient relationship, like that of valuer and client, is not one of agent and principal. Dr Williams' notes were prepared to assist him to fulfil his professional duties. The property in the medical records relating to Ms Breen which he prepared belongs to him; Ms Breen has no proprietary right in respect of those records. The right of ownership of Dr Williams is, statute or contract apart, good against the world and entitles Dr Williams to prevent any person from having access to those records.

Although Dr Cashman conceded that Ms Breen did not own the records, he contended that she had a proprietary right or interest in the documents that entitled her to access to them. The premise of this; argument was that the records were not owned by anybody. However the idea that an item of personal property that has not been abandoned has no owner is ill-founded. Ownership may be divisible in the sense that one or more of the collection of rights constituting ownership may be detached and vested in a number of persons. Ownership may also be divorced from possession in numerous circumstances. ^[F69] But the notion that personal property that has not been abandoned may have no owner is one that is foreign to the common law. Statute or contract apart, medical records, prepared by a doctor, are the property of the doctor. That property right entitles the doctor to refuse other persons access to the records. Dr Cashman's argument based on Ms Breen having a proprietary right or interest in the records must fail.

Was a right of access an implied contractual term?

The doctor-patient relationship is contractual in origin. ^[F70] In general terms, "[a] doctor offers a patient diagnosis, advice and treatment", the objectives of which are "the prolongation of life, the restoration of the patient to full physical and mental health and the alleviation of pain". ^[F71] Given the informal nature of the relationship, however, a contract between a doctor and a patient rarely contains many express terms. Because that is so, the courts are obliged to formulate the rights and obligations of the parties to the contract. As Lord Wilberforce has put it, in cases where the parties to a contract have not attempted to spell out all the terms of their contract, the function of the court is "simply... to establish what the contract is, the parties not having themselves fully stated the terms". ^[F72] The court does so by implying terms in the contract in accordance with established legal principles.

The common law draws a distinction between terms which are implied in fact and terms which are implied by law. Leaving aside terms that are presumed to apply because of the custom of a trade or business, the courts will only imply a term in fact when it is necessary to give efficacy to the contract. ^[F73] A term implied in fact purports to give effect to the presumed intention of the parties to the contract in respect of a matter that they have not mentioned but on which presumably they would have agreed should be part of the contract. ^[F74] A term implied by law on the other hand arises from the nature, type or class of contract in question. ^[F75] Some terms are implied by statutes in contracts of a particular class, for example, money lending and home building contracts. Such terms give effect to social and economic policies which the legislature thinks are necessary to protect or promote the rights of one party to that class of contract. Other terms are implied by the common law because, although originally based on the intentions of parties to specific contracts of particular descriptions, they "became so much a part of the common understanding as to be imported into all transactions of the particular description". ^[F76] Many of these terms are implied to prevent "the enjoyment of the rights conferred by the contract [being] rendered nugatory, worthless, or, perhaps,... seriously undermined", the notion of necessity being central to the rationale for such an implication. ^[F77] The distinction between terms implied by law and terms implied in fact can tend in practice to "merge imperceptibly into each other". ^[F78]

The argument for Ms Breen started with the premise that, by implication of law, a doctor always contracts with a patient to act in the patient's "best interests". To support this premise, Dr Cashman relied on the following statement of Lord Templeman in Sidaway v Governors of Bethlem Royal Hospital: ^[F79]

"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."

From this premise, Dr Cashman argued that, as an incident of the "best interests" term, the doctor must make available medical records concerning a patient when the patient seeks access to them. The leap from the premise to the conclusion is a long one. But we can pass that by.

While the notion of "best interests" is a relevant consideration in some areas of the law, such as the law relating to child welfare; ^[F80] a doctor does not impliedly promise that he or she will always act in the "best interests" of the patient. The primary duty that a doctor owes a patient is the duty "to exercise reasonable care and skill in the provision of professional advice and treatment". ^[F81] The doctor does not warrant that he or she will act in the patient's best interests or that the treatment will be successful. ^[F82] If a doctor owed such a duty, he or she would be liable for any act that objectively was not in the best interests of the patient. The doctor would be liable for treatment that went wrong although he or she had acted without negligence. That is not the law of Australia.

