Professional Privilege: a Comparative Study

Professional Privilege: A Comparative Study

H. A. HAMMELMANN Woodbridge, Suffolk

A serious dilemma faces the professional man who is called upon as a witness to make public, in a court of law, facts which have been revealed to him in strictest confidence. On the one hand lies his duty to give the court all the information at his disposal so that justice can be done; on the other, there is his implied, or even express undertaking to refrain from divulging communications confidentially made for the purpose of obtaining advice or assistance. In a. conflict between the interests of justice and other public or private interests, it is the former which normally carries the day. Any rule which withholds for extrinsic reasons evidence of possible probative value from the courts involves serious draw- backs to their work and, seen from this point of view is, as Pro- fessor Wigmore has said,, unscientific. Nonetheless, where absolute secrecy appears essential to the proper conduct of certain professional functions of great importance to society, the question arises whether there may not be involved a point of overriding public policy which should prevail over all other considerations. If so, the law itself must give it protection, and it can do so (a) by imposing upon members of certain professions a strict duty of secrecy, breach of which may be punishable as a criminal offence, and (b) by restricting or even prohibiting disclosure of confidential information by the professional man even if the information is required by a court of law. The term "professional privilege" itself appears to be fairly recent; it was, in any case, no'; known to what is probably the first proper textbook on the English law of evidence, published in 1717, nor to Blackstone. Its substance was recognized, how-

, Principles of Judicial Proof (1931) 974.

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ever, certainly as early as the 17th century, for a member of the legal profession was repeatedly held "not bound to make answer to things which may disclose the secrets of his Client's case".2 Other professional men have apparently always been treated ex- actly like laymen by the Common Law; even today, any mention of privileged communications in a court of this country can only refer to solicitors or counsel and to nobody else.3 Ministers of re- ligion and medical men challenge this attitude of the Common Law on the ground that it is contrary to the accepted ethical standards of their calling, and in doing so they can point to the fact that in most foreign legal systems confidential communications are protected on a far wider scale. Comparison with foreign laws cannot, of course, do more than show up differences of treatment of any. given question; asolution which commends itself to one country may not be suitable or acceptable to another. On the other hand, comparison is not merely juxta-position; it must inevitably trace the reasons which have led legislators and courts in various countries to adopt dif- ferent solutions to identical or similar problems. It thus helps to clarify the issues and this is particularly important for a system which, like the Common Law, requires some, distinct stimulus before it will pause to reconsider whether a given rule, hallowed by time, is still adequate under modern. conditions. To contribute to such an inquiry is the purpose of this paper. The locus classicus for the present position of English law is the judgment of Jessel M.R. in Wheeler v. Le Marchant4wherethe learned judge expressed himself as follows; The principle protecting confidential communications is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour or of his fortune . There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. The communications made to a medical man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in .order to enable the medical man to advise or to prescribe for the patient are not protected. . . . therefore it must not be supposed that there is any principle which says that every confidential communication which it is, necessary to make in order to carry on the ordinary business of life is protected. The protection is of à very limited character, and in

2 Per Roll Ch. J. in Waldron v. Ward (1654), Styles R. 449 . See also Sparke v. Middleton, 1 Keeble's R. 505. s Per Jessel M.R . in Anderson, v. Bank of British Columbia, [187612 Ch. D . 644 . 4 (1881), L.R. 17 Ch.D . 675.

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this country is restricted to the obtaining of assistance of lawyers as regards the conduct of litigation or the right of property. It has never gone beyond the obtaining legal advice and assistance and all things reasonably necessary in the shape of communications to the legal adviser are protected from production or discovery in order that that legal advice may be obtained safely and sufficiently . On the ground that the proper exercise of certain other professional functions stands in equally great need of full and unreserved intercourse between the professional man and his client, most Continental codes have extended the range of professional privilege much further. Thus, in many countries, including France,b Italy,s Switzerland,? Germanys and many States of the United States, ministers of a recognized religious community, for instance, are given the right to refuse to answer any questions tending to elucidate information gained by them in the exercise of their calling, especially in auricular confession. Though Archbold 9 considers that the question has never been authoritatively settled in an English court, there is little doubt that, despite the strong plea in favour of privilege put forward by Bestlo and others, no such claim is recognized in strict law. In Normanshaw v. Norman- shaw," a divorce case, Sir F. H. Jenne insisted that a clergyman who refused to describe a conversation he had with the respond- ent, because he would not divulge a private conversation with a parishioner, must answer the question and continued : "It must not be supposed for one moment that a clergyman has any right to withhold information from a court of law". In Du Barré v. Livette, 12 a case which turned upon the evidence of an interpreter used during conversations between client and attorney, counsel referred to an apparently unreported case, R. v. Sparkes, "lately decided by Mr. Justice Butler on the Northern Circuit". Here "the prisoner, being a papist, had made a confession before a protestant clergyman of the crime for which he was indicted, and that confession was permitted to be given in evidence on the trial and he was convicted and executed". Since the Canons of the Anglican State Church contemplate that confessions shall be covered by a seal of secrecy, the attitude of the law would appear to be unsatisfactory. Fortunately

