The DLA Piper Health Alert this week draws attention to an interlocutory decision Hobbs v Tynn & Anor [2015] ACTSC 276.

The defendant had discovered treatment notes in respect of the claim that alleged misdiagnosis of attention deficit hyperactivity disorder and prescription of dexamphetamine.

The present application for wider discovery was summarised at [4] as for documents concerning:

  • allegations by the Medical Board of Australia or AHPRA that the first defendant misdiagnosed patients with ADD and/or wrongly prescribed dexamphetamine;
  • proceedings between the Medical Board of Australia and the first defendant;
  • all peer review reports obtained by the Medical Board of Australia relating to the first defendant;
  • the first defendant’s practice of diagnosing ADD including all essays, articles or studies, peer reviewed or not, written by the first defendant in relation to diagnosis of ADD;
  • the first defendant’s ability to practise at the time of the consultations including his practising certificate and any documents relating to his compliance with continuing professional development or associated requirements; and
  • the first defendant’s decision to withdraw from practice.

At [23] the court held that it cannot be said as a matter of generality that complaints or allegations relating to the treatment of other patients cannot be discoverable in the present case. At [34] the court said:

The defendants have taken an unduly restrictive approach to the documents or categories of documents which might be discoverable. As a consequence of adopting such an approach the defendants have failed to consider the discoverability of categories of documents which appear to be accepted to be within their control.

Orders were for the defendant to file a further list of documents and a supplementary affidavit.

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