There are good reasons why Australian courts do not imply a "best interests" term, as a matter of law, into all doctor-patient contractual relationships. First, "[w]here a term is implied into a contract it will usually embody a contractual promise and therefore create a legal duty." ^[F83] Such a duty would be inconsistent with the existing contractual and tortious duty to exercise reasonable care and skill in the provision of professional advice and treatment. The existence of a tortious duty of care militates against "the implication of... a general contractual duty of care", ^[F84] particularly where "the incidents of an independent general contractual duty of care would differ from those of an independent tortious duty". ^[F85] Second, the meaning and application of an implied term must be reasonably certain. ^[F86] The notion of "best interests" has been criticised as uncertain in the context of child welfare. ^[F87] That criticism is just as pertinent, if not more so, in the context of contract law which places a premium on certainty.

Even if Australian law implied a term in the contract between doctor and patient that the doctor would act in the patient's best interests in the sense that Lord Templeman propounded in Sidaway, it would not assist Ms Breen's claim to a right of access to medical records concerning her. Lord Templeman was not asserting that a doctor owed a general duty to act in the best interests of the patient. He used the term in the context of medical advice and treatment. In the paragraph preceding the statement upon which Dr Cashman relies, Lord Templeman had said that "[a] doctor offers a patient diagnosis, advice and treatment". ^[F88] It was in that context that his Lordship went on; to say that the doctor "impliedly contracts to act at all times in the best interests of the patient". ^[F89] The duty was not one applying in respect of all matters arising out of the doctor-patient relationship and subsisting for an indefinite period. Only within the context of "diagnosis, advice and treatment" ^[F90] was the duty to act in the "best interests" of the patient active. Moreover, "[i]t is difficult to see how a duty to act in the patient's 'best interests' can differ in any substantive way from a doctor's duty to exercise reasonable care in practising the skills of medicine". ^[F91] In addition, Lord Templeman was not formulating an objective test of "best interests". The whole point of his speech in Sidaway was that it was primarily a matter for the doctor to determine what was in the patient's best interests. He said ^[F92] that "the doctor, bearing in mind the best interests of the patient and bearing in mind the patient's right of information which will enable the patient to make a balanced judgment must decide what information should be given to the patient and in what terms that information should be couched."

For these reasons, the common law did not imply a term in the contract between Dr Williams and Ms Breen that he would always act in her best interests or that she had a right of access to his record of her treatment. So far as advice and treatment were concerned, the only relevant contractual term implied by law was to exercise reasonable care and skill.

Finally, no ground exists for implying a "best interests" term as a matter of fact. The term was not "so obvious that 'it goes without saying'", nor was it "necessary to give business efficacy to the contract". ^[F93]

Accordingly, no implied term of the contract between Ms Breen and Dr Williams entitles her to access to the medical records in his possession.

Is there an innominate common law right of access to medical records?

Dr Cashman relied on the decision of the English Court of Appeal (Nourse, Evans LJJ and Sir Roger Parker) in R v Mid Glamorgan Family Health Services ^[F94] to assert that there is an "innominate" common law right of access to medical records. The Court of Appeal held in that case that a public health authority had a "duty to administer its property in accordance with its public; purposes" ^[F95] and that, as the owner of a patient's medical records, the authority may deny a patient access to his or her records if it is in the best interests of the patient to do so. ^[F96] The Court of Appeal upheld the primary judge's conclusion that an offer to make the records of the plaintiff available to his medical advisers satisfied this duty.

Contrary to the view that we have expressed, Nourse LJ thought that Lord Templeman's speech in Sidaway ^[F97] had decided that a doctor had a duty to act at all times in the best interests of the patient and that it was a "general duty". ^[F98] Nourse LJ went on to say that "[t]hose interests would usually require that a patient's medical records... should usually, for example, be handed on by one doctor to the next or made available to the patient's legal advisers if they are reasonably required for the purposes of legal proceedings in which he is involved." ^[F99] But, as we have said, we do not think that Lord Templeman intended to lay down so sweeping a duty. In any event, for the reasons that we have given, in Australia no such duty is implied in the contractual relationship between a doctor and patient.

It follows that Mid Glamorgan Family Health Services is not an authority that has any persuasive effect in this country.

Does a doctor owe a fiduciary duty to a patient to give the patient access to that person's medical records?

Dr Cashman contends that the doctor-patient relationship is fiduciary in nature and that a doctor who denies a patient reasonable access to medical files concerning that patient is in breach of this fiduciary duty. In our opinion, this submission must be rejected.

Australian courts have consciously refrained from attempting to provide a general test for determining when persons or classes of persons stand in a fiduciary relationship with one another. This is because, as counsel for Dr Williams pointed out, the term "fiduciary relationship" defies definition. In Hospital Products Ltd v United States Surgical Corporation ^[F100] Gibbs CJ said:

"I doubt if it is fruitful to attempt to make a general statement of the circumstances in which a fiduciary relationship will be found to exist. Fiduciary relations are of different types, carrying different obligations... and a test which might seem appropriate to; determine whether a fiduciary relationship existed for one purpose might be quite inappropriate for another purpose. For example, the relation of physician and patient, and priest and penitent, may be described as fiduciary when the question is whether there is a presumption of undue influence, but may be less likely to be relevant when an alleged conflict between duty and interest is in question."

