34.There are various categories of documentation which could be protected from release under section 59. These include:
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information protected by Legal Professional Privilege;
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information on Comcare's fraud investigations files; and/or
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medical reports containing information which, in Comcare's opinion, if released could cause the claimant or a third party harm.
Where requests are received for documents which fall into any of the above categories, advice should be sought from Legal Services Group before any response is provided.
Legal Professional Privilege (LPP)
35.A major possible exception to release of information under section 59 of the SRC Act is where the information is protected by LPP.
36.LPP may be described in the following terms:
“In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made, either:
(1)to enable the client to obtain, or the adviser to give, legal advice; or
(2)with reference to litigation that is actually taking place or was in the contemplation of the client” (Byrne & Heydon Cross on Evidence (4th Aust ed) Butterworths 1991 p 696).
37.For example, LPP may be claimed in situations, involving confidential communications between Comcare officers and its solicitors in relation to any court (ie the Federal Court, Magistrates Court, District or Supreme Court) or tribunal (ie the AAT) matters so long as those communications were:
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for the purpose of the client obtaining legal advice; or
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concerning litigation or contemplated litigation.
38.In the AAT, however, the situation is far from being clear cut because:
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the AAT are not bound by rules of evidence (of which LPP is but one part); and
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section 37 (of the Administrative Appeals Tribunal Act 1975) requirement to lodge with the AAT all documents in the decision-makers' (and claimants') possession and control relevant to the AAT's review of the decision.
39.Comcare officers should be particularly careful about the waiving of LPP (waiver is a privilege which is the client's) as this could have consequences at a later date and, therefore, should not be done without legal advice.
40.Advice in relation to the claiming of LPP should be sought from Legal Services Group as LPP is much more complex than the brief summary above indicates.
Medical reports
41.The underlying principle governing release, or protection from release, of medical reports or other such material (particularly psychiatric or psychological reports) is that they should not be released where there is a real risk that the release of the report could lead to the claimant harming himself/herself (physically or mentally) or another person.
42.In such circumstances, it is arguable that Comcare has a duty of care to the claimant or others with some connection to the claimant.
43.Usually the person best placed to determine this is the claimant's doctor. Therefore, where there is doubt about the effect that the release of a medical report could have on the claimant, it would be appropriate to consult the doctor who prepared the report before releasing it.
44.There are a number of possible scenarios (see A. to E. below) flowing from this consultation.
A.If the doctor recommends that the report should be released, and there are no other concerns as to the effect of its release, then the report can be released after a file note confirming the doctor's advice has been completed and placed on the claimant's file (in addition to the other requirements set out in paragraphs 14 to 17).
B.If the doctor recommends that the report should be released but he/she has any concerns about the effect of its release, it would be appropriate to discuss these concerns with the doctor and, if the doctor's view is that release would not lead to the claimant harming himself or herself or another, then suggest that the material be released to the claimant's doctor who, in turn, would release the reports to his/her patient.
However, this may not be an appropriate course where there is no longer a doctor-patient relationship. Legal advice may need to be obtained from Legal Services Group in such situations.
C.If the doctor recommends that the report should be released, but the Comcare officer handling the section 59 request has any concerns about the effect of the release on, either, the claimant or any third parties (particularly concerns of an immediate physical and/or psychiatric nature), the Comcare officer should contact Legal Services Group for further advice as to whether the document should be released.
D.If the doctor recommends that the report or material contained in it should not be released, because of an effect that it may have on the claimant, the report or material should NOT be released, unless at the direction of a Court or tribunal. Advice should be obtained from Legal Services Group in these situations.
E.If a Court or tribunal looked likely to direct the release of medical reports under section 59 despite the doctor's recommendation, it would be appropriate to seek orders indicating the material should be released to the claimant's doctor who, in turn, would release the reports to his/her patient.