HO YEE SUP AND ANOTHER v. DR. MAY CHAN YUK MAY AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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RULING

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1. I would prefer to pronounce my decision and produce, in comfort, a reasoned ruling later. There is also an element of time constraint as the offered assistance of court reporters should be immediately taken full advantage of. However, it is desirable that the parties should be informed, as early as possible, of the route by which my decision has been reached.

2. Two points are taken by counsel for the plaintiffs on certain aspects of the cross-examination conducted by Miss Hartstein, counsel for the 3rd defendant. They may be shortly put as (1) non-discovery of a document used in such cross-examination and (2) improper procuration and unauthorised use of confidential information.

3. The 2nd plaintiff was cross-examined on what is said to be a medical record kept by a doctor whose identity has yet to be ascertained in Prince of Wales Hospital, which contains information she supplied. The whole cross-examination was directed at precisely what answer the 2nd plaintiff gave in 1988 to that doctor in the Prince of Wales Hospital as to her use of contraceptive measure after the birth of her last child, Ching Yee. Cross examination was aimed, in particular, at discrediting her in her claim that she was, on account of past experience, still taking precaution by using condoms even after the surgical severance of her Fallopian tubes.

4. I have been referred to the pleadings. It is evident that the cross-examination was not undertaken on matters central to the issues joined between the parties to these proceedings. Allegations made by the plaintiffs focus on  what is called the wrongful birth of their last child, Ching Yee, on 14th June 1985. The 2nd plaintiff's answers to the doctor in 1988 in Prince of Wales Hospital were given in an interview long after the event, if I may so describe it. It cannot be denied that cross-examination on such a topic was peripheral and principally on credibility.

5. The 2nd plaintiff conceded that the doctor asked her a great many questions and noted down her answers. The substance of one of her answers, sought to be elicited by the cross-examination under consideration, was claimed by the 2nd plaintiff to be beyond her recollection. She maintained that she could not remember or that the matter was probably not raised. At another time, she suggested that she felt too embarrassed or shy to give a direct answer.

A little further down in the notes that I have kept :

6. Moving slightly away from but still touching the medical record at that stage of the cross-examination, with re-examination and further evidence yet to come, it would seem that a point was well scored for the 3rd defendant :

7. The contents, whatever they are, of the document said to be the medical record of the 2nd plaintiff, were not specifically put to the 2nd plaintiff. But it is fair to say that the document or the information contained therein had been used in the course of such cross-examination. I have come to the conclusion that the topic in the cross-examination under consideration was merely peripheral and principally affecting credibility. There is no known authority, in fact none has been cited, for the proposition that side issues such as this need be covered by discovery. As a matter of set practice, disclosure of material not directly in issue could not be sought. See Kennedy v. Dodson, [1895] 1 Ch.334.

8. I turn next to the second but more crucial objection advanced on behalf of the plaintiffs by Mr Sarony. It could perhaps be conveniently divided into two limbs. Attack was mounted at (1) the manner in which the record or information it contains was obtained and (2) the use of the confidential document or its information.

9. Use of the document or its contents in cross-examination was made without the consent of the 2nd plaintiff or the doctor involved. The Court has not been specifically told that the 2nd plaintiff will, if asked, refuse to give her consent. The doctor responsible for the record, if traced, will probably not, on legal advice, decline to make reference to the information contained in the document. But the mere question of lack of consent, independent of any claim of confidentiality, has lost much of its significance. The settled principle is that a plain document, even if improperly or illegally obtained for the purpose of civil litigation, can rarely be excluded except, as a matter of public policy, when it has been procured by a trick, deception or oppression. See Goddard v. Nationwide Building Society, [1986] 3 AER 264 at p.272 letter e/f.

