asta Lirp, v Gopricn,

asta Lirp, v Gopricn, - [1909] HCA 93 - HCA 1909 case summary — Zoe

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assured on 29th August, could not possibly say as a fact that chronic salpingitis was in progress on 15th April. To show, however, that from the knowledge he had gained of the assured in attending her, there was reason to infer that the complaint existed in April, the defendants proposed to examine him. The circumstances are thus set forth in the learned Judge's notes : - "Mr. Starke alleges that Dr. Thring attended deceased on 29th August 1908. Deceased was then an ordinary patient. He advised her to go into the Royal Prince Alfred Hospital, Sydney, which is an ordinary charitable institution. She went in there and was operated on by Dr. Thring. This is admitted by Mr. Fink.' (Mr, Starke was the defendants' counsel at the trial, and Mr. Fink acted for the plaintiff), Before quoting what follows I may point out that it is clear that the assured was Dr. Thring's patient, since she was attended by him professionally from 29th August to 3rd September, the day of her death. (See his declaration). The mere fact of her going into the hospital upon his advice, probably for greater convenience and safety in the intended operation, is by itself not sufficient to disturb the presumption of the continuance during the illness of the relation which had arisen between them, and which Dr. Thring declares to have existed from the one date to the other. The case might have been different if Mrs. Godrich, without having first seen Dr. Thring, had gone into the hospital, and seen him there for the first time as one of the hospital staff. But the fact is otherwise. His Honor's notes proceed thus : - " Mr. Starke is to be taken to have tendered Dr. Thring to prove what statements Mrs, Godrich made to him before going into the hospital and what observations he personally made, and the like allegations after she went into the hospital." The evidence thus taken to have been tendered was objected to, the objection was allowed, and judgment having been given for the plaintiff for the sum named in the policy, the Full Court refused the defendants a new trial sought by reason of the rejection of the evidence, and from that refusal the defendants now appeal to us on the same ground, and on that alone.

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divorce, the evidence of a medical man was tendered to prove that the respondent had consulted him, that on examination he had observed a certain fact as to his bodily condition, and that he had prescribed accordingly. Denniston J. ruled that the tendering by a patient of any part of his body to a physician for examination with a view to medical treatment was a "communi- cation" within the section, and he rejected the evidence. I mention this decision, not as an authority for this Court to follow, but because it expresses a view of the meaning of com- munications in confidential relations which appears to me to be sound. If on consulting my doctor I am asked to bare my body, and do so, have I not communicated the state of my body to him? Of course, no one will contend that such a thing as a plainly visible wound, e.g., on the face or hand, if shown to a surgeon, is the subject of a confidence as to its existence, and Denniston J. is not to be taken as implying this in his use of the term "any part of his body." That is like the case of a tree alleged to be a boundary mark, instanced by the Chief Justice during argument. Things that are obvious cannot, of course, be confidentially com- municated. Cases like Brown v. Foster (1) do not assist the defendants' contention, though reliance appeared to be placed on them. In that case, on a charge of embezzlement before a magis- trate, the prosecution produced a book in which it was the duty of the accused to enter a sum of money received by him. The same book was produced again on a second examination, and found to contain an entry of the sum in question, and the charge was dismissed. Then the former defendant became the plaintiff in an action against his accuser for malicious prosecution. On the trial of this action, counsel who had appeared for the now plaintiff when he stood charged before the magistrate, was called to prove that he saw the book at the time of the first production, and that it then contained no entry such as was afterwards found in it. It was held that his evidence had been rightly received, on the simple ground that, the book having been produced by the prosecutor, its condition was not information communicated to counsel by his client, who at that time was the accused. As Pollock C.B. said, he had no more means of information than (1) LH. & N,, 739.

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any other person who examined the book. Watson B., quoting Lord Brougham ©. in Greenough v. Gaskell (1), described the privilege as protecting merely " matters which come within the ordinary scope of professional employment" (2). As between counsel and client in their confidential relation, the contents of the book were not communicated at all. Similar in the failure to establish any confidence is the case where information such as a map is given by a client to his solicitor " under circumstances that enabled any person who pleased to avail himself of the information " : Doe v. Marquess of Hertford (3). The plain sub- stance of the two cases is that in the one there was no communi- cation by the client and in the other there was no confidence on his part. Such cases do not establish exceptions to the rule, for they stand quite apart from it. But no doubt appears to have been suggested in either of the cases cited, nor so far as I know in any other, that as between a client and his legal adviser a document, a map, or a book may in appropriate circumstances be a part of a confidential communication. And so, I conclude, is any part of the patient's body disclosed to his medical adviser for examination - giving, of course, to the word " disclosed " its due meaning of the revelation of that which is unknown to others. But be this as it may, I apprehend that the position is clear when the subject of protection is not merely a communication made, but "any information acquired." If that form of words has been deliberately chosen by the legislature, the matter passes beyond the region of doubt, if it ever rested there. There is strong internal evidence of such deliberation in the Statute itseif. It deals with three classes of confidences: "communications" between husband and wife, "confessions by a penitent to a clergyman," and "information acquired" by a physician or surgeon in attend- ing his patient, when "necessary to enable him to prescribe or act for the patient." It appears tome that the legislature has distin- guished the three classes of cases very clearly, and has protected the confidences of a patient to the degree necessary to render the protection real. The mischief for which the common law did not provide was that contidences reposed by sick people in their

