State of Queensland v Allen – so, what exactly is a 'medical report'?

On 4 November 2011 the Queensland Court of Appeal delivered its decision in the much awaited case of State of Queensland v Allen¹.

Ethan Allen was aged 16 months when he suffered severe brain damage following a medical procedure at the Prince Charles Hospital. His lawyers applied to the Court seeking orders that the hospital disclose two file notes (taken by a solicitor following discussions with doctors involved in Ethan's treatment) and a written statement or report prepared by a doctor following a solicitor's recommendation that information be gathered to assist in the defence of any future legal proceedings.

Documents created for the dominant purpose of legal proceedings will generally be privileged from disclosure. In certain circumstances however the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) removes legal professional privilege from documents characterised as 'investigative reports', 'medical reports' or 'reports about the claimant's rehabilitation'¹.

Mr Allen's solicitors succeeded at first instance. The judge considered that the file notes and doctor's statement were investigative reports and ordered that they be disclosed. The hospital appealed.

The Court of Appeal held that the documents were not "investigative reports", and that the file notes were not reports at all. However, the Court of Appeal also held that the document prepared by the doctor should be characterised as a "medical report" and must be disclosed on that basis.

There are implications for the disclosure of statements and written instructions received from medical witnesses. The Court of Appeal has confined itself to the facts of this case and the judges do not discuss generally when a statement will be characterised as a "medical report". However, the document in question is described frequently by the judges as a statement. It was unsigned. It was otherwise noted to be in form a report².

The judgement does suggest a statement is unlikely to be characterised as a report where it is given to a solicitor by a medical practitioner who is a defendant rather than (as was the case here) a witness³. However, where written statements are obtained from medical witnesses the Court of Appeal's decision indicates disclosure will be required.

Finally, although the Court of Appeal has made it clear that file notes will not generally be discoverable on the basis they are reports, in accordance with the earlier Court of Appeal decision in Watkins v State of Queensland⁴, legal professional privilege will not attach to documents that must be disclosed in accordance with the requirement that the offer of settlement mandated by the PIPA is accompanied by all documents that might assist the recipient in assessing it. In certain circumstances, this might extend to file notes.

Footnotes

¹ [2011] QCA 311

² Fryberg J at para 92

³ Fraser JA at para 69 and Fryberg J at para 99.

⁴ [2007] QCA 430

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