10. The 3rd defendant is the custodian of the document in question. It is not suggested that the availability of the document or the information it contains has been tainted with stealth, deception or oppression practised on the 2nd or the 1st plaintiff. As an ordinary document, the mere absence of consent cannot exclude it. But can the document and the information it contains, being inherently confidential, be used? It is supposed to have taken down the medical history of the 2nd plaintiff in a communication between a doctor and his/her patient. Such confidentiality can only be waived by the 2nd plaintiff, and she has not waived it. Confidential document and confidential information are subject to a wholly different set of rules.

11. Counsel for the plaintiffs relies on paragraph 81(g), of the Guidelines for "Professional Confidence" in the Blue Book of the British General Medical Council as reproduced in the judgment in W. v. Egdell, [1990] 2 WLR 471 at p.483 Letter B : "Rarely, disclosure may be justified on the ground that it is in the public interest which, in certain circumstances such as, for example, investigation by the police of a grave or very serious crime, might override the doctor's duty to maintain his patient's confidence." Suffice it for me to say that if indeed the same guidelines have been introduced to Hong Kong and to all practical purposes are in current use, paragraph 81(g) in the Blue Book of the British General Medical Council only relates to permissible disclosure unilaterally made by a doctor of confidential medical information not under any restraint or compulsion in a situation which has no parallel with the course this trial has taken. It deals with voluntary disclosure as envisaged by the preceding paragraph 80 of the Blue Book. It is trite law that confidential information in a medical record is no privileged information and would provide no immunity against production. Support for that proposition may be found in Webster v. James Chapman [1989] 3 All ER 939 at p.945 letters a-b, per Scott J.; Campbell v. Tameside Metropolitan Borough Council, [1982] 1 Q.B. 1065 at page 1075 Letter B & Letters D-E. As long ago as A.G. v. Mulholland; A.G. v. Foster, [1963] 2 Q.B. 477, at p.489 Lord Denning M.R. reaffirmed the same rule in these terms : "The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge". of course, even legal privileged communication may be displaced by fraud. Dubai Bank Limited v. Galadari & Others. Times 22nd April 1991.

12. Confidential information is not totally unprotected. Invariably the court has to balance the competing public interests claimed by the party who seeks to produe it and those of the party who seeks to resist the production of it. See D.v. N.S.P.C.C., [1978] AC 171 at page 218 Letters A - B & pages 245 - 246 generally.

13. The ground premise in this objection was well ventilated. The assertion is that the 2nd plaintiff has continued to use condoms as a  contraceptive measure after the birth of the last child out of fear from her painful past experience. Her inconsistent answer alleged to have been documented in the medical record in the possession of the 3rd defendant relates exclusively to this assertion. No doubt, the general nature of the medical record, if it is such a record, is confidential. But the core allegation of a continued user of a contraceptive device after the birth of the last child of the plaintiffs has been widely adumbrated. What the 2nd plaintiff allegedly told the doctor whose identity has yet to be revealed in the Prince of Wales Hospital could hardly cause any more personal embarrassment, if at all, or intrude further upon her right of privacy. The subject-matter in the assertion of the 2nd plaintiff's is now known. The continued use of condoms was introduced by the 2nd plaintiff herself. That aspect of the plaintiff's married life has lost its confidential character before this Court by her very own disclosure. What is there to be continued to be protected? Confidentiality in that area cannot now be seriously sought to be maintained. It would serve no practical purpose to have it suppressed. Moreover, it has become relevant, and the document or the information it contains would assist the Court in its evaluation of her credibility. Balancing the competing legitimate interests, whatever real or residual interest of the 2nd plaintiff is clearly overridden by the stronger public interest in disclosure for the purpose of administration of justice. In Campbell v. Tameside Metropolitan Borough Council, supra. at p.1073 Letters C-D, Lord Denning, M.R. observed : "When (the maker) goes into the box and gives evidence which is contrary to his previous statement - then the public interest in the administration of justice outweighs the public interest in keeping the document confidential. He can be cross-examined to show that his evidence in the box is not trustworthy".

14. In conclusion :

15. I rule, on the objection raised on behalf of the plaintiffs by Mr Sarony, in favour of the 3rd defendant.