SCR No 2 of 1984; Re Constitution S49 as read with S19 Evidence Act (Ch 48) and S11 Medical Registration Act 1983 [1985] PGSC 19; [1985] PNGLR 247 (27 August 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 247 - SCR No 2 of 1984; Re Constitution S49 as read with S19 Evidence Act (Ch48) and S11 Medical Registration Act 1983 

[1985] PNGLR 247

SC292

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 2 OF 1984

IN THE MATTER OF A SPECIAL REFERENCE UNDER S 15 OF THE SUPREME COURT ACT

AND IN THE MATTER OF S 49 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA AS READ WITH S 19 OF THE EVIDENCE ACT (CH NO 48) AND S 11 OF THE MEDICAL REGISTRATION ACT 1983

Waigani

Pratt Amet Woods JJ

31 October 1984

27 August 1985

EVIDENCE - Facts excluded from proof - Medical privilege - Extent of - Vests in patient - Covers registered medical practitioner or proven agent - Must be for purpose of obtaining medical treatment - Hospital staff normally included - Evidence Act (Ch No 48), s 19 - Medical Registration Act 1983, s 11.

EVIDENCE - Facts excluded from proof - Medical privilege - Relationship to right to privacy - Where patient commences legal proceedings connected with communication - No privilege arising under Constitution, s 49.

MEDICINE - Medical practitioners - Medical privilege - Extent of - Where applicable to hospital staff - Evidence Act (Ch No 48), s 19 - Medical Registration Act 1983, s 11.

HUMAN RIGHTS - Right to privacy - Relationship to medical privilege - Constitution, s 49.

The Evidence Act, s 19, provides that a medical practitioner must not, without the consent of his patient, divulge in any legal proceedings a communication made to him in his professional capacity by a patient if it was necessary to enable him to prescribe or act for the patient.

The Interpretation Act (Ch No 2), s 3, defines “medical practitioner” as “a person registered, provisionally registered or temporarily registered as a medical practitioner under the Medical Services Act”.

The Medical Services Act (Ch No 92) has now been repealed and replaced by the Medical Registration Act 1983, with provision for the register of medical practitioners under the repealed Act to be the relevant register under the new Act.

On a reference of questions of law arising out of the objection to the admissibility of documents obtained from a Maternal Child Health Clinic in proceedings seeking maintenance for an illegitimate child:

Held

N1>(1)      The right of privilege between a medical practitioner and a patient under the Evidence Act, s 19, is restricted to information passing between a patient and a medical practitioner registered under the Medical Registration Act 1983, s 11, and all persons specifically or impliedly delegated by such practitioner to obtain information from such patient for the purpose of giving medical help or treatment or advice, or to enable the medical practitioner to prescribe or act either by himself or under his ultimate supervision.

N1>(2)      Where a patient has instituted legal proceedings involving an illness or disease for which medical help or treatment or advice has been sought, subject to the Evidence Act, the patient cannot rely upon the right to reasonable privacy in respect of private and family life and communications with other people, protected by the Constitution, s 49, in respect of information given to a nurse, nursing aide or any other employee of a medical hospital, aid-poste or other establishment open to the public or a section of the public for the purpose of giving medical help or treatment or advice.

Cases Cited

Alex, John v Martin Golu [1983] PNGLR 117.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362.

D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171; [1977] 2 WLR 201; 1 All ER 589.

Doa Kerua v The Independent State of Papua New Guinea [1981] PNGLR 357.

Hare v Riley [1974] VicRp 68; [1974] VR 577.

Kuruma v The Queen [1955] AC 197.

National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1909) 10 CLR 1.

R v Hay [1860] EngR 187; (1860) 2 F & F 4; 175 ER 933.

Wentworth v Lloyd [1864] EngR 492; (1864) 10 HLC 589; 11 ER 1154.

Reservation of Questions of Law

These were two references to the Supreme Court arising out of an appeal from the Magistrate’s Court in respect of proceedings for maintenance of an illegitimate child.

Counsel

T Doherty, for the affirmative.

N Kirriwom, for the negative.