As the law stands, the doctor-patient relationship is not an accepted fiduciary relationship in the sense that the relationships of trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company and partners are recognised as fiduciary relationships. ^[F101] In Hospital Products, ^[F102] Mason J pointed out that in all those relationships "the fiduciary acts in a 'representative' character in the exercise of his responsibility". But a doctor is not generally or even primarily a representative of his patient.

However, the categories of fiduciary relationship are not closed, ^[F103] and the courts have identified various circumstances that, if present, point towards, but do not determine, the existence of a fiduciary relationship. These circumstances, which are not exhaustive and may overlap, have included: the existence of a relation of confidence; ^[F104] inequality of bargaining power; ^[F105] an undertaking by one party to perform a task or fulfil a duty in the interests of another party; ^[F106] the scope for one party to unilaterally exercise a discretion or power which may affect the rights or interests of another end; ^[F107] and a dependency or vulnerability on the part of one party that causes that party to rely on another. ^[F108]

Some aspects of the doctor-patient relationship exhibit characteristics that courts have used to find a fiduciary relationship. For example, from the most mundane consultation with a general practitioner through to the most complicated surgical procedure by a specialist surgeon, a patient is invariably dependent upon the advice and treatment of his or her doctor. Patients also invariably confide intimate personal details about themselves to their doctors. In some circumstances, the dependency of the patient or the provision of confidential information may make the relationship between a doctor and patient fiduciary in nature. But that does not mean that their; relationship would be fiduciary for all purposes. As Mason J pointed out in Hospital Products, ^[F109] a person may stand in a fiduciary relationship to another for one purpose but not for others.

In Birtchnell v Equity Trustees, Executors and Agency Co Ltd ^[F110] Dixon J said that in "considering the operation of [fiduciary principles], it is necessary to [ascertain] the subject matter over which the fiduciary obligations extend". In the present case, if Dr Williams owed a fiduciary duty to Ms Breen, the duties and obligations which arose from their fiduciary relationship could only come from those aspects of the relationship which exhibited the characteristics of trust, confidence and vulnerability that typify the fiduciary relationship. ^[F111] They could only attach in respect of matters that relate to diagnosis, advice and treatment.

A consideration of the fundamental obligations of a fiduciary shows that Dr Williams owed no fiduciary duty to Ms Breen to give her access to the records that he had created. The law of fiduciary duty rests not so much on morality or conscience as on the acceptance of the implications of the biblical injunction that "[n]o man can serve two masters". ^[F112] Duty and self-interest, like God and Mammon, make inconsistent calls on the faithful. Equity solves the problem in a practical way by insisting that fiduciaries give undivided loyalty to the persons whom they serve. In Bray v Ford, ^[F113] Lord Herschell said:

"It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule."

In the present case, it is impossible to identify any conflict of interest, unauthorised profit or any loss resulting from any breach of duty.

Dr Cashman submitted that Dr Williams had a conflict of interest because in his letter to Ms Breen dated 10 August 1993 he offered to release the records subject to the condition that Ms Breen release him from any legal claims arising out of the treatment. Dr Cashman contended that this condition evidenced Dr Williams' desire to secure; "a legal advantage out of the release of the information" which conflicted with his duty to act at all times in the best interests of the patient. Leaving aside the problem of identifying the basis upon which this duty to act at all times in Ms Breen's best interests is grounded, this argument is without substance. If it were correct, it would lead to the anomalous result that no breach of fiduciary relationship would exist if the doctor unconditionally denied a request for reasonable access, but that a breach of fiduciary obligation would exist if the denial was conditional. This is unacceptable. Duty must precede breach. In Tito v Waddell (No 2), ^[F114] Megarry VC pointed out:

"If there is a fiduciary duty, the equitable rules about self-dealing apply: but self-dealing does not impose the duty. Equity bases its rules about self-dealing upon some pre-existing fiduciary duty: it is a disregard of this pre-existing duty that subjects the self-dealer to the consequences of the self-dealing rules. I do not think that one can take a person who is subject to no pre-existing fiduciary duty and then say that because he self-deals he is thereupon subjected to a fiduciary duty."

In the present case, there was no breach of fiduciary duty in the conditional denial of access because there was no pre-existing duty on the part of Dr Williams to give access to the records.

