Communication
In Court
The material facts or evidence should be presented at court. Occasionally courts are prepared to do without relevant evidence because its disclosure would harm a relationship important to society. Evidence that is excluded in this way is called "privileged"
There is a difference in law between testimonial privilege and confidentiality.
Doctor-Patient relationship:
- A confidential relationship does not necessarily mean that testimonial privilege can be claimed in court
- Communications between a doctor and patient are not given testimonial privilege.
- Doctors can be forced to answer questions in court proceedings, even if doing so will reveal confidential information about a patient.
- A doctor who refuses to answer can be found to be in "contempt of court" which might result in a fine or prison sentence.
Lawyer-Client relationship:
- A lawyer can (within certain limitations) refuse to reveal client confidences
- This is meant to protect basic human rights, so that clients feel free to make a full disclosure to their legal advisor.
Bigamy Trial of the Duchess of Kingston (England, 1776)
The traditional rule that doctor-patient communications are not privileged was affirmed in the judgment of Lord Mansfield in this case. The duchess was attended by a surgeon, Mr. Hawkins and he was called as a witness. He was asked if he knew from the parties of any marriage between them. He was reluctant to answer.
Lord Mansfield held that a physician could be required to reveal a patient’s confidences. He stated that “if a surgeon was voluntarily to reveal . . . secrets, to be sure, he would be guilty of a breach of honor and of great indiscretion; but to have that information in a court of justice, which by law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.” Rex v. Duchess of Kingston, 20 How. St. Tr. 355, 572-73 (H.L. 1776).
Occasionally courts exercise discretion to exclude evidence in the interests of justice.
Privilege can be conferred by statute:
- In Quebec the Medical act states "No physician may be compelled to declare what has been revealed to him in his professional character."
There is also qualified privilege under the Criminal Code for statements made by an accused person during the course of a psychiatric assessment or treatment.
R. v. Gruenke, [1991] 3 S.C.R. 263
The Supreme court of Canada held that there should be a flexible approach to privilege and that privilege should be determined on a case by case basis.
The Wigmore test was cited. Communications are privileged if:
1. Communications must originate in a confidence that they will not be disclosed
2. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties
3. The relation must be one which in the opinion of the community ought to be sedulously fostered
4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
If these 4 conditions are satisfied, then the communication should be regarded as privileged.