Cur adv vult

27 August 1985

PRATT J: The Court has before it two references, one under the Supreme Court Act (Ch No 37), s 15, concerning a section in the Evidence Act (Ch No 48), and a further reference, which I take to be impliedly under the Constitution, s 19, because it requires interpretation of the Constitution, s 49, as well as a statement of the relationship and application of that section to the Evidence Act, s 19, and the Medical Registration Act No 23 of 1980, s 11.

The reference arises from an appeal from the Magistrate’s Court to the National Court in which application was made before the learned judge to allow in fresh evidence in the form of ante-natal records held by the Angau Memorial Hospital. One must assume that the records had something to do with the birth of a child to Miss Y, as she was claiming maintenance from a young man S for support of her illegitimate child. The lower court had found S to be the father. Following this judgment S obtained legal assistance from the Public Solicitor’s Office in Lae, who wrote to the sister-in-charge of the Maternal Child Health Clinic attached to the Angau Memorial Hospital requesting a photostat copy of the ante-natal record of Miss Y. In response it is said the sister-in-charge furnished the Public Solicitor’s Office with a copy of the record.

It is clear that the sister-in-charge was quite wrong to have given over to a stranger material which concerned the personal affairs of Miss Y. I have no doubt the sister believed she was acting properly and may even have felt obliged to do as she did because of the production of an official letter from the Public Solicitor’s Office — that is a letter from “someone to do with the law”. Because of this tendency in Papua New Guinea for people to confuse the functions of the public solicitor and the public prosecutor, of lawyers and the police, I would suggest to the public solicitor that he seriously consider instructing all his officers to refrain from making such requests in the future. Neither his client nor his office was entitled to the information without the consent of Miss Y. Indeed the hospital may have left itself open to a civil action quite apart from any questions of medical privilege. The proper procedure was obviously for the documentation to be produced before a court under a subpoena, following service on the appropriate health officer. In this way it would be placed in the custody of the court, and any arguments as to the correctness or otherwise of one party or the other having access to the documents could be determined by the court. I have no doubt there have been standing instructions by the Department of Health to this effect for many years, and I strongly suggest that they be dusted off and recirculated to all hospitals, clinics and aid-postes.

On the hearing of the application for receipt of fresh evidence before the appeal judge, counsel for Miss Y objected, inter alia, on the basis that the evidence was privileged and could not be adduced without her client’s consent. Reliance was sought to be placed on the Evidence Act, s 19, and brings me to the second matter of reference stated in the following terms:

Reference 1(B)

N2>“1(B)   Is the right of privilege between medical practitioner and patient provided for in Section 19 of the Evidence Act, Chapter 48 restricted to only informations between a medical practitioner registered under Section 11 of the Medical Registration Act, 1983 and his patient or should the right of privilege between medical practitioner and patient provided for in Section 14 (sic) of the Evidence Act, Chapter 48 includes nurse, nursing aide, or other employees of a Medical Hospital, Aide Posts [sic] or other establishment for the purposes of giving medical help or treatment or advice.” [The reference to s 14 of the Evidence Act is clearly a mistyping and should refer to s 19.]

It can be seen therefore that counsel for the complainant fairly and squarely invokes one of the areas of privilege existing under the statute law assuming certain conditions are met. It is very important to bear in mind that if a witness or party to proceedings falls within the area covered by the privilege then no adverse inference can be drawn from the fact that such privilege has been claimed: see Cross on Evidence (2nd Aust ed, 1979), par 11.5 and Wentworth v Lloyd [1864] EngR 492; (1864) 10 HLC 589 at 590-592; [1864] EngR 492; 11 ER 1154 at 1155). A second basic principle is that the privilege is that of the patient, not the doctor. The patient may abandon the privilege at any time.

So far as it is relevant, the Evidence Act, s 19, reads as follows:

N2>“19.    Communications to clergymen and medical practitioners.

...

(2)      A medical practitioner must not, without the consent of his patient, divulge in any civil legal proceedings (unless the sanity of the patient is the matter in dispute) a communication made to him, in his professional capacity, by the patient, if it was necessary to enable him to prescribe or act for the patient.

