LAW REPORTS.

New Zealand Police Gazette, Volume XXXVIII, Issue 32, 13 August 1913, Page 491

LAW REPORTS.

(“ New Zealand Law Reports,” Yol. xxxii, page 682.)

[S.G. In Banco, Auckland—(Cooper, J.)— 2oth March,

1913.] In re the St. Helens Hospital,

Evidence—Commission of Inquiry re Maternity Hospital — Demand for Production of Case-books —Claim of Privilege —Communications made to Medical Men by Patients — Subsequent Communication of sttch Statements by Medical Men in the Course of their Duty to other Persons Privileged—The Evidence Act, 1908, Section 8, Subsection 2 —Power of Commission to order Production and Inspection of Documents—The Commissions of Inquiry Act, 1908, Sections 3 to 11—The Magistrates’ Courts Act, 1908, Section 83.

The privilege afforded by subsection 2 of section 8 of the Evidence Act, 1908, to communications made by patients to their medical men in their professional capacity is not destroyed by the subsequent communication by such medical advisers in the course of their duty to other persons, and such latter communications cannot therefore be divulged without the consent of the patients. Such privilege extends to an inquiry under the Commissions of Inquiry Act, 1908. Where the Commissioner appointed to hold an inquiry under the Commissions of Inquiry Act, 1908, is a Magistrate, he has the same power to order the production and inspection of documents as a Magistrates’ Court under section 83 of the Magistrates’ Court Act, 1908.

Special case stated for the opinion of the Supreme Court under section 100 of the Commissions of inquiry Act, 1908. An inquity-was set up at the request of and in consequence of certain allegations made by the Auckland Timber-workers’ Industrial Union of Workers and Mrs. Emily Nicbol, and Charles Cargill Kettle, Esq., was appointed a “ Commission ” under section 2 of the Commissions of Inquiry Act, 1908. He was directed to inquire into and report as to—l, the circumstances surrounding the death at the St. Helens Hospital, Auckland, of Laura Elizabeth Chamberlain ; and, 2, generally as to the administration of the said hospital—and the commission issued to him authorized and empowered him to call before him and examine on oath or otherwise as allowed by law all witnesses or other persons whom he might think capable of affording him any information on the subject of the Commission, and also to have before him and to examine all books, papers, documents, and writings as be should deem necessary. Section 4 of the Commissions of Inquiry Act is as follows : “ Every such Commission shall for the purpose of the inquiry have the power and status of a Magistrate in respect of citing parties in the inquiry, summoning witnesses, administering oaths, hearing evidence, and maintaining order at the inquiry.” Section 9 of the Act renders every person liable to a fine who, “ after being duly summoned to attend before the Commission, or to produce thereto any books, papers, writings, or documents,” fails to attend or to produce any such books, papers, writings, or documents. The St. Helens Hospital is a State maternity hospital established under the Midwives Act, 1904. During the course of the inquiry the Hospital Department brought into Court, at the request of the complainants and by direction of the Commissioner, three “ case-books ” and a number of temperature-charts relating to the cases and treatment of patients in the Hospital in respect of whom complaints were filed. These case-books covered a period from the 24th of April, 1910, to the 26th of December, .1912, and contained the names and addresses, and in some cases the medical and family history, of all the patients treated in the Hospital between the above dates, and also in some cases the particulars of the treatment given in the Hospital. Some of the facts set out in the case-books were communications made by such patients to the Matron and nurses of the Hospital. The case-books were written up almost entirely from the original notes kept separately by the nurses and the Matron for each individual case, and each case in the casebook was so written up in some cases some weeks after the discharge of the patient. All the original notes up to the 22nd of October, 1912, had been destroyed by the Matron. The temperature-charts covered a period from the Ist of April, 1912, to February, 1913, and were a record of the temperature, pulse, and respiration movements of the various patients treated during that time. In some cases these charts showed the special medical treatment of the patient. The Medical Officer of the Hospital was a duly qualified medical practitioner, and the regulations directed that he should attend those cases of labour which were abnormal or which required the administration of an ansesthetic. The

