In our Client Alert of 15 August 2008, we highlighted the major amendments to the Employees' Compensation Ordinance (Cap. 282) ("ECO") that took effect on 1 September 2008. It has since come to our attention that many insurers are concerned with the extent of an injured employee's right to obtain a copy of the medical report commissioned by the employer under Section 16 of the ECO. Is provision of the report mandatory? The issue shall be addressed in this article.
The amendments to Section 16 (3B) & (3C)
The amendments will only apply to injuries caused by accidents arising out of and in the course of employment happening on or after 1 September 2008. The amendments to Section 16 entitling an employee to a copy of his report are as follows:
- Provision of medical report to the employee (Subsection 3B)
The employee shall undergo a medical examination as requested by the employer. Subsection 3B now provides that if the employee, in writing, requests the employer to send to him a copy of the medical report, the employer must do so without charge to the employee.
- Failure to provide the report (Subsection 3C)
Upon receipt of the request in Subsection 3B, the employer must send a copy of the report to the employee free of charge within 21 days after he receives the written request from the employee or within 14 days after the report is received by the employer, whichever is later. Failure to comply with the request shall constitute an offence and the employer shall be liable on conviction to a fine.
It is clear the requirement in Section 16 is mandatory; the employer must provide a copy of the medical report to the employee upon receipt of written request. Further, unless "reasonable excuse" is shown (Subsection (3C)), any failure to disclose a medical report will be an offence that is liable on conviction to a fine. However, what constitutes "reasonable excuse" is not clear from the provision. Also, the discussion papers and reports on the bill prepared by the Legislative Council do not elaborate on this term.
Nevertheless, one must differentiate "reasonable excuse" that has a permanent effect allowing non-disclosure, subject to legal discovery and that which is temporary (for example, a deferral of criminal proceedings if the employer can prove the written request was not received).
Legal Professional Privilege
Be that as it may, it appears disclosure of a medical report can be withheld on the basis of "legal professional privilege" (this can also be considered as a "reasonable excuse" that has a permanent effect of allowing non-disclosure, subject to legal discovery). According to the decision of Robert Pang Yiu Hung v Commissioner of Police ( 2 HKLRD 125), legal professional privilege shall not be overridden by statute unless there are express words to that effect, or where such abrogation must occur by necessary implication. Therefore, as there are no express words overriding legal professional privilege in Section 16, we consider it is certainly arguable that as long as the medical report comes into existence for the dominant purpose of contemplated or pending litigation, one can claim legal privilege.
It must be noted this position has not yet been confirmed by the Court. However, until there is case law that holds otherwise, reliance can be placed on the decision in Pang Yiu Hung and we can proceed on the understanding that legal professional privilege would attach to these medical reports so long as they are commissioned for the purpose of defending potential EC claims.
Legal professional privilege encompasses:
- Legal advice privilege - which covers the confidential communication between legal advisor and client made for the purpose of obtaining or giving legal advice. It does not matter whether litigation is pending or contemplated.
- Litigation privilege - which protects communication or documents prepared for the purpose of contemplated or pending litigation. It covers communication with third parties, such as the medical expert, whose medical opinion is sought in preparation of litigation.
Section 16 (3B) & (3C) of the ECO entitles the injured employee to obtain a copy of his medical report commissioned by the employer. An employer may refuse disclosure on the basis of "reasonable excuse" but the effect of a refusal can be permanent or temporary. Also, as there is no definition of "reasonable excuse", it is open to question under what circumstances this exception can be relied on. Nevertheless, by virtue of the decision in Pang Yiu Hung and until there is case law to hold the contrary, so long as the medical report is covered by privilege, employers may rely on the aforesaid ground to contend that they are not obliged to release the same to the employees because privilege has not been abrogated by the new Section 16.
For further information, please contact:
Angela Yim (firstname.lastname@example.org)