Appeal Panel CITATION: R v A and B [1999] NSWADTAP 2 decision revised on: APPELLANT: R RESPONDENT: A and B (Respondents) FILE NUMBER: 999002 HEARING DATES: 03/31/1999 SUBMISSIONS CLOSED: 03/31/1999 DATE OF DECISION: 30 June 1999 Order for inspection of documents produced in response DECISION UNDER APPEAL: K P O'Connor - President BEFORE: G Ireland - Judicial Member K Greenhill - Member FILE NUMBER UNDER APPEAL: 46 of 1998 DATE OF DECISION UNDER APPEAL: 03/24/1999 PRIMARY LEGISLATION: Anti-Discrimination Act 1977 Appellant: In person REPRESENTATION: Respondent: E Brus of counsel instructed by the Crown Solicitor (1) The first respondent is granted access to all records produced by Dr Empson and Ms Baker, for inspection and the making of necessary copies. (2) As to the records produced by Dr Ross and Dr Knowlden: ORDERS: (a) the first respondent is granted access to the records dated 18 March 1995 and later; and (b) the first respondent is to engage an agreed medical practitioner to inspect the records which pre-date 18 March 1995 with a view to identifying any records that refer to the sexual assault incident of 1961. (3) As to paragraph 2, the first respondent may inspect and make necessary copies of records falling into category (a) and of those records falling into category (b) that are identified by the medical practitioner. (4) Liberty to apply. Introduction 1 This appeal is brought by Ms R, the applicant in proceedings under the Anti-Discrimination Act 1977 ('the Act') before the Equal Opportunity Division to which there are two respondents, A and B. (For convenience, in these reasons the appellant is referred to below as 'the applicant'.) 2 The applicant appeals against an order permitting the first respondent access to detailed medical history records about the applicant. The records were produced by third party health professionals in response to summonses issued at the request of the first respondent: Eq Opp Div, before Judge Murrell, Deputy President and Divisional Head, 24 March 1999. 3 The applicant appeared in person at the appeal hearing; and the first respondent was represented by Ms Brus of counsel. There was no appearance by the second respondent. Jurisdiction 4 The Administrative Decisions Tribunal Act 1997 ('the Tribunal Act') creates an Appeal Panel to hear appeals in relation to 'appealable decisions': see Ch 7. The present decision is an 'appealable decision': see s.118 of the Act read in conjunction with ss.112 and 113 of the Tribunal Act. The grounds of appeal are prescribed by s.113(1) which permits an appeal in relation to any "questions of law" and provides further that the appeal "may, with the leave of the Appeal Panel, extend to a review of the merits of the appealable decision". Role of Appeal Panel 5 There is no general limitation in the Tribunal Act excluding decisions made at an interlocutory stage of proceedings from the purview of the Appeal Panel: see further Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 at [23] per Priestley JA. 6 In deciding whether to intervene in relation to the application of a rule of law that depends on the exercise of discretion, the Appeal Panel regards itself as bound by the principles that apply to the relationship between appeal courts and primary judges. We regard the propositions enunciated in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ as being generally applicable to proceedings before Appeal Panels in this Tribunal: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred." See also Australian Coal and Shale Employees' Federation v Commonwealth (1956) 94 CLR 621 at 627; Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409, 420-422 per Cross J; Government Insurance Office of New South Wales v Ivanoff (1991) 22 NSWLR 368 at 377 per Mahoney JA; and Hession v Century 21 South Pacific (1992) 28 NSWLR 120. 7 In Hession's case, above, the Court of Appeal allowed an appeal against a primary judge's refusal to order security for costs in favour of defendants to a debt claim that had been brought by a plaintiff company which was in liquidation. Meagher JA at 122 commented on the hurdle which must be surmounted in seeking to obtain review of such an order: "An order made by a trial judge in these circumstances is usually immune from appeal and any attempt to appeal is hopeless. This is because the trial judge is exercising a discretionary judgment, which will be set aside only in the most extraordinary circumstances: House v The King … . Not only that; he is exercising his discretion not on a matter which determines substantive rights, but on a point of practice and procedure (on which subject the High Court pronounced in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177). Moreover he is doing so at an interlocutory level. Not only that; it is a decision from a busy judge dealing with a heavy load of matters all requiring quick and ex tempore solution, who can therefore hardly be expected to deal with every case on the subject or to give judgment couched in deathless prose." But equally as Murphy J observed in Brown's case at 180: "The appellant contended that an appeal court should be extremely reluctant to interfere with an exercise of discretion in matters of practice or procedure. A distinction was sought to be made between those matters and ones in which the exercise of discretion determined substantive rights. The supposed distinction is inappropriate. There is no mutual exclusion. Sometimes exercise of discretion in practice or procedure effectively determines substantive rights." 