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Medical: Preliminary discovery (NSW). – LexBlog


Back v Allity Pty Ltd t/as Calare Aged Care [2022] NSWDC 424 (on Caselaw).

The applicant sought an order for preliminary discovery of medical records in respect of his late father. The summons was issued because the applicant’s solicitors were in the process of investigating a potential claim for damages for an alleged breach of duty of care by a person or an entity. Such claims might foreseeably arise pursuant to s 4 of the Compensation to Relatives Act 1897 (NSW) and s 30 of the Civil Liability Act 2002 (NSW).

The deceased did not leave a will or a significant estate that would justify the applicant incurring the cost of obtaining letters of administration of the deceased’s apparently valueless estate.

Allity made a concession through its counsel to indicate that it neither consented nor opposed the orders sought by the applicant, subject to seeking to limit the range and the type of documents sought by the applicant. Allity contested a costs order sought by the applicant.

The HRIPA framework

Allity claimed there are legal impediments which prevented it from agreeing to accede to the orders sought by the applicant: s 31 of the HRIP Act. Allity declined the request by the applicant’s solicitors on the basis that the applicant “did not provide any evidence capable of establishing he was [the deceased’s] the authorised representative” as defined in s 8 of the HRIP Act. Specifically, Allity’s stance was based on the proposition that [the applicant] “did not provide any evidence that he is an executor or administrator of [the deceased’s] estate

The primary judge noted that there were other relevant mechanisms within the scheme of the HRIP Act that could have been invoked and followed in the circumstances as disclosed by the applicant. For example, as Allity ultimately conceded in its final submissions, s 65 of the HRIP Act provides a statutory power of exemption from compliance with the requirements of the HRIP Act on an application to the Privacy Commissioner for a direction to that effect. However, Allity went on to submit that it was not under an obligation to pursue any such application for exemption in the circumstances. It maintained this was so notwithstanding the existence of an available basis for such a consideration as identified within the HPP schedule, namely, “Compassionate reasons”: Sch 1, cl 11(1)(g) of the HRIP Act.

On the question of costs, Allity submitted that it should not bear any costs of the present application because it had not taken an adversarial stance in response to the summons. However the primary judge noted at [85] – [87]:

Whilst the above principle so stated and cited is indisputable, I do not accept as apt the submission which relies on those identified decisions. This is because although Allity ultimately neither consented nor opposed the application, it took what I find to have been a plainly evident and positively adversarial position in seeking to limit the range of documents which the applicant was seeking.

It was clear from the tenor and content of Allity’s submissions that it was seeking to prevent the applicant gaining access to the report by the Aged Care Quality and Safety Commissioner. It also sought to narrowly limit the date range of the documents to be provided to the applicant pursuant to UCPR r 5.2 and r 5.3.

Those proposed limitations were not justified in the circumstances. I find that in taking that stance Allity took an adversarial position in the process and in proceedings rather than simply making a submitting appearance.

Accordingly the respondent was ordered to pay the applicant’s costs.

In relation to the duty of candour, the primary judge commented at [32] – [33]:

The applicant’s predicament in this instance has come into more prominent focus because there is no statutory code requiring candid disclosure of the circumstances in which adverse health care events have occurred in the aged care setting.

In this State, unlike in some other jurisdictions, at present, there is no enforceable regulatory obligation placed on the providers of health care services, including the providers of aged care services, to abide by a duty of candour that requires mandatory disclosure of information to patients or their immediate family members thereby identifying adverse events that have caused harm in the course of the provision of health care services.

[BillMaddensWordpress #2038]



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