Matron was a nurse registered under the Nurses Registration Act, 1908, and a midwife registered under the Midwives Act. Without medical assistance or supervision she attended and was responsible for the treatment of all cases of labour other than those which the regulations required to be attended by the Medical Officer. The cases of six specific patients came under the review of the Commissioner, and these patients were represented at the inquiry and did not object to the records of their cases being examined, but the pages containing the medical history of these six patients were bound up with numerous other cases in the three case-books referred to. During the course of the inquiry only those pages and charts which related exclusively to these six patients were examined by the Commissioner, the complainants, and counsel for the Department. There was no evidence, at the time this case was stated, before the Commissioner that any of the facts in the casebook other than those relating to the six patients represented at the inquiry were or were not communications from any of the patients to the Medical Officer. The oomplainants claimed—l, that, without the consent of the patients, they have the absolute right to examine all the entries in all the case-books and charts, and to use suoh of the information obtained thereby as they may think fit for the purposes of the inquiry ; and, 2, that if they have not this absolute right, then the Commissioner, without the consent of the patients, has power at his discretion to order that the whole of these books and charts be produced for inspection, and that the complainants be at liberty to inspect them. Counsel for the Department objected to each such claim, and the Commissioner decided to state a case for the decision of the Supreme Court thereon under section 10 of the Commissions of Inquiry Act.

The questions stated for the [decisions of the Supreme Court were :

“ 1. Whether, if any of the entries in the said case-books are communications made by patients to the Medical Officer, they should be discovered or admitted in evidence ? “ 2. Are the complainants entitled as of right to inspect the said books and charts ? “ 3. Has the Commission power under the Commissions of Inquiry Act, 1908, or under the Magistrates’ Courts Act, 1908, to order the inspection of the said books and charts before or during the inquiry ? ‘‘4. If the Commission has power to order such inspection, should such inspection be limited to any particular case or matter ?

”5. Whether, when the books have been produced before the Commission by a witness on a summons duces tecum issued by the Commission, the Commission has power to order that a party to the inquiry be allowed to inspect the books when produced and take notes or extracts therefrom ? ” A. E. Skelton, for complainants:—

The Commission cannot fulfil its duty properly wtthout going through all the case-books. Counsel before a Commission has the same rights as in any Court of law, and has the privilege of looking at any documents seen by the President of the Court.

[Cooper, J.—You have only the right of free speech and immunity from actions for slander. Although any Court has the right to look at any documents, whether directly bearing upon the case before it or not, counsel do nob possess that right.] The matter now in dispute refers to records which are absolutely the life and soul of the inquiry, and that inquiry cannot properly attain its object unless those records are produced. If the Medical Officer has communicated to the Matron the communications made by patients to him, and if she has reduced such communications to writing in the case-books, the privilege attached to such communications between medical men and their patients is lost, and the provisions of subsection 2 of section 8 of the Evidence Act, 1908, do not apply. [Cooper, J.—lt seems to me that most of the questions raised here are rather questions for the Commissioner tc answer in his discretion, and he oan make such order as he may deem just. In dealing with them he has all the powers of a Magistrate.] The case-books, papers, and charts are admissible in evidence, for the Commissioner is instructed to inquire generally into the admiuistration of the institution. The position is that there is a complaint against the officials that they have treated some cases improperly, and the production of these records is necessary to determine this issue. [Cooper, J.—The Legislature’s intention was, clearly, that the statements made by patients to their medical advisers should be protected, and the fact that a medical man in the course of his duty repeats that communication to a nurse does not destroy the privilege. Moreover, what you are asking should be admitted is hearsay evidence.] Only small parts, if any, of the statements in the casebooks come within that category. There is no bond of

secrecy about these records, and they are not State documents, which, as such, are privileged. The public, being taxpayers, have the right to know how the institution is being conducted. The parties to these proceedings should have access to all books and papers that the Commissioner has access to, and the Commissioner in this respect has all the rights of a Magistrate. [Cooper, J.—-Very often a Magistrate has documents submitted to him in order that he may decide whether or not counsel are entitled to examine them.]

