The Press THURSDAY, OCTOBER 3, 1974. Confidential records and the police

Press, Volume CXIV, Issue 33655, 3 October 1974, Page 12

The Press THURSDAY, OCTOBER 3, 1974. Confidential records and the police

Public disquiet about the degree of privacy that can be secured between doctors and their patients has been aroused by two recent incidents in Auckland. In each of them the police, acting with the authority of a search warrant, have taken possession of doctors’ files. Section 8 of the Evidence Act says:

A physician or surgeon shall not, without the consent of his patient, divulge in any civil proceedings (unless the sanity of the patient is the matter in dispute) any communication made to him in his professional character by such patient, and necessary to enable him to prescribe or act for such patient. Nothing in this section shall protect any communication made for any criminal purpose . . .

This has appeared to leave the police authority to obtain the medical records of an accused person facing a criminal charge. In serious cases this is sometimes done, although medical records are seldom produced as evidence before a court The law also appears to leave the way open to the taking of records for the investigation of complaints of a criminal offence. To prevent the police from seeking medical evidence relevant to a specific allegation might be to inhibit seriously their inquiries and the course of justice. But that is rather a different matter from a general search of the files of doctors to determine if offences may have been committed. Nor can the section in the Evidence Act be read as giving any general authority to the police to examine medical files: it merely remdves protection from “communications” that have been made for a criminal purpose. It does not define access to any other document or statement.

Next week the Supreme Court will hear an application by the Auckland Medical Aid Trust for a review of the issuing by a Magistrate of a search warrant under which the police entered a clinic in Remuera and removed the files of about 500 patients. The Supreme Court’s decision may clarify, for the time being, the extent of the powers of the police when they are executing a search warrant. The public and the medical profession are entitled to clarification of the extent of the privacy which is generally assumed to exist between patient and doctor: the police, too. need to know clearly how far they may pursue their inquiries. That should not be the end of the matter. The Minister of Justice (Dr Finlay) has said that the question of professional privilege, which he described as a complex and technical branch of the law of evidence and procedure, would be examined by the Torts and General Law Reform Committee of Parliament. The committee should not allow itself to be rushed into premature changes in the law. It may well be guided by the ruling of the Supreme Court But priority should, perhaps, be given to this section of the committee’s work. The Supreme Court can only rule on the application by referring to the present law. When the Court has done so, the committee will be in a proper position to determine whether the law produces desirable results. In the meantime, when the police are executing search warrants, they should surely refrain from acting in such a way that the legality of their actions is likely to be challenged. The Court itself may declare that the law is deficient, and in that event the police would be unduly provocative if they worked on uncertain legal ground. Eventually, a distinction may have to be made so that warrants which allow the police to breach professional confidences may be obtained only from a Judge after an application to the Supreme Court, rather than by application, as now, to a Magistrate, to a Justice of the Peace, or to a court registrar. Sometimes this would provide an opportunity for evidence to be destroyed. On balance, the committee might decide that the public interest would be served best by a clarification of the law, rather than by substantial changes.