Dr Kemp, a medical practitioner, was asked to produce medical records to the Victorian Civil and Administrative Tribunal (VCAT) as part of a professional regulation matter despite his patient’s refusal to consent. In November 2017, the Supreme Court found that physicians’ privilege extended to such matters (see our previous alert on the Supreme Court’s decision here).

The matter was appealed with the Court of Appeal asked to consider whether a VCAT disciplinary proceeding brought against a medical practitioner is a “civil suit, action or proceeding” within the meaning of section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the Act”). Such a finding would prohibit the disclosure of any medical information acquired by the practitioner without the patient’s consent.

The appeal was allowed on the basis that this matter, which was referred to VCAT by the Medical Board of Australia, is not a “civil suit, action or proceeding” within the meaning of the Act. This is because the matter is heard by a tribunal that does not have to comply with the rules of evidence.

Consequently, Dr Kemp was required to disclose medical records to VCAT as the subpoenaed material was not considered privileged. Click here to read the full judgment.