S. Mays, for the Minister of Public Health : The Commissioner has already the power to call any witnesses and to examine any documents which he may think have any bearing on the subject-matter of the inquiry. He has the power to read and examine all documents without disclosing them to counsel. He can do this even in cases where such records would otherwise be privileged : The King v. Merchants’ Association (32 N.Z. L.R. 702; 15 Gaz. L.R. 271) ; Barrett v. The Minister for Railways (21 N.Z. L.R. 511). Such inspection, however, should be refused to counsel for the complainants in the present case, for not only are the statements made by patients to the Medical Officer privileged, but as a matter of public policy it is not advisable that they should be divulged. That is the position which the Department now takes up. Further, the disclosure of the records would unnecessarily injure the feelings and sensibilities of many people, and on that ground alone the records should not be made public: Taylor on Evidence (10th ed. par. 949, p. 675).

Cooper, J.: — I should have preferred to have given a written judgment in this matter, as the questions stated by the Commissioner are of public importance ; but as the inquiry is adjourned pending the decision of this Court upon the case stated, and as it is very necessary that the inquiry shall be completed at an early date, I will answer the questions at once, and state my reasons now for such answers. Subsection 2 of section 8 of the Evidence Act, 1908, renders absolutely privileged, except in criminal proceedings, or in proceedings relating to the effecting by any person of an insurance on the life of himself or any other person, or in matters ,in which the sanity of a patient is in dispute, any commnnication made to a physician or surgeon in his professional character by a patient, and necessary for the medical men to prescribe or act for such patient, unless the patient shall consent to the medical men divulging such communication. In England there is apparently no such statutory privilege. The privilege, which is that of the patient, is in New Zealand conferred by the statute, and applies, with the exceptions I have stated, to all “ civil proceedings.” A proceeding is defined in the Act to include, inter alia, an “inquiry” in any Court, and a “ Court” includes a Magistrates’ Court. Under the Commissions of Inquiry Act the powers and status of the Commissioner in the conduct of the inquiry are defined in sections 3 to 11 inclusive of that Act, where the Commission is not issued to a Judge of the Supreme Court. The Commissioner in the present case is a Stipendiary Magistrate. Section 4 gives to him in the conduct of the inquiry the power and status of a Magistrate in respect of citing parties, summoning witnesses, administering oaths, hearing evidence, and conducting and maintaining order at the inquiry. The Commissioner’s position is in respect of all these matters the seme as that of a Magistrate, and he has in respect of these matters the powers of a Magistrate acting under the Magistrates’ Courts Aot, 1908. The inquiry is therefore, in my opinion, analogous in respect to its conduct, and in respect also to the adducing of evidence, the summoning of witnesses, and the production of books and documents, to a civil proceeding in the Magistrates’ Court. Therefore I am unable to agree with Mr. Skelton’s contention, which I desire to say he has presented with much ability, that section 8 of the Evidence Act does not apply. In my opinion the inquiry, although not strictly a civil proceeding in a Magistrates’ Court, must be conducted so far as the hearing of evidence and the production of documents is concerned, subject to what I may say as to the Commissioner’s discretion, as if it were a civil proceeding in the Magistrates’ Court, and the privilege which is thrown round communications made by a patient to his medical attendant, and which is defined in section 8 of the Evidence Act, extends to an inquiry under the Commissions of Inquiry Act. Mr. Skelton has submitted that if the Medical Officer has commuuicated, as most probably he has, the communications made by the patient to him to the Matron, and if she has reduced them to writing in the case-book, the privilege is lost. I cannot for one moment assent to this. The communications, although entered by the Matron in the casebook, are still those made by the patient to the doctor, and cannot without the patient’s consent be divulged. Indeed, if the Matron were to produce the case-book containing

entries of what the dootor had told her the patient had disclosed to him, these entries would be but matters of hearsay, and would in my opinion be inadmissible, apart altogether from the question of privilege. The first question must therefore be answered, “No; these communications, if any, should not be discovered without the consent of the patient.” Now, the answers to the second, third, and fourth questions depend upon different considerations, so far as the entries in the case-books and the charts are not in the nature of records of communications made by the patient to the doctor.

