Extension of Immunity
150 I have earlier referred to the undisputed principle that the categories of case in which immunity may be granted is not closed. It will be apparent from the above discussion that the principle will in fact operate in both directions, that is to narrow the cases in which the immunity is recognised (although in the case of the narrowing aspect, the balancing exercise also plays a role) and to broaden it. It is the principles upon which and the circumstances in which the immunity will be extended that are at issue here. The two most relevant authorities are the well known cases of Rogers v Home Secretary and D v NSPCC.
151 In Rogers v Home Secretary an applicant for a gaming licence sought but was refused access to a letter which had been written to the Gaming Board attacking his character. The appellant had obtained a copy of this letter, presumably through improper means. He sought to prosecute the author of the letter for criminal libel and applied for witness summonses against representatives of the Board and the Chief Constable seeking production of the letter. The Attorney-General claimed public interest immunity. The House of Lords unanimously upheld the claim. Lord Reid at 400 identified as the issue before the court:
"… whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence."
152 Categorising the claim as a class claim, his Lordship continued at 400:
"[t]he claim in the present case is not based on the nature of the contents of this particular letter. It is based on the fact that the board cannot adequately perform their statutory duty unless they can preserve the confidentiality of all communications to them regarding the character, reputation or antecedents of applicants for their consent."
153 Notwithstanding the categorisation of the claim as a class claim, he continued to recognise, as he had in Conway v Rimmer that even class claims are subject to a balancing exercise. Lord Reid had said in that case at 952:
"There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon in Duncan's case, whether the withholding of a document because it belongs to a particular class is really 'necessary for the proper functioning of the public service.'"
154 In Rogers v Home Secretary, Lord Reid added (at 401):
"I do not think that 'the public service' should be construed narrowly. Here the question is whether the withholding of this class of documents is really necessary to enable the board adequately to perform its statutory duties. If it is, then we are enabling the will of Parliament to be carried out."
155 In extending the relevant type of class claim beyond that of police informer to informants who provided information to a body such as the Gaming Board, his Lordship stated at 401:
"It has long been recognised that the identity of police informers must in the public interest be kept secret and the same considerations must apply to those who volunteer information to the board. Indeed, it is in evidence that many refuse to speak unless assured of absolute secrecy.
156 …
It is possible that some documents coming from the board could be disclosed without fear of such consequences [that is, identifying the informant to the person informed upon]. But I would think it quite impracticable for the board or the court to be sure of this. So it appears to me that, if there is not to be very serious danger of the board being deprived of information essential for the proper performance of their difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant."
157 Lord Salmon recognised that the classes of case to which the immunity attaches are not fixed. However, at 412 he cautioned against an unconstrained extension of the immunity:
"This immunity should not lightly be extended to any other class of document or information, but its boundaries are not to be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document or information to be disclosed, then it is in law immune from disclosure. If a new class comes into existence to which this principle applies then that class enjoys the same immunity."
158 The question of extending the categories of case in which immunity could be granted arose again in D v NSPCC. The NSPCC was a voluntary society founded in 1889 and incorporated by royal charter. Its charter functions included the prevention of public and private wrongs against children and the taking of action for the enforcement of laws for their protection. The uncontradicted evidence of the Director of the NSPCC was that the work of the society was dependent upon its receiving prompt information of suspected child abuse. The evidence of the Director was that without an effective promise of confidentiality neighbours and others would be hesitant to pass on to the society information about suspected child abuse.
159 The House of Lords upheld the claim for immunity on the basis that the public interest which was invoked to protect disclosure of the sources of the Society's information was analogous to the public interest which underlay the protection of evidence as to the identity of police informers.
160 The House was fortified in recognising the claim because of its decision five years earlier in Rogers v Home Secretary. As Lord Diplock said at 218:
"Your Lordships' sense of values might well be open to reproach if this House were to treat the confidentiality of information given to those who are authorised by statute to institute proceedings for the protection of neglected or ill-treated children as entitled to less favourable treatment in a court of law than information given to the Gaming Board so that gaming may be kept clean."
