LAWYERS AND DOCTORS: ENTITLEMENT TO BREACH CONFIDENTIALITY
ANDREW ALSTON *
A Perspective in Overview
By preserving the confidences of their clients or patients, do lawyers and doctors serve a just society? There are very good reasons for requiring them to preserve confidences, the most obvious one being that clients and patients may not otherwise disclose information that will enable lawyers and doctors to best serve their interests. But this reason focuses on the interests of clients and patients, not on the interests of society. There may be occasions when there is a duty to society that overrides the duty to individual clients and patients. For both lawyers and doctors, there are exceptions to the duty of confidentiality. For lawyers, these exceptions are limited. For doctors, they are substantial.
This presentation will focus on exceptions to the duty of confidentiality in South Australia and Victoria. The two jurisdictions provide interesting comparisons, particularly in respect of codes of conduct that apply to lawyers and statutory provisions that apply to doctors. Both codes and statutory provisions provide greater scope for breaching the duty of confidentiality for practitioners in South Australia than for practitioners in Victoria.
The exceptions derive from three sources:
• Codes of Conduct;
• Statute;
• Common Law.
Codes of Conduct - Lawyers
In each Australian jurisdiction lawyers are subject to rules of professional conduct and practice. In Australia, the rules are all based on the Model Rules of the Law Council of Australia 2002.
Previous rules emphasised duties to the client as opposed to duties to the public. Thus rule 9.1 of the Law Society of South Australia Professional Conduct Rules that were in force before 2003 provided that:
Practitioners shall use all reasonable available legal means that are consistent with the agreement to which they are retained to advance clients’ interests, as the clients’ perceive them.
Rule 1.1 of the Law Society of South Australia Rules of Professional Conduct & Practice, effective 1 March 2003, provides:
A practitioner must act honestly and fairly, and with competence and diligence, in the service of a client.
Rule 1.1 of the Law Institute of Victoria Professional Conduct and Practice Rules, effective 30 June 2005, is expressed in similar terms.
Practitioners must no longer set aside their own moral judgment and advance their clients’ interests, as the clients’ perceive them. They must now act “honestly and fairly”. These words suggest that the focus is not just on the client’s demands but it is also on service of the client in the context of societal interests.
This change in emphasis can also be seen in the rules on confidentiality. Rule 9.2 of the former South Australian rules provided:
Subject to Rule 9.13i and any statutory provision to the contrary and except for such communications as may be incidental to the normal conduct of the matter or unless otherwise instructed by the client, a practitioner shall not (whether a retainer be terminated or not) disclose any information obtained in the course of handling any matter.
Rule 3 of the new rules provides much greater scope for disclosing information, particularly in sub-rules 3.1.3 and 3.1.6:
A practitioner must never disclose to any person who is not a partner director or employee of the practitioner’s firm any information, which is confidential to a client and acquired by the practitioner or by the practitioner’s firm during the client’s engagement, unless:
3.1.1 The client authorises disclosure;
3.1.2 The practitioner is permitted or compelled by law to disclose;
3.1.3 The practitioner discloses information in circumstances in
Which the law would probably compel its disclosure, despite a client’s claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence;
3.1.4 The information has lost its confidentiality;
or 3.1.5 The practitioner obtains the information from another person who is not bound by the confidentiality owed by the practitioner to the client and who does not give the information confidentially to the practitioner.
3.1.6 In the practitioner’s opinion the disclosure of the information is required to prevent imminent serious physical harm to the client or to a third party.
Sub-rule 3.1.6 recognises interests of persons other than the client that may override the client’s perceived self-interest. The sub-rule is expressed in terms of the interests of individuals - “the client or … a third party”- and not those of the general public.
Rule 3 of the Victorian Rules is in identical terms with the important exception that 3.1.6 is omitted. 3.1.6 is also not in the Law Council of Australia Model Rules.
The Rules of Professional Conduct & Practices in all States contain extensive provisions on the duty of frankness in court.ii iii What should a practitioner do when she or he discovers that a client has lied to the court or in other ways provided false evidence? In short, the practitioner must encourage the client to authorise the practitioner to inform the court of the lie or falsification and, if the client says no, must then refuse to take further part in the case. Also, if the client says no, the practitioner “must not otherwise inform the court of the lie or falsification.”iv Here, the duty to the court and probably also the duty to society are clearly made subject to a higher duty to the client.
