GP Not Required To Hand Over Patient Records

In the decision of Application by Lydia Yew [2021] FWC 5946, the Fair Work Commission (‘FWC’) has rejected an application for an order that a General Practitioner produce patient records for a workplace bullying claim.

The matter arose from an employee’s FWC application for a stop bullying order whereby the respondents later applied for an order for the production of documents. The order was directed to the employee’s General Practitioner to produce all documents relating to any medical or allied health treatment provided to the employee (‘applicant’) for the period from 19 December 2019 to 10 September 2021. The order was opposed by the applicant.

The respondents’ lawyer submitted that the order should be issued for the following reasons:

• The documents were relevant to a fact in issue raised by the applicant being her mental state during the period of alleged bullying and the content of the medical records that bears upon that issue;
• The applicant’s perception of her treatment at the workplace was an issue in the context of an objective assessment by the FWC of any unreasonable behaviour;
• The applicant stated in her witness statement that she would produce some medical records;
• The respondents were willing to agree to a suitable confidentiality order if necessary.

The applicant’s lawyer opposed the order principally on the grounds of relevance. 

The applicant’s lawyer also submitted that an order to produce these documents would discourage the applicant from seeking emergency medical care due to concern that any material could be disclosed to her employer.

While the lawyers for each party agreed that determination of the application required an objective assessment, there was disagreement about how this should be applied.

The FWC referred to decisions regarding production of documents orders under section 590(2)(c) of the Fair Work Act 2009 (Cth) (‘Act’). The principle decision considered was Esso Australia Pty Ltd v AWU, AMWU and CEPU [2017] FWCFB 2200 which relevantly states:

“Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.”

The FWC noted the decision of D.A. v Baptist Care SA [2019] FWC 7358 as authority for an order being discretionary that will generally be in favour of the party seeking the order unless it would be “vexatious or frivolous or otherwise an abuse of process to issue the summons.” The FWC noted a number of non-exhaustive considerations including public interest matters.

The FWC also referred to the decision of Ms SB [2014] FWC 2104 in relation to reasonable management action which relevantly states:

“[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time.”

The FWC decided that the documents sought were not sufficiently relevant to warrant an order.

The question for determination was whether the respondents engaged in behaviour that amounted to bullying within the meaning of the Act. This requires being satisfied that an individual or group of individuals repeatedly behaved unreasonably towards the applicant and that the behaviour created a ‘risk’ to health and safety, which is an objective test. On this basis, the FWC concluded that it was neither necessary nor necessarily relevant for the applicant to establish that there had been ‘actual’ harm to her health and safety.

The FWC was not satisfied that the detailed medical information sought was relevant or necessary for the respondents to be able to defend against the application. The FWC determined that while the emotional state and psychological health of the applicant may be relevant to consider whether any conduct was reasonable management action, this would be assessed based on the ‘respondents’ knowledge’ of the applicant’s health (or manifestations) ‘at the time of the conduct’. This would not be assisted by obtaining detailed medical information ‘after the fact’.

Even if satisfied the documents sought were relevant, the FWC indicated that it would not order production due to the documents being deeply personal and that this would discourage the applicant from seeking emergency medical care due to concern about disclosure to her employer. The FWC was also concerned that production of the documents could possibly be harmful to the applicant’s health and wellbeing and that this should be avoided unless there was a compelling reason otherwise.

If you would like to know more about requests for patient records, please contact us at hello@mapien.com.au and a Mapien Workplace Strategist will be in touch within 24 hours.