Landmark privacy decision in abortion case

The Victorian Court of Appeal has ruled that the medical records of a woman who underwent a late term abortion in a public hospital must be provided to the Medical Practitioners Board in connection with its investigation into the conduct of the doctor in undertaking the procedure.

The case has dragged on for three years, received wide press coverage and has been highly controversial. The matter was brought to the attention of the Board by (former National Party and now Liberal Party) Senator Julian McGuaran, and was seen by some as part of an anti abortion campaign.

The Court of Appeal had to consider the privacy issues associated with confidential records relating to the treatment of the woman in a public hospital, and the claim by the hospital that it did not need to comply with an order to provide the records on the grounds of a public interest immunity claim. The Court rejected this argument confirming that public interest immunity to refuse to provide documents only applies where documents are governmental in character and disclosure would have an adverse effect on the proper functioning of the executive arm of government. It cites with approval two NSW decisions including a NSW Court of Criminal Appeal decision where it was held that public interest immunity did not apply to sexual assault counselling records of a patient at a public hospital.

The decision illustrates the qualified nature of a right to privacy. While the Court was of the view that the hospital’s argument regarding public interest immunity was ill conceived, the discussion includes reference to the need to balance privacy rights with other considerations including the conduct of the investigatory functions of the Board.

The decision includes [paragraphs 44 and 45] comment about the possible exemption claims that could apply if the documents were sought from the Board under FOI - there seems little doubt that the documents, in the absence of consent of the person concerned, would be exempt.

Another interesting aspect of the decision is the consideration of the application in this case of international human rights treaties and conventions.

The Hospital apparently is still considering the possibility of an appeal to the High Court