8 In Hession's case the Court of Appeal intervened nonetheless, as it was satisfied that the judge, acting on mistaken submissions from counsel, had treated the situation before him as one in which a liquidator was suing in the exercise of statutory duties for the recovery of monies due. The judge had applied the protective principles as to security applying to that situation. As a result there was an error of a fundamental kind. The Underlying Complaint 9 The Equal Opportunity Division is responsible for hearing complaints alleging unlawful conduct in contravention of the Act. The applicant's complaint is at the directions stage in the Division. 10 The applicant's complaint alleges that she was the victim of unwelcome sexual conduct constituting sexual harassment in contravention of the Act, and asserts that that conduct has caused her considerable harm. She alleges that the conduct occurred during a group training exercise conducted at a rural training facility when she was a member of a Commonwealth funded training program for people who previously fall into the category of long-term unemployed. 11 The first respondent, a statutory body ('A'), was the sponsor of the training program, and the employer of the program's participants including the applicant. She says that the conduct giving rise to her complaint took the form of anal penetration by one participant and sexual touching by four other participants in the training exercise. The second respondent ('B') is the business responsible for running the training facility and the program. The conduct is alleged to have extended over a twenty minute period. The incidents giving rise to the applicant's complaint occurred between 18 and 20 March 1996. The first respondent denies that the incidents occurred. 12 The President of the Anti-Discrimination Board received the applicant's complaint of sexual harassment on 1 September 1996. On 11 March 1998 he decided to decline the complaint, and at the request of the applicant it was referred on 24 April 1998 to the Equal Opportunity Division's predecessor, the Equal Opportunity Tribunal. 13 The summonses were issued on behalf of the first respondent. They sought access to documents relating to the medical and counselling history of the applicant, both before and after the period of the training exercise. Access to some documents has been refused on the ground of legal professional privilege. In issue before the Appeal Panel are the remaining documents that Judge Murrell ordered be released to the first respondent. Summonses 14 It may be helpful to set out briefly the history of the first respondent's actions in having summonses issued. On 25 February 1999 at the request of the Crown Solicitor, acting for the first respondent, the Registrar of the Tribunal issued seven summonses for documents to counsellors or doctors who had dealt with the applicant. Each of these counsellors or doctors have made statements that form part of the material lodged with the Tribunal by the applicant as part of her case. Of the seven summonses, four were not pressed being those addressed to three staff members of Eastern & Central Sexual Assault Services, Community Health Services. 15 The remaining four summonses are those in issue. They are addressed, respectively, to - Dr Phillip Empson (a psychiatrist) of Kogarah Medical Centre; Ms Iris Baker (a psychologist) of Randwick; and to general practitioners, Dr F Ross and Dr S Knowlden who practise at the same address in Enmore. The two general practitioners belong to the medical practice which the applicant has regularly attended since 1984. 16 The schedules to the summonses setting out the documents sought were expressed in common form, as follows: "All correspondence, notes, files, records and other documents whether written or in electronic form held in your possession regarding Ms [R] …". 17 Each of the respondents to the summonses produced the material sought. In the case of Dr Knowlden and Dr Ross, the records form a single set and relate to the applicant's history of attendance at the practice of 15 years. The records of Dr Empson and Ms Baker relate to the period since the alleged incidents in issue. The applicant's objections 18 Before Judge Murrell the applicant objected to the release of any of the records produced relying on three privileges: one being client legal privilege, the others being two recently added to the Evidence Act 1995 ('the Evidence Act') - professional confidential relationship privilege (see Div 1A, s.126A to s.126F) and sexual assault communications privilege (Div 1B, s.126G to s.126L). Judge Murrell identified a number of documents that were covered by client legal privilege. The applicant's objection in relation to those documents was upheld, the documents were extracted and sealed. Judge Murrell rejected the objections relying on the other privileges, and granted access to the remainder of the documents produced. 19 Judge Murrell acknowledged that in the exercise of her discretion it was appropriate to have regard to the privileges claimed, and noted that neither is absolute. Her Honour applied the statutory criteria, in particular the strict criteria that apply to sexual assault communications privilege. Nonetheless she was satisfied that in the circumstances all documents should be released to the first respondent. 