It is also impossible to identify any profit that Dr Williams may have derived from the relationship beyond the payment of his authorised professional fees. Nor is the case one where Dr Williams seeks to make or has made a profit from confidential information that he obtained in the course of his relationship with Ms Breen.

The problem of reconciling the alleged fiduciary duty to act in the best interests of Ms Breen with other rights and obligations of Dr Williams and Ms Breen also makes it difficult to see how there could be a fiduciary duty to give access to records relating to her medical treatment. In Hospital Products, Mason J explained the relationship of fiduciary obligations and contractual rights and obligations as follows: ^[F115]

"That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary; relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction."

The right of access claimed by Ms Breen is not one given by the contract between her and Dr Williams. Nor can it arise from any undertaking, express or implied, by Dr Williams to act as the representative of Ms Breen because no such undertaking was given. Moreover, the contract between the parties gives her no right to or interest in the medical records. They remain the property of Dr Williams. ^[F116] Furthermore, a fiduciary duty that Dr Williams would always act in Ms Breen's best interests, which is the foundation of the claim of a fiduciary obligation to provide access to the records, would conflict with the narrower contractual and tortious duty to exercise reasonable care and skill in the provision of professional advice and treatment that Dr Williams undertook.

In addition, Dr Williams is the owner of the copyright in the records. By federal law, ownership of the copyright gives Dr Williams a number of exclusive proprietary rights including the right to reproduce the records in any material form. ^[F117] He is the beneficial owner of those rights. He does not hold them on trust for Ms Breen. In the absence of an undertaking, express or implied, on the part of Dr Williams to allow her to copy the records, it is difficult to see how Ms Breen could be allowed to copy the records even if she had a right of access to the records.

In our view, there is no basis upon which this Court can hold that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. She seeks to impose fiduciary obligations on a class of relationship which has not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines governing the doctor-patient relationship, particularly in the areas of contract and tort. As Sopinka J remarked in Norberg v Wynrib: ^[F118]

"Fiduciary duties should not be superimposed on these common law duties simply to improve the nature or extent of the remedy."

Dr Cashman relied strongly on the decision of the Supreme Court of Canada in McInerney v MacDonald ^[F119] to support his contention that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. In McInerney, the Supreme Court held that a doctor owed a fiduciary duty to his or her patient to allow access to medical records, subject to certain conditions. La Forest J, who delivered the judgment of the Court, after holding that the doctor owes; a duty to his or her patient "to act with utmost good faith and loyalty," ^[F120] said: ^[F121]

"The fiduciary duty to provide access to medical records is ultimately grounded in the nature of the patient's interest in his or her records. ... [I]nformation 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."

Later his Lordship said: ^[F122]

"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."

However, in this country it is not possible to regard the doctor-patient relationship as one in which the doctor is under a general duty "to act with utmost good faith and loyalty" to the patient. When a medical practitioner undertakes to treat or advise a patient on a medical matter, "[t]he law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment", ^[F123] not a general duty "to act with the utmost good faith and loyalty".

Secondly, with great respect to La Forest J, it does not help analysis of the legal issues in the present class of case to say that the information "is held in a fashion somewhat akin to a trust" or that there is an expectation that the patient's "control of the information will continue". The information is not property. ^[F124] Moreover, the only control that a patient has over the information that he or she has given to the doctor is to restrain its improper use. ^[F125] Nor is there any trust of it. Equity does not require the doctor to record, account for or even remember the information. Nor can equity at the suit of the; patient prevent the doctor from destroying the records that contain the information. The records are the property of the doctor. He or she may be restrained from using the information in them to make an unauthorised profit or from disclosing that information to unauthorised persons. But otherwise the records are his or hers to save or destroy. The idea that a doctor who shreds the records of treatment of living patients is necessarily in breach of fiduciary duties owed to those patients is untenable.

Furthermore, the judgment of La Forest J does not deal with the fact that the medical records of a patient will often, perhaps usually, contain much more than the information that the patient has given to the doctor. In addition to any observations concerning the patient's condition and notes recording treatment and research, the records may contain comments by the doctor about the personality and conduct of the patient. They may also contain information concerning the patient that the doctor has obtained from other sources. The patient has no rights in relation to or control over any information that has not come from him or her. We can think of no legal principle that would give the patient even a faintly arguable case for access to information in the records that is additional to what the patient has given. If the relationship of doctor and patient was a status-based fiduciary relationship in which the doctor was under a general fiduciary duty in relation to all dealings concerning the patient, the patient might be entitled to access to all the information in his or her medical records. But there is no general fiduciary duty.

