DOCTOR APPLIES FOR SUBPOENA AGAINST THE AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY, PLAINTIFF OBJECTS
Khoury v Kirwan (No 3) [2021] VSC 304 (27 May 2021)
In this case, the plaintiff objects to the subpoenas caused by the defendant issued to health care providers, doctor and the Medical Council of New South Wales. This case determines if subsections 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 are applicable in the defamatory case by the defendant against the Australian Health Practitioner Regulation Agency.
Facts:
One orthopedic surgeon says he has been defamed by another orthopedic surgeon. The defendant surgeon, Dr David Kirwan, has caused a flurry of subpoenas to be issued. The documents subpoenaed include patient records and other health information. The plaintiff surgeon, Dr Elie Khoury, has lodged an objection to five of the subpoenas.
Plaintiff contends that Similar documents to those sought from the Medical Council are sought to be produced by AHPRA (Australian Health Practitioner Regulation Agency). He submits that Subsection 99A(2) should prevent production of the documents in classes 2 and 3 of the subpoena addressed to AHPRA
Issue: Do sub-SS.99A(2) or 99A(2A) apply in respect of a subpoena addressed to AHPRA?
Law:
- 99A(2): A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.
- 99A (2A): A professional council, or a person exercising functions on behalf of a professional council, may not be compelled in any legal proceedings to give evidence about, or produce documents containing, information exchanged between a professional council and the Commission under this Act or the Health Practitioner Regulation National Law (NSW).
Analysis:
The immunities in sub-ss 99A(2) and 99(2A) cannot be invoked in respect of the subpoena addressed to AHPRA. Subsection 99A(2) applies to information obtained in exercising a function under the HCC Act. AHPRA does not exercise functions under the HCC Act.
Subsection 99A(2A) applies to a ‘professional council’ or a person exercising a function on their behalf. Pursuant to the definition in S.4 of the HCC Act. Professional council means, in relation to a health practitioner in a health profession for which a Council is established under section 41B of the Health Practitioner Regulation National Law (NSW) [National Law], the Council for that health profession.
Section 41B of the National Law does not include AHPRA. Instead, AHPRA is established under S.23 of the National Law.
In conclusion, the objection made by Dr Khoury and the Commission to production and inspection of the documents on the basis of the HCC Act is disallowed.
Conclusion: The objection to production and inspection of the subpoenaed documents on the basis of sub-s 99A(2) of the HCC Act is disallowed.