20 The applicant expressed her deep concern over the potential intrusion into personal privacy and the confidentiality of her relationship with her medical and other health advisers. She noted that, if the order was affirmed, the privacy of her entire medical history extending back to 1984 would be transgressed. As to the communications that had passed between her and her medical and other health advisers since the training program, at least in so far as they related to the events at the training exercise, she submitted that they were protected by sexual assault communications privilege. The First Respondent's justifications 21 The first respondent submitted that it was entitled to retain the benefit of the order so as to prepare properly its case in relation to the issue of whether the conduct alleged occurred and, if an adverse determination as to liability was made, as to monetary compensation. In the course of argument counsel for the first respondent mentioned that the applicant had referred to having been sexually assaulted twice. The Appeal Panel has perused the points of claim and short medical reports so far filed in this matter by the applicant. We are satisfied that there is only one incident referred to which pre-dates the events in issue, that being a sexual assault that the applicant says occurred when she was 11 years old in 1961. Any history of sexual assault may have relevance, the first respondent submitted, to the assessment of monetary compensation. 22 The first respondent was also concerned to have access to the applicant's general medical history to ascertain whether there was any other similar history or a history of exaggerated allegations. The first respondent noted that the applicant had filed and served in relation to her proposed evidence in the proceedings short medical reports from the four health professionals who are the subject of the summonses. The first respondent also noted that the Tribunal did not have a power to direct the applicant to undergo a medical examination, which meant that it would need to see the detailed medical records to gauge her state of mind and state of health at the time of the incidents. 23 Support for concerns in relation to exaggeration are to be found in observations by the District Court (Judge Nash, Criminal Jurisdiction) on 3 August 1998 made in dealing with an appeal by the applicant against a conviction for false accusation under s.314 of the Crimes Act 1900, a charge laid in relation to the complaint made to police by the applicant soon after the training exercise. The appeal was successful on the narrow ground that the Court was not satisfied that it had been proven on the criminal standard that the applicant had made a false report with actual knowledge at the time that it was false. 24 His Honour said: "It is not the point that the totality of the available evidence points to the offence not having occurred or that at least part of it would be objectively impossible. Unfortunately there are people in the community who have vivid imaginations and conclude the worst on flimsy evidence." 25 The Court expressed its incredulity at a number of aspects of the applicant's evidence. In relation to the elements of the offence, the Court found that the accusation made by the applicant to the police on 28 March 1999 was false and that in making the accusation the applicant intended the employee that she named to be the subject of investigation for indecent assault. The Equal Opportunity Division Order 26 At the request of the applicant the Division did not read the records produced. Nor has the Appeal Panel in considering its decision. See generally Burmah Oil Company v Bank of England [1980] AC 1090 per Lord Edmund Davies at 1129-1130. 27 Judge Murrell noted that the Evidence Act dealt with the admission of evidence in proceedings. It did not seek to define the scope of the discretion to be exercised in relation to objections made on the return of a summons for the production of documents. In that regard her Honour considered it appropriate to inform the exercise of her discretion by having regard to the privileges raised by the applicant, namely professional confidential relationship privilege and sexual assault communications privilege. She examined the criteria for application of those privileges and proceeded first by applying the stricter criteria affecting sexual assault communications privilege to the classes of documents in issue. Neither of the privileges is expressed in absolute terms. Judge Murrell was satisfied that even after applying the stricter criteria affecting sexual assault communications privilege, all documents remaining in issue should be released to the respondents. 28 In the case of professional confidential relationship privilege the court has a relatively broad discretion in deciding whether to make a direction not to admit the evidence: see ss.126B(3) and (4). The position is stricter where the protected confidence takes the form of a "sexual assault communication". In that instance the Act provides that the evidence is not admissible unless leave is given. Leave may only be given if three factors listed in s.126H(3) are established to the satisfaction of the court. 