(3)      Nothing in this section protects a communication made for a criminal purpose, or prejudices the right to give in evidence a statement or representation made to or by a medical practitioner in or about the effecting by a person of insurance on the life of himself or any other person.”

It is rather a pity that we have not been apprised of the exact purpose behind calling for the documentation. Clearly, its content was known to the counsel for the male defendant and was of some relevance, in his view, to the case which the complainant had so far successfully brought against him. If the documentation was called merely to prove that the child was born to Miss Y at the hospital on a particular date, that would certainly not come within medical privilege under s 19. I completely agree with counsel for the negative case that proof of such fact has nothing to do with what may or may not have passed between Miss Y and her medical practitioner. There was no communication which was sought to be proved be it from Miss Y to her doctor or from the doctor to Miss Y.

In Wigmore on Evidence (McNaughton Rev 1961), vol VIII, par 2384, at 846, we found the following which I adopt:

“But it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated.”

Whether such documentation would of itself have been sufficient proof of the actual birth and whether it would fall within the terms of the Evidence Act, s 30, concerning production and use of “business” records, are matters which do not require examination in this reference. The position is somewhat similar to that which arose in R v Hay [1860] EngR 187; (1860) 2 F & F 4; 175 ER 933, where the person charged with robbery had earlier made confession to his Catholic priest. The priest was subsequently approached by a police officer who requested of him, as a result of information which had come into his possession, production of the stolen watch. This the priest handed over and he was asked in court questions as to who handed him the watch and where and when. It was pointed out by the learned trial judge that he was not being “asked at present to disclose anything stated to you in the confessional; you are asked a simple fact — from whom did you receive that watch which you gave to the policeman”. However, the priest replied that to do so would implicate the person who had made confession to him and that would be a breach of “the laws of the church as well as natural laws”. Subsequently, the priest was committed for contempt of court for refusing to answer the question. The situation is somewhat reminiscent of the occasions where the location of an object is mentioned in a confession which is subsequently rejected yet evidence may still be adduced as to being shown the spot by the accused though not of what the accused said: see Kuruma v The Queen [1955] AC 197 and Phipson on Evidence (12th ed, 1976) par 830, but see Constitutional Reference No 1 of 1977 [1977] PNGLR 362.

On the other hand, if other matters were sought to be proved by production of the ante-natal records, it is difficult to see upon what basis such material could be tendered. For example, if there were certain statements made by Miss Y to a Health Department Officer and recorded by him or her, then production of the document would not have overcome the requirement for original evidence. If Miss Y herself were being cross-examined, however, then the existence of the document in the hands of the cross-examiner may be of some use to prove a prior inconsistent statement if it did not relate to matters necessarily disclosed for the purpose of her medical treatment. One must not lose sight of the fact that the privilege extends only to those statements which a patient makes to the medical practitioner to enable such practitioner “to prescribe or act for the patient”. No doubt the courts are entitled to give this a fairly liberal interpretation but in view of the absence of any material before this Court it is impossible for me to make anything other than a simple generalisation.

Reference has been made to the National Court decision of Doa Kerua v The Independent State of Papua New Guinea [1981] PNGLR 357. I do not think however that that case touches upon the issues before this Court. The issue there was the production of certain medical records to prove that prescribed medication had either been given or withheld from a person who was a patient at the hospital in which the plaintiff was being treated and whose actions it was found led to the fire which was the ultimate cause of the plaintiff’s further injuries. Although the matter of medical privilege was referred to by the trial judge it was certainly only in a most peripheral fashion, as the problem centered around the admissibility and use of the documents under the Evidence Act, s 30.

The real question for resolution by this Court however, is the width of meaning to be applied to the term “medical practitioner” as used in the Evidence Act, s 19. I cannot agree with counsel for the affirmative that this Court has the flexibility which she claims is open to it. I do not think it avails us much purpose to go to the ordinary language or to the common law, though I suspect that one may well reach the same result, for a definition of medical practitioner is found in the Interpretation Act (Ch No 2), s 3. Needless to say, no definition can be found either in the superseded Medical Services Act (Ch No 92) or the present Medical Registration Act which came into operation on 13 January 1983. This Act repealed the Medical Services Act and I can only assume from the submissions put forward by counsel that the new Act was in operation at all the relevant times in the case before us. Even if this were not so, what I now set down would be equally applicable in the case of the superseded Medical Services Act. I cannot find any assistance in the very brief terms of the Public Hospitals Act (Ch No 232), although a chain of command is established under s 3 and s 4 which may have some relevance to what I will say about the question of agency.