The Commissioner’s duty is to inquire not only into the circumstances surrounding the death of Mrs. Chamberlain, but also generally into the administration of the Hospital. In entering upon this wide inquiry he must of necessity have access to the records of the institution. Mr. Skelton submits that the complainants and their oounsel are entitled as of right to inspect whatever books and documents the Commissioner, in the course of his inquiry, may consider it necessary for him (the Commissioner) to examine. The complainants have a right to be present during the inquiry. The right of counsel to appear for them depends upon the permission of the Commissioner, but in my opinion it is clear that the Commissioner is not bound to allow the complainants or their counsel liberty to inspect and examine all the books and documents which the Commissioner may think it necessary for him to examine. What they should be allowed to inspect must depend upon the discretion of the Commissioner. He has the power to order production which a Magistrate possesses under section 83 of the Magistrates’ Courts Act, 1908, and that is to make such order as he thinks just. He has to consider to what extent, if any, it is in the public interest that inspection should be allowed or refused to the complainants, and in his discretion he may make such order as he thinks just, bearing in mind the public interest, the position of the complainants, and the fact that these books contain entries which affect parties who are not before the Commissioner.

Mr. Mays has stated that he is instructed by the Minister to object to the inspection of the case-books and charts, and that the objection of the Minister is conclusive, and he has asked me to indicate my opinion on this statement. This question has not been submitted to the Court in the case stated, and it is not therefore one upon which the Court can express any opinion at all. The Commissioner himself must, if the objection is taken before him, decide it. He has not asked the opinion of the Court upon it, and I assume that it has not been mentioned to him.

I refrain from indicating in any way, beyond what I have already stated, how the discretion of the Commissioner ought to be exercised, and the answers I give to questions 2,3, 4, and 5 are the following : Question 2 : Subject to the answer to question No. 1, the complainants are entitled to apply to the Commissioner for leave to inspect any books and charts dealing with the subject-matter of the Commission, and the Commissioner must exercise his discretion as to whether he shall grant such leave.

Question 3 : Subject to the answer to question No. 1, the Commissioner has the same power as a Magistrates’ Court under section 83 of the Magistrates’ Courts Act, 1908. Question 4: This is within the discretion of the Commissioner.

Question 5 : Subject to the answer to question No. 1, the Commissioner may make such order as he deems just. Questions answered accordingly. Solicitors for the complainants (the Timber - workers’ Union) : Wynyard & Skelton (Auokland). Solicitor for the Hospital Department: J. A. Tole, K.C., Crown Solicitor (Auckland).

(“New Zealand Law Reports,” Vol. xxxii, page 716.) [S.C. in Banco, Wellington—(Chapman, J.) — 15th March and sth April, 1913.] Baker v. Potter. Licensing — Offences Supplying Liquor to Person under Twenty-one Years of Age Selling through a Slide — Duty to take Adequate Precautions—Plenary Agency of Wife of Licensee The Licensing Act, 1908, Section 202.

It is no defence to a charge of supplying liquor to a person under twenty-one years of age, contrary to section 202 of the Licensing Act, 1908, to plead that the sale was effected through a slide, and the person supplying the liquor could not see clearly to whom the liquor was being sold, it being the duty of any person selling liquor to take ordinary measures to ascertain to whom it is sold or supplied in order to ensure that the person who gets it is not under twenty-one years of age.

Where liquor was sold to a person under the age of twenty-one years by the wife of a licensee, and contrary to his general instructions in the circumstances before mentioned,

Held, That the licensee was rightly convicted under the said section 202.

Appeal from a decision of S. E. McCarthy, Esq., S.M., at Dannevirke. T. H. G. Lloyd for the appellant. P. S. K. Macassey for the respondent. Cur. adv. vult. Chapman J. : Appeal from a decision of S. E. McCarthy, Esq., S.M., convicting appellant on an information charging him that on the 3rd of July, 1912, at Dannevirke, he did allow Charles Russell, a youth apparently under the age of twenty-one years, to be supplied with three glasses of whisky in his licensed premises for consumption on the premises. The facts showed that Russell and two companions, all under the age of twenty-one, were in a sitting-room in the licensed house of the appellant. Russell went thence to a slide opening into the bar from the passage, and was there served by the appellants wife. At the time appellant was in the house and was in and out of the bar during the whole evening, but his wife and a son twenty-six years of age were serving in the bar with bis knowledge and consent. Though they were authorized to sell, the respondent had forbidden them to sell liquor for consumption on the premises to any person under the age of twenty-one years, and notifications prohibiting such sales were posted up in prominent positions in the bar. The Magistrate was satisfied that the liquor was intended to be consumed on the premises. He finds as a fact that Russell net only was but appeared to be under the age of twenty-one. It is due to the appellant to say that the Magistrate also finds that the sale was made entirely without his knowledge, and that the moment he discovered the three youths drinking in his house he turned them out.

