Medical Board of Australia v Kemp

(2018) 56 VR 51; [2018] VSCA 168

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Medical privilege
4. › Statutory privilege against production
5. › Whether privilege applies in regulatory disciplinary proceedings in VCAT
6. › Whether VCAT disciplinary proceeding constitutes 'civil suit action or proceeding'
7. › Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 28(2)
1. Medical Practitioners
2. › Investigations and discipline
3. › Professional misconduct
4. › Referral to VCAT by Medical Board
5. › Summons for production of medical records
6. › Whether statutory medical privilege prevents production
7. › Health Practitioner Regulation National Law (Victoria) Act 2009
1. Statutory Interpretation
2. › Construction of statutory phrase
3. › 'Civil suit action or proceeding'
4. › Composite phrase taking colour from collocation of words
5. › Relevance of text, purpose, legislative history and consequences
6. › Whether phrase confined to curial adjudication of private rights
7. › Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 28(2)

Quick Take

The statutory medical privilege in s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) does not apply to disciplinary proceedings in VCAT brought by the Medical Board of Australia. The phrase 'civil suit action or proceeding' describes a process involving the curial adjudication of private rights, which may be performed by forums other than courts, but does not extend to regulatory proceedings that serve a public purpose and do not determine private rights inter partes. The Board may therefore obtain medical records via VCAT summonses without patient consent. The questions of whether patients can withdraw consent previously given, or whether making a complaint implies consent, were expressly left open.