Confidentiality within Conciliation27 April 2020
Confidentiality is a key tenet of virtually all forms of alternative dispute resolution.
It is imperative that the information provided during the course of conciliation and regulatory regimes remains confidential and cannot later be used as evidence in court. This is, of course, to encourage the parties to meaningfully participate in negotiations and increase the likelihood of resolution.
This principle generally extends to conciliation conferences, in which independent entities work to facilitate resolutions between the opposing parties. For instance, the Australian Financial Complaints Authority (AFCA) operates on a “without prejudice” basis, meaning that information obtained through an AFCA complaint may not be used in any subsequent proceedings, unless via Court order in any subsequent proceedings. While this is generally consistent in conciliations across a variety of different industries, the health industry appears to take things a step further, with potential criminal penalties applying for any contravention of confidentiality obligations.
The Health Complaints Commissioner (HCC), formerly the Health Services Complaints Commissioner, resolves complaints about health care and the handling of health information in Victoria. It operates alongside the Australian Health Practitioner Regulation Agency (AHPRA) to regulate the health profession. Facilitating conciliation of disputes is a key function of the HCC.
During the course of a complaint and conciliation process, the HCC often requests supporting documentation (such as medical records) and in some cases, may obtain its own expert evidence, particularly if the issues are complex or technical. While the dispute at the centre of conciliation may subsequently form the basis for legal proceedings, the Health Complaints Act 2016 (Vic.) (the Act) dictates that any information disclosed during or in the course of conciliation is confidential and cannot be used in any hearing or proceeding in a court, without the consent of the person to whom the information relates. This explicitly extends to expert reports obtained by the HCC and/or either party for the ultimate purpose of conciliation. Section 43 of the Act makes it an offence to disclose confidential information, with people and body corporates facing possible penalties of 20 penalty units and 100 penalty units, respectively (one penalty unit is currently indexed at $165.22 from 1 July 2019 to 30 June 2020).
This may be contrasted with s 46C of the Domestic Building Contracts Act 1995 (Vic.), which sets out that reports produced for the purpose of conciliation prepared by an appointed assessor in Domestic Building Dispute Resolution Victoria (DBDRV, which is the mandatory conciliation body where matters must be conciliated before proceedings can be commenced in VCAT). Reports produced for the purposes of a DBDVR conciliation are admissible in proceedings before VCAT or a Court.
It is important for lawyers acting in an HCC complaint and subsequent legal proceedings to be alive to this issue. If an expert report commenting on a health practitioner’s performance is obtained for the purpose of conciliation, the report will not be admissible as evidence in the court proceedings that often follow. Further, the report cannot be disclosed to other experts for the purpose of obtaining additional reports for litigation, as this will also constitute a breach of s 43 of the Health Complaints Act and may attract financial penalties.
Lawyers must ensure they are acutely aware of the legal requirements of complaints and regulatory bodies, and those instances where it is and is not allowable to rely on documents obtained by the complaints or conciliation bodies. Make no assumptions; inappropriately sharing evidence between the two proceedings may result in significant financial penalties.