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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 we
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.
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