29 Judge Murrell adopted the course of first considering the applicant's objections by examining them by reference to the more protective of the two privileges under consideration - sexual assault communications privilege. Judge Murrell's analysis in relation to s.126H was as follows: " [12] In determining whether to grant leave under s.126H(1), I am required to consider the particular provisions of s.126H(3), and of course any other matter which I consider to be relevant to the issue. Insofar as the material produced concerns either the alleged assault in question, i.e. the alleged assault of 20 March 1996, or any other sexual assault allegedly perpetrated against the complainant, those are matters of very great probative value as far as these proceedings are concerned. No other evidence of those matters would be available in the sense that the confidences made to the medical practitioners and other health care professionals would not be able to be sourced elsewhere except on an unreliable basis. The balancing exercise which I must undertake under s.126H(3) in my view clearly weighs in favour of allowing the first respondent to have access to the material. As far as the other medical matters which would no doubt be canvassed in the material produced, clearly they would be of less direct relevance. Nevertheless, they would be of considerable relevance, it would be difficult to put sexual assault harm into context without the background of material indicating other medical conditions from which the complainant might suffer. Consequently, it is my view that applying the considerations in s.126H(3), leave ought to be granted under s.126H(1) for the first respondent to have access to the documents." 30 Turning to the other privilege, professional confidential relationship privilege, Judge Murrell said: " [13] Section 126B imposes a different and in many respects more lenient test. I have considered the matters set out in s.126B(4). Under s.126B(4)(c) one of those matters is the nature and gravity of relevant offence, cause of action or defence and the nature of the subject matter of the proceedings. The allegations made in these proceedings are extremely serious and the material that has been produced on summons would no doubt go very much to the issues of whether the allegations can be substantiated as to what occurred on 20 March 1996 and also to the extent of any harm flowing from the incident. I have considered the other matters set out in s.126B(4). Having regard to those and other relevant matters, I decline to make a direction [that access be denied] under s.126B(1)." 31 In analysing the material Judge Murrell did not expressly distinguish between documents which pre-date the alleged incidents, and those that post-date it. Nor did she refer in the case of s.126H to sub-section (4) which provides: "(4) Without limiting the matters that the court may take into account for the purposes of subsection (3)(c), the court must take into account the likelihood, and the nature and extent, of harm that would be caused to the protected confider if evidence of the protected confidence or document is adduced." Analysis 32 While there were aspects of the text of the sections considered to which her Honour made no express reference, there is no requirement in law that such a course be adopted. The general principles that apply in the ordinary court system to the permissible scope of summons for production of documents should apply to summonses issued by the Tribunal. 33 The critical consideration at the stage of the litigation at which summonses are issued was expressed as follows by Moffitt P (with whom Hutley and Glass JJA) agreed in Waind v Hill and National Employers' Mutual General Association Ltd ('Waind's case') (Court of Appeal) [1978] 1 NSWLR 372 at 385 as follows: "The crucial question in relation to the exercise of the discretion to permit inspection … is whether the documents have apparent relevance to the issues". 34 Moffitt P distinguished that test of "apparent relevance" from the test that applies at the next stage of the process when the evidence is sought to be adduced in proceedings. At this point "questions between the parties of relevance in fact and admissibility are ruled upon" (at 385). As Moffitt P noted at 385: "The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination." See also Spencer Motors Pty Ltd v LNC Industries [1982] 2 NSWLR 921 (Waddell J) applied Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 (Clarke J); Carter, Subpoena Law and Practice in Australia (1996), ch.6 ('Carter'); Judge Mulally, County Court of Victoria, Abuse of Subpoenas, unpubl paper, June 1999. 35 The course adopted by Judge Murrell is we consider consistent with this approach and involved the application of the "apparent relevance" standard. 36 As the law stands at present, the Appeal Panel does not consider that Judge Murrell was bound in law to apply strictly the privileges enumerated in the Evidence Act. The course adopted, to have general regard to the factors enumerated in the privileges, was an appropriate way to seek to exercise the discretion. The traditional position is espoused by Gleeson CJ and Gummow J in Northern Territory v GPAO (1999) 73 ALJR 470, 474 at [16]: " [T]he Evidence Act is concerned with the adducing of evidence (Ch 2), the admissibility of evidence (Ch 3), proof (Ch 4) and certain ancillary matters (Ch 5). It does not deal with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the court in question. Nor does the Evidence Act deal with the grant of leave by the court to inspect or otherwise make use of documents which have been produced in answer to a subpoena." 