161 The extension of the immunity by analogy to the police informer category was underpinned by other factors. First, there were three separate authorities which could bring care proceedings in respect of neglected or ill-treated children - the police, local authorities and the NSPCC. If the police brought proceedings, the House considered that the identity of their sources of information would be protected under the established immunity for police informants. Lord Diplock considered therefore that:
"[t]o draw a distinction in this respect between information given to the police and that passed directly to a local authority or to the NSPCC would seem much too irrational a consequence to have been within the contemplation of Parliament when enacting the Children and Young Persons Act 1969."
162 Lord Hailsham at 229 also referred to the manifest absurdity of protecting the identity of informers depending upon who was the prosecuting authority, holding that the public interest in respect of each was identical. Lord Hailsham also considered, at 218, that it was of significance that the courts had long been concerned with the welfare of children, as exemplified by the role of the Crown as parens patriae and the long history in the United Kingdom of legislation directed to protecting the welfare of children.
163 Lord Hailsham concluded at 230:
"[t]he categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop."
164 Unlike what had been said in Rogers v Home Secretary, Lord Diplock did not see that there was any basis in principle or policy for confining public interest as a ground for non-disclosure of documents or information to the effective functioning of departments or organs of central government, even in the extended sense given to the 'public service' in that case. He noted that in Conway v Rimmer the public interest protected was the effective functioning of a county police force; that in In Re D (Infants) [1970] 1 WLR 599 the interest protected was the effective functioning of a local authority in relation to the welfare of boarding house children. See also Lord Edmund-Davies in D v NSPCC at 245. The public interest to be protected in D v NSPCC itself was the effective functioning of an organisation authorised under an Act of Parliament to bring legal proceedings for the welfare of children.
165 Lord Simon, at 232, traced through the various immunities and privileges which excluded relevant evidence from disclosure, stating, at 233, that there was "a continuum of relevant evidence which may be excluded from forensic scrutiny". He had earlier noted at 232 that the administration of justice is "one facet only of a wider public interest - namely, the maintenance of the Queen's peace": see also Attorney-General (NSW) v Stuart per Hunt CJ at CL at 675.
166 The basis upon which their Lordships recognised a new class of documents as being protected by public interest immunity was by analogy with an existing class. A broader approach to the extension of the immunity had been urged on the House, namely that once a public interest was identified, the court must consider that interest again the administration of justice, as countervailing public interest and determine in the circumstances of the particular case whether to grant or refuse disclosure. The House clearly rejected the broad approach: Lord Diplock at 219-220; Lord Hailsham at 224-225; Lord Simon at 235.
167 The position in England since D v NSPCC has varied. The claim for immunity in Science Research Council v Nasse was rejected because, although the documents sought to be protected were confidential, no particular aspect of the public interest was established. Later English cases have taken an expansive view of public interest immunity but the decisions seem at least partly to have depended on the discretionary power contained in the Supreme Court Rules.
168 In R v K (1993) 97 Cr App R 342 (UK) it was accepted without argument that public interest immunity attached to a video tape of an interview at a hospital for therapeutic purposes of two boys who had allegedly been sexually assaulted by their father. The issue in the appeal was whether the trial judge should himself have viewed the video tape, before ruling that it should not be disclosed.
169 The issue has also arisen in Australia. Relationships Australia v Pasternak (1996) 133 FLR 462 was a case where the relevant legislation provided that evidence of anything said at a conference with a marriage counsellor was not admissible in any court authorised to hear evidence. The Full Court of the Family Court held that such information was immune, not only from admission into evidence, but also from pre-trial production and inspection. The Court said at 470:
"we think it is tolerably clear that the intention of the legislature as expressed in the Act is that what is said at a conference with a marriage counsellor is, subject to appropriate statutory exceptions, not only immune from admission in evidence in proceedings but also from court processes available to compel the disclosure of information to parties in proceedings."