Codes of Conduct – Doctors
From the 5th Century BC, medical codes of ethics have emphasised the duty of confidentiality. The Hippocratic Oath states:
Into whatever house I enter, I will go into them for the benefit of the sick … whatever, in connection with my professional practice, or not in connection with it, I see of hear in the life of men, which ought not be spoken of abroad, I will not divulge as reckoning that all such be kept secret.
Early codes recognised that information could be divulged with the permission of the patient or if required by law.v The Australian Medical Association Code of Ethics 1995 also provided that information could be divulged “where the health of others is at risk.” In 2004, the A.M.A. introduced a new code that goes much further. It provides in paragraph 1.1l.
Maintain your patient’s confidentiality Exceptions to this must be taken very seriously. They may include where there is a serious risk to the patient or another person, where required by law, where part of approved research, or where there are overwhelming societal interests. The exception of “overwhelming societal interests” may recognise a perception that whereas lawyers serve their clients, doctors serve both their patients and the community. It accords with both case law and legislation where doctors have been permitted or required to disclose information for the good of the public.
Professional Accountability
Lawyers and doctors who breach their codes of conduct may be subject to disciplinary proceedings. The codes do not have force of law. vi However, they represent the views of the professional bodies on what is proper professional behaviour.vii
In South Australia and Victoria, the standards that apply to lawyers are now expressed in statutory definitions. The South Australian definition is as follows:viii “Unprofessional conduct” in relation to a legal practitioner means –
(a) an offence of dishonest or infamousix nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b) any conduct in the course of, or in connection with practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute;
“unsatisfactory conduct” in relation to a legal practitioner, means conduct in the course of, or in connection with, practice by the legal practitioner that is less serious than unprofessional conduct but involves a failure to meet the standards of conduct observed by competent legal practitioners of good repute.
Sections 4.4.2 and 4.4.3 of the Victorian Legal Profession Act 2004 also has Bolam type definitions of “unsatisfactory professional conduct” and “professional misconduct”.
For medical practitioners, until recently, the standards were not expressed in statutory definitions. There are many judicial statements of what is “unprofessional conduct”, “professional misconduct’ or “infamous conduct in a professional respect”. They are all in the nature of Bolam type tests. For example, in Ex parte Meehan; Re Medical Practitioners Actx Sugerman J. said:
… the only generalisation as to the meaning … of ‘infamous conduct in a professional respect’ which can be attempted as capable of application to the varying situations which may arise, is that it refers to conduct which being sufficiently related to the pursuit of the profession is such as would reasonably incur the strong reprobation of the professional brethren of good repute and competence.
In both South Australia and Victoria, the standards are expressed in statutory definitions. In South Australia, section 3 (1) of the Medical Practice Act 2004 defines unprofessional conduct to include:
(a) improper or unethical conduct in relation to professional practice; and
(b) incompetence or negligence in relation to the provision of medical treatment; and
(c) a contravention of or failure to comply with –
(i) a provision of this Act; or
(ii) a code of conduct or professional standard prepared or
endorsed by the Board under this Act; and
(d) conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law.
It is submitted that, as this is an inclusive definition, it is in addition to the Bolam type test of unprofessional conduct that has been favoured by the Courts. In Victoria, the Medical Practice Act 1994 section 3 defines unprofessional conduct to mean all or any of the following:
(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or
(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or
(c) professional misconduct; or
(d) infamous conduct in a professional respect; or
(e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person’s well-being; or
(f) influencing or attempting to influence the conduct of a medical practice in such a way that patient care may be compromised; or
(g) the failure to act as a medical practitioner when required under an Act or regulation to do so; or
(h) a finding of guilt of -
(i) an indictable offence in Victoria, or an equivalent offence
in another jurisdiction; or
(ii) an offence where the practitioner’s ability to continue to
practice is likely to be affected because of the finding of
guilt or where it is not in the public interest to allow the
practitioner to continue to practice because of the finding
of guilt; or
(iii) an offence under this Act or the regulations; or
(iv) an offence as a medical practitioner under any other Act
or regulation; or
(i) the contravention of, or failure to comply with a condition, limitation or
restriction on the registration of the medical practitioner imposed by or
under this Act; or
(j) the breach of an agreement made under section 27 (5), 32 or 38D
between a medical practitioner and the Board; or unsatisfactory
professional performance.xi
This definition is more comprehensive than the South Australian definition. It focuses both on attitudes of patientsxii and of peers of medical practitioners.xiii It also adopts terms that are not defined in legislation but have been defined by the courts, in particular, infamous conduct in a professional respect which is defined above in Ex parte Meehan: Re Medical Practitioners Act.xiv
Statute – Lawyers
There is no legislation that compels or permits lawyers, in their capacity as lawyers, to disclose information that might be considered confidential in respect of their clients.xv However, there is legislation that permits any person to disclose information in the public interest or information about the abuse or neglect of children. South Australia, Victoria and Queensland have Whistleblower Protection Acts. xvi
Generally, these Acts protect persons from civil or criminal liability if they disclose “public interest” information to appropriate authorities. In Queensland, the information that may be disclosed is limited. It relates to “a substantial and specific danger to the health or safety of a person with a ‘disability”, a substantial and specific danger to the environment” and “a reprisal”xvii.
