NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551 (17 October 2008) – Medical records, rights of chiildren, doctor patient confidentiality, privacy and.. oh the appropriate exercise of authority by administrative authorities

October 19, 2008 |

Justice Reeves decision yesterday in NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551 (17 October 2008) has caused a minor stir in the media.  PM’s coverage of the story portrays it as a confidentiality/medical records type case whereas in fact the matters under consideration were technical and narrow. 

The test, as Reeves J saw it, was that the Examiner under the ACC Act must take into account the best interests of the child as a primary consideration when issuing a notice.  The reasoning was based on section 29(1A) of the ACC Act where the Examiner has to be “..satisfied it is reasonable in all the circumstances” to issue the notice and  the ratio of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’) regarding the impact of the Convention of the Rights of the Child on administrative decisions.  The extracted cross examination (at par 37) is a quick example of an effective cross examiner and an overly cautious witness. Once he established the key test Reeves J applied the facts and found that the Examiner did not take into account the best interests of the child as a primary importance and accordingly did not properly exercise his power.

His Honour set out the process that should be followed in cases of this nature at paragraphs 42 & 43 where he stated:

 42 In my view, these decisions require that an administrative decision-maker who is required to take into account the best interests of children as a primary consideration should:

(a) identify what the best interests of the children concerned are and what they call for in the circumstances;

(b) identify any other considerations that are worthy of equal importance; and

(c) determine which consideration is to be given the greater weight in coming to the final decision;

43 Most of the decisions (above) make it clear that it is not necessary to expressly mention Teoh, or the expression ‘best interests of the child’, or even list the matters the decision-maker considers go to the best interests of the child, provided that it appears from a fair consideration of the materials, that the administrative decision-maker did in fact take into account the best interests of the children concerned as a primary consideration.

The most important issue

Reeves J decision is a decision grounded in the application of administrative law.  In a sense the real issue is privilege.  The doctors focused on this  on the PM program when Peter Beaumount, president of the Northern Territory AMA said:

Dr Peter Beaumont is the president of the Northern Territory branch of the Australian Medical Association. PETER BEAUMONT: We live in a society where we respect democracy and respect privacy of the individual. We don’t live in a communist country where the good of the public far exceeds the private individual in relation to health care and I’m delighted to find that the court agrees.

This is an issue that has been litigated before, most famously in Gillick v West Norfolk & Wisbech HA [1986] AC112.   In D v NSPCC [1977] 1 All ER 589     In Gillick Mrs Gillick tested legislation which permitted Health Services in England to give contraception to minors.  She wanted parents to have a say in the issue.  The House of Lords differed and ruled that a child can give consent and obtain contraception.  It is an interesting decision because the court recognised that the ability to consent is not age based per se but based on a capacity to understand.   D v NSPCC is even more important.  The Court found there was a public interest immunity in the records of complaint made to the Society for the Prevention of Cruelty to Children.  If such an immunity was not granted, the court reasoned, people wouldn’t make complaints and teh Society would not function.  While I think the AMA is right to talk about privacy the real issue for a health clinic is trust.  If patients think there records will find their way into the hands of the authorities, with the legal and social consequences that entails, they will not attend. 

What really disturbs me about this decision is the use of the Australian Crime Commission, and its star chamber powers, in this sort of investigation.  I support the intervention and I see, albeit reluctantly and in very rare cases, the need for the Crime Commission and its powers.  In organised crime investigations sometimes that sort of power is needed to open a crack in the wall of silence (or at least confirm you are on the right track).  But bringing the ACC into the intervention where the crime is sexual abuse is in itself an abuse.  That is a matter for regular policing.  It smacks of the same sort of abuse by the US Federal Government in its application of the RICO statute against non organised crime bodies, such as unions involved in industrial action, and by poltical activists, most notably the fight between pro life groups and the National Organisation of Women   (Scheidler v National Organisation for Women Inc 123 S. Cr 1057 (2003).    Just because a cause is just is not good enough reason to bring into operation the most draconian laws.  Where all sorts of other issues are in play having coppers weilding legal equivalents of thermonuclear weapons is an almost sure fire way to create more problems than will be solved.

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