DOCTOR AND PATIENT.

Dominion, Volume 3, Issue 778, 30 March 1910, Page 9

DOCTOR AND PATIENT.

DIVUUCENCE OF INFORMATION. PROFESSIONAL PRIVILEGE. Tho : High Court of Australia, consisting of the Full Bench, on March 21 upheld the Full Court of Victoria on tho question of the interpretation of Section 55 of the Evidence Act, ■ 1890, of Viotoria, which prohibits a doctor from divulging' in court,, except in certain circumstances, information obtained while attending a patient. The matter was decided in the case of Godrich v: the National Mutual Life Association-of Australasia, in which Edmund Winton Godrich, an executor of the will of his mother, Annie Cairncross Godrich, sought to recover the sum of £600, the amount of an'insurance policy effected with the compauy, The case was first tried before Mr. Justice Hodges and a jury of sis. The defence there tak;eu was that a condition of the policy was that it was. to be void jf any. statement op the strength of .which it was issued was false, and it was pleaded ' that Mrs. Godrich-had riot declared the fact that at the time-she' took- out tho policy she ...was suffering from a .'..complaint peculiar to women. The policy was .taken out on April 28, 1908, and Mrs. Godrich . died . on ' September 3, 1908. The. company desired to call Dr. Thring, of Sydney, who, on August 29, 1908, attended -the deceased and advised her. to go to the Royal Princo Alfred Hospital,'- Sydney,- ■ where, sho died. It was objected that, under Section _55 Dr. Thring's- evidence was in-' admissiblo. .Mr. Justice Hpdges uphold, this view. The. jury .gave a verdict for £600, with interest! The. company applied to the Full Court for a hew trial op the groun.l that the evi-. deiice of Dr. Thring had been . wrongly rejected;The;Full, Court,' following a previous decision in what is known a? Warneoke's c»se. held .that' Mr. JnHico ■Hodges was ri'iht. The matter then went to tho High Court. . The section .in question • isas 'follows:— ~'.' ■ . . .

"No ; physician or surgeon slialK. without the. consent of his patient, divulge in any civil, suit, action., or- proceeding, (unless the- sanity :of the patient .be th(i. matter hi dispute;; any. tion: which ho may have acquired " in attending the ; patient, and which was necessary to enable him to prescribe or act for the .patient." ' . The Justice, in., the ,'course of his .judgment isaid:—A.s -I. understand tlie judge's notes, the case is to bo' considered as if. Dr. Thring had been formally called and interrogated on two points—(l) ; What o-ral communications Mrs. made to him,. and (2) ;wbat facts as to tho ■condition of her body did ho discover by ocular observation before,'during, and after, the operation. 'If His eyideiice on either point' were admissible, it is contended that there m'nst. be. a new trial.' In Warnecke's: case the.'.Supreme Court held in'effect .that under'* section 55 the, lips of a : medical , adviser are sealed so far,'as regards' civil proceedings, not only, as to anything, said; by: the pa-, tieivt to'him; buti.as tb: anything which com'es.to his knowledge as,to,tho. health or ; physical' ; oondition of tile- patient .'while tho. .'relationship,..of. medical adviser and patient continues. The prohibition/containedin section. 55. extends ! .t? \Sany information. which he. may haw' acquirer]-,in attending .J.he patient; wjiich ' wag,.;hMeisa'ry to enable '.him, to pre-, scribe or act for the patient." -Tho question to bo solved depends upon .the njeaning, to ,be_ given to,the terms "information,acquired," "in attending, l '' and to> prescribe or act. for '-the patient." -The appellants, 'while not disputing that' the words ."information .acquired" are capable, pf. the meaning ;put- upon jthem , by- the Suprohie 'Court "'of Victoria,, contend. that L it 'is not" the only , or the - most, probable . meaning. They. point out: that if 'the 'larger conduction.; is; adopted vt-he result will be the exclusion in, many, oases, not only 1 of the best ovidenco,. but'of the only, possible .evidence."of :a faot tho ascertainment .of which may. be necessary for the ends of justice. Tf, for instance, the patient, dies, and so can no longer ;givo consent,-"a ; fact relating' to . His health,- and essential to bo proved in order,, to establish some aright in his. executors, jmt which .is only known to. liis medical adviser,' becomes, it is said; incapable of-proof.. I confess that I cannot ..bolievo that .the Legislature intended such a consequence, but, if they have said so,'it..is for-them, anf not for-the-:-'Court,: to.'alter what they have said. . , ■

v Proceeding,'.the Cliief Justice said that it< had '< been contended that • the word "information" .primarily suggested information in the' nature of a• com-' ho could not seo any satisfactory 'ground, for: bo limiting' jts meaning. Further, he did not think t-hat-.tho mere fact that a',physician orsurgeon prescribed for or operated ir .a human being necessarily constitute that human , being his patient , within tho meaning-_of tho 1 section; The words connoted a- period co-extensive with the <;ogtjnuanca of a relation of personal confidence; Li the case of the -person who underwent an operation at: a public hospital,- when tho necessity' and nature of the operation had been already decided on, ho did not think' that tlie person-operated on was'neces-. sarily the patient ,of the surgeon who saw him for tiio v first ; time. Such' a surgeon, therefore, he thought, would not necessarily be prohibited from divulging what he, saw in the course of an operation. If. Mrs. Godricli on admission to the hospital substantially ceased to be the patient of Dr. Thring, any information .acquired by the doctor was not acquired "in attending the patient." ! . Any 1 information ho acquired by observation-.-of-the- parts -after removal was not within the prohibition, unless it was shown that the . information acquired was necessary for the.purpose of further treatment byJiim, even if he first acquired 'that information before tho removal. The facts were not known, but it. might be supposed iu the : ■present case' that the surgeon could form an opinion as-to the probablo duration of the disease of which tne patient died. He (tho Chief justice) could not find anything in the statute to exclude such evidence. It. was, therefore, likely that Dr. Thring could havo given some evidence which would have beet* admissable. : But there was a further difficulty-:for the appellant, for under'the Victorian rules of: Court a newv. trial could not have been granted for improper 'rejection of evidence, uriloss, in tho opinion of the Court, some substantial wrong had been occasioned. In .this caso he found himself unable to 'say .that any substantial wrong or misoarriage had been occasioned. The appeal, therefore, must be dismissed. : Mr. Justice, Barton, in- a concurring judgment, said that. if the form of words "any information acquired" had been deliberately 'chosen by the Legislature, the matter passed. beyond the region of doubt, if .it ever rested thero. There was strong evidence of such deliberation. in the statute itself. . .

Mr. Justice O'Connor, Mr. Justice Isaacs, and Mr. Justice Higgins concurred. Mr. Justice Isaacs remarked that ho was not able to share the opinion of some learned judges that such a law was undesirable. Dealing with the meaning of the words "information acquired," Mr. Justice Isaacs said, "A patient in submitting his body for examination is presenting a human document as legible to tho eyo of medical science as is an instrument- of tit.le to the practised eye of a legal advisor, or any ordinary" printed matter, t-o a general reader." The appeal 'was, , therefore, dismissed with; costs.