Section 3 of the Interpretation Act reads as follows:

“‘Medical Practitioner’ means a person registered, provisionally registered or temporarily registered as a medical practitioner under the Medical Services Act ...”

I do not consider there is any merit in the contention that the definition has now become meaningless because of the repeal of the Medical Services Act. Commonsense indicates that if a person is registered under the previous Medical Services Act and is now registered under the replacement Act, then such a person will be a medical practitioner for the purposes of any other Act in which that term appears. Quite apart from commonsense however, the new Medical Registration Act, s 131, says that the register kept under the old Act is deemed to be the relevant register under the new Act. Further, under s 132 a person who had been registered under the repealed Act is deemed to be now registered under the new Act. Similarly, it is clear from s 132 that those categories of officer which existed under the old Act are continued under the new Act and more particularly those registered as medical practitioners, dental practitioners, members of Associated Health Services and nurses, and nurse aides, continued to be registered under the replacing Act.

In my view, a “medical practitioner” is a person registered as such under the Medical Registration Act. I appreciate Miss Doherty was at some pains to impress upon the Court the fact that there was some sort of difference between the situation pertaining to patients attending a public hospital or clinic and those attending a private doctor. I could not appreciate at the time exactly what these differences were in so far as they had a legal consequence or what legal implications follow from such differences and I must admit that I am still mystified. It seems clear enough that the court cannot make one rule in relation to private patients and another rule in relation to public patients. The court must rule in relation to all citizens one way or the other. I do agree, however, that there may be some additional difficulties of procedure and especially of proof in those cases where it is sought to bring a person who attends a public health facility within the ambit of the privilege but that is a difficulty for the lawyer rather than the client. The submission that more patients are attended to by health extension officers and registered nurses (that is, paramedicals), than are seen by doctors in Papua New Guinea may be true, but I am not prepared to accept that such is a fact on a mere assertion from the bar table. Nevertheless, I am mindful of the likelihood of such a situation being the case. Once again, however, I do not believe this can affect the court’s approach to the matter of legal interpretation, especially where such matter is covered by a definition contained in an Act of Parliament.

Of course like any other principal, a medical practitioner may well have to operate by delegating his authority — that is through agents. This is not specifically stated but is clearly inferred in Wigmore (supra) par 2286 at 535. The learned author, in dealing with the positions of stenographers and confidential clerks, made the following comment about legislation introduced in Iowa which extends the privilege specifically in the case of an attorney or physician to that of a stenographer or confidential clerk:

“Note that the statute probably grants no privilege not already included within the attorney-client or physician-patient privileges.”

In her submission, Miss Doherty maintains that the term “medical practitioner” has been extended by Norris J in the case Hare v Riley [1974] VicRp 68; [1974] VR 577 at 582 to cover paramedicals. There is some support for such a submission by the learned author of Cross on Evidence (2nd Aust ed, 1979) where it is stated at 283 that his Honour extended the statutory privilege “to persons performing paramedical services”. I do not believe that his Honour did in fact make such extension, though I appreciate that the inference is certainly open. What his Honour did say was where information came into the possession of a medical practitioner, such information concerning his patient and the treatment which had been given to the patient together presumably with certain information from the patient and the source of such information was paramedical, for example, physiotherapist, then that information in the possession of the medical practitioner should be treated as privileged. I would most respectfully agree with such a proposition for it seems fairly basic to me that where the patient could pass information directly to the doctor and thereby obtain the privilege such information does not lose the character of “privileged” merely because the doctor obtains it through an agent of the patient and least of all where that agent carries out certain medication or treatment the nature of which is likewise transmitted to the practitioner. The intermediary may also be an agent of the doctor. It depends on the facts.

