DOCTORS’ RIGHTS.

Star (Christchurch), Volume LXVI, Issue 20233, 17 February 1934, Page 31 (Supplement)

DOCTORS’ RIGHTS.

Should They Tell in Court Proceedings? LEGAL POSITION OUTLINED. The privilege given to medical men not to disclose in evidence in civil cases before the Court any professional communication made to them by patients does not extend to criminal cases, according to a Christchurch solicitor who investigated the position today. His remarks had reference to the case in which a doctor yesterday claimed the privilege of his profession in not giving evidence on a criminal charge against a domestic. The solicitor said that in general the only rights of privilege as to witnesses were given either by statute or by some judicial decision of the Court, and unless there were such authority given all persons were compelled to give evidence. In New Zealand, as far as one could gather, the only privilege granted to medical men was that given by section 8 of the Evidence Act, 1908. Sub-section 2 of that clause stated: 41 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 of a professional character by such patient, and necessary to enable him to prescribe and act for such patient.” and act for such patient. Divorce Cases Included. That privilege, continued the Christchurch legal authority, was applicable only to cases of a civil nature, and not to criminal cases. Looking to the English law, which became the common law for New Zealand (unless overruled by a Dominion decision), it was impossible to find any decision protecting medical men from giving evidence in any criminal charge. How: far a surgeon could go had been decided in several cases, and it had been ruled that in divorce proceedings a doctor was not allowed to give evidence without the consent of his patient. In the case of Stack v. Stack it was held that the tendering by any patient of any part of his person to the physician for examination with a view to medical treatment was a communication to the physician. Privilege would extend to matters which the doctor found out by examination of the patient himself. On the other hand, if the doctor, on examination of the patient, found out something of which the patient was unaware, and the existence of which the medical man discovered only after investigation, that was not a cpmmunication, and was, therefore, not privileged. Strong Moral Obligation. “ There seems to be no right at all for a doctor to claim privilege in criminal cases generally,” added the lawyer. “It applies only to civil easej and to cases of an analagous character. It has been held to apply to evidence tendered to commissions of inquiry. The idea of claiming privilege under the unwritten law is one which no lawyer would consider putting forward, for there is no such thing as an unwritten law in New Zealand. “ There are occasions when there is a very strong moral obligation on medical men not to give evidence. It seems hard that a patient cannot confide in a doctor without fear of the latter having to go into the witness box to give evidence against him or her later. If it were considered necessary, because of the medical evidence being of a character that should not be made public, that part of the evidence could be taken in private.”