Breen v Williams (1996) HCA:
Dow Corning manufactures a silicone breast implant; due to a design defect, it leaks and causes harm to those in whom the devices were implanted. •
Breen has had an implantation surgery, and the implants subsequently leak. •
She undergoes corrective surgery, but it fails to relieve her pain and resolve the problem. •
She wants to join in a class action lawsuit against the United States manufacturer. •
Permission to do so is granted, providing that she submits medical records to the American Court documenting her treatment and injuries. •
To obtain these records, Ms Breen must access them from her Australian doctor. •
However, her doctor, Williams, refuses to grant access to the files (though he agreed to provide a report summarising the information), unless she indemnifies him against all liability for performing the corrective augmentation surgery.
She sues Mr Williams in contract, property and breach of fiduciary duty. •
She claims a contractual right to her medical records; that is, that Mr Williams owed a contractual duty to disclose. •
She claims that the records were her property, not those of her doctor of the health service. •
In equity, she argues that the doctor owes her a positive fiduciary duty to disclose to her details of her medical records (relying on McInerney v McDonald) •
Strangely, Ms Breen does not simply sue Mr Williams in negligence and thereby obtain discovery of the records. •
If the litigation takes place in a foreign jurisdiction, letters rogatory will normally be issued from the foreign judge requesting access to the documents. •
Instead, Breen pursues a test case, intending to establish whether a medical patient can obtain access to their records at common law.
Does Mr Williams owe a fiduciary obligation to Ms Breen to make full disclosure of her medical records?
High Court of Australia:
Fiduciary duties have two sources:
(1) Agency (undertaking to act for another).
(2) Ascendancy, influence, dependency or trust (vulnerability).
First, identify the subject matter to which the fiduciary obligation relates (conflict, profit, etc) •
It is wrong to treat the fiduciary obligations as extending to all aspects of the fiduciary’s conduct in the relationship. •
The scope of the duty must be shaped according to the factual circumstances. •
In the context of a doctor–patient relationship:
There is no agency or undertaking to act in the patient’s interests. o
However, there are vulnerability elements.
Thus, there are some fiduciary elements, but not others.
The consequence is that a doctor must bear the onus to establish that any gifts they receive from their patient were procured free from influence
Canadian case law on fiduciaries does not represent the law of Australia. •
Here, no relevant subject matter over which a doctor’s fiduciary duty is extended (ie, access to medical records doesn’t involve property wrongly taken, profit wrongly made or conflict wrongly entertained).
Dawson and Toohey JJ:
A doctor’s duty is ordinarily in contract and tort (reasonable care and skill in giving treatment and advice). •
These duties are narrow and do not encompass the entirety of the relationship (duty of confidentiality, presumption of undue influence for gifts).
Fiduciaries act in a representative character, but doctors do not (no undertaking to act in the interests of a patient). o
The doctor is simply obliged to exercise professional responsibility. o
By contrast, fiduciary duties involve conflict and profit. o
These concepts are inappropriate to ascribe to a doctor treating a patient. o
Unlike a lawyer–client relationship (clearly fiduciary)?
Negligent advice may also amount to breach of fiduciary duty.
However, advice might be negligent without breaching a fiduciary duty.
Eg, advising a client negligently without any conflict or profit.
Eg, advising two clients to same transactions:...
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