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professional
privilege
This page looks at professional privilege.
It covers -
introduction
Western legal systems (whether
through common law or through specific enactments) provide
protection for the confidentiality of information that
forms part of many relationships, including information
handled on a privileged basis in the course of employment,
information provided to professional advisers such as
doctors and lawyers and information provided to government
regarding taxation or health services.
Perceptions of the boundaries of that confidentiality
vary. Most common law protection is not absolute: it can
be overridden through a judicial subpoena or during the
process of legal discovery. Different jurisdictions have
adopted varying stances on protection for particular relationships,
notably those involving the media and religion, with legislation
and practice ranging from protection for those relationships
to requirement that information be provided to courts
in judicial proceedings.
Those differences illustrate questions about civil society,
human rights (and responsibilities) and the nature of
information in post-industrial societies. They reflect
divergent histories regarding intellectual property, privacy,
the obligations of the ruled and the duties of rulers.
They include conflicts between legal requirements and
individual or professional codes of ethics, where journalists
for example have cited personal beliefs in refusing to
divulge the identity of informants who provided information
on a confidential basis.
We have explored questions
of medical confidentiality in the Privacy Guide elsewhere
on this site.
Australia
[under development]
In Australia the salient study is Legal Professional
Privilege in Australia (Chatswood: LexisNexis Butterworths
2005) by Ronald Desiatnik.
New Zealand
[under development]
Canada
[under development]
UK
Lord
Denning of the English Court of Appeal noted in 1963 that
The
only profession that I know which is given the privilege
from disclosing information to a court of law is the
legal profession, and then
it is not the privilege of the lawyer but of his client.
Take the clergyman, the banker or the medical man. None
of these is entitled to refuse to answer when directed
to by a judge. Let me not be mistaken. The judge will
respect the confidences which each member of these honourable
professions receives in the course of it, and will not
direct him to answer unless not only it is relevant
but also it is a proper, and indeed, necessary question
in the course of justice to be put and answered. A judge
is the person entrusted, on behalf of the community,
to weigh these conflicting interests - to weigh on the
one hand the respect due to confidence in the profession
and on the other hand the ultimate interest of the community
in justice being done.
Disclosure
of sources also inhibits official/private leaks. As have
noted in discussing official secrets legislation and practice
the UK government has on occasion prosecuted officials
for unauthorised disclosure of information. Sarah Tisdall
for example received a six-month jail sentence in 1983
after the Guardian disclosed that she was its
source, providing documents from the office of Foreign
Secretary Michael Heseltine about stationing of US cruise
missiles.
USA
US courts have had an uneven record in recognition of
professional privilege, with acceptance in some fora and
jailing of individuals for contempt by other courts.
next page
(confessional privilege)
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