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Medicine and the Law
Confidentiality and the courts
There is a general belief that, once in the witness box, doctors are compelled to reveal confidential information about their patients if asked by counsel. Where no issue of public interest is involved, a medical witness should ask the court to rule in its inherent discretion that the information sought is confidential and privileged.
Paul Gerber
MJA 1999; 170: 222-224
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| Introduction |
It is said that there is no rule of law which permits a doctor in court
proceedings (except in Victoria, Tasmania and the Northern
Territory) to refuse to give evidence or disclose information merely
because it was supplied to him or her in confidence. The Evidence
Acts of the Commonwealth (which applies also in the Australian
Capital Territory) and of New South Wales provide that evidence is
admissible if "relevant in a proceeding".1 Therefore, except in
Victoria, Tasmania and the NT, the law stands in stark contrast with
the code of ethics that has stood unchallenged since the days of
Hippocrates. This code demands that whatever is revealed in the
doctor-patient relationship "ought not to be spoken abroad",
although this obligation of confidentiality was diluted in the
Australian Medical Association's revised Code of Ethics in
1996.2 In contrast, the law
recognises that a party to a marriage is not compellable to disclose a
communication made to the other during the marriage, relying on the
fundamental right of spouses to confide in each other freely without
interference from the law. Likewise, a member of the clergy may refuse
to divulge a religious confession to a court in NSW, the ACT and a
federal court, but not elsewhere. Client legal professional
privilege is justified on the basis that it promotes candour and trust
between lawyer and client. Yet nothing is more calculated to destroy
candour and trust in the doctor-patient relationship than making a
medical witness compellable. But is it the law?
My purpose in this article is to clarify the law and to argue that in some circumstances a doctor can, and should, seek the inherent discretion of the court for a claim of privilege. If this is granted, evidence otherwise relevant may be withheld from the court. When in doubt, medical witnesses should voice their concern to the judge and request a ruling. | ||
The judge's discretion | |||
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A judge, being master of his or her own court, has a residual discretion
to disallow certain evidence to be given. This discretion will only be
exercised where non-disclosure will not result in concealing a crime
or endangering the health of others, where the public interest in
discovering the truth cannot be advanced as legitimately prevailing
over the betrayal of a medical confidence, or where the probative
value is substantially outweighed by the danger that the evidence
might be unfairly prejudicial to a party.
A good starting point is an early decision of the English Court of Appeal in which Lord Denning MR noted: The only profession that I know which is given the privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper, and indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests -- to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done.3 Lord Justice Donovan arrived at a similar conclusion, finding that it would be wrong to hold that a judge should invariably be required to order that the question be answered, and to punish a refusal to answer once it is shown that the question is technically admissible.3 On the same facts, the Full Court of the Supreme Court of New South Wales held in Re Buchanan that: It has never been suggested that, if the question is relevant and proper, any further discretion remains in the trial judge as to whether or not the witness should be compelled to answer, and if it did it is difficult to see upon what material it could be exercised. . . . litigants cannot be constrained by private codes of strangers.4However, the Full Court went on to add this rider -- that there may be circumstances: ...impossible to define in advance arising out of an infinite number of facts and circumstances which a court encounters which may lead a judge to conclude more harm than good would result from compelling disclosure.4 Both the above cases, involving newspaper journalists claiming to protect their sources, are readily distinguishable from that of the doctor whose disclosure may contain no element of public interest-- for example, medical evidence in divorce proceedings, which is of interest only to the parties and of no concern to the general public -- in which case a judge may be more readily inclined to exercise a discretion in favour of a medical witness. Whatever discretion a court may have in not compelling disclosure of confidential information, it will not be exercised where withholding evidence may protect a criminal or endanger public health. In Hunter v Mann,5 Dr Mann had treated the driver of a stolen vehicle and his passenger after they were involved in an accident. Although Dr Mann advised his patients to go to the police, he did not seek their consent to identify them to the authorities. When a police officer asked for the name and/or address of the man and his passenger, Dr Mann refused to give the information as he considered it confidential, following the British Medical Association code of conduct for members. This code included the principle that a doctor should refrain from voluntarily disclosing to a third party information which he or she learned directly or indirectly in his or her professional relationship with a patient, subject to exceptions, including: "(1) the patient gives his consent; (2) the information is required by law". The prosecutor alleged that Dr Mann was guilty of an offence under the Road Traffic Act 1972 (UK), and the doctor was convicted. An appeal was dismissed, although the judge added this rider: I accept that the doctor ... has no right to refuse to disclose confidential information in the course of judicial or quasi-judicial proceedings; but I also accept that the judge in certain circumstances, and in the exercise of his judicial discretion, may refuse to compel the doctor to do so.5 | |||
When confidentiality may be ignored | |||
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The Australian Medical Association's revised Code of Ethics
recognises that in some circumstances medical confidentiality may
be ignored, although it would have been more helpful if the guidelines
had been more specific. A doctor is entitled -- and indeed bound -- to
disclose confidential information where a failure to do so would
constitute a threat to public or private interests. Suppose a patient
confesses to his psychiatrist that he intends to kill his girlfriend.
