Doctor-patient privilege.
Doctor-patient privilege, while it does not exist at common law, has a significant and lengthy history under Australian law. It currently exists under differing statutory formulations in Victoria, Tasmania and the Northern Territory. Whether it should continue to have a place in Australia's evidence law was a significant issue canvassed by the Australian Law Reform Commission's reports on Evidence during the 1980s. The privilege is controversial but, for pragmatic, strategic reasons, relatively rarely availed of--for fear of adverse inferences being drawn from its invocation. In addition, there are many circumstances in which it has been found to have been waived by necessary disclosure by plaintiffs in both personal injury and medical negligence litigation. This editorial examines a recent decision of Judd J of the Victorian Supreme Court in Elliott v Tippett (2008) 20 VR 195; [2008] VSC 175 in which the plaintiff was not permitted to invoke the privilege. It argues that, although the aspiration of protecting the confidentiality of doctor-patient communications deserves support, there is little to be said in favour of retention of the statutory forms of the privilege currently in force in Australia.
Freckelton
Ian
I
D001315:Australia; D003142:Communication; D003219:Confidentiality / Q000331:legislation & jurisprudence*; D006801:Humans; D010817:Physician-Patient Relations