In both South Australia and Victoria public interest information is broadly defined. In South Australia it includes misuse of public money, mismanagement of public resources, illegal activity and conduct that causes a substantial risk to the public health or safety, or to the environment.xviii
In each jurisdiction, a person who on reasonable grounds makes an appropriate disclosure of public interest information is protected from civil and criminal liability. In Victoria and Queensland a person who makes a public disclosure is also protected from liability arising from “administrative process” In Victoria, but not in Queensland, this is stated to include “disciplinary action”.xix In South Australia, protection is limited to civil and criminal liability.xx
Thus, a lawyer who, for example, makes a public interest disclosure of her or his client’s criminal activity,xxi will be protected from civil and criminal liability in South Australia and Victoria but not in Queensland where criminal activity is not listed as public interest information. The lawyer will also be protected from disciplinary proceedings in Victoria but not in South Australia. In South Australia and other Australian jurisdictions, a finding of professional misconduct against a lawyer will most likely depend on whether disclosure of the information is considered reasonably to “violate or to fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”xxii
Most Australian jurisdictions have children’s protection legislation that provides that certain people, including medical practitioners must notify appropriate authorities if they have reasonable grounds to believe that a child has been or is being abused or neglected. The South Australia Children’s Protection Act 1993 and the Victorian Children and Young Persons Act 1989 have similar provisions. Lawyers are not listed as mandatory notifiers. However, the legislation in both States also provides that anyone else who, in good faith, notifies the appropriate authority of a suspicion of child abuse or neglect cannot, by virtue of doing so incur civil or criminal liability or “be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted form of professional conduct”.xxiii
Family lawyers, in particular, may become aware of information that, under children’s protection legislation, they are entitled to disclose to appropriate authorities. The protection given to lawyers under this legislation is much stronger than that under most of the Whistleblowers Protection Acts. However, the legislation does not require lawyers to notify the authorities.
The only guidance as to whether lawyers could ever be guilty of professional misconduct for not notifying the authorities when they are aware of child abuse or neglect are the criteria for “unprofessional conduct” xxiv applied by disciplinary tribunals and the courts, in particular, the Bolam type test. What would be the view of members of the profession of good repute and competency?
In a survey of nearly 700 Victorian lawyers conducted by Associate Professor Adrian Evans of Monash University’s Faculty of Law in 2002, the lawyers were asked if they would breach client confidentiality in a Family Court case by reporting suspected child abuse.xxv A small majority said they would put the child’s safety before their duty to keep their client’s confidences. This suggests that a sizable number of lawyers of good repute and competency – enough to satisfy any application of a Bolam type test – would not report suspected child abuse.
Statute – doctors
There are many statutory provisions under which doctors are required to disclose information to appropriate authorities. In South Australia, doctors are mandatory notifiers under section 11 of the Children’s Protection Act 1993. In Victoria, they are mandatory notifiers under section 64 of the Children and Young Persons Act 1969. In South Australia, other statutory provisions under which doctors must disclose information about patients or others to whom they might have a duty of confidentiality include:
• Section 49 or the Medical Practice Act 2004 provides that a medical practitioner (“health professional”) must notify the Medical Board if she or he is of the opinion that a patient who is a medical practitioner or medical student is medically unfit to provide medical treatment;
• Section 42 of the Pharmacists Act 1991, section 39 of the Chiropractors Act 1991, section 14b of the Occupational Therapists Act 1974, section 40 of the Physiotherapists Act 1991 and section 43 of the Nurse Act 1999 are provisions in respect of pharmacists chiropractors, occupational therapists, physiotherapist and that are similar to section 49 of the Medical Practice Act 2004.