c By virtue of art . 378, Code Penal. 6 Art. 622, Codice Penale ; art . 249 C. Pr. Civ. ; art . 351 C. Pr . Pen. 7 Art. 321 Strafgesetzbuch of 1942 . a § 300 StGB, §§ 383, 385 ZPO, § 53 StPO. 2 Pleading and Practice in Criminal Matters, p. 457 . 10 On Evidence (12th ed.) 501-506 . 11 (1893), 69 L.T. 468. 12 (7.790), 1 Peake 108.

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judges have shown themselves, "as a matter of good feeling", increasingly reluctant to press a clergyman for evidence of this kind, and no recent case is known where refusal to testify in such circumstances has been followed by a committal. for contempt. Of far more immediate practical importance is the question of communications between medical men and their patients. Here again, the Common Law refuses to afford any protection and a leading textbook on modern medical jurisprudence 13 advises members of the medical profession bluntly : "A witness must remember that there are no medical secrets". The strict rule,that doctors are never relieved of their duty to testify whatever the circumstances under which they have obtained the information holds good in England for civil as for criminal proceedings ; it has indeed been asserted that at least one criminal conviction has been secured where the only evidence against the prisoner was the reply he made to questions asked by his physician in private consulta- tion. "The Law of England on this important subject", concludes the authoritative work previously quoted,14 "undoubtedly conflicts with the law of honour sought to be observed by medical men, viz. that information obtained in the consulting room from patients relative to their ailments must be held to be inviolably secret". But it is not on a point of honour solely, or perhaps indeed at all, that the objection against the present position of medical men in English courts need be based. Medicine is a science which, like all others, requires facts to work on. Only when the patient has described the physical and mental symptoms of his illness as fully as he is able to do can the doctor decide on the cure to be adopted. Not only psychologists but most general practitioners are aware that frequently a patient seeking advice and help" must give a detailed picture of his past life, and they realize that such a full statement can only be obtained if there is a firm belief that the doctor will keep what he has heard strictly to himself. If it can be taken as axiomatic that unreserved communication is a condition sine qua non of successful medical treatment, complete assurance that there is no danger of unauthorized revelations is not only in the interest of the patient, but also of vital importance to the doctor and a safeguard of public health. Most Continental codes recognize for these reasons expressly

13 Taylor, Principles and Practice of Medical Jurisprudence (18th ed.), vol. 1, pp. 21-23 . 14 Taylor, ubi supra, p. 23. is Or indeed one who has simply been sent to compulsory medical exami- nation and does not wish to be dishonest.

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that the relation between medical adviser and his client is one of special confidence governed by a strict duty of professional secrecy. This duty exists regardless whether silence has or has not been expressly imposed upon the medical adviser. Any voluntary disclosure, therefore, lays the doctor open to a civil action for damages, either on tort is or for breach of implied or express term of the contract." In England, on the other hand, it has never been clearly decided whether any legal sanction attaches to voluntary disclosure. Kitson v. Playfairl$ was a libel action and therefore does not directly cover the point, while the circumstances in Tournier v. National Provincial Bank,19 where it was held that there is an implied term in contracts between banker and customer that the banker will not divulge the state of the customer's account can hardly be considered as bearing decisively on our subject.2o In addition to the civil remedy, Continental codes envisage the possibility of criminal proceedings for violation of the 'duty of secrecy, an alternative which has never found entrance into the Common Law or even into the statutory regulations concern- ing public health which, in special cases, enjoin absolute secrecy upon medical men.21 These two remedies constitute what are on the Continent generally considered essential safeguards protecting the patient against his medical adviser. They are of course incomplete where it is possible for a court of law to override them by insisting that a medical man, when subpoenaed to appear as a witness or to produce documents in a criminal prosecution or in civil litigation, should give evidence revealing confidential information without consent of his client. So far as they have concerned themselves with the question, English judges have always taken the view that there is a decisive difference between disclosures in court under sanction of the law, and a breach of professional confidences in other circumstances.22 The foreign countries with which compari-

