The Gazette 1964/67

did not suit the public interest, that it was English judge made law and not binding on our Courts and that judges in Ireland were free to apply a better rule and to recognise the right of a doctor to refuse to disclose what his patient had said to him unless the patient consented to this. As regards the privileges of the legal profession it was emphasised that this was primarily the privilege of the client. All arguments in favour of maintaining this privilege were even more compelling as regards the patient in the case of the medical profession. Other cases of privilege mentioned were those in which a witness gave evidence and need not answer questions incriminating himself and State privilege. Until recently as a result of a misconstruction of the House of Lords decision in Duncan v. Cammell-Laird (1942) this appeared to be absolute and had been somewhat modified by the famous judicial dicta of Lord Denning in the Grosvenor Hotel case, (1964) 3 All E.R. 354, where he pointed out that the English rule was followed neither in Scotland nor in the Commonwealth. As Harman L.J. said, p. 363 —" I seem to detect in the official mind a desire to push ever forward the frontiers of secrecy ". The position of priests and clergymen still appears to be rather uncertain despite the decision of Mr. Justice Gavan-DufTy in Cook v. Carroll (1945). The jurisprudence of medical privilege in England was then examined and it was pointed out that from the Duchess of Kingston's case (1776) to that of Gardner v. Gardner (1920) there was a consistent rule which compelled doctors to answer all questions put to them. While the privilege of doctors should be recognised this privilege should last only as long as the patient was alive. Subject to their not being unconstitutional, certain matters must be disclosed if the Oireachtas decides this should be done—i.e., under the Health Acts. In a sensational case in Australia it was apparently held that a doctor is liable to be sued for breach of secrecy if what he stated injured the reputation of his patient. The lecturer then discussed the difficult problem which arises when a doctor who is treating a patient becomes aware that a crime has been committed, such as attempted suicide or an illegal operation. In such cases the question was—should the doctor preserve secrecy ? The opinion of the British Medical Council was that in such cases the doctor should not disclose anything which was learned professionally. If, however, the offence was a felony, the doctor was guilty of misprision of felony. The recent decision of the House of Lords in Sykes v. Director of Public Prosecutions (1961) 3 All E.R. 33, established that a person who knowing that a felony had been committed, did not reveal it to the police was guilty of this offence but it was improbable that 54

OPPORTUNITIES At the request of the Department of External Affairs the Secretary attended a reception in honour of President Kaunda of Zambia at Iveagh House, Dublin, on Tuesday, z4th November, 1964. The Government of Zambia are desirous of recruiting solicitors and barristers from Ireland for positions as magistrates, administrative officers and law lecturers. Enquiries should be directed to the Secretary, Solicitors' Buildings, Four Courts, Dublin 7.

EXAMINATION DATES, 1965

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MEDICAL LEGAL SOCIETY The programme of lectures for 1965 arranged to date: 2ist January, 1965 : Lord McDermott, Lord Chief Justice of Northern Ireland. 25th February, 1965 : The Rt. Rev. Dr. Simms, Archbishop of Dublin, on " Conscience ". 25th March, 1965 : Mr. Scan MacBride, S.C., on " Human Rights ". The Hon. Mr. Justice Kenny, President, gave an inaugural address for the session 1964-65 to the members of the Medico-Legal Society in the Royal Hibernian Hotel on the 29th October, 1964, on the subject of " The Privilege of Doctors in the Law of Evidence ". He said that it was a basic principle in the law of evidence in Common Law countries that everyone could be compelled to come to court and to give oral evidence and generally to answer any question asked. The exceptions to this rule were the subject-matter of the doctrine of privilege. Although the relationship of doctor and patient is a very special one which required complete disclosure, there is, under the law of England, no medical privilege as such. Mr. Justice Kenny pointed out that the rule THE PRIVILEGE OF DOCTORS IN THE LAW OF EVIDENCE