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 assist- ance. 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 pro- fessional 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 confiden- tial 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. 1950] Professional Privilege: A Comparative Study 751 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 communica- tions 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. 752 THE CANADIAN BAR REVIEW [VOL. XXVIII 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 profes- sional functions stands in equally great need of full and unreserv- ed intercourse between the professional man and his client, most Continental codes have extended the range of professional priv- ilege 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 in- stance, are given the right to refuse to answer any questions tend- ing 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 atti- tude 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. 1950] Professional Privilege: A. Comparative Study 753 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 mem- bers 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 circum- stances under which they have obtained the information holds good in England for civil as for criminal proceedings ; it has in- deed 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 pa- tients 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.