The information was laid under section 202 of the Licensing Act, 1908, which, as amended by the Act of 1910, makes it an offence to supply or allow to be supplied in his licensed premises, by purchase or otherwise, to be consumed on the premises, any spirits, &c., to a person apparently under the age of twenty-one. The fir=t ground of appeal was that the sale was effected through a slide, and a perron could not see clearly to whom the liquor was being sold. Mrs. Baker swore that she did not see that she was supplying liquor to a boy. I am satisfied, however, that these facts are beside the question. Mr. Lloyd admitted that if a licensee chose to employ or allow a person with defective sight to sell in his bar he could not set up his agent’s personal defects as a defence. The same reasoning must apply to the structure of his house. If a licensee instituted a system of selling liquor and delivering it through a small aperture in the wall he would have to take the consequences of a sale to a person to whom it was unlawful to sell it. Selling at a slide which may be opened and closed, but which in any case has a limited aperture, may be the same thing according to its size and the circumstances. If the appellant’s wife had put her head through the aperture she would have seen Russell. This no doubt would have been inconvenient, but it leaves open the argument that all precautions were not taken to avoid what is said to have occurred here —namely, that Russell stood in such a position that his face was not clearly seen. It is clearly the duty of any person selling liquor to take ordinary measures to ascertain to whom it is sold or supplied, in order to ensure that the person who gets it is not a prohibited person, and the same considerations must apply to sales to youths. Then it is argued that the sale was not with the authority of the appellant, and that to sell and to allow to be sold are both expressions which imply that mens rea must be made out—that is to say, that allowing a thing to be done implies knowingly allowing it. For this reliance was placed on Emary v. Nolloth (1903 2 K.B. 264). In that case a barman had, contrary to the instructions of the licensee, sold liquor to a child. The English statute uses the word “ knowingly,” and the Court there held that the licensee had not delegated his authority to the barman, but was himself in charge of his house. If this had been a charge of selling the liquor in question contrary to law the plenary agency of the wife to conduct the business of the bar during the temporary absence of the appellant could hardly have been disputed. Indeed, Mr. Macassey asked me to amend the conviction in

exercise of the powers conferred by section 10 of the Inferior Courts Procedure Act, 1909, if necessary, and if I had thought it necessary I should have been disposed to do so. It does not, however, appear to me that the facts are the same as in Emary v. Nolloth (1903 2 K.B. 264). The Magistrate has found that the wife was acting with the full authority of the appellant, and this I think is amply borne out by the surrounding facts, and not auswered by the fact that the appellant was in the house. According to her own account she was acting bona fide in discharge of the duty she had undertaken towards her husband when, owing to a condition arising from the structure of the house, aided perhaps by some deception, she supplied this youth with liquor. It is manifestly the duty of a licensee, and of any one he puts into the position of his agent, to take care that he shall see to whom he is selling, in order that he may avoid selling to prohibited persons and youths. There may be cases exhibiting circumstances in which he is excused from the consequence of the unauthorized acts of his delegate. This is not one of them. Giving a general instruction such as is found here may not always be sufficient. It must be made clear that the instructions were sufficient: Greig v. Macleod (1908 10 Ot. Sess. (J.) 14.) The instructions should be equally effective with an instruction to do in every case what he himself would do were he selling—namely, to take ordinary precautions in seeing for himself whether it was probable that the person to whom he was selling was under age. Conviction affirmed. Costs, £lO 10s.

Solicitor for the appellant: T. H. G. Lloyd (Dannevirke). Solicitors for the respondent: Crown Law Offi:e (Wellington).