SECRETS OF PATIENTS

Dominion, Volume 23, Issue 85, 4 January 1930, Page 5

SECRETS OF PATIENTS

PRIVILEGE IN COURT LAW IN NEW ZEALAND In suggesting at a recent inquest that » hospital doctor is not bound to secrecy regarding information divulged by a patient to the same extent as a private practitioner, Mr. J. R. Bartholomew, S.M., of Dunedin, has raised an interesting question in which delicate points of law are involved. The whole matter of privilege in evidence was succinctly summarised by a leading membex - of the Auckland Bar on Saturday. On the immediate question raised this authority says he agrees with the members of the Otago Hospital Board, who stated that they, considered the 'Magistrate’s endeavour to draw a distinction between the two classes of doctors to be unsound. The Auckland lawyer’s summary of the position from the legal point of view ■shows that legislation in New Zealand on this subject is considerably in advance of the law in England. “The law in New Zealand prior to 1885 afforded no immunity to medical men or to ministers of religion,” the barrister said, “but in that year the New Zealand Parliament passed a statute providing that a minister shall not divulge in any proceedings any confession made to him in his personal character, except with the consent of the person who made such confession, and that a physician or surgeon should 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. Crime Not Protected. The statute provided that nothing therein should protect any communication made for any criminal purpose, or prejudice the right to give in evidence any statement or representation at any time made to or by a physician or surgeon ,in or about the effecting by any person of an insurance on the life of himself or any other person. “The exceptions to .this may be regarded as unimportant and the immunity was a distinct advance upon the old law. Difficulties have arisen as to what is a ‘communication made; to a surgeon in a professional character,’ and the question was the subject of a judgment of the Court of Appeal of New Zealand in the year 1911. In that case a hospital surgeon had observed without any formal communication of the patient a certain pathological condition. The question arose whether or not the surgeon was at liberty to disclose in a Court the result of his observations. The Court of Appeal in a very elaborate judgment held that the privilege of attaching to communications made by a patient to a physician in his professional capacity was restricted to communications oral, written, or by signs necessary to enable the physician or surgeon to prescribe or act for such persom It was also held not to extend to matters discovered by the physician or surgeon or examination of the patient's body or during an operation, or to communications of any kind made by the physician or surgeon to the patient. It appears that he ‘shall not’ without the consent of the patient make such disclosure. A Stringent Test. “The particular case that has arisen in Dunedin is one that will afford a stringent test of the operation of the enactment. The 'magistrate has endeavoured to establish a distinction between the case of a hospital doctor and the case of one who is not a hospital doctor. On principle there can be no such distinction. The purpose of the rule was obviously to enable patients fully and freely to disclose conditions'pertaining to their health to medical men, bo as to ensure proper treatment. If that be the object of the rule, ■ then the reason for the distinction sought to be drawn between the two classes of doctors absolutely falls. “The position of the lawyer is distinct from that ot the doctor The lawyer

has always had the privilege at common law that he could not, without the consent of his client, divulge auy communication made to him by his client, provided it were not in furtherance of some criminal purpose. This rule has always existed and is independent of an Act of Parliament. The principle underlying it is the same as the principle underlying the relation between the medical man and his patient. Immunity of Clergy. / “For a long time spiritual advisers in New Zealand Lad no immunity at common law and it was not till 1885 that the Parliament of New Zealand created the privilege. Prior to that it had been adopted in the State of New York. Owing to the practice of auricular confession the privilege has particular application to priests of the Roman Catholic Church, but any minister of religion can claim It. “The terms of the statute limit the privilege affecting tlie physician or surgeon to civil proceedings. Any communication made for a criminal purpose is. not protected. “This question of privilege to doctors has excited much interest in England, where the privilege does not exist at all. It has given rise to many keen struggles and doctors who have claimed privilege have been ordered to answer questions. While, however, neither doctors nor ministers of religion are legally protected in England, there is a strong body of opinion against the enforcement of the rule.’