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without the consent of his patient divulge in any civil suit action or proceeding (unless the sanity of the patient be the matter in dispute) any information which he may have acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient." Before entering upon an examination of the Statute I shall refer briefly to two conten- tions of the defendants' counsel which may be briefly dealt with. It is, in my opinion, immaterial whether the doctor whose evidence it is sought to exclude attended the patient in or out of Victoria. The section deals only with procedure in Victorian Courts. It is within the competency of the Victorian legislature to bind in matters of procedure all persons who come before Victorian Courts even though the result may be, as in this case, to shut out evidence of a transaction which took place outside their territorial jurisdiction. Privilege from disclosure in Court is certainly a matter of procedure only. That being so, there is no reason why the general words used by the legislature, which on the face of them include attendance on a patient in any part of the world, should be restricted in their operation to attendance in Victoria. In the next place it is, I think, quite plain that the protection of the section does not cease on the death of the patient. There is nothing in the language used to indicate an intention on the part of the legislature to so limit the privilege, and the analogy of other communications made in the course of confidential relations which the law privileges from disclosure do not support the appellants' view. The death of the husband or the wife does not enable the other to give in evidence com- munications made during marriage, nor does the solicitor become entitled on his client's death to divulge in Court communications made to him as professional adviser by the client in his lifetime. Whether or not there may be circumstances in which the personal representatives of a patient who has died could consent in the interests of the patient's estate to release the medical attendant from his obligation of secrecy it is not necessary here to determine. Upon the facts as they are before us, I am of opinion that whatever prohibition existed in the patients life- time against her doctor divulging in Court information as to his patient's condition is still in existence notwithstanding her death.

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Turning now to the section itself, and applying the well known rules of interpretation which have been many times stated and acted upon in this Court, the first matter for inquiry is what is the meaning of the language used taken in its ordinary sense? Taken in that sense the words clearly, I think, convey the meaning that all information is privileged from disclosure in Court which the doctor may have acquired in attending the patient, and which was necessary to enable him to prescribe or act for the patient. A question was raised as to whether the word " information " is to be read in its wider or in its narrower sense. One of the appellants' contentions was that the word covered only knowledge acquired from the written or verbal communication of the patient or of persons acting in his interests, and could not be accurately used to describe knowledge which the doctor may have acquired by his own personal observation. 'There is, however, a very general use of the word to describe knowledge acquired by any means whether by personal observations or from the communi- cations of other persons. The protection of the section would be very ineffective if it did not include knowledge acquired by the medical man by either or both of these methods. The information intended to be protected is that acquired "in attending the patient." It not infrequently happens that the patient's con- dition makes it impossible for him to communicate information, and that the doctor's only means of acquiring a knowledge of the case sufficient to enable him to act is his own personal observation. There are cases too, surgical and other, of such a nature that the material and necessary information can be gathered in no other way than by the doctor's own examination of his patient's body. Under these circumstances it is, I think, plain that full effect will not be given to the section if the word information is read in so narrow a sense that the section will be, in effect, applicabie to those cases only in which the patient is in a position to fully communicate to the doctor all knowledge necessary for his proper treatment. I take it, therefore, that "information" must be construed as covering all information respecting the case acquired by the doctor in attending the patient, both from the latter's personal communications or those of persons acting on his behalf or from the doctor's own 27