• Section 54 of the Dental Practitioners Act 2001 provides that a medical practitioner must notify the Dental Board where she or he is treating a dentist or dental student and believes that the patient may be medically unfit to provide dental treatment or the patient has a prescribed communicable infection;
• Section 30 of the Public and Environmental Health Act 1987 provides that a medical practitioner who suspects that a person is suffering from or who has died from a notifiable disease must notify the Health Department and furnish such further information as may be required.
• Section 148 of the Motor Vehicles Act 1959 provides that a medical practitioner (“health professional”) must notify the Registrar of Motor Vehicles if she or he has reasonable cause to believe that a patient is unfit to drive a motor vehicle;
• Section 20A of the Firearms Act 1977 provides that a medical practitioner must notify the Registrar of Firearms if she or he believes that a patients who is applying for or intends to apply for a firearms licence or possesses or intends to possess a firearm is unsafe to possess a firearm;
• Section 47 I of the Road Traffic Act 1961 provides that a medical practitioner must take a blood sample from any person who attends a hospital to receive treatment within eight hours of a motor vehicle accident
• Section 74 of the Harbours and Navigation Act 1993 provides that a medical practitioner must take a blood sample from any person who attends a hospital to receive treatment within eight hours of an accident involving a vessel;
• Section 14 of the Boxing and Martial Arts Act 2000 provides that a medical practitioner who examines a contestant in a professional or public boxing or martial arts event and finds that the contestant is unfit to participate must declare that fact and notify the contestant, the promoter of the event and the Minister of that declaration and submit a written report to the Minister. Victoria and other States have similar legislation xxvi although there are some differences.
Doctors in Victoria are not under a legislative duty to inform authorities that patients are unfit to drive motor vehicles. Section 27 of the Road Safety Act 1986 and regulation 226 of the Road Safety (Drivers) Regulations 1999 only requires doctors to carry out tests at the request of the Corporation. However, section 27 (4) of the Road Safety Act 1986 provides that “[n]o action may be taken against a person who, in good faith, reports to the Corporation any information which discloses or suggests
that a person is unfit to drive or that it may be dangerous to allow that person to hold or to be granted a driver licence variation or a permit.” Thus doctors, and others, are entitled to inform the Corporation that their patients are unfit to drive. Also, doctors in Victoria are not under a legislative duty to inform authorities that patients are unfit to possess, carry or use a firearm. However, under section 183 (1) of the Firearms Act 1996, they are protected from civil or criminal liability if, in good faith, they so advise the Commission.
Doctors are mandatory notifiers under all Children’s Protection Acts, so provisions that entitle non-mandatory notifiers to notify of child abuse or neglect, do not apply to them.
In South Australia and Victoria, the Whistleblowers Protection Acts apply to doctors in the same way that they apply to lawyers.
Both States have legislation that permits doctors and other relevant persons in certain circumstances to divulge information that might be considered to be confidential. Of particular importance are the Acts in respect of health services, mental health and evidence.xxvii
Duty of Disclosure and Civil Liability of Those Who Disclose
In Sullivan v Moody; Thompson v Connonxxviii the appellants, both fathers, had been suspected by the respondents - medical practitioners and social workers - of sexually abusing their children. The respondents notified the Department of Community Welfare of their suspicions. In one case, criminal charges were laid against the father but then dropped. In the other case, no criminal charges were laid against the father. The appellants sued the respondents in negligence claiming that they had suffered shock, distress, psychiatric injury and consequential personal and financial loss as a result of the respondents’ investigation and reporting of their suspicions of child abuse.
The legislation pursuant to which the respondents notified the Department was in similar terms to the Children’s Protection Act 1993 (SA).xxix This included a provision that protected notifiers from civil liability: “[w]here a person acts in good faith and in compliance with the provisions of this section, he incurs no civil liability in respect of that action.”xxx The Supreme Court found for the respondents and the High Court dismissed the appeals. The High Court held that the duty of care claimed by the appellants did not exist. Their Honours concluded:xxxi
The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which
the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of the examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. He interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of the person suspected of the abuse would be to the opposite effect.
The emphasis here is on the paramount interest of children and on protection of persons performing statutory duties. The High Court declined to recognise a duty that contradicted that of statutory notifiers to protect the paramount interest of children. The case reinforces the public policy of protecting notifiers, not only under children’s protection legislation, but also, it is submitted, under any other legislation where persons are entitled or obliged to notify authorities in the interests of society.