170 At 472-473 the Court dealt with an alternative submission that the documents subpoenaed were immune from inspection by reason of public interest immunity. The Court concluded:
"In our view, it is appropriate, given the confidentiality of the environment in which the documents the subject of this appeal were produced, that a claim for class 'privilege' be made."
171 A claim for public interest immunity in a different context was upheld by Wood J in Finch v Grieve where the New South Wales Bar Council was held to be entitled to claim public interest immunity in respect of documents received by the Bar Council giving rise to an allegation of misconduct against a barrister. The claim was considered by his Honour against the background of the statutory regime which regulates the conduct of barristers. Wood J noted that protection was required because there was a:
"substantial public interest in the Bar Council receiving complaints about misconduct of barristers, in being able to speak freely with such complaints, in being able to fully investigate those complaints and in appropriate cases being able to gather additional evidence. This is part and parcel of a public interest that it effectively carry out the statutory functions assigned to it, and that the legislation as a whole be implemented. The public interest is obvious and hardly needs stating. The public are to be protected from barristers who are guilty of professional misconduct, or unsatisfactory professional conduct, and are entitled to have effective orders made not only for the disciplining of those barristers who offend, but to have their losses made good. These are the ends the Act serves, and it provides an effective means for discipline and compensation."
172 In B v N (1994) 35 NSWLR 140 it was common ground that documents which the Protective Commissioner was subpoenaed to produce in an action for damages for personal injury brought by the Commissioner on behalf of a protected person attracted public interest immunity, although Hodgson J, after conducting the balancing process, ruled that the documents should be produced.
173 Public interest immunity in the present or related field has been recognised at District Court level in Howe v State of South Australia (1998) 196 LSJS 182 and R v Bull (1997) 17 SR(WA) 364.
174 In New Zealand, a claim for immunity was rejected in M v L [1997] 3 NZLR 424. The plaintiffs had brought an action for damages for sexual abuse against a school teacher and persons associated with the school. The plaintiffs had included in their discovery a reference to notes made by doctors and counsellors they had consulted, but had claimed privilege from production of those notes. The question arose whether the defendants should be granted an order for inspection of the notes. The New Zealand High Court decided that a common law class privilege for counselling notes should not be recognised or created, but held the matter was properly deal with under the discretionary power contained in the rules of court.
175 In Jaffee v Redmond (1996) 518 US 1, the Supreme Court of the United States recognised the existence of privilege in respect of communications between a psychotherapist and patient in the course of diagnosis or treatment, and then extended the privilege to the communications between a patient and a social worker in the course of psychotherapy with the patient.
176 Jaffe v Redmond was not a case of sexual assault, but a damages claim against a a police officer brought by the family of a man shot by the police officer in the course of duty. After the shooting, the police officer had received counselling from a clinical social worker. The family sought access to the counselling records.
177 The US Supreme Court, by majority, upheld the Court of Appeals ruling that the records were privileged. In doing so, it referred to r 501 of the Federal Rules of Evidence, which authorised Federal Courts to define new evidentiary privileges by interpreting "common law principles … in the light of reason and experience". The majority found it compelling that all fifty states "have enacted into law some form of psychotherapist privilege" (at 12) and considered that "policy determinations by state legislatures" could be treated as reflecting both "reason" and "experience" within the meaning of r 501 (at 13). Rule 501 was based upon the observation made by the Supreme Court in its earlier decision Wolfle v United States 291 US 7 at 12 that "the common law is not immutable but flexible, and by its own principles, adapts itself to varying conditions" and the further observation in Hawkins v United States 358 US 74 that changes in privileges may be "dictated by 'reason and experience'".
178 The majority held at 10 that "like the spousal and attorney-client privileges, the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust". Their Honours noted (at 10) that the 1972 Judicial Conference Advisory Committee, in recommending the acceptance of a psychotherapist privilege, observed that a psychiatrist's ability to help a patient:
"is completely dependent upon [the patient's] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure … patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule …, there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment."