11 So for instance in Switzerland and Germany, see Blass : Die Berufs- geheimhaltungspflicht (Aarau 1944) . 17 So also in Scotland, see case quoted by Kitchin : Legal Problems in Medical Practice (1936) 17-18. 11 Reported in The Tinges of 28.3 .1896. 11 1192411 K.B. 461. 20 In the latter case (at p. 479) Scrutton L.J., speaking of claims for damages for breach of secrecy in general, expressed the view that "the absence of authority appears to be greatly to the credit of English professional men who have given so little excuse for discussion". 21 So regulations applying the anti-V.D. campaign, cp . Garner v. Garner (1920), 36 T.L.R. 196. 22 See Lord Mansfield's judgment in the Duchess of Kingston's case (,20

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son is here made regard, on the other hand, the inviolability of medical secrets as worthy of its name only if it is upheld in all circumstances, and refuse therefore to regard a breach as justified even if apparently authorized by the order of a court. It is only in the extent to which exceptions to this principle are admitted that considerable divergencies occur, which are most clearly shown in German law on the one hand, and French law on the other. German law holds that the duty of secrecy is imposed on medical men solely for the protection of the patient. Against unauthorized disclosures in court the patient is protected by pro fessional privilege which enables the medical man to refuse to answer questions tending to reveal confidential communications.23 Like professional privilege covering legal advisers in English courts, the privilege covering medical men in German law24 gives way if the patient releases his adviser from the duty of silence, so that consent destroys the doctor's justification for refusal to testify about the privileged matter.21 Moreover, since the duty of secrecy is based exclusively on the interests 'of the patient, German lawyers seem to envisage the possibility of further in- roads on the inviolability of medical confidences in the interests of overriding policy. Generally, it is true that, where the patient's consent has not been forthcoming, a medical man cannot be com- pelled, either in criminal or civil proceedings, to reveal either to public authorities or in the witness box confidential information "entrusted to him in the exercise of his profession ".28 German textbooks, however, recognize an overriding duty of disclosure, not only where such is provided by express statutory rule," but arising out of rather vaguely defined "higher ethical considerations" which, as the German Reichsgericht, in one or two rather difficult decisions,23 has held, may make the patient's consent

How. St. Tr. 407). See also remarks by McCardie J. in Garner v. Garner (ubi supra). ' 21 §§383, 385 ZPO, § 53 StPO. 24 Which can be claimed before the hearing by a written statement setting out the reasons for the refusal to testify and dispenses with the obligation to appear at the hearing unless the court rejects the reasons (§§ 386, 387, ZPO). In England and Francè a witness who desires to claim privilege must appear and state under oath in the witness box the grounds on which he bases his refusal to answer certain questions or to produce documents (cp ., e.g., Spokes v. Grosvenor Hotel, [189712 Q.B. 130). 26 §38511 ZPO, § 531, StPO, RGStr. 57/63 ; Cp. Wilson v. Rastall (1792), 4 T .R. 753. 26 § 383 nr. 5 ZPO, §53 nr. 3 StPO. 27 E.g. duty to communicate any knowledge of plans for serious crimes under § 139 StGB, and other statutory duties of notification under Reichs- seuchengesetz, Reichsimpfgesetz a.o. 11 RGZ 53/317 and RGSt . 38/62 ; see Schoenke, Zivilprozess, p. 220 .

756 THE CANADIAN BAR REVIEW [VOL. XXVIII unnecessary. Finally, though in civil proceedings in Germany a medical witness is not to be asked any questions which cannot be answered without breach of secrecy,29 there is ample authority for saying that even where the consent of the patient has not been obtained, a doctor may, if he so chooses, volunteer to testify about what he has learnt from his patient and the court will receive such evidence regardless whether in so doing the medical man may make himself liable to subsequent criminal prosecution for breach of secrecy.3o In France the medical profession has long demanded an im- munity which goes much further and is independent of the wishes of the patient. French doctors believe that medical secrecy is valuable, indeed essential, not only for the protection of the patient, but in the wider interest of the whole medical profession and of public health in general. French doctors reject the view that consent of the patient is capable of removing all objection to the publication of confidential information which the medical adviser may have obtained. Such an attitude, they argue, is not only contrary to the ancient oath of Hippocrates and the dignity of the profession, but also objectionable from the scientific medical point of view. In support, it has for instance been pointed out that a medical practitioner's special training and knowledge may enable him to draw conclusions or to gain insight into matters personal to his client which the latter never wished to communicate or which were indeed unknown to him. Where the doctor, for medical reasons, has found it necessary to hide these facts from his patient, the latter may not even be aware to what he gives his consent; it would obviously be undesirable that information which was not considered safe for the patient to know should be divulged in open court. In this claim to total exemption from the duty of testifying to such matters, French medical men rely on article 378 of the Code Penal which provides punishment by imprisonment and fine for any revelations of confidential communications by professional men "hors les cas ou la loi les oblige ou les authorise a se porter denonciateurs" .31 It might have been thought that the summons to give evidence in a court of law can be considered sufficient authorisation in the meaning of article 378 of the Code Penal to override professional secrecy and to provide impunity, but that is