Statute – Privacy Act 1988 (Commonwealth)xxxii
Principles 10 and 11 of the Information Privacy Principles in the Privacy Act 1988 (Commonwealth) prohibit the use of personal information (principle 10) and the disclosure of personal information (principle 11) and they list various exceptions to these prohibitions. Two of these exceptions should be noted. The first exception is in principle 10 1 (b) and principle 11 1 (c):
The record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person The second exception is in principle 10 1 (d) and 11 1 (e): The disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
These exceptions permit but do not require the record holder to use or disclose information. The first exception is expressed in very narrow terms. Disclosure must be necessary to prevent or lessen a serious and (not or) imminent threat to the life or health of a particular person. The second exception is imprecise. If one knows that a crime has been committed, is it reasonably necessary for the enforcement of criminal law to disclose the crime? Is reporting a person for tax evasion reasonably necessary for the protection of public revenue?
The exceptions in principles 10 and 11 enable a person to avoid penalty under the Privacy Act. They do not relate generally to issues of contract, tort and professional accountability in lawyer/client and doctor/patient relationships.
Common law
Lawyers and doctors may be accountable for breaches of confidence in contract, tort, and professional misconduct proceedings and possibly in equity. Arguments of entitlement or obligation to breach confidentiality have been raised in many cases. Most do not concern lawyers. However, there are many that concern doctors. The circumstances in which it has been said that doctors may be entitled or obliged to breach confidentiality are usually expressed in terms of serious and immediate danger to the life or safety of an identifiable individual.xxxiii xxxiv xxxv
It is not the purpose of this presentation to compare the different statements of entitlement or obligation to breach confidentiality in various cases. This has been done elsewhere. xxxvi One case however stands out because it illustrates, by implication, the different standards that apply to doctors and lawyers. The case is W v Egdell.xxxvii
Doctor Egdell, a consulting psychiatrist, was asked by the solicitors for W to examine W and write a report on him to be used in an application to a tribunal to review a decision to detain him in a secure hospital for an unlimited period. W had killed five people and been diagnosed as suffering from paranoid schizophrenia. A psychiatrist examined him and reported that his condition was well controlled by medication and that it would be safe to transfer him to a regional secure unit. If this had happened, the regional secure unit “would have been “a staging post on W’s journey back into the community.”xxxviii
Doctor Egdell examined W and concluded that W was still dangerous and that he should continue to be detained in the secure hospital. The solicitor immediately withdrew the application to have him transferred to the less secure institution. Doctor Egdell became concerned that another application would be made to have W transferred and that another psychiatrist would be asked to write a report in support of the application and that Egdell’s report would not be seen by the tribunal. To ensure that any tribunal that reviewed W’s case would see the report, Egdell sent copies of it to the hospital where W was detained, to the Home Secretary and to the Department of Health and Social Security. W sought an injunction to suppress communication of the contents of the report, delivery up of all copies and for an award of damages for breach of confidentiality. The Court of Appeal upheld the court’s decision to dismiss W’s application. Bingham L.J. said:xxxix
There is one consideration which in my judgment, as in that of the judge, weighs the balance of public interest decisively in favour of disclosure. It may be shortly put. Where a man has committed multiple killings under the disability of serious mental illness, decisions which may lead directly or indirectly to his release from hospital should not be made unless a responsible authority is properly able to make an informed judgment that the risk of repetition is as small as to be unacceptable. A consultant
psychiatrist who became aware, even in the course of a confidential relationship, of information which leads him in the exercise of what the court considers a sound professional judgment, to fear that such decisions may be made on the basis of inadequate information and with a real risk of consequent danger to the public is entitled to take such steps as are reasonable in all the circumstances to communicate the grounds of his concern to the responsible authorities. I have no doubt that the judge’s decision in favour of Dr Egdell was right on the facts of this case.
Two points should be noted about the decision. First, the facts did not disclose a serious or imminent danger to an identifiable person’s life. However, clearly, the prospect of W’s early release into the community was disturbing. Secondly, the court did not hold that Edgell was obliged to disclose the information. It held that he was entitled to do so.