If the psychiatrist takes this threat seriously, can it possibly be
suggested that he or she is not duty bound to alert the authorities?
This situation did occur in the United States; the patient did kill his
girlfriend and the psychiatrist's employer was held vicariously
liable for the girl's death.6
The different States and Territories have various reporting laws, dealing with matters such as child abuse, fitness to hold a driving licence, and notifiable diseases, which require medical practitioners to provide certain information to relevant authorities. Child abuse is notifiable in all States and Territories except South Australia and Queensland. South Australia imposes a duty on doctors, opticians and physiotherapists to inform the relevant traffic authorities if they have reasonable cause to believe that a person whom they have examined suffers from a disability such that, if driving a motor vehicle, he or she would be likely to endanger the public.7 New South Wales merely provides immunity from suit for medical practitioners if they provide advice to the Roads and Traffic Authority about a patient's fitness to drive a motor vehicle or fly an aircraft;8 Victoria, Queensland, Western Australia and Tasmania are silent on the matter. In the absence of mandatory reporting requirements, I suggest that a doctor is nonetheless under a positive duty to inform the relevant authorities where he or she reasonably suspects that a patient suffers from a psychiatric or other medical disorder which may pose a threat to that person or to the lives or safety of others. For example, the patient may be a train driver suffering from a serious heart condition who refuses to give up his job, or may suffer from a communicable disease (whether notifiable or not) which poses a health risk to others, including his or her partner. Where practical or meaningful, the patient's permission to disclose the information should be sought, and, if permission is refused, the patient should be warned that the information will be passed on to the relevant authority. But taking such a course of action may result in legal action. In 1983, a general practitioner in New Zealand had been treating a bus driver who had had a coronary bypass and whose heart condition was unstable. The doctor advised the man to give up driving, but the patient refused. On learning that the man proposed to take a group of schoolchildren on an excursion in his bus, the doctor informed the traffic authorities that, in his opinion, the man was unfit to drive and was a danger to the public. The bus driver brought legal proceedings against the doctor, resulting in an award of damages, severe censure by the New Zealand Medical Council,9 and the doctor's suicide. However, it is most unlikely that an Australian court would award damages in similar circumstances, if only because the bus driver would be unable to prove a "loss" recognised at law. Another New Zealand case, Furniss v Fitchett (Box), undoubtedly represents the current law in Australia. According to this case, the duty of care is dependent on the foreseeability of the harm in suit.10 | |||
Conclusion | |||
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Doctors should always seek judicial guidance before answering any
question in court involving confidential information about a
patient. Where a party causes a subpoena duces tecum
to be issued to a medical practitioner, calling for all records
relating to a patient to be produced, these documents must be produced
to the court. It is then for the court to decide whether the documents
may be inspected by the parties or their advisers. As a matter of law,
medical records cannot be adduced in evidence except when proved by
the doctor, and it is at that point that the doctor should seek to invoke
the court's discretion, pleading confidentiality of the material
unless waived by the patient. If the judge rules against the doctor,
the choice is between compliance and prison, although a fine is more
likely.
Medical defence organisations will fund a doctor's resistance to the disclosure of confidential medical information. However, if the judge compels disclosure and the doctor refuses to comply, any fine is unlikely to be covered by the doctor's indemnity -- idealism is rarely rewarded. Where there is little conflict on medical evidence, a patient's notes may be produced to the court by agreement and admitted into evidence without the doctor being present, after affording the patient the opportunity to claim privilege. Doctors would be well advised to explore this option in appropriate cases. It provides an alternative to waiting needlessly in court in the many cases where a medical witness is not called, either because after a conference with counsel the medical evidence is thought to be unhelpful, or because the case is settled just before or during the hearing. Finally, a word of warning. A doctor unhappy to provide records or give evidence must not take the law into his or her own hands. When in doubt, consult your medical defence organisation. | |||
References | |||
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Author's details | |||
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University of New South Wales (ATAX), Sydney, NSW.
Paul Gerber, LLB, DJur, Professor of Law. Reprints will not be available from the author. ©MJA 1998 | |||
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