If one may turn now to perhaps the most common practical feature in both the public and private sector, namely, the fact that information is given at the time of admission either to the doctor’s receptionist or in the case of a public hospital, to a reception clerk. In the latter case no doubt the information will be more extensive than that required by the receptionist. A certain degree of initial culling out must be done at a public hospital. In order to do so certain additional information is undoubtedly required. In so doing however I would imagine that ultimate proof of delegation from the medical officer in charge of the hospital down to the admission clerk could be proved, if not as easily as it could be with a private doctor and receptionist, at least as conclusively. If the court were satisfied that such delegation did exist and that the information was given by the patient to the admission clerk or indeed a sister-in-charge or nursing sister for example, so that the medical officer or such other person or persons as are delegated by him, may prescribe or act for the patient, then it is clear such information comes within s 19 of the Act. Likewise, in the absence of such proof of delegation either explicit or implicit, then it is information given only to a person registered as a medical practitioner which can be granted the privilege under the Act.

ANSWER

Returning now to the question posed by the referring judge. My answer would be as follows: the right of privilege between a medical practitioner and a patient under the Evidence Act, s 19, is restricted to information passing between a patient and a medical practitioner registered under the Medical Registration Act, s 11, and all persons specifically or impliedly delegated by such practitioner to obtain information from such patient for the purpose of giving medical help or treatment or advice, either by him or under his ultimate supervision.

I now pass to the second matter of reference which is cast in the following terms:

Reference 1(A)

N2>“1(A)   Is information given by a patient whether in-patient or out-patient to a nurse, nursing aide or any other employee of a medical hospital, aide post [sic] or other establishment open to the public or section of the public for the purpose of giving medical help or treatment or advice protected by the right to reasonable privacy in respect of private and family life and communications with other people in Section 49 of the Constitution of the Independent State of Papua New Guinea.”

In assisting the Court to interpret the Constitution, s 49, counsel for the affirmative has drawn our attention to a number of extracts of cases and material concerning the European Convention of Human Rights, the International Convention on Civil and Political Rights and the Universal Declaration of Human Rights, as well as some instructive authorities in the European Human Rights Reports. The general thrust of counsel’s submission here is to the effect that disclosure of the information which Miss Y confided to the health officer at the Maternal and Child Welfare Clinic concerning her pregnancy was an invasion of privacy.

The Constitution, s 49, headed “Right to Privacy” reads as follows:

“Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).”

We are not concerned in this case with any Act passed under the provisions of s 38. It was of course part of counsel’s case that if the Evidence Act, s 19, was restricted to information given to a medical practitioner strictly so called, and not to any other persons who have health skills but less qualifications than that of the registered medical practitioner, then any communication by a patient to such person would come within the ambit of s 49 as being a communication of a private nature between persons and therefore should be protected by a court utilising the enforcement provisions of the Constitution, s 57. Interestingly enough on this aspect there was no evidence before us to indicate that a Magistrate’s Court is one of the “other courts prescribed for the purpose by an Act of Parliament” referred to in s 53 and consequently, it seems to me that the only place in which such a claim for enforcement could be made would be in a Supreme Court or National Court. The matter was referred to specifically by Kapi Dep CJ in John Alex v Martin Golu [1983] PNGLR 117. Unfortunately, this case was not argued before us and I do not wish anything which I say now to be taken either as an acceptance or rejection of that decision. I have considerable reservations about agreeing to a course which results in an interruption and delay to court proceedings and would appreciate hearing full argument on the specific issue before coming to a decision as a judge of the Supreme Court.

Counsel has drawn our attention to the fact that a phrase appears in the Constitution which was not incorporated in the Constitutional Planning Committee Report and Draft. The Committee emphasised that the right is essentially linked with freedom from arbitrary search and entry. I agree with Woods J herein that the original draft of the Constitution had privacy of the family as the major object in mind. The words laid by the Committee were:

“Every person shall be entitled to respect for his private and family life, his home, his communications by telephone and other electrical or electronic means, and his correspondence.” (Report 5/1/12)

As Miss Doherty has pointed out however, the section which eventually emerged from the Constituent Assembly was in many ways quite different to the proposal put forward by the Constitutional Planning Committee. The emphasis on mechanical and electrical communication was deleted, the ambit from family life was increased to outside the family, and perhaps most importantly, from the point of view of the problem before this Court, the word “reasonable” was introduced as an adjective governing the noun “privacy”.