179 This and other material before them demonstrated there was an "important private interest" to be served by recognition of the privilege. They identified the "public end" necessary to found the privilege as:
"… facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance."
180 Justice Stevens, writing for the majority, contrasted this with the evidentiary benefit which would result from non-recognition of the privilege, which he considered to be modest.
181 Stevens J concluded at 15:
"Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapist-patient privilege will serve a 'public good transcending the normally predominant principle of utilising all rational means for ascertaining truth' … we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under r 501 of the Federal Rules of Evidence."
182 The majority held that the privilege was an absolute one.
183 In attaching significance to the legislative activity in the various states, the majority observed that the Supreme Court had long held that it could have regard to the policy decisions of the States (given effect by legislation) in determining whether to recognise a new privilege or amend the coverage of an existing one. Another significant factor in their recognition of the privilege was the disparity which would be caused if a privilege, recognised in state courts and by state statutes, was not honoured in a federal court. Stevens J observed, at 13, that:
"[d]enial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications."
184 Stevens J considered that it was of no consequence that at state level, recognition of the privilege was the product of legislation, rather than judicial development, commenting that "the present unanimous acceptance [by state legislatures] shows that the state law makers moved quickly" and demonstrated "only that the States rapidly recognised the wisdom of the rule as the field of psychotherapy developed".
185 In extending the privilege to "licensed social workers in the course of psychotherapy", Stevens J stated at 15-16:
"[t]oday, social workers provide a significant amount of mental health treatment. … Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist … but whose counselling sessions serve the same public goals."
186 It is fair to say that Justice Scalia's dissent (joined in by Chief Justice Rehnquist) was scathing, not the least aspects of which was his criticisms of was the "easy slide" made by the majority from the recognition of the psychotherapist privilege to recognising privilege for the communications of "licensed social workers in the course of psychotherapy"; the disconformity between the various state laws; and the notion that the evidentiary role of the material covered by the privilege would be slight. Justice Scalia's viewpoint may best be summed up in his conclusion (at 35) that:
"...given our extensive precedent to the effect that new privileges 'in derogation of the search for truth' 'are not lightly created', United States v Nixon 418 US at 710 the answer the Court gives today is inexplicable."
187 In Canada, privilege has been recognised for counselling records in M v Ryan (1997) 143 DLR (4th) 1. In that case the Canadian Supreme Court held that records made by a psychiatrist were privileged. At 8 McLachlin J, who delivered the leading judgment, said:
"while the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries - categories that do not include communications between a psychiatrist and her patient - it is now accepted that the common law permits privileges in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate [citations omitted]) ... The applicable principles are derived from those set forth in Wigmore on Evidence [citation omitted] para 2285. First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communications arises. Third, the relationship must be one which should be 'sedulously fostered' in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation."
188 McLachlin J found that all of these conditions were satisfied. She declined, at 13, to follow "the all-or-nothing approach adopted by the majority of the Supreme Court of the United States of endorsing an absolute privilege for all psychotherapist records in Jaffee v Redmond" and held that the court was required to engage in a balancing exercise to determine whether the particular documents should be disclosed.
189 Two remarks should be made about the Canadian decision. In the first place, the Court described the claim made as one of privilege, not immunity (as did the Court in Jaffee). The question of public interest immunity was not discussed, although it is not entirely clear which concept was under consideration. This is important as privilege may be waived and secondary evidence may be given of privileged material. Secondly, there was considerable emphasis placed upon the right to privacy entrenched in the Canadian Charter of Rights and Freedoms. New South Wales does not have a Charter or a Bill of Rights. I do not consider, however, that the existence of an entrenched Charter right makes a difference as to whether counselling records of sexual assault victims are protected by public interest immunity, as the confidential nature of the relationship between counsellor and patient is well recognised.