2s § 383111 . 3o RGStr. 57/64. 81 Art. 378, as amended by a law of February 16th, 1933, covers "toutes personnes dépositaires par état ou profession des secrets qu'on leur confie" .

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not the view which' has finally prevailed in French courts. After prolonged discussion, the question was settled, by a fairly recent decision of the Cour de Cassation32 which gave careful considera- tion to the whole topic and held 3a that the duty of doctors under article 373 "has been established in order to secure the necessary confidence in the exercise of certain professions and is therefore binding on medical men as a duty inseparable from their calling" . Consequently, the court decided that the duty of secrecy is a general and absolute duty from which doctors cannot be freed, either by express order of the court or by the consent of the patient. Whether medical privilege of such wide scope is altogether desirable is a question over which even French lawyers and medical men are still at issue.34 It is difficult to avoid the conclusion that professional privilege, thus interpreted, becomes equivalent almost to incompetence to testify, and such a position must cause considerable difficulties in practice, not least for the litigants themselves. In those countries, however, where medical privilege is not recognized at all it is certainly worth while to ponder over the reasons and implications of the French law on the subject. It may well be found that the position has radically altered since, more than 200 years ago, the claim to medical privilege was rejected by the common-law courts. It is not always easy to see nowadays why the reasons which speak for the recognition of professional privilege for communications between client and legal adviser do not - mutatis mutandis - equally speak for the ac- ceptance of at least a limited degree of privilege attaching .to transactions between patient and medical adviser. As the former is essential to the interests of justice, so the latter may well claim to be equally important to public health. In how far the medical profession in Great Britain is obstructed in the exercise of its functions by the absence of a strictly defined duty of secrecy it is impossible to ascertain. It is, in any case, a fact well known to practitioners that, when appealed. to, judges are inclined to support a medical man who objects to answering questions put by counsel on the ground that the answer would jeopardise a confidential information. No case appears to have become known of late in which a doctor has been penalised for

32 May 8th, 1947 (D.P. 1948 J. 108), and note by Pierre Gulphe. 33 In contrast to the position in Germany where the corresponding § 300 StGB does not bind a court faced with the testimony voluntarily offered by a doctor against the wishes of the client. 34 Cp. 1lelie-Depeiges, Pratique criminelle, vol. 1, p. 633, and Glasson- Tissier, Traité théorique et pratique de Procedure civile (3rd ed.) 771.

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contempt of court on the ground that he refused to give evidence of this kind. In Kitson v. Playfair,35 Hawkins J. is reported to have said that giving evidence in a court of law was not invari- ably an exception to the rule imposing upon doctors secrecy about confidences gained during professional attendance and that each case would have to be judged according to the particular circumstances. Nothing, it is submitted, can be less satisfactory than a state of affairs where doctors virtually enjoy privilege in court without being able to secure from this fact the advantage which it must bring in increased confidence and frankness on the part of their patients. This is, after all, decidedly not one of those many matters best left to the discretion of the court in each individual case, for the great value of medical privilege must lie in the very fact that inviolability of medical confidences is known to be recognized by the law and secure from all possible controversy and interference. Medical men should be able to approach their patients on the firm mutual understanding that they will serve their needs and their interests alone. This assurance has become all the more important of late because in this respect nationaliza- tion of medical practice in Great Britain has produced a new situation in which suspicion of breaches of confidence, if not in fact inevitable further breaches, threaten to undermine the re- lationship of absolute confidence which must exist between doctor and patient if treatment is to be successful.36 Only legislative action could now bring unequivocal recognition of medical privilege. Unfortunately this is not a subject on which reform through legislation, if it were desirable, is ever likely to be stimulated by criticism of the existing position from the bench. Here is a clash of two important views o£ public policy. The case for the lawyers is perhaps more obvious and easier to establish ; that is all the more reason why the doctors' position should be carefully investigated, and for this purpose the attitude deliberately adopted by other legal systems deserves attention.

as Ubi supra. as See G. D. Nokes in (1950), 66 L.Q.R. 88.