I have already indicated that we are at some disadvantage in this reference because we have been supplied with only a limited number of facts. It is important to bear this in mind when examining the application of the Constitution, s 49, to the present case — that is, a paternity case commenced by the person who is claiming support for her illegitimate child from a defendant who is apparently disputing that issue. The proceedings are being brought by the complainant for her own advantage as well as that of the child. The orders which can be made under the Child Welfare Act (Ch No 276) can be quite onerous and may lead to prison in the event of nonpayment. It is said, however, that although the complainant may have said certain things to certain people which the other party to the dispute believes are relevant to the determination of the issue, such statements cannot be put to the complainant because of medical privilege. Depending of course on what those statements are and how they are handled by counsel, the outcome of the case may be greatly affected. If what had been said by the complainant was inconsistent with what had been said before the trial magistrate, the complainant of course would be entitled to claim privilege if she could bring her case under the Evidence Act, s 19. No adverse inference could be drawn by the magistrate as a result of her refusal to answer any question directed to what she may have said on an earlier occasion to her medical adviser. Of course, we in this Court, do not know what was contained in the record. I think it is a case where, had the court realised the way in which the reference was proceeding, we should have insisted on being in the same position as everyone else who is involved in this case.

It is quite clear when reading Professor Wigmore’s treatise on medical privilege that he has little time for the doctrine. To my mind, the area of medical privilege is quite different from that of legal privilege. A person often goes to a lawyer in the sorry awareness that his case may eventually end up in court. Certainly half the community who end up as defendants are not willing parties nor would I imagine are any of those who end up on the wrong end of a criminal charge. Consequently, what is said between a person and his lawyer is very much directed to what will take place in court. In those instances, where communications have taken place which are not in contemplation of legal proceedings, they may or may not be subject to privilege according to circumstances. When a person goes to his doctor, in the vast majority of cases one would think, the question of court proceedings would be farthest from one’s mind, and the likelihood of the subject matter of the consultation being connected with legal proceedings quite remote. In some cases, however, it is quite clear from the start that the patient will be seeking to sheet home responsibility to a particular defendant in order to recover damages, sometimes falsely, many times quite properly. What Professor Wigmore has to say at p 829 (par 2380a), vol VIII of his treatise (1961 edition) is as follows:

“The questions must be asked: Does the communication originate in a confidence? Is the inviolability of that confidence vital to the due attainment of the purposes of the relation of physician and patient? Is the relation one that should be fostered? Is the expected injury to the relation, through disclosure, greater than the expected benefit to justice? A negative answer to any one of these questions would leave the privilege without support. In truth, all of them, except the third, may just be answered in the negative:

N2>(1)      In only a few instances, out of the thousands daily occurring, is the fact communicated to a physician confidential in any real sense. Barring the facts of venereal disease and criminal abortion, there is hardly a fact in the categories of medicine in which the patient himself attempts to preserve any real secrecy. Most of one’s ailments are immediately disclosed and discussed. The few that are not openly visible are at least explained to intimates. No statistical reckoning is needed to prove this. These facts are well enough known.”