37 In the same case, Kirby J noted at [252] that the question of the applicability of the Evidence Act may have to be resolved authoritatively: "The issue presented by the question whether the Evidence Act applies to interlocutory judicial decisions made before the commencement of a trial is an important one. Upon it, differing opinions have been expressed in the courts of Australia. The Full Court of the Federal Court of Australia has recently delivered a decision on this point: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664. It would be preferable, if not constitutionally necessary, to decide the question involved in that decision when it is essential to a case before this Court, as here it is not." 38 The Division (consistent with the position that applies in many Tribunals) is not strictly bound to apply the rules of evidence: Tribunal Act, s.73. But the Appeal Panel would expect that care would be taken to ensure that the important protections conferred by evidentiary privileges, such as those in issue in this case, are maintained. 39 The applicant referred generally in support of her submissions to the case-law canvassed in Carter, in particular to an unreported case referred to by Carter at 176, Doughney v Optimus Holdings (Sup Ct, Yeldham J 5 April 1978). In that case a third party recipient of a summons to produce, the Director of the Australian Security Intelligence Organisation, successfully objected on the basis of prejudice to the national security interests of the Commonwealth. The case is an illustration of a broad exercise of discretion. It does not comment on nor is it inconsistent with the general principles enunciated in the leading cases to which we have referred. 40 Sexual assault communications privilege is a recent and important addition to the category of privileges founded on the public interest in protecting confidences. The Supreme Court of Canada has recently examined the tension that arises as between the public interest in upholding the confidentiality of sexual assault communications made to professional confidants and the public interest in courts and tribunals having before them all relevant material: M.(A.) v Ryan (1997) 143 DLR (4th) 1 (La Forest, L'Heureux-Dube, Sopinka, Cory, McLachlin, Iancobucci and Major JJ). 41 In this case the Court (L'Heureux-Dube J dissenting) dismissed a plaintiff victim's objection to production of counselling communications with a third party psychiatrist who she consulted following sexual relations that occurred when 17 years old and a patient of the defendant, also a psychiatrist. The plaintiff had brought a civil action for damages against the defendant. The admitted facts were that sexual relations had occurred, though the defendant said that they were consensual; and that the defendant had committed acts of gross indecency in the presence of the plaintiff. The plaintiff alleged that as a result of this conduct she had suffered emotional stress and harm. The defendant challenged the extent to which the conduct had caused the stress claimed. The defendant had been granted limited access to some of the third party psychiatrist's notes and records by the lower Court. 42 McLachlin J, delivering the majority judgment, detailed the important individual and public interests that are promoted by protection from disclosure of confidential sexual assault communications. These include the potential injury to the individual's ongoing relationship with the professional counsellor and her future treatment. Other important public interests include "the effect that a finding of no privilege would have on the ability of other persons suffering trauma to obtain needed treatment and of pyschiatrists to provide it": at [29]. Her Honour added at [29]: "The interests served by non-disclosure must extend to any effect on society of the failure of individuals to obtain treatment restoring them to healthy and contributing members of society. Finally, the interests served by protection from disclosure must include the privacy interest of the person claiming privilege and the inequalities which may be perpetrated by the absence of protection." 43 The importance of the privilege in minimising unequal treatment was emphasised at [30]: " A rule of privilege which fails to protect confidential doctor/patient communications in the context of an action arising out of sexual assault perpetuates the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. … She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress - redress which in some cases may be part of her program of therapy. These are factors which may be properly considered in determining the interests served by an order for protection from disclosure of confidential patient-psychiatrist communications in sexual assault cases." 44 But the Court at [33] recognised that a balancing exercise is involved: "In some cases, the court may well decide that the truth permits of nothing less than full production. This said, I would venture to say that an order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth." 45 The majority concluded that the lower Court order permitting disclosure of one group of documents subject to stringent conditions did not involve error. It was satisfied that the documents bore on the "critical issue" of the extent to which the defendant's conduct "caused the difficulties the appellant was experiencing': at [41]. Application of Test of "Apparent Relevance" 46 The question that remains therefore is whether the test of "apparent relevance" has been properly applied, taking account of the public interests relevant to protection of sexual assault communications. 