La Forest J said that the "fiduciary duty to provide access to medical records is ultimately grounded in the nature of the patient's interest in his or her records". ^[F126] However, the patient has no legal rights in respect of significant parts of the information contained in medical records. If a patient has a legal right of access to medical records merely because he or she has given personal and confidential information to a doctor, it would seem to follow that journalists, accountants, bank officers and anybody else receiving personal and confidential information always had a fiduciary duty to give access to their records to the person who gave that information. ^[F127]

Thirdly, the Canadian law on fiduciary duties is very different from the law of this country with respect to that subject. One commentator has recently pointed to the "vast differences between Australia and; Canada in understanding of the nature of fiduciary obligations". ^[F128] One significant difference is the tendency of Canadian courts to apply fiduciary principles in an expansive manner so as to supplement tort law and provide a basis for the creation of new forms of civil wrongs. ^[F129] The Canadian cases also reveal a tendency to view fiduciary obligations as both proscriptive and prescriptive. ^[F130] However, Australian courts only recognise proscriptive fiduciary duties. This is not the place to explore the differences between the law of Canada and the law of Australia on this topic. With great respect to the Canadian courts, however, many cases in that jurisdiction pay insufficient regard to the effect that the imposition of fiduciary duties on particular relationships has on the law of negligence, contract, agency, trusts and companies in their application to those relationships. ^[F131] Further, many of the Canadian cases pay insufficient, if any, regard to the fact that the imposition of fiduciary duties often gives rise to proprietary remedies that affect the distribution of assets in bankruptcies and insolvencies.

In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations - not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed. ^[F132] If there was a general fiduciary duty to act in the best interests of the patient, it would necessarily follow that a doctor has a duty to inform the patient that he or she has breached their contract or has been guilty of negligence in dealings with the patient. That is not the law of this country.

In Australia, therefore, McInerney cannot be regarded as a persuasive authority. In this country a court cannot use the law of fiduciary duty to provide relief to Ms Breen which, if granted, would have the effect of imposing a novel, positive obligation on Dr Williams to maintain and furnish medical records to Ms Breen. It follows that Dr Williams does not owe Ms Breen any fiduciary duty to; give Ms Breen access to the medical records that relate to his treatment of her.

The "right to know"

Dr Cashman contended that the law in Australia governing the doctor-patient relationship has moved to or is moving towards a recognition of the patient's "right to know" and that this was a reason why the Court should hold that a patient has a right of access to medical records concerning that person. He argued, relying particularly on the decision of this Court in Rogers v Whitaker, ^[F133] that this movement is recognisable in the law in five ways: an acceptance of the principle of personal inviolability; a rejection of a paternalistic approach which had been previously accepted; the rejection of the notion that the patient's interests are to be determined by standards exclusively fixed by the medical profession; the imposition of judicially imposed standards; and the acceptance of patient autonomy. Dr Cashman did not contend, however, that this "movement" in the law of itself gave Ms Breen the right of access for which he argued. Rather, he suggested that it advanced the validity of his other arguments.

While recent decisions of Australian courts have rejected the attempt to treat the doctor-patient relationship as basically paternalistic, it would require a quantum leap in legal doctrine to justify the relief for which Dr Cashman contends. Rogers took away from the medical profession in this country the right to determine, in proceedings for negligence, what amounts to acceptable medical standards. But the decision also rejected the notion of "the patient's right of self-determination" as providing any real assistance in the "balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure". ^[F134]

Any change in the law must be for Parliament

No doubt there are people in this country who think that a patient should have an unrestricted right of access to medical records that concern that patient. Many others, Ms Breen among them, no doubt think that a patient should have access to such records, subject to limited exceptions. Perhaps only a very small minority of persons in Australia would think that in no circumstances should patients have access to information contained in their medical records. But absent a contractual right, the common law of Australia does not give a patient a right to have access to records, compiled by a medical practitioner, which relate to that patient. Nor, for the reasons that we have given, is it possible for this Court to develop existing principles to create such a right.

Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must "fit" within the body of accepted rules and principles. The judges of Australia cannot, so to speak, "make it up" as they go along. It is a serious constitutional mistake to think that the common law courts have authority to "provide a solvent" ^[F135] for every social, political or economic problem. The role of the common law courts is a far more modest one.

In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the "new" rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions.

In the present case, it is not possible, without distorting the basis of accepted legal principles, for this Court to create either an unrestricted right of access to medical records or a right of access, subject to exceptions. If change is to be made, it must be made by the legislature.

Order

The appeal should be dismissed.