It seems to me however that a communication between say, a patient and a nurse, as to symptoms and so forth, may well come within the right to privacy covered by the Constitution, s 49. Even in an ordinary illness there may be good reasons why one wishes to keep the fact that one is ill or the symptoms or the effects of illness a private matter. Consequently, one would expect to have those matters kept private. On the other hand, however, if the patient chooses to take the matter to law, that is, to make an issue in a court of the very illness or cause of the condition which is the substance of the communication between the patient and her doctor or nurse, I cannot, in my view find it “reasonable” that one should expect that the patient is able to keep that information from the tribunal which is established by law to determine the very issues which she brings before it. It seems to me, if this were otherwise, the patient would be able to deny access by the court to what could be, in some circumstances, a vital issue, bearing on the outcome of the case. To have such an effect is not something which I would readily agree as the end result of using one of the sections of our Constitution. In short, going to law, not only deliberately brings what was a private matter out into the public domain but makes it most unreasonable that one should expect it kept private, when the very cause of that illness, or condition, depending on the case, is the very essence of the dispute. The situation must be even more so in a case such as the present, where the proceedings are for paternity and should therefore be held in camera. The only persons to be apprised of the medical information are the party to be affected by the issue and the magistrate who is to determine the outcome of the issue. I should hardly think that this in ordinary terms could be called a breach of privacy or that in being asked to divulge the information, the party could insist that he or she was entitled to continue the privacy, for such continuance would seem to me no longer reasonable in view of the course of action which that party has chosen to take.

There is one proviso, however, to which the comments I make above are subject, and that is this: by virtue of the Evidence Act, s 19(2), Parliament has passed a law which states that any communication to a medical practitioner shall not be entitled to be questioned in court. Consequently, one must hold that such restriction is reasonable to the extent covered by s 19 of the Act. The conclusion must follow that where the communication is made to some agent of the medical practitioner as earlier outlined by me then such communication, and the privacy thereof, is also reasonable.

The end result of this, therefore, is that whilst by itself the Constitution, s 49, does not give any added assistance to the case for the affirmative, the Evidence Act, s 19, assists an interpretation of s 49 in so far as it gives some indication of what may be “reasonably” private and “not reasonably” private. In summary, the privilege which a patient must claim comes primarily from s 19 which indeed gives more to a litigant in the area of medical privilege than the Constitution, s 49. It follows from my dissertation that a patient cannot rely on the Constitution, s 49, where the patient has himself instituted the legal proceedings in respect of the injury or illness suffered by him. He must rely entirely on the Evidence Act, for without the existence of that Act it is in my view that reliance on the privacy mentioned in the Constitution could not be reasonable. It would seem otherwise however where the patient has not instituted the proceedings. In the context of the present reference therefore, the answer is:

ANSWER

Where the patient has instituted legal proceedings involving the illness or disease for which medical help or treatment or advice has been sought, the answer is “No”.

AMET J: I have read the draft judgment of Pratt J and agree with the reasoning and the answers set forth therein. I have nothing to add.

WOODS J: This is a reference following the admission of certain hospital records by the appeal judge in an appeal from the District Court. The original proceedings were brought under the Child Welfare Act (Ch No 276) seeking payment of maintenance and confinement expenses from the alleged father.

The questions reserved are as follows:

N2>“1(A)   Is information given by a patient whether in-patient or out-patient to a nurse, nursing aide or any other employee of a medical hospital, aide post [sic] or other establishment open to the public or section of the public for the purpose giving medical help or treatment or advice protected by the right to reasonable privacy in respect of private and family life and communications with other people in Section 49 of the Constitution of the Independent State of Papua New Guinea.

N2>1(B)    Is the right of privilege between medical practitioner and patient provided for in Section 19 of the Evidence Act, Chapter 48 restricted to only informations between a medical practitioner registered under Section 11 of the Medical Registration Act, 1983 and his patient or should the right of privilege between medical practitioner and patient provided for in Section 14 of the Evidence Act, Chapter 48 includes nurse, nursing aide, or other employees of a Medical Hospital, Aide Posts [sic] or other establishment for the purpose of giving medical help or treatment or advice.”

The Constitution, s 49, states:

“Right to Privacy.

Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).”

To see the background of this provision I refer to the Report of the Constitutional Planning Committee 1974, Pt 1, Page 5/1/13, pars 73 and 74 and note that par 73 starts off:

“Another new right which we recommend should be included in our Constitutional Declaration of Fundamental Rights and Freedoms is the right to privacy in respect of one’s family life, home, communication by telephone and correspondence. This right is of course, closely linked with the right to freedom from arbitrary search and entry, and should be seen as complementary to it.”

The Committee went to note their concern at the implication of telephone tapping.

My understanding of this right is that it is very much a right to privacy and privilege in respect of one’s family life and home. It rides on the concept that a man’s home is his castle inviolable to all whether individuals or the State; a man is free to do and say what he wants in his own home.