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In applying the section to any particular set of facts it is therefore essential that the Court should be made aware of the circumstances surrounding the doctor's attendance in so far as it may be necessary to enable it to determine whether the evidence objected to falls on one side or other of the line which the Statute has marked out. As to a large portion of the evidence tendered there is no difficulty in deciding that it would be protected. All information coming from the patient herself, or from her nurse or attendant, if relating to her health and necessary to enable Dr. Thring to prescribe or act for her, would be privileged from dis- closure. And that would be so whether the information was con- veyed at the beginning of the attendance or from time to time during its continuance, and whether before or after the operation, so long as it was conveyed while the doctor was in attendance and it was necessary to enable him to prescribe or act for the patient. Similarly, all information derived by the doctor from his own observations of his patient's bodily condition, whether in respect of matters to which she had directed his attention, or in respect of other matters of which he deemed it necessary, for the purpose of treating her, to satisfy himself by his own examina- tion and observations. So far the application of the section is clear enough. It is when we get to the operation that the real difficulty in the application of the section arises. To what extent, if to any, was the information acquired by the doctor during the operation admissible in evidence? That is a question which can only be determined by applying to the circumstances the line by which the Statute separates information which may be, from that which may not be, divulged in a Court of Justice. Primd facie nothing which the doctor himself observes during the operation is privileged from disclosure, the protection of the section extending only to the information necessary to enable the operation to be carried out. While it is being carried out the medical attendant is primd fucie in the same posi- tion as any bystander of sufficient expert knowledge to under- stand and explain what he has seen. But that is true only where the operation in itself finally accomplishes the end at

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which the medical man is aiming. An operation, however, is sometimes undertaken, not with any hope of finally accomplish- - ing the healing of the patient, but to obtain further knowledge. It may be an exploratory operation whose very purpose is to acquire information on which future treatment may be based. Everything observed by the doctor during such an operation which could afford him information necessary for the treatment of his patient would be protected from disclosure. Again, there may be cases in which the doctor determines that an operation is necessary, but cannot decide what particular action to take with respect to the part to be dealt with until he sees its actual con- dition. Under such circumstances the information which he so acquires, in so far as it affects the part of the body which he is treating, must be taken to be necessary for further action, and so privileged from disclosure. Of this position the facts shadowed forth in the evidence tendered furnish an illustration. The evidence before the Court as to Dr. Thring's treatment of his patient shows that he attended her for septic peritonitis. That is a condition which might arise from many different causes, and we may assume, I think, on the facts appearing in evidence, that the peritonitis followed the operation. The material question is, what course of treatment did the doctor follow in operating? If he performed the operation with the view of finding out the actual cause of the patient's condition and of dealing with the ovaries and fallopian tubes by way of excision or otherwise in accordance with the state in which he found them, everything he saw of their condition would, it seems to me, be privileged from disclosure as being information necessary to enable him to decide upon the most judicious course of further treatment. On the other hand, if he had before the operation decided that the excision of these parts or either of them was the proper course of treatment, irrespective of the condition in which he might find them, his own observation as to their condition would not be necessary for the purpose of any further treatment, and the information thereby acquired would be information not protected from disclosure in Court. The learned Judge at the trial, acting on the authority of Warnecke v. Equitable Life Assurance Society

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of the United States (1), shut out all the evidence tendered apparently on the assumption that the judgment in that case laid down the rule that all information acquired by a doctor in the course of attending his patient is privileged from disclosure in Court. Neither of the learned Judges taking part in that decision advert to the limitation of the protection of the section to those cases in which the information acquired is necessary to enable the medical man to prescribe or act. That question does not seem to have been raised by either party. On the face of it, all the case decides is that the protection of the section covers information acquired by the doctor from his own observation in attending the patient, as well as that communicated to him by some word or act on the part of the patient. If that statement of the law is to be taken as applying only to such information as may be necessary to enable the doctor to prescribe or act, it is correct, but in so far as it goes beyond that, it cannot in my opinion be held to be law. The learned Judge at the trial was apparently not asked to draw any distinction between the portions of the tendered evidence which involved information necessary to enable the doctor to prescribe or act and those portions which did not. In his decision he in fact drew no such distinction, but shut out all the evidence tendered, apparently on the ground that when once a doctor has begun to attend a patient all information which he acquires as to his patient's condition during the attendance is privileged from disclosure. The respondents relied on Mr. Justice Dennison's decision upon a similar provision of the New Zealand Evidence Further Amendment Act 1895: Stack v. Stack (2). On the facts of that case the decision wasright. It would appear that the evidence shut out was information acquired by the doctor while attending the patient for a disease the treatment of which must have rendered necessary the doctor's examination of his patient's body. It seems to me clear from the report of that case that the doctor obtained the information for the purpose of treating his patient for that disease. A number of decisions in the American Courts were also relied on by the respondent's counsel, not as authorities binding on this Court, but as the decisions of American Judges on Statutes in practically the same language as that under

