Difference between revisions of "Physician-Patient Privilege"
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===France=== | ===France=== | ||
| − | In France, the physician-patient privilege is referred to as a professional secret. Medical privilege is held by the professional rather than the patient. This privilege is absolute, meaning that it cannot be waived. However, the concept of absolute privilege has only been upheld in criminal cases. The civil branch of the Cour de Cassation has permitted waiver of the professional secret when the waiver is in the patient's best interest. Furthermore, though violation of the professional secret originally required malicious intent, it now only requires intentional conduct. | + | In France, the physician-patient privilege is referred to as a professional secret. Medical privilege is held by the professional rather than the patient. This privilege is absolute, meaning that it cannot be waived.<ref>Evidentiary Privileges in International Arbitration, Mosk and Ginsburg, The International and Comparative Law Quarterly, Vol 50, No. 2 (Apr 2001) 345-385, 354.</ref> However, the concept of absolute privilege has only been upheld in criminal cases.<ref>French Criminal Code- available at http://ledroitcriminel.free.fr/la_legislation_criminelle/anciens_textes/code_penal_1810/code_penal_1810_3.htm</ref> The civil branch of the Cour de Cassation has permitted waiver of the professional secret when the waiver is in the patient's best interest. Furthermore, though violation of the professional secret originally required malicious intent, it now only requires intentional conduct. |
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| − | + | <ref>Swiss Criminal Code- available at http://www.admin.ch/ch/f/rs/311_0/a321.html.</ref> | |
===Belgium=== | ===Belgium=== | ||
| − | + | <Ref>Belgian Criminal Code- available at http://www.ejustice.just.fgov.be/loi/loi.htm.</ref> | |
===Australia=== | ===Australia=== | ||
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''Tasmania'': | ''Tasmania'': | ||
"(1) A medical practitioner, without the consent of his or her patient, must not divulge in any civil proceeding any communication made to him or her in a professional capacity by the patient that was necessary to prescribe or act for the patient unless the sanity of the patient is the matter in dispute. | "(1) A medical practitioner, without the consent of his or her patient, must not divulge in any civil proceeding any communication made to him or her in a professional capacity by the patient that was necessary to prescribe or act for the patient unless the sanity of the patient is the matter in dispute. | ||
| − | (2) A person who has possession, custody or control of any communication referred to in subsection (1) or of any record of such a communication made to a medical practitioner by a patient, without the consent of the patient, must not divulge that communication or record in any civil proceeding unless the sanity of the patient is the matter in dispute." | + | (2) A person who has possession, custody or control of any communication referred to in subsection (1) or of any record of such a communication made to a medical practitioner by a patient, without the consent of the patient, must not divulge that communication or record in any civil proceeding unless the sanity of the patient is the matter in dispute."<ref>Tasmania Evidence Act 2001, section 127A, available at http://www.austlii.edu.au/au/legis/tas/consol_act/ea200180/s127a.html. </ref> |
| − | ''Victoria'': "No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceedings (unless the sanity or the testamentary capacity of the patient is the matter in dispute) any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient." | + | ''Victoria'': "No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceedings (unless the sanity or the testamentary capacity of the patient is the matter in dispute) any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient." <ref>Victoria Evidence Act 1958, section 28, available at http://www.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s28.html. </ref> |
| − | ''Northern Territory'': "A medical practitioner shall not, without the consent of his patient, divulge in any civil proceeding (unless the sanity of the patient is the matter in dispute) any communication made to him in his professional character by the patient, and necessary to enable him to prescribe or act for the patient." | + | ''Northern Territory'': "A medical practitioner shall not, without the consent of his patient, divulge in any civil proceeding (unless the sanity of the patient is the matter in dispute) any communication made to him in his professional character by the patient, and necessary to enable him to prescribe or act for the patient." <Ref>Northern Territory Evidence Act, section 12, available at http://www.austlii.edu.au/au/legis/nt/consol_act/ea80/s12.html.</ref> |
===New Zealand=== | ===New Zealand=== | ||
| − | Though the physician-patient privilege started out as applying only to civil cases, in 1980, New Zealand extended it to criminal proceedings as well. In order to qualify as privileged in criminal cases, the communication needs to meet the requirements for privilege in civil cases, and also show that the purpose of the communication was to enable the doctor to examine, treat or act for the patient for (a) drug dependency or (b) any other condition or behavior that manifests itself in criminal conduct. The Evidence Act of 2006 reaffirms this notion. | + | Though the physician-patient privilege started out as applying only to civil cases, in 1980, New Zealand extended it to criminal proceedings as well. In order to qualify as privileged in criminal cases, the communication needs to meet the requirements for privilege in civil cases, and also show that the purpose of the communication was to enable the doctor to examine, treat or act for the patient for (a) drug dependency or (b) any other condition or behavior that manifests itself in criminal conduct. The Evidence Act of 2006 reaffirms this notion.<ref>New Zealand Evidence Act 2006 No 69, Part 2, Subpart 8 (59)(2), available at http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393667.html.</ref> |
===Canada=== | ===Canada=== | ||
| − | Quebec: The Quebecois statute provides that "No physician may be compelled to declare what has been revealed to him in his professional character." | + | Quebec: The Quebecois statute provides that "No physician may be compelled to declare what has been revealed to him in his professional character." <ref>Quebec Rev. Stat. (1941).</ref> |
===South Africa=== | ===South Africa=== | ||
| − | Like the UK, testimonial compulsion is applicable. National Health Act section 14- | + | Like the UK, testimonial compulsion is applicable.<ref>Medical Professional secrecy with Special Reference to Venereal Diseases, Bernfeld, British Journal of Venereal Disease 43, 53 (1967).</ref> National Health Act section 14- |
#All information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential. | #All information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential. | ||
#Subject to section 15, no person may disclose any information contemplated in subsection (1) unless: | #Subject to section 15, no person may disclose any information contemplated in subsection (1) unless: | ||
a. The user consents to that disclosure in writing; | a. The user consents to that disclosure in writing; | ||
b. A court order or any other law requires that disclosure; or | b. A court order or any other law requires that disclosure; or | ||
| − | c. Non-disclosure of the information represents a serious threat to public heath | + | c. Non-disclosure of the information represents a serious threat to public heath. <ref>Ethics roundtable debate: Is a physician-patient confidentiality relationship subservient to a greater good? Arthur Morgan, Critical Care 25 April 2005.</ref> |
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===NOTES=== | ===NOTES=== | ||
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