However once he leaves his home and talks to other people he must bear the consequences. I cannot envisage that the right to privacy whether embodied in our Constitution or in International Conventions on Human Rights was meant to extend to any communication I may make anywhere. The emphasis on all such Declarations or Conventions seems to be on family life and home.

The House of Lords said per curiam in the case of D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1977] 1 All ER 589 at 590:

“The fact that information has been communicated by one person to another in confidence is not of itself a sufficient ground for protecting from disclosure in a court of law the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue on which it is adjudicating.”

In that case they found on a higher principle of public policy that the Society was entitled to withhold certain information.

In the case before us here we are unable to widen the reference as to whether public policy applies because we do not know the information sought to be protected. But what we do know is that this is a paternity case of a person claiming support for her illegitimate child from a defendant who is apparently disputing that issue.

One can surmise that the information which this case is trying to protect is information which may be very relevant to the issue before the court. It is not as if the complainant has been brought to court by someone else and is being faced with disclosures made in an atmosphere of trust where no legal action was contemplated. The complainant herself is seeking privilege for information apparently given by her during the condition on which this whole case is based.

The complainant is asking the court to decide the issue in her favour while denying the court vital information on that very issue. Further it is not as if the information is being divulged to the world at large; this is a paternity suit and therefore can be held in camera so the information need only be divulged to the parties to the issue and the magistrate.

In so far as this case involves information given in a medical situation, there is legislative provision dealing with this subject. This is the subject of question 2.

Therefore in answer to question 1(A) and subject to the Evidence Act (Ch No 48), a patient cannot rely on the Constitution, s 49, where the patient has herself instituted the legal proceedings in respect of the illness or condition suffered by her. In the circumstances of this case, therefore the answer is “No”.

The Evidence Act, s 19, quite clearly grants privilege to communication made to a medical practitioner in his professional capacity by a patient if it was necessary to enable him to prescribe or act for the patient.

The common law position was that no privilege attaches to communications between doctor and patient.

The Parliament has clearly indicated its intention to protect from disclosure in court not all information which may be required by a doctor in attending his patient but that only which is necessary to enable him to prescribe or act. It plainly protects information which is relevant to health. Such information could be acquired by the doctor in attending the patient, both from the latter’s personal communication or those of persons acting on his behalf or from the doctor’s own observation; see National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1909) 10 CLR 1 at 27 and see Hare v Riley [1974] VicRp 68; [1974] VR 577 at 582:

“There are dicta in the authorities to the effect that information acquired by the doctor from other persons may fall within the expression ‘information acquired while attending the patient’.”

Thus information acquired for the doctor by paramedical services or assistants could be included.

I find that s 19 is restricted to information acquired by a medical practitioner as stated, and a medical practitioner must mean a medical practitioner registered as such under the appropriate legislation. Of course it could be information acquired by the medical practitioner through the duties of other staff at a hospital or in the services of the medical practitioner concerned.

And the information itself must be information which was necessary to enable the medical practitioner to prescribe or act, so presumably it must be information which is relevant to the treatment required by the patient not merely information about the patient or about the patient’s condition.

In the case before us we do not know what actually was the information that gave rise to the question referred to this Court. If the information was related to some embarrassing condition suffered by a patient, and if it was not protected by s 19 as being necessary for the treatment of the patient, it is still open to courts to prevent unwarranted embarrassment to suppress publication of facts.

On the other hand if it was a statement relating to the paternity of a child it is unlikely that such information was necessary for the treatment of the patient and further may be necessary to assist the court to ascertain facts which are relevant to an issue on which it is adjudicating.

I would answer question 1(B) as follows:

The right to privilege between medical practitioner and patient provided for in the Evidence Act, s 19, is restricted to information acquired by a registered medical practitioner whether directly by himself or through staff acting for him and is information which is relevant to the treatment required to enable the medical practitioner to prescribe or act.

Questions answered accordingly

Lawyer for the affirmative: T Doherty.

Lawyer for the negative: N Kirriwom, Public Solicitor.