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Gopric. they extend the privilege to all information acquired by the doctor o'Connor J. while attending the patient, irrespective of whether it is or is not - necessary for the patient's treatment, I cannot follow their reasoning. 'The learned Judge at the trial would therefore be in error in rejecting all the evidence tendered without distinguishing between that which involved information acquired by the doctor in attending the patient, and necessary to enable him to prescribe - or act for the patient, from that which did not involve such information. But before the appellants can make use of that - error for the purpose of obtaining a new trial, they must satisfy the Court on appeal that they have called the attention of the Judge at the trial to the point on which they complain of the decision. At first I was disposed to think that the tendering of the whole body of evidence, some of which was admissible, followed by rejection of the whole, was sufficient. In some cases that would be so. But on fuller consideration I have come to the conclusion that in this case the party tendering the evidence was bound to call the attention of the Judge to the special ground on which - the really admissible part of the evidence ought to be received. That was not done. There was no suggestion in tendering the evidence that as to any portion of it the information acquired by the doctor was outside the protection of the section as being unnecessary to enable him to prescribe or act for the patient. Assume, however, that the real point on which the admissibility of the evidence turns had been properly raised before the Judge at the trial, lam of opinion that this is one of those cases in which the Court should apply Order XXXIX., Rule 6 of the Vie- torian Rules, which prohibits the granting of a new trial on the ground of error in the rejection of evidence unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned at the trial. From what has been foreshadowed of Dr. Thring's evidence, it is obvious that the

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munications only. But in the latter part of sec. reference to "communications" verbal or otherwise; the prohibi- tion is against any physician, &e., divulging "any information which he may have acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient." Sec. 57 expressly refers only to "statements." Probably the intention of the framers of the section was to put medical men in substantially the same position of privilege as lawyers under the common law ; and in the case of lawyers, it is clear that the privilege is not confined to the client's statements: Wheutley v. Williams (1). But, whether this was the intention or not, there is absolutely no ground for treating: this section as making the suggested distinction between information acquired through words and information acquired through the eye - between what the physician learns from the patient's explanation, and what he learns from the patient's exhibition of his body. The Courts of New York, in applying a similar section, have repudiated such a distinction: Johnson v. Johnson (2); Edington v. Mutual Life Insurance Co. of New York (3); Grattan v. Metropolitan Life Insurance Co. (4); Nelson v. Village of Oneida (5); Westover v. tna Life Insurance Co. (6). The New Zealand Supreme Court has ruled to the same effect, even though in the New Zealand Act the prohibition is limited to "communications" made by the patient: Stack v. Stack (7); Godfrey v. Godfrey (8). No doubt the section is sometimes a hindrance to the estab- lishment of the truth; but so are all rules which fetter the giving of evidence. No doubt it leads to some curious results. In an action for negligence against a medical man the defend- ant would (it is said) be prevented from giving evidence of his diagnosis. But then (1) his mouth is admittedly closed also as to statements made by the deceased - which is an equal injustice ; and (2) his counsel and the Judge would bring emphatically before the jury on the issue of negligence the

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fact that his mouth is shut. The patient, if alive and suing, would be practically foreed to consent to the evidence under this section. As for an action after death, under the provisions of Lord Camplbell's Act, the position is different. When this section was first enacted in Victoria (1857) the provisions of that Act were comparatively recent (see 11 Vict. No. 32); and the legislature does not seem to have taken into consideration this peculiar exception to the common law. The section is, in the main, just and expedient in the public interest; but if, as seems probable, it needs to be amended to some extent, it is for the legislature, not for the Courts, to make the amendment. Mr, Starke urged that, even if the section protects information acquired by observation of the body, as well as that acquired from the words of the patient, yet the practitioner may give in evidence the operation performed, and the conditions under which he acted. Reliance was placed on the words "necessary to enable him to prescribe or act for the patient"; and it was said that the section protects only what takes place before the operation. But in Eddington v. Mutual Life Insurance Co. of New York (1), it is said: - * The point made that there was no evidence that the information asked for was essential to enable the physician to prescribe is not well taken, as it must be assumed from the relationship existing that the information would not have been imparted except for the purpose of aiding the physician in preseribing for the patient." In short, anything that Dr. Thring saw during the operation must be taken to have been seen for the purpose of curing the patient of her malady; and his duty as surgeon was not necessarily complete even when the knife had done its work. His function was to carry the process to its completion, to act for the patient, even to prescribe for the patient, until he dismissed her cured - or death. In my opinion, the Victorian law forbids the proposed questions, and the surgeon could not be compelled by a Victorian Court: to answer such questions in a trial in Victoria in a Victorian Court.

At a glance

Court

Decision date

Before

Source

Judgment (248 paragraphs)

Parties