PRIVILEGE IN COURT

Poverty Bay Herald, Volume LV, Issue 17145, 30 December 1929, Page 2

PRIVILEGE IN COURT

v DOCTORS AND EVIDENCE

SECRETS OF PARENTS THE LAW IN NEW ZEALAND. / —— In suggesting at a recent invest that a hospital doctor is not "boiiha'to sec- ■ recy regarding information divulged by a patient ■to the same extent v as" it " private practitioner, Mr J. R. Bartholomew, S.M., of Dunedin,; has raised-an interesting questfon iri' which? - delicate points of law are involved! j. ■ ; i'he whole matter of privilege in evidence waa succinctly summarised by a leading meniber of the Auckland sar: On the immediate question' raised *% authority says he agrees with the "members of the Otago Hospital Board,, who stated that he considered the;* "magistrate's endeavor to draw 1 ' a ; ."(jhstindtion between the'two classes of doctors'tß'b*e : -unsound. TJie Auckland mmary of the' position from'the"K|jal point of view shows that legislation hi i\ew Zealand on this subje<& is considerably in advance of, the 'law in "England. ' : The law of- -New Zealand prior to 1885 afforded no-immunity to i»edical men or to-ministers'of religion,'"-'the barrister "but in that year the .Now Zealand Parliament passed a statute providing tfhat a minister shall not divulge in. any proceedings any confession made to Mm* ''•iri'-'Ms 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, L 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 natient and /necessary to enable him to prescribe or act'for such patMtt;. Cllte NOT PP u 6t£CT£lJ' The statute provided that nothing therein should protect any 1 ■eommumcotion made lor uiiy v criminal ptflfposei' or prejudice the right to give in evidence ' any statement or representation at any time matte to or by a" physician* 6r| surgeon iA"or aboiit the effeetfo&bv' any }>erson of an insurance on the life of iimself, or of any other person. ' "The exceptions to this .may be regarded as unimportant, iinmunitv was a distinct advance upon ' t&e' old hiw. Difficulties have arisen as to what is a 'communication made to a \l] surgeon in a prb&ssidmU 'emirifcte'r*/ 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 patjent a certain pathological condition. Th* question arose whether or not the i 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 attaching to communications made by a patient to a-'physician in his/professional - capacity was restricted to communica- • tions oral, written, Or" by sigM'-ttWe* ttary to enable the physician or surgeon 1,, prescribe or act for such' perspli.'" It was also held not to extenf ters discovered by the physician or, Surgeon on examination of- the patient's bodv or during an operation, or to communications oi any kind*made 'by the physician to the patient. It appears that he 'shall not' without the consent " of the patient make such disclosure. ■A. MtJNOKNT '«' ' ' "The particular case that has arisen ,'n TJunedin is one that a stringent test of the'operation' of the .' enactment. ' The magistrate has . endeavored to establish a distinction V* tween the ense of a hospital- doetor afcd the case■ o 3 one who is not a pospitftl rto"tor On principle'there cab" be no : such distinction. The purpose of the rule was obviously to enable patients 'fully and freely to disc Jose «oggg. •pertaining to their health to medical men, so as to ensnre proper £<-*?&?*; S that be the object of\he rule then ' tne reason for the distinction sought to be drawn between the two classes of doctors 1 absolutely fa-ils. ■— •> "The position of the lawyer is chstinct* from- that of the-doctor. .The; awyer'Has always had the pnvdege a common law that he could not, without the consent of his client, divulge any communication made -to- bifo by' Mclient;'provided "'it were not ln-farthei, '„„..« of some criminal purpose. Ibis rule has always, existed and is mdo; ricridebfr of ari"Act of Parliament, -pe. !' principle 'underlying it » the same aa the principle underlying the relation betwr*n*tne' medical ma#and' hirpftient.. ! , IMMUNITY* OF &s&&' "For a long time spiritual advisers in New Zealand had no immunity at ~m m on law and it was not till 18» . ~-,} the Parliament of New Zealand created' the 'privilege. / PKof W't&t : ».; m<\ been affopWd mUli* Stated! . York. Owing- -to -the/ pjactio© of

auricular confession the privilege has particular application to priests of the Roman 'Catholic'''Church, but any minister'of religion can claim it. terms of/the- statute limit the privilege affecting the physician or surgeon' to civil proceedings. Any commtihicafcioir hlade' for a criminal purpose is not''"protected. "This question of privilege to doctors •has etcited'iriuch interest in England, where' the' privilege does'hot exist" at all. It has r g%etf ri&TO many Keen struggles and 'doctors who have claimed privilege have'Jseeh ordered to answer questions. neither ' doctors nor I ministers' of religion lire; legally protectW.ih'llnglarid, there is a strong body 6'f brMbti against the enforcement of