Conclusions
There are many circumstances in which doctors may or must disclose information about individuals who might have expected the information to be protected by a duty of confidentiality. In some circumstances, where there is a statutory obligation, doctors who fail to disclose information may be subject to a penalty. There may even be circumstance where a doctor who is not under a statutory duty to disclose information would be guilty of professional misconduct for not disclosing the information. What would have been the position of Dr Egdell if he had allowed his report to be suppressed with the consequence that W was later discharged from hospital and killed another five people? What would be the view of professional colleagues of good repute and competence?
The overwhelming duty of lawyers to their clients not to disclose information may have diminished slightly.xl However, lawyers still seem to regard it as their duty to advance clients’ interests as the clients perceive them. This is well illustrated by the facts of W v Egdell. The lawyers for W were aware of the import of Edgdell’s report. Yet they were prepared to withdraw the application to have W transferred to a less secure institution. If this had happened, another psychiatrist may then have examined a better-briefed W and may have found him to be safely medicated. W may then have been transferred to a less secure institution and then been released into the community and then killed another five people. Would the lawyers’ role in this scenario have been subject to review? If it had, would their conduct have been held to be short of, to a substantial degree, the standard of professional conduct observed by competent legal practitioners of good repute? In W v Egdell, Dr Egdell’s conduct came under intense scrutiny. No mention was made of the conduct of W’s lawyers.
Where doctors or lawyers are entitled or required to breach confidentiality the interests of society are deemed to override the interests of individuals. Egdell’s case puts this in terms of competing public interests: (1) the public interest in maintaining professional duties of confidence and (2) the public interest in disclosure.xli The case does not give clear guidelines as to when a professional person is entitled or obliged to disclose information. No case does.
The statutory provisions referred to deal with more obvious situations in which the public interest of disclosure overrides public and private interests in maintaining professional duties of confidence. In both South Australia and Victoria, there are many circumstances where doctors are required or permitted to breach their duty of confidentiality to their patients. They do so for the same reason that they are entitled to breach confidentiality under their code of ethics: because there are overwhelming societal interests or, in other words, in the service of a just society. Should lawyers, in the service of a just society, also be required or permitted to breach their duty of confidentiality to their clients?
* Adjunct Associate Professor, School of Law, Flinders University
i Rule 9.13 concerned the provision of assistance provided by a practitioner when handing over a file to another practitioner.
ii See for example Rule 15 of the Law Society of South Australia Rules of Professional Conduct & Practice, effective 1 March 2003
iii This is also dealt with in less specific terms in legislation in some States. See, for example, the Legal Practice Act 1996 (Vic.) section 64.
iv Rule 15.1.4
v 1989 New Zealand Medical Association Code of Ethics paragraph 10; 1995 Australian Medical Association Code of Ethics rule 1.3 (d)
vi Law Society of South Australia v Le Poidevin No. SCDRG-98-1488 Judgement No. S7014 [1998] SASC 7014 (23 December 1998) (Full Court) per Wicks J.
vii Law Society of South Australia v Le Poidevin (above) per Wicks J.
viii Legal Practitioners Act 1981 (S.A.) s. 5
ix “Infamous” in the context of professional discipline means shameful or disgraceful: Law Society of South Australia v. Le Poidevin per Wicks J.
x [1965] NSWR (Full Court) 30 at 35
xi Unsatisfactory professional performance of a medical practitioner is defined in the same section to mean “professional performance which is of a lesser standard than that which the medical practitioner’s peers might reasonably expect of a medical practitioner”. Professional performance is defined to mean “the knowledge, skill or care possessed and applied by a registered medical practitioner in the practice of medicine”.
xii In (a)
xiii In (b)
xiv se above, note 10
xv Section 64 of the Legal Practice Act 1996 (Vic.) provides under the heading “General principles of professional conduct” that a legal practitioner or firm should “ (f) act with honesty and candour in all dealings with courts and tribunals …”. This may imply a duty, in certain circumstances, to breach the duty of confidence to a client. However, the section also provides that a legal practitioner should “(c) maintain a client’s confidences.” No indication is given as to which duty prevails when there is a conflict.
xvi Whistleblowers Protection Act 1993 (S.A.); Whistleblowers Protection Act 2001 (Vic.); Whistleblowers Protection Act 1994 (Qld.)
xvii Whistleblowers Protection Act 1994 (Qld.) s. 9
xviii Whistleblowers Protection Act 1993 (S.A.) s.4
xix Whistleblowers Protection Act 2001 (Vic.) s. 14
xx Whistleblowers Protection Act 1993 (S.A.) s. 5
xxi I use this as an example because of my unsubstantiated belief that lawyers may be more likely than most other members of the community to become aware of criminal activity.