47 At the hearing of the appeal a number of questions were directed by the Panel to counsel for the first respondent in relation to the forensic purpose of the documents sought to be inspected. As noted earlier, the first respondent's justifications for seeking comprehensive access have two aims: to support its case that the applicant has imagined or fabricated the incidents; or if they are found proven, to assist in assessing the extent to which her history and psychological condition at the time of the incidents should be given weight in determining the amount of any monetary compensation. 48 All the short medical reports filed refer to the stress that the applicant has manifested in relation to the alleged events. The Appeal Panel considers it reasonable that the first respondent be permitted to scrutinise the detailed records of consultations since that time. The first respondent's forensic purpose in being given access to the post-18 March 1996 material is accepted as sufficient to meet the "apparent relevance" standard despite the importance of the privacy and confidentiality interests that are connected with sexual assault communications. 49 The position is more difficult to assess in relation to the general medical records that were generated over the history of the applicant's attendance on Dr Ross and Dr Knowlden in the fifteen years before the incidents in issue. Provision of access to the entire medical history of an individual involves a gross intrusion into personal privacy. The release of sensitive medical history has a high potential, the Appeal Panel considers, to cause the applicant emotional stress. 50 As noted above, an Appeal Panel should not lightly intervene in relation to the exercise of a discretion at an interlocutory stage by a judge or judicial member sitting at first instance. Nonetheless we are satisfied that in the present instance no persuasive case exists to justify the provision of the entirety of the applicant's medical history records. The threshold of "apparent relevance" has not been reached especially when account is taken of the significant privacy and confidentiality interests that are affected by the provision of access. The Appeal Panel is satisfied that an error warranting a revised order has occurred in permitting access to all the records that pre-date the incident produced by Dr Ross and Dr Knowlden. 51 A more restricted approach should, in our view, be taken to dealing with access to this group of records. In our view an adequate insight into the applicant's state of mind and state of health as at the date of the incident can be obtained by confining general access to those records that relate to the 12 months' period before the events in issue (i.e. 18 March 1995-18 March 1996). 52 It is the case that the short reports filed do indicate that the applicant has referred in her consultations with Dr Knowlden to the sexual assault incident of 1961. Consequently, the matter of the assault that occurred in 1961 may, we recognise, have some relevance. In that regard we consider that intermediary access only should be permitted. The balance of interests to which we have referred does not, we consider, justify the provision of general access to the records that pre-date 18 March 1995. 53 In reaching these conclusions we are mindful of the indications given as to the degree of access and inspection during the course of argument by counsel for the first respondent. She advised that only she and her instructing solicitor would inspect the documents produced in reaching a firmer view as to relevance. 54 We consider that the first respondent should be permitted to engage an agreed medical practitioner to examine the records that pre-date 18 March 1995 with a view to identifying any that make specific reference to the incident of sexual assault in 1961. Only records falling into that category should be made available to the first respondent. Determination and Orders 55 The order as it relates to the records from Dr Empson and Ms Baker is affirmed. The appeal is allowed in part as to the records from Dr Ross and Dr Knowlden. 56 For clarity, the following order is made in substitution for the whole of the previous order: (1) The first respondent is granted access to all records produced by Dr Empson and Ms Baker, for inspection and the making of necessary copies. (2) As to the records produced by Dr Ross and Dr Knowlden: (a) the first respondent is granted access to the records dated 18 March 1995 and later; and (b) the first respondent is to engage an agreed medical practitioner to inspect the records which pre-date 18 March 1995 with a view to identifying any records that refer to the sexual assault incident of 1961. (3) As to paragraph 2, the first respondent may inspect and make necessary copies of records falling into category (a) and of those records falling into category (b) that are identified by the medical practitioner. (4) Liberty to apply. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.