xxii Re R, a practitioner of the Supreme Court [1927] SASR 58 at 60; or as redefined in section 5 of the Legal Practitioners Act 1981 (S.A.)
xxiii Children’s Protection Act 1993 (S.A.) s. 12; Children and Young Persons Act 1989 (Vic.) s. 64. Legislation in other Australian jurisdictions is expressed in similar terms.
xxiv See above under the heading Professional Accountability
xxv Reported in The Sunday Age August 4, 2002.
xxvi For Victoria, see Medical Practice Act 1994 s. 37, Health (Infectious Diseases) Regulations 2001 Regulation 37, Road Safety Act 1986 s. 27, Road Safety (Drivers) Regulations 1999 Regulation 226, Firearms Act 1996 s.183, Road Safety Act 1986 s 56 (2), Marine Act 1988 s. 31A (2), Professional Boxing and Martial Arts Act 1985 s. 12 (3)
xxvii See Health Services Act 1988 (Vic.) s. 142, Mental Health Act 1986 (Vic.) s. 120A, Evidence Act 1958 (Vic.) ss. 28, 32C, 32D, 32E, 32F, 32G, Mental Health Act 1993 (S.A.) s. 34 (2), Evidence Act 1929 (S.A.) ss. 67d, 67E, 67F
xxviii [2001] HCA 59 (11 October 2001) on appeal from the Supreme Court of South Australia, joint judgment of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ
xxix Community Welfare Act 1972 (SA) ss 10, 21 and 22
xxx section 21 (5)
xxxi at p. 14
xxxii See also Health Records Act 2001 (Vic.) Sch. 1 HPP 2.2(h) and Health Record and Information Privacy Act 2002 (NSW) Sch. 1 HPPs 10 (1) (c), 11 (1) (c) 14 (f)
xxxiii See Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513 at 520, Furniss v Fitchett [1958] NZLR 396 at 405, Tarasoff v Regents of the University of California (No. 2) 17 Cal. 3rd. 425 (1976); People v Clarke 50 Cal. 3rd 583 (1990) and R v Lowe [1997] 2 VR 465 at 485.
xxxiv In Victoria, the Health Records Act 2001 (Vic) provides in Health Privacy Principle 2.2 that “an organisation [which includes individuals] must not use or disclose health information about an individual … other than [for] the primary purpose for which the information was collected” unless a specified exception applies. One of the exceptions is “to lessen or prevent a serious risk to the individual or the public”. This is much broader than the usual reference to serious and immediate danger to the life or safety of an identifiable individual and it, it is submitted, accords with the judgment of Bingham LJ in W v Egdell [1990] 1 All ER 835 (CA).
xxxv In addition to the civil law context, this issue also arises in the context of criminal law evidence. See for example R v Lowe [1997] 2 VR 465 at 485 and R v Kassulke [2004] QCA 175 (28 May 2004). In R v Lowe, the accused had been charged with the kidnapping and murder of a six year old girl. One of the issues was the admissibility of evidence of his psychotherapist to whom he had made admissions in confidence. The Supreme Coart of Victoria, Court of Appeal dismissed the appeal. In a joint judgment, Winneke P, Brooking JA and Southwell AJA said at page 485 that “the learned judge was not in error in failing to exclude the evidence on the basis that the the disclosure amounted to a breach of trust and confidence. A disclosure made in those circumstances, would not, by itself, make it unfair to receive the evidence against the applicant. Although the common law misdemeanour of misprision of felony has now been abolished, it has not been, and cannot be, suggested that health service providers are under a duty (in the interests of the patient) not to disclose confidential information if such disclosure will aid the protection of the public from a specific and identifiable threat.”
xxxvi See for example Loane Skene Law and Medical Practice 2nd ed. Butterworths 2004 at 270 to 276
xxxvii [1990] 1 All ER 835 (CA), A Abadee The Medical Duty of Confidentiality and Prospective Duty of Disclosure: Can they Co-exist? (19930 3 Journal of Law and Medicine 75, D Mendelson “Mr Cruel and the Medical Duty of Confidentiality (1993) 1 Journal of Law and Medicine 120.
xxxviii Per Bingham L.J. at 852.
xxxix At 852.
xl Compare the old and the new professional conduct